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 Assembly Committee on Public Safety with a 6-2 vote. It now heads to the Assembly Committee on Appropriations. 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.

Currently, for voluntary unlawful sexual relations between a teenager age 14 to 17 and a partner within 10 years of age, “statutory rape” (i.e., penile-vaginal intercourse) does not mandate that the offender 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 sex — specifically, oral and anal — sex offender registration is mandated under all situations, with no judicial discretion under any circumstances.

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 the 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.

“California shouldn’t be discriminating against LGBTQ young people, particularly when that discrimination forces these kids onto the sex offender registry,” said Senator Wiener. “This irrational discrimination on the sex offender registry was created when California banned and criminalized LGBTQ sex. This distinction between statutory rape and other forms of sex 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 sex. A judge will maintain the authority to place someone on the registry if the behavior at issue was predatory or if they believe registration is appropriate. This change will treat straight and LGBTQ youth equally, end the discrimination against LGBTQ people, and ensure that California stops stigmatizing specific sexual acts.

“SB 145 will strengthen California’s Sex Offender Registry and end our state’s discriminatory practice of treating LGBTQ young people differently than their non-LGBTQ peers,” said Equality California Executive Director Rick Zbur. “We’re grateful to the Assembly Public Safety Committee for their support and to Senator Wiener for his leadership on this long overdue bill.”

SB 145 does not apply to sex of any kind with minors who are younger than 14 or if the behavior was forceful. For those crimes, mandatory sex offender registration remains untouched.

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, was a violation of 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 other sex acts that cannot result in pregnancy.

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

For the full text of the bill please click here.

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Equality California is the nation’s largest statewide LGBTQ civil rights organization. We bring the voices of LGBTQ people and allies to institutions of power in California and across the United States, striving to create a world that is healthy, just, and fully equal for all LGBTQ people. We advance civil rights and social justice by inspiring, advocating and mobilizing through an inclusive movement that works tirelessly on behalf of those we serve. www.eqca.org