If you haven’t heard by now, California state Sen. Scott Wiener (irony, anyone?) is proposing big changes to the California Sex Offender Registry. Here’s what you should know.
Currently, if an adult is convicted of any sexual crime, they may be required to register for the Sex Offender list for life. Sexual crimes are described in Section 286, 287, 288, or 289 or former Section 288a, Section 207 or 209 of Penal Code 290. They include but may not be limited to:
- Oral Copulation with a minor
- “Unwelcome” Sodomy
- Lewd/Lascivious Acts
- Child pornography
- Communication with a minor with intent to perform sexual acts
(Penal Code 209 Chapter 5)
“The law is based on a California Supreme Court ruling that says it is not discriminatory to treat vaginal intercourse and other forms of sex differently and for harsher penalties to be implemented for the latter because the former can cause pregnancy while the others cannot.Andrew O’Reilly
In March 2016, a 22-year-old man plead guilty to (consensual) oral copulation with a 16-year-old. As such, he was required to register for the Sex Offender list (People v. Hofsheier). The defendant appealed this decision, stating that unlawful intercourse with a minor did not require mandatory registration (Section 261.5), therefore, a lesser act of oral copulation shouldn’t be considered as reprehensible. The Court of Appeals agreed and overturned the ruling (Find Law). This was the beginning of the reformation.
Now let’s get to the meat of the proposed bill. Essentially, Sen. Wiener is proposing a tiered registry system, which would differentiate between misdemeanors and felonies. So, the amended regulations won’t necessarily protect just the LGBT community, but all citizens.
Let’s briefly break those tiers down.
Tier one (minimum 10 years on the registry)
- Sexual battery as a misdemeanor
- Sexual battery as a felony if the victim is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, and if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse
- Enticing a child into a house of prostitution
- Inducing sex by fraud
- Sodomy as a misdemeanor
- Sodomy in some felony cases where there is no force
- Oral copulation as a misdemeanor
- Oral copulation in some felony cases where there is no force
- Arranging to meet with a minor for lewd purposes as a misdemeanor
- Acts of penetration with a foreign object as a misdemeanor
- Child pornography as a misdemeanor
- Indecent exposure
- Annoying a child as a first offense
Tier two (minimum 20 years on the registry)
- Rape when the victim is at least 18 and is incapable of giving consent due to a mental disorder or developmental or physical disability
- Sodomy when the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent
- Sodomy with a minor under 14 years of age and more than 10 years younger than the defendant
- Lewd acts with a minor under 14
- Oral copulation when the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent
- Oral copulation with a minor under 14 years of age and more than 10 years younger than the defendant (and there is no force)
- Contacting a minor with intent to commit a felony
- Acts of penetration with a foreign object when the victim is incapable of giving consent due to a mental disorder or developmental or physical disability
- Acts of penetration with a foreign object when the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, or when the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent
- Annoying a child as second or subsequent offense
Tier three (Life on the registry)
- Murder committed during the commission or attempted commission of rape
- Kidnapping during the commission or attempted commission of rape
- Assault with intent to commit a felony but not assault to commit mayhem
- Sex trafficking children
- Sexual battery as a felony (most cases)
- Rape (most cases)
- Spousal rape by force
- Aiding a rape or acts of penetration with a foreign object
- Pimping and pandering with a minor
- Giving or transporting a child under 16 for a lewd purpose
- Taking away a minor for purpose of prostitution
- Aggravated sexual assault of a child
- Lewd and lascivious conduct contributing to the delinquency of a minor
- Sodomy when the defendant is acting in concert with another or when the victim cannot consent because of intoxication or being unconscious
- Sodomy by force
- Lewd acts with a minor under 14
- Lewd acts with a minor under 14 by force, or the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, the defendant is a caretaker and the victim is a dependent
- Oral copulation by force
- Oral copulation when the defendant is acting in concert with another or when the victim cannot consent because of intoxication or being unconscious
- Sending harmful material to seduce a minor
- Contacting a minor with intent to commit a felony
- Arranging to meet with a minor for lewd purposes as a felony
- Continuous sexual assault of a child
- Sex acts against a child 10 or younger
- Acts of penetration with a foreign object by force or duress, or when the victim is under 14 and more than 10 years younger than the defendant, or the victim is too intoxicated to consent, or the victim is unconscious
- The person’s risk level on the static risk assessment instrument for sex offenders (SARATSO) is well above average risk at the time of release on the index sex offense into the community
- Child pornography (specifically, people convicted of a felony violation)
- Soliciting someone to commit a sex crime
- The defendant was convicted to life
- The defendant was convicted to 15 to 25 years to life
- The defendant is an habitual sex offender
Congratulations! You made it to the end of the list! Now, on to my issues with the tiers.
Forced sodomy and child pornography should be in Tier 3. No way should those people be allowed to return to normal life.
I have the most trouble with this: “Sodomy with a minor under 14 years of age and more than 10 years younger than the defendant” being validated at all. First, since when has the age of consent in California been 15? It’s 18. Always has been (Legal Match). Aside from that, the verbiage of this regulation seems to lean toward not punishing a twenty-four-year-old for having consensual sex with a fourteen-year-old. Look, children often aren’t mature enough to make these decisions on their own. Adults have something called will-power. Keep that shit in your pants, man.
Also, incest? Really? Illegal? Why? Not that I condone it, but who cares?
Now let’s look at where this new bill would interfere with current California legislation. The state as a whole has an “indecent exposure” law that only comes into play if the exposed person is intending for their display to be sexual (Placzek). While vague, California leaves the decisions up to local governments. In San Francisco, it’s perfectly acceptable (and often encouraged) to walk the streets completely nude. You won’t be arrested unless you’re masturbating or flashing people.
What, does San Francisco not have children walking around? Because I walk two miles in the city five days a week and see plenty. How does this regulation protect them? It doesn’t. Not only that, it totally conflicts with this new bill.
To make a long blog post longer: did you see anything about LGBT rights on that list? I didn’t think so. Honestly, I think Wiener is talking about LGBT rights as a buzzword. It’s a hot button issue right now. If he can make it seem like he cares, more power to the decision. And while I think tiered punishments are a decent way to go, this proposition needs more work.
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California Legislative Information. (n.d.). PENAL CODE – PEN PART 1. OF CRIMES AND PUNISHMENTS. Retrieved from https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml
FindLaw. (n.d.). PEOPLE v. HOFSHEIER. Retrieved from https://caselaw.findlaw.com/ca-supreme-court/1219393.html
Legal Match. (n.d.). Statutory Rape: The Age of Consent. Retrieved from https://www.legalmatch.com/law-library/article/statutory-rape-the-age-of-consent.html
O’Reilly, A. (February 26, 2019). California bill to end alleged LGBT discrimination on sex offender list stirs controversy. Retrieved from https://www.foxnews.com/politics/california-bill-to-end-lgbt-discrimination-stirs-controversy-as-republicans-say-it-protects-sexual-predators
Placzek, J. (August 24, 2017). The History of Nudity in San Francisco Uncovered. Retrieved from https://www.kqed.org/news/11613510/the-history-of-nudity-in-san-francisco-uncovered
Shouse Law Group. (n.d.). How Sex Offender Registration Works in California (Senate Bill SB 384). Retrieved from https://www.shouselaw.com/registration.html