Court Rules on Equal Protection Challenge to Louisiana Sex Offender Registration Requirement

U.S. District Judge Martin L. C. Feldman granted summary judgment to plaintiffs on March 29, 2012, in Doe v. Jindal, Civil Action No. 11-388 (E.D.La.), a case challenging the state's differential imposition of sex offender registration requirements in cases involving solicitation of sex for compensation.  Judge Feldman found that there was no rational basis for the state to require registration and all its impositions when people were convicted of Crime Against Nature by Solicitation but not when they were soliciting for Prostitution.

The lawsuit was brought on behalf of nine anonymous individuals who were convicted under the solicitation of crime against nature statute and required to register as sex offenders.  In addition to being listed in the publicly available registry, sex offenders are labelled as such on their driver's licenses, have to pay registration fees, and are disqualified from various kinds of public programs, benefits and employment.  They are required by law to disclose their offender status to neighbors, landlords, employers, schools, parks, community centers and churches, and their names, addresses and photographs appear on the internet.  The suit was filed by the Center for Constitutional Rights with the Stuart H. Smith Law clinic at Loyola Law School and attorney Andrea J. Ritchie.  The Juvenile Justice Project of Louisiana (BreakOUT!), Lambda Legal, National Center for Lesbian Rights and the Sylvia Rivera Law Project joined in an amicus brief in support of plaintiffs.

Louisiana has two separate criminal statutes that apply to soliciting sex for compensation.  The prostitution law which broadly covers all sexual solicitation for compensation is a misdemeanor statute, and those convicted are not required to register as sex offenders.  Then there is the archaic crime against nature statute, which dates from colonial times (1805, shortly after the Louisiana Purchase), one subsection of which makes it a felony to solicit somebody to engage in a crime against nature (oral or anal sex) for compensation.  Law enforcement officers have discretion to decide which statute to cite in a case involving oral or anal sex, and the CAN law is, argued the plaintiffs, disproportionately used against gays, transsexuals, and people of color.  Prior to recent amendments, first offenders under the CAN solicitation law were subjected to sex offender status and registration for eight years, repeat offenders for life.  Recent amendments equalized the treatment of first-offense CAN solicitation and prostitution, removing the sex offender punishment for the former, but repeat offenders of CAN solicitation are still subjected to sex offender registration status.  All of the plaintiffs in this case were convicted prior to the recent amendments, which were not retroactive, so first offenders among them are stuck on the registry even though their conduct would not have drawn such a penalty were it committed today.

In a prior ruling, Judge Feldman dismissed all the plaintiffs' claims except for their federal equal protection claim under the 14th Amendment.  In the March 29 ruling, he granted summary judgment to plaintiffs on the equal protection claim, and directed them to submit a proposed judgment within five days.

The essence of the case was determining whether the state had any rational basis for a criminal statutory scheme under which the imposition of sex offender status with its adverse consequences would depend on which of the two statutes was invoked in the particular case where they both covered identical conduct, the only difference being that the prostitution statute, which imposed no sex offender status, swept more broadly. 

"Plaintiffs draw the conclusion that the statutory classification drawn between individuals convicted of Crime Against Nature by Solicitation and those convicted of Prostitution is not rationally related to achieving any legitimate state interest," wrote Judge Feldman.  "The Court agrees." 

The plaintiffs relied heavily on the Supreme Court's decision in Eisenstadt v. Baird, 405 U.S. 438 (1972), in which that Court held that Massachusetts could not make it a crime to distribute contraceptives to unmarried people after the Court had previously ruled that a law banning distribution of contraceptives to married people was an unconstitutional violation of the constitutional right to privacy.  Plaintiffs argued that this supported their argument that "the State cannot have a legitimate interest in imposing a sanction on one group of people and not another when the 'evil, as perceived by the State, [is] identical.'"  Judge Feldman found that Eisenstadt supported this argument and "is binding here."

"The Court finds that the plaintiffs have demonstrated entitlement to judgment as a matter of law," he wrote. "First, the State has created two classifications of similarly (in fact, identical) situated individuals who are treated differently (only one class is subject to mandatory sex offender registration).  Second, the classification has no rational relation to any legitimate government objective: there is no legitimating rationale in the record to justify targeting only those convicted of Crime Against Nature by Solicitation for mandatory sex offender registration.  The defendants' arguments fail, as the similar ones did under Eisenstadt.  The very same public health and moral purposes apply to both statutes."

Feldman acknowledged that the plaintiffs were not claiming that they were innocent, and they were not asking the court to upset their convictions.  Their claim went entirely to the issue of differential punishment.  The court found irrelevant the state's argument that its conclusion was precluded under the Louisiana Supreme Court's 1995 decision, State v. Baxley, which rejected an equal protection challenge to the CAN statute on the argument that it was an anti-gay enactment.  In that case, the Louisiana Supreme Court pointed out that the CAN statute applied to all oral or anal sex, not just gay sex, and thus was neutral with respect to sexual orientation.  Judge Feldman found that ruling to be irrelevant to the federal constitutional question.  Even though the logical consequence of the two solicitation statutes is that prostitutes will always be labelled as sex offenders in same-sex situations but not necessarily in different-sex situations, that's not the point of the current challenge and, in any event, the Louisiana Supreme Court's equal protection analysis, made under the state constitution, was not binding on the federal court in deciding a 14th Amendment claim.

The state also tried to argue that "conviction is an imperfect indicator of the underlying charge and, because Crime Against Nature by Solicitation is a lesser offense to which other registrable offenses can be pleaded down to, it is possible that prosecutors pleaded down 'more heinous' solicitation charges (such as solicitation of persons under 17, human trafficking, and intentional exposure to the AIDS virus if the exposure occurred during the course of a commerial sex act)."  Feldman rejected this argument as "patent hypothetical speculation," asserting that "no suggestion exists in the record that the state legislature's purpose for requiring those convicted of Crime Against Nature by Solicitation to register as sex offenders was anchored to a legislative desire that prosecutors plead down other registrable offenses."

"The defendants fail to credibly serve up even one unique legitimating governmental interest that can rationally explain the registration requirement imposed on those convicted of Crime Against Nature by Solicitation," concluded the judge.  "The Court is left with no other conclusion but that the relationship between the classification is so shallow as to render the distinction wholly arbitrary."

Describing the circumstances that led to this litigation on its website, the Center for Constitutional Rights notes that CAN by Solicitation is the only offense requiring registration in Louisiana that includes "no element of force, coercion, lack of consent, use of a weapon, or the involvement of a minor."  As such, it seem incongruent with the purposes of sex offender registration.  However, CCR observes, it is certainly overused by law enforcement, as they found that almost 40 percent of registered sex offenders in Orleans Parish (New Orleans) were on the registry due to conviction under this statute, and 80% of them are African-Americans, indicating racial disparities in deciding which statute to apply.

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