dissenting.
Because I believe that ED 02-01 violates both Indiana law and the Constitution, I respectfully dissent from the majority opinion and vote to reverse the judgment of the trial court.
Indiana Code section 11-11-3-8 provides in pertinent part: °
'A confined person may receive visitors at reasonable times. The department may, for the purpose of maintaining the security of its facilities and programs, the safety of individuals, and administrative manageability, place reasonable restrictions on visits consistent with the following:
(1) Visits may be conducted in areas where a confined person and his visitors are not physically separated and that allow for as much informality and privacy as possible. ...-
(2) Any restrictions regarding visiting times, the number of visitors a person may receive on a particular occasion or during a designated period of time, 'or the duration of a particular visit must take into account the accessibility of the facility or program to the visiting pub-lie.... ~
(8) Any restrictions imposed on visitation under this section must be communicated to the confined person and be made accessible to the visiting public.
(4) The department may not impose restrictions on visitation that obstruct the availability of adequate legal representation....
At the time that this case was litigated in the trial court, Indiana Code section 11-11-3-9 provided that "a person may be prohibited from visiting a confined person, or the visit may be restricted to an extent greater than allowed under Section 8 of this chapter, if the department has reasonable grounds to believe that the visits would threaten the security of the facility or program or the safety of the individu- *112» als." This statute was amended, effective July 1, 2004, to read:
(a) A person may be prohibited from visiting a confined person, or the visit may be restricted to an extent greater than allowed under section 8 of this chapter, if the department has reasonable grounds to believe that the visit would threaten the security of the facility or program or the safety of individuals.
(b) The department may restrict any person less than eighteen (18) years of age from visiting an offender, if:
(1) the offender has been:
(A) convicted of a sex offense under IC 35-42-4; or
(B) adjudicated delinquent as a result of an act that would be considered a sex offense under IC 35-42-4 if committed by an adult; and
(2) the victim of the sex offense was less than eighteen (18) years of age at the time of the offense.
(c) If the department prohibits or restricts visitation between a confined person and another person under this seetion, it shall notify the confined person of that prohibition or restriction. The notice must be in writing and include the reason for the action, the name of the person who made the decision, and the fact that the action may be challenged through the grievance procedure. (d) The department shall establish written guidelines for implementing this seetion.
(Emphasis added). My reading of the plain language of the statute indicates that the General Assembly intended "prohibit" and "restrict" to mean two different things. Were this not the case, there would be no reason to use both words. By reading the statute to mean that "prohibit" and "restrict" are the same thing, the majority has nullified the meaning of one of the two words. To prohibit means, "To forbid (an action or thing) by or as by a command or statute; to interdict." Oxford English Dictionary online, at http:// www.oed.com (last visited May 19, 2005). To restrict means, "To confine (some person or thing) to or within certain limits; to limit or bound." Id.
It is apparent to me that ED-02-01 acts as a total prohibition to anyone who falls under the ambit of ED 02-01. Visitation with minors is forbidden for the duration of the VMR prisoners' confinement without any particularized showing that such visits would threaten security or the safety of individuals. But the General Assembly, through the amendment of Indiana Code section 11-11-3-9, has rejected the argument that the fact that an individual has been convicted of a sex offense against a minor automatically means that visitation will endanger the safety of individual minors. This conclusion is supported by the deposition of the State's own expert, Dr. Richard Lawlor, which indicates that cross-over behaviors are unlikely between different types of sex offenders, e.g., a pedophile would be unlikely to molest a more mature child, such as a teenager. Appellants' App. p. 96. Furthermore, any risk can be minimized by restricting visitation to non-contact visits. I would therefore find that ED 02-01 violates Indiana code section 11-11-8-8.
I further disagree with the majority's determination that ED 02-01 does not violate the Prisoners' First and Fourteenth Amendment rights. The DOC has listed four purposes for ED 02-01: (1) denying visitation will protect children from the possibility of abuse during visits; (2) denying visitation to VMR prisoners will assist in breaking the cycle of abuse because it will reduce the prisoners' ability to fantasize about children; (8) denying visitation will deny sex offenders the opportunity to *113groom children for future offenses; and (4) denying visitation will reduce trauma for the victims of abuse. Appellants' App. p. 12. 2
As to the fourth rationale, the prisoners rightly make no argument that they should be permitted to visit with the victims of their abuse. Moreover, the trial court found-and the evidence is uncontested-that denying visitation will not change a prisoner's ability to fantasize. Appellants' App. p. 13. This leaves us with the twin rationales of protecting children from abuse during visitation and protecting children from grooming during visitation. While I strongly agree that protecting children is a valid governmental interest, it is difficult to believe that the State is actually protecting children as the current visitation situation stands. VMR prisoners who are not otherwise restricted may visit with adults in the open visitation rooms. As the State notes, these rooms are "wild and crazy" places with many children "running around" and "a lot of activity." Appellants' App. p.-88. Thus, VMR prisoners have access to children for possible abuse, grooming, or fantasy whether or not those children are there to visit the VMR prisoner. Furthermore, as noted above, there is evidence that many VMR prisoners are not at risk of harming the vast majority of children. Pedophiles will rarely offend against post-pubescent children; perpetrators of incest will rarely commit offenses outside of the family. Appellants' App. p. 96. Moreover, the State's argument that it is concerned about the possibility of grooming in non-contact visitation is belied by the fact that VMR prisoners are allowed telephonic contact with minors. If grooming can be accomplished over a closed-circuit television, so too can it be done over the telephone. I would therefore find that there is no rational connection between the asserted governmental interests and the regulation.
Moreover, all of the facilities in which the prisoners are currently housed have areas for non-contact visitation that could be utilized by VMR prisoners without major disruption. The cost to allow this alternative method of visitation would therefore be de minimis, and disruption to the prison and the guards would be minimal.
The DOC asserts that the sereening process that the prisoners seek to identify and grant visitation to VMR offenders who pose no risk to children is unduly burdensome. Dr. Lawlor testified that the nature of pedophiles makes diagnosis difficult and burdensome, requiring a staff of "several thousand" and "many dozens of mental health professionals...." Appellants' App. p. 98. Nevertheless, the DOC already provides this type of service. The SOMM program, which is the DOC's general method for managing sex offenders, has three phases: Phase I is a 15-hour awareness program given to all adult male prisoners with a current conviction involving any sex offense, Phase II is a voluntary program that is offered to prisoners within three years of the termination of their commitment, and Phase III involves parole conditions imposed on sex offenders after their release. Appellants' App. p. 12. Although there are more than 1400 VMR prisoners within three years of their release, only 72 are in Phase II programming, and there are waitlists at every facility that offers Phase II. Appellants' App. p. 34, 45-46. At.oral argument, the State noted that it is working to expand the Phase II program. Although the cost of expansion may be more than de minimis, the framework already exists for evaluating and rehabilitating sex offenders.
The final Turner factor examines whether there are ready alternatives to the challenged regulation. As previously noted, non-contact visitation is a readily available *114alternative that would remove many or all of the State's concerns of children being at risk of molestation during visits. The cost will be de minimis because the non-contact areas already exist at the facilities. Furthermore, there is no evidence that child molestation has ever happened in non-contact visitation areas. Additionally, the DOC could provide evaluations of prisoners by making Phase II programming more available.
In sum, I would find that ED 02-01 violates Indiana law because it acts as a prohibition without any particularized showing that visits with minors would threaten security or the safety of individuals. I would also find that ED 02-01 unreasonably impinges on inmates' freedom of association because there is no rational connection between the asserted governmental interests and the regulation. Thus, I vote to reverse the judgment of the trial court.