Senator Wiener Introduces Legislation to End Discrimination Against LGBT People Regarding Sex Offender Registration

San Francisco – Today, Senator Scott Wiener (D-San Francisco) introduced Senate Bill 145 to end blatant discrimination against LGBT young people regarding California’s sex offender registry. Currently, for consensual yet illegal sexual relations between a teenager age 15 and over and a partner within 10 years of age, “sexual intercourse” (i.e., vaginal intercourse) does not require the offender to go onto the sex offender registry; rather, the judge decides based on the facts of the case whether sex offender registration is warranted or unwarranted. By contrast, for other forms of intercourse — specifically, oral and anal intercourse — sex offender registration is mandated under all situations, with no judicial discretion.

This distinction in the law — which is irrational, at best — disproportionately targets LGBT young people for mandatory sex offender registration, since LGBT people usually cannot engage in vaginal intercourse. For example, if an 18 year old straight man has vaginal intercourse with his 17 year old girlfriend, he is guilty of a crime, but he is not automatically required to register as a sex offender; instead, the judge will decide based on the facts of the case whether registration is warranted. By contrast, if an 18 year old gay man has sex with his 17 year old boyfriend, the judge *must* place him on the sex offender registry, no matter what the circumstances.

Until recently, that sex offender registration was for life, even though the sex was consensual. Under 2017 legislation authored by Senator Wiener, registration. Is for a minimum of 10 years, still a harsh repercussion for consensual sex.

SB 145 does not change whether or not particular behavior is a crime and does not change the potential sentence for having sex with an underage person. Rather, the bill simply gives judges the ability to evaluate whether or not to require registration as a sex offender. To be clear, this judicial discretion for sex offender registration is *already* the law for vaginal intercourse between a 15-17 year old and someone up to 10 years older. SB 145 simply extends that discretion to other forms of intercourse. A judge will still be able to place someone on the registry if the behavior at issue was predatory or otherwise egregious. This change will treat straight and LGBT young people equally, end the discrimination against LGBT people, and ensure that California stops stigmatizing LGBT sexual relationships.

(SB 145 does not apply to intercourse of any kind with minors who are age 14 or younger. For those crimes, mandatory sex offender registration will continue to be the case for all forms of intercourse.)

“SB 145 puts an end to blatant discrimination against young LGBT people engaged in consensual sexual activity,” said Senator Wiener. “This bill is about treating everyone equally under the law. Discrimination against LGBT people is simply not the California way. These laws were put in place during a more conservative and anti-LGBT time in California’s history. They have ruined people’s lives and made it harder for them to get jobs, secure housing, and live productive lives. It is time we update these laws and treat everyone equally.”

SB 145 is sponsored by the Los Angeles County District Attorney’s Office and Equality California, and is supported by both law enforcement and civil rights advocates.  It is co-authored by Assemblymember Susan Eggman (D-Stockton).

“Justice should be applied fairly and equally regardless of a person’s sexual orientation,” said Los Angeles County District Attorney Jackie Lacey. “I support this bill to correct the unjust application of the law.” District Attorney Lacey added that by removing the sex offender registration requirement defendants are more likely to enter a plea agreement than go to trial.

“There’s no reason for the law to treat a high school senior dating a high school junior differently because of their sexual orientation or gender identity,” said Equality California Executive Director Rick Zbur. “For years, we’ve been working to make this common-sense fix and ensure LGBTQ young people are treated the same as their peers. We’re deeply grateful to Senator Wiener for his leadership on this critical issue of fairness and equality.” 

Until recently, the California Supreme Court (People v. Hofsheier) and the Appellate Courts had held that requiring mandatory lifetime registration for sodomy, oral copulation, and sexual penetration, but not vaginal sexual intercourse, violated the equal protection clause, and was unconstitutional. However, in a more recent case, Johnson v. Department of Justice, the California Supreme Court overturned the Hofsheier case, reasoning that since sexual intercourse can cause pregnancy and other sex acts cannot, it is not discriminatory to treat the offenses differently and for harsher penalties to be in place for non-vaginal intercourse.

SB 145 will overturn the Johnson decision and end this discrimination.

SB 145 was officially introduced on Jan 18 and will be set for a hearing in the coming months. For the full text of the bill please click here.