RUCKER, J.
The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the “residency restriction statute” constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes.
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On April 4, 1997, Anthony W. Pollard was convicted of a sex-related offense for which he was apparently sentenced. [Footnote omitted.] On July 1, 2006, the residency restriction statute – Ind. Code § 35-42-4-11 – came into effect. That statute provides that a person convicted of certain sex-related crimes is classified as an “offender against children” and commits “sex offender residency offense,” a Class D felony, if the person knowingly or intentionally resides within 1,000 feet of school property, a youth program center, or a public park. [Footnote omitted.] On January 23, 2007, the State charged Pollard with violation of the residency restriction statute, and Pollard responded with a motion to dismiss contending the statute violated the ex post facto prohibition contained in Article I, section 24 of the Indiana Constitution. The parties presented the matter to the trial court based on stipulated facts as follows:
1. That the defendant, Anthony W. Pollard, has an ownership interest in the real estate located at 817 North Monroe Street, Hartford City, Indiana. Further, Anthony W. Pollard has had his ownership interest in the real estate for approximately the past 20 years.
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Although there is a rational connection to a non-punitive purpose – public safety and protection of children – the residency restriction statute applies equally to persons convicted for example of vicarious sexual gratification as a Class D felony in violation of Ind. Code § 35-42-4-5(a) as to persons convicted of rape as a Class A felony in violation of Ind. Code § 35-42-4-1(b). The statute does not consider the seriousness of the crime, the relationship between the victim and the offender, or an initial determination of the risk of re-offending. See, e.g., Weems v. Little Rock Police Dept., 453 F.3d 1010, 1017 (8th Cir. 2006) (noting “particularized risk assessment of sex offenders . . . increases the likelihood that the residency restriction is not excessive in relation to the rational purpose of minimizing the risk of sex crimes against minors”). Restricting the residence of offenders based on conduct that may have nothing to do with crimes against children, and without considering whether a particular offender is a danger to the general public, the statute exceeds its non-punitive purposes. We are persuaded this factor favors treating the effects of the statute as punitive when applied to Pollard.
In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect, only two factors – finding of scienter and advancing a non-punitive interest – point in favor of treating the effects of the Act as non-punitive. The remaining factors, particularly the factor of excessiveness, point in the other direction.
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
BOEHM, J., concurs in result and concurs in the opinion except as to Part B3, believing the absence of a scienter element for certain forms of child molesting is not significant in evaluating the punitive character of this statute.