The California Supreme Court ruled 5-2 on January 29, 2015, that the state’s sex offender registration law does not violate equal protection when it gives courts discretion whether to impose a registration requirement on adults who engage in vaginal intercourse with minors age 16 or 17, but mandates registration for other sexual acts involving minors of those ages. Johnson v. Department of Justice, 2015 WL 363184. The decision overruled a 2006 case, People v. Hofsheier, 37 Cal.4th 1185, in which the court had ruled that all adults who had sex with 16 or 17 year olds were similarly situated and that there was no rational basis for the differential treatment, so that judges should be able to exercise discretion about whether to require registration in all cases.
The dissent, by Justice Kathryn Werdegar with the concurrence of Justice Goodwin Liu, argued that the distinction had a homophobic origin and would disparately harm gay people. Justice Werdegar argued that the court’s departure from its general rule of not overruling recent decisions was not warranted in this case. The court’s opinion was written by Justice Marvin Baxter, who had dissented in 2008 when the court ruled that same-sex couples were entitled to marry and that sexual orientation is a suspect classification for purposes of equal protection under the California Constitution.
Justice Werdegar’s dissent sets out the background for the distinction in registration requirements, dating back to 1947, when the sex offender registration statute listed oral sex and sodomy with a minor as registerable offenses, but did not list sexual intercourse with a minor. (Sexual intercourse is defined for purposes of the statute as vaginal intercourse.) At the time, the statute required registration for all oral sex, even if it involved only consenting adults. Back then, the only lawful sex act in California was vaginal intercourse involving a married couple. Subsequent liberalization of the sex crimes laws led to passage of the Brown Act in 1975, which decriminalized consensual sex between adults, including gay sex. The legislature also gave the courts discretionary authority to order sex offender registration in cases involving vaginal intercourse between adults and minors, but retained mandatory registration for all other sex acts involving minors. One of the results of this change was that men who faced multiple charges including both oral and vaginal sex with a minor could plea bargain their cases down to avoid mandatory registration. This option was not available to gay men charged with sexual activity with teenage boys in the specified age range, for whom registration was mandatory.
Justice Baxter asserted that the 2006 case in which the court found the equal protection violation had been intended to make a narrow exception, involving a young man who had consensual oral sex with a teenage girl, but that the lower courts in California had run with it to reject mandatory registration in cases involving much wider age gaps. Painting a picture of disarray in the lower courts, a majority of the Supreme Court decided to reexamine its prior ruling.
The starting point for that analysis is that there is no constitutionally protected liberty interest for adults to have sex with minors, as the U.S. Supreme Court implied in Lawrence v. Texas when it emphasized that its ruling striking down the Texas Homosexual Conduct Law was focused on sexual activities of consenting adult same-sex couples. Since no fundamental right is involved, wrote Baxter, the legislature’s policy choice is reviewed under the rational basis test. Any legitimate reason for the distinction in treatment that the court might hypothesize could serve to uphold the law.
In the 2006 case, the court had ruled that there was no practical difference between vaginal intercourse and other forms of sex that would justify a different treatment, as they were all equality outlawed if minors were involved but legal as between adults. Baxter disagreed, writing for the court that because vaginal intercourse could lead to pregnancy and other forms of intercourse could not, the legislature could rationally treat it differently. The state is concerned with the welfare of children, and children born as a result of consensual intercourse between a man and a 16 or 17 year old girl could be disadvantaged if their father, stigmatized as a registered sex offender, was restricted as to where he could live and might be excluded from a wide range of employment opportunities. Thus, ruled the court, it was rational for the legislature to authorize judges to exercise their discretion about whether to mandate registration in such cases.
In her dissent, Justice Werdegar contended that this avoided the important question whether such discretion should be afforded in all cases so that judges could consider whether mandatory registration would be appropriate in cases involving oral or anal sex as well. There might be many reasons to distinguish among cases, especially where the adult and the teen are relatively close in age and their relationship was consensual. She noted that most of the enforcement of the “statutory rape” laws, under which otherwise legal sex is outlawed because of the age of a participant, tends to be targeted against gay men, and that mandatory sex offender registration could just as severely affect them as it might affect straight men who get teenage girls pregnant. And this targeting was originally because of moral disapproval of homosexuality, as exemplified by a 1974 California court decision, rejecting a constitutional challenge to the mandatory registration requirement, which said that “the defendant’s arguments were those of ‘the congenital homosexual to whom that is natural which the vast majority of the population deems unnatural.'”
She observed that a 1966 UCLA Law Review study of sex crimes enforcement practices “found that police officers, when they had a choice of statutes under which to arrest gay men, consciously chose those offenses requiring registration. . ., the ‘predominant view’ being that ‘homosexual offenders should be registered.’ In interviews, officials gave various reasons for wanting to register homosexuals, including the beliefs that they were prone to commit forcible sex offenses or offenses against children and that requiring registration would discourage homosexual conduct.”
The differential registration requirements, she wrote, perpetuate the old distinction between heterosexuality as “normal” and homosexuality as “abnormal.” “Indeed, as the majority notes, when the prohibition on sexual intercourse with underage girls was removed from California’s rape statute and designated as the new offense of ‘unlawful sexual intercourse,’ the principal goal was to eliminate the social stigma of labeling offenders as ‘rapists,'” she observed. This reflected legislators’ views that apart from the age of the younger sex partner, there was nothing abnormal or necessarily immoral about heterosexual men having vaginal intercourse with teenage girls.
“What is clear,” she wrote, “is that even in 1970, when all oral copulation was still banned as a sexual perversion, sexual intercourse with a minor was deemed unworthy of social stigma. The difference in attitude towards oral copulation and sexual intercourse reflected in [the] differential registration requirement is thus a continuation of historical attitudes: while sexual intercourse with minors was an offense, the act itself was a normal one not considered deserving of any social stigma; oral copulation, in contrast, was an unnatural act typically engaged in by homosexuals.”
Criticizing the majority for its proposed “rational basis” for the continuing distinction, she wrote: “Careful attention to whether a posited reason is plausible and realistic is particularly appropriate here given that our registration law’s differential treatment of oral copulation and sexual intercourse has origins in irrational homophobia, continues to impact gay people in a differentially harsh way (as those in a same-sex relationship cannot plead to the discretionary registration offense of unlawful sexual intercourse) and involves severe restrictions on liberty and privacy. We should hesitate to approve a statutory discrimination that may still bear the taint of irrational prejudice against homosexuals.”
Of course, there is a ready solution to this problem. The California legislature, which has a large majority of gay-friendly Democrats in both houses, could immediately end this discrimination by giving judges discretionary authority in all cases of sexual contact between adults and minors to determine whether sex offender registration is an appropriate response to the charged offense, taking into account the age of the parties and the circumstances under which the activity occurred. Justice Werdegar’s dissent is a clear call for legislative reform, as she explains that by overruling the 2006 decision, “the majority reinstates a scheme that had a disproportionately adverse effect on gay and lesbian youth and unnecessarily saddled nonpredatory offenders of either sexual orientation with the stigma and restricted liberties attendant on sex offender registration. Adherence to stare decisis is not a rigid command, but in this instance it is the wiser course; Hofsheier should not be overruled.”