Why California Senate Bill 145 is Misguided and Unnecessary

Why California Senate Bill 145 is Misguided and Unnecessary

Jun 5, 2020

by Samuel Dordulian, Esq.

Under existing law, the Sex Offender Registration Act requires a person convicted of certain sex crimes to register as a sex offender with law enforcement officials while residing, working, or attending school in California. California senate bill 145 purportedly seeks to amend that law in an effort “to end blatant discrimination against LGBT young people regarding California’s sex offender registry.”

The issue in question concerns how the law views different types of sex crimes involving minors. Under existing law, illegal sexual relations between a teenager age 15 and over and a partner within 10 years of age do not automatically require the offender to go onto the sex offender registry if the offense in question involves vaginal intercourse. In such instances, a judge must examine the facts of the case and determine whether or not sex offender registration is warranted.

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Sexual relations between a teenager age 15 and over and a partner within 10 years of age that involve instances of oral or anal intercourse do require automatic sex offender registration, and a judge has no say over whether or not such registration is warranted. Believing that such a distinction “disproportionately targets LGBT young people for mandatory sex offender registration since LGBT people usually cannot engage in vaginal intercourse,” State Senator Scott Wiener introduced SB 145. The bill, however, is sadly misguided. 

The goal of SB 145, according to the bill’s language, is to “exempt from mandatory registration under the act a person convicted of certain offenses involving minors if the person is not more than 10 years older than the minor and if that offense is the only one requiring the person to register.” But rather than amend existing law to include vaginal intercourse with a minor as an act that requires mandatory sex offender registration — which would in effect remedy what Senator Wiener apparently views as discrimination — the bill aims to make all criminal sex acts with a minor over 14 equal by providing offenders with an opportunity to evade said mandatory registration. Doing so would be a disservice to survivors of those sex offenders, to communities, and to law enforcement officials.

Survivors whose attackers manage to receive light sentences not befitting their crimes would be forced to accept that those convicted attackers could also evade the former mandatory punishment rightfully designating them as sex offenders depending on a judge’s decision. Communities would be forced to accept that sex offenders could now potentially live anonymously among law-abiding citizens. Law enforcement officials would be forced to accept that their ability to properly monitor sex offenders could potentially be compromised. All of these scenarios are unacceptable and highly concerning. Moreover, given that another bill Senator Wiener authored has already passed — SB 384, which we discussed in a previous blog post — such unfortunate scenarios are entirely unnecessary. 

SB 384 changes the current lifelong registry system mandated for all sex offenders to a tier-based system where certain offenders who file a petition and meet specific criteria can be eligible to be removed from the list. In other words, if an individual is convicted of a sex crime with a minor, he or she is able to petition to be removed from the sex offender registry after 10 years. SB 384 has already passed, and is set to become law on January 1, 2021. 

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But there is a deeply concerning aspect of SB 384 that I believe must be addressed immediately, certainly before shifting the focus to SB 145. In its current form, SB 384 does not mandate lifetime registration for lewd and lascivious conduct with a child under 14 years of age. Yet, inexplicably, such conduct with a child over 14 somehow does require automatic lifetime registration. It’s an illogical aspect of the bill that has somehow managed to fly under the radar. And as we move closer to SB 384 taking effect at the beginning of the year, I find it increasingly disconcerting and dangerous.

Given the passage of SB 384, and the opportunities it affords sex offenders who committed lesser crimes, I would argue that, rather than focus on purported inequality in justice for sex offenders of minors within 10 years of their age, Senator Wiener should address the aforementioned blunder within the language of SB 384. Given the potential ramifications, it must be an immediate priority of the California legislation.

Until that oversight within SB 384 is addressed, SB 145 should be considered moot. That said, if and when SB 384 is properly amended, I still find SB 145 unnecessary.

If Senator Wiener is truly concerned with equality as it relates to justice for sex offenders of minors, I suggest he consider introducing a bill that makes vaginal intercourse with a minor a crime requiring mandatory inclusion on the sex offender registry. Such a bill would achieve the purported goal of making all sex acts equal under the law without leading to the above scenarios that could endanger minors within our community.

In its proposed form, under the guise of preventing LGBT young people from having to automatically register as sex offenders for specified sex crimes, SB 145 actually deteriorates the rule of law by providing any individual who sexually assaults a minor an opportunity to potentially evade the sex offender registry (the very registry that, as of January 1 under SB 384, will allow predators to petition for removal after 10 years). 

SB 145 is a misguided attempt to amend laws that the bill’s sponsors argue disproportionately target LGBT people. I would argue that allowing more 25-year-olds who assault 15-years-olds an opportunity to avoid the sex offender registry is no service to the LGBT community. Rather, it hamstrings a valuable deterrent for reducing sex crimes that deleteriously impact all communities. Most importantly, there’s a far more urgent issue that requires the attention and action of California’s elected officials.