CA High Court Reverses on Sex Offenders

SAN FRANCISCO (CN) - For years, the California Supreme Court - and appellate courts in return - have sought to address a statutory disparity in the Legislature's sex-offender registration scheme: discretionary registration for those convicted of unlawful sexual intercourse with a minor, while convictions for other types of sexual activity with a minor - oral sex and sodomy - get the perpetrator a mandatory registration requirement.

The Golden State's high court first ruled on this disparity in 2006, holding in People v. Hofsheier that state and federal equal-protection clauses invalidated mandatory registration for a 22-year-old convicted of consensual oral sex with a 16-year-old, since someone of the same age convicted of voluntary sexual intercourse with a 16-year-old victim would be subject to registration at the whim of a judge.

Since then, California appellate courts extended the high court's decision in Hofsheier to a wide variety of sex crimes involving adult offenders and minor victims of various ages and age differences.

This has created tension between legislative intent - ostensibly to protect children from sex crimes while also reconciling the nature of the conduct and the ages of offender and minor victim - and the judiciary's desire for equal-protection harmony.

That tension came to a head on Thursday, when the high court ruled 5-2 that its 9-year-old decision in Hofsheier was "constitutionally faulty" in the case of James Johnson, who asked to be relieved from mandatory registration as a sex offender following his conviction for nonforcible oral copulation by an adult over 21 years with a person under 16.

Johnson cited the high court's holding in Hofsheier and the fact that if he had been convicted of consensual intercourse with a minor, his sex-offender registration would have been at the trial court's discretion. Instead, the Supreme Court opted to side with the Legislature's intent that some sex crimes are worse than others.

"At this juncture, continued judicial nullification of mandatory registration is denying significant effect to the legislative policy choices embodied in the Sex Offender Registration Act," Justice Marvin Baxter wrote for the court. "Because the Legislature cannot restore the constitutional validity of requiring registration for statutorily enumerated crimes without making registration mandatory for unlawful sexual intercourse, we deem it prudent to revisit Hofsheier's merits."

He continued: "Upon reexamination, we find Hofsheier's constitutional analysis faulty. In particular, it mistakenly concluded that no rational basis exists for subjecting intercourse offenders and oral copulation offenders to different registration consequences. Although Hofsheier accepted the reasonableness of the Legislature's determination that, generally, mandatory registration promotes the policy goals of preventing recidivism and facilitating surveillance of sex offenders who prey on underage victims, the decision failed to adequately appreciate that, among sex offenses, intercourse is unique in its potential to result in pregnancy and parenthood."

Because the Legislature finds teen pregnancy and the potential state burden of supporting the children of teen mothers particularly onerous, lawmakers rightly gave judges discretion to decide whether offenders - the fathers of these prospective children - should be saddled with mandatory sex-offender registration, the high court said.

But in a blistering dissent, Justice Kathryn Werdegar - joined by Justice Goodwin Liu - calls the differentiation between oral sex and intercourse "an anachronistic holdover from a period when oral copulation and sodomy were regarded as abhorrent sexual perversions closely associated with homosexuality and were therefore outlawed regardless of the participants' ages."

Werdegar said the disparate registration requirements "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."

She continued: "We should hesitate to approve a statutory discrimination that may still bear the taint of irrational prejudice against homosexuals."

The dissenting justices also criticized the Legislature for not revisiting the issue after decriminalizing oral sex and sodomy in 1975, or even in light of Hofsheier.

"Instead, the blanket registration requirement [for oral sex and sodomy] lay undisturbed, a relic of past homophobia and discarded ideas of sexual regulation" that Hofsheier had undone, Werdegar wrote.

She also noted that California's draconian law mandates lifetime registration, the only state in the nation that does.

While Thursday's decision applies retroactively to Johnson's case - meaning he will continue to register as a sex offender - the majority said "we need not and do not decide whether our decision overruling Hofsheier should be given retroactive application in all cases."

However, the court's ruling does not take effect for 30 days, and a changeup in the court's lineup - Baxter has since retired and the fifth vote came from an appellate judge appointed to fill another vacancy - could lead Johnson's attorney to request the high court to reconsider.

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