Senator Wiener’s Legislation to End Discrimination Against LGBT People Regarding Sex Offender Registry Clears First Committee

April 9, 2019

Sacramento–  Today, Senator Scott Wiener’s (D-San Francisco) Senate Bill 145, which ends blatant discrimination against LGBT youth regarding California’s sex offender registry, passed the Senate Public Safety Committee by a 6-0 vote. It will now head to the Senate Appropriations Committee.  Currently, for consensual yet illegal sexual relations between a teenager age 14-17 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 all 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, as it treats oral and anal sex as somehow worse than vaginal sex — disproportionately targets LGBT young people for mandatory sex offender registration, since LGBT people usually cannot engage in penile-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.

SB 145 does not legalize any kind of sex with a minor 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 penile-vaginal intercourse when the minor is aged between a 14-17 year olds 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 youth 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 younger than 14. For those crimes, mandatory sex offender registration will continue to be the case for all forms of intercourse.)

“SB 145 is a common sense and long overdue fix to a discriminatory law,” said Senator Wiener. “California’s sex offender registry laws have for too long unfairly targeted LGBTQ people. SB 145 ensures that young people engaging in voluntary sex do not have their lives ruined by these archaic laws that have no place in today’s society. It will also make the sex offender registry a better and real tool for law enforcement to use for sex offenders in who actually pose a threat.” 

SB 145 is co-sponsored by the Los Angeles County District Attorney’s Office and Equality California, and is supported by both law enforcement and civil rights advocates including the Alliance for Constitutional Sex Offense Laws, the Anti-Defamation League, the California Public Defenders Association, the California Police Chiefs Association, the California Coalition Against Sexual Assault, and Lambda Legal.

"We are grateful to the lawmakers who voted today to strengthen California’s Sex Offender Registry, improve public safety and end California's discriminatory practice of treating LGBTQ young people differently than their non-LGBTQ peers,” said Equality California Executive Director Rick Zbur. “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. We look forward to this bill moving on thanks to the continued leadership of Senator Wiener."

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 blatant discrimination.

SB 145 was officially introduced on Jan 18. For the full text of the bill please click here.