Senate Passes Senator Wiener’s Legislation to End Discrimination Against LGBTQ People Regarding Sex Offender Registry

May 28, 2019

Sacramento–  Today, Senator Scott Wiener’s (D-San Francisco) Senate Bill 145, which ends blatant discrimination against LGBTQ youth regarding California’s sex offender registry, passed the Senate on a 24-2 vote. It now heads to the Assembly for committee hearings in the coming weeks.

Currently, for consensual yet illegal sexual relations between a teenager age 14 to 17 and a partner within 10 years of age, “sexual intercourse” (i.e., vaginal intercourse) does not mandate that the offender to go onto the sex offender registry; rather, the judge has discretion to decide, 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 penile-vaginal sex — disproportionately targets LGBTQ young people by mandating sex offender registration for forms of intercourse in which they engage. For example, if an 18-year-old straight man has penile-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, then the judge *must* place him on the sex offender registry, no matter what the circumstances.

“California shouldn’t be discriminating against LGBTQ young people, particularly when that discrimination force these kids onto the sex offender registry,” said Senator Wiener. “This irrational discrimination on the sex offender registry was created when California banned LGBT sex. This distinction between vaginal intercourse and other forms of intercourse is a relic of California’s discriminatory past, and it’s time to bring an end to it. SB 145 brings parity to the sex offender registry so we are treating all young people the same. Going on the sex-offender registry can ruin a young person’s life, making it harder for them to find a job and housing. We need to put an end to this terrible discrimination.”    

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 14 to 17 years old and the offender is within 10 years of age of the minor. SB 145 simply extends that same discretion to other forms of intercourse. A judge will maintain the authority to place someone on the registry if the behavior at issue was predatory or otherwise egregious. This change will treat straight and LGBTQ youth equally, end the discrimination against LGBTQ people, and ensure that California stops stigmatizing specific sexual acts.

“We applaud the passage of SB 145, which provides better guidance for judges when determining whether someone is placed on the sex offender registry,” said Los Angeles County District Attorney Jackie Lacey. “This bill treats everyone fairly under the law while still prioritizing public safety by ensuring that the most serious offenders are placed on the registry.”

“There’s no reason for California law to treat young people differently because of their sexual orientation or gender identity," said Equality California Executive Director Rick Zbur. "For years, we’ve been working with Senator Wiener to strengthen our Sex Offender Registry and improve public safety by eliminating discrimination in California's Criminal Code. We're grateful to the senators who supported this bipartisan, common-sense fix today and look forward to the day when LGBTQ young people are treated equally under the law.”

(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 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.

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 penile-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.