Megan’s Law Calling Up Old, Minor Offenses

Gay men arrested by police in the 1940s, ‘50s and ‘60s for seeking consensual sex with other adult men are under legal scrutiny again--this time as registered sex offenders who fear they could be subject to the recently enacted Megan’s Law.

The California Supreme Court ruled 14 years ago that it is cruel and unusual punishment to make people convicted of minor lewd conduct crimes register their whereabouts with police for life, as rapists and child molesters have had to do in California since 1944.

But today, struggling to implement Megan’s Law and similar statutes, law enforcement agencies across the state are scrambling to update long-neglected files, sending police to knock on the doors of elderly men whose forgotten indiscretions have come back to haunt them.

State Department of Justice officials acknowledge that vague, decades-old criminal records and ever-shifting laws on sexual behavior make it difficult for them to know which offender did what--and therefore, who truly belongs on a list of sex offenders.

That means people like Paul, a 90-year-old Orange County Leisure World resident who--like others in this story--asked that his real name not be used, can remain on the register. In 1944, Paul was charged with lewd conduct after police found him touching the knee of another man in a parked car on a secluded West Hollywood street. He pleaded guilty to the charges, but went on with his life and eventually married.

But that long-closed chapter was painfully reopened in 1995, when his wife of 50 years went to the mailbox and found an envelope addressed to him, stamped “SEX CRIME” in red ink. Inside was a letter warning that if he did not register as a sex offender, he would be arrested.

“My life’s over,” he remembers thinking.

Even after he explained the circumstances of his conviction, his wife seemed bewildered for months, and he feared she would leave him. With the help of a lawyer, he got his name removed from the register a few months after receiving the letter, but he is still shaken by the incident.

“It didn’t seem fair,” Paul said, adding that history “came back to haunt me.”

Bringing back the fear is Megan’s Law, which calls for the creation of a publicly available CD-ROM database with the names, photographs and ZIP Codes of California’s 57,000 most dangerous sex offenders.

Although state Department of Justice officials said they do not believe that people like Paul will be on the database, he is not reassured because he should not have even been on the basic register.

When Megan’s Law was approved by the state Legislature last fall, Paul recalled thinking: “ ‘This is wonderful. They’re going to get child molesters.’ It didn’t seem fair that it would apply to me.”

Removal From the List

Department of Justice workers combed through their files two years ago in an attempt to remove offenders whose acts would no longer be considered criminal. But spokesman Michael Van Winkle acknowledged that the department could have passed over many, because if there is nothing on criminal records to assure the department that the act was legal, the names were kept on the list.

Offenders can still appeal their registration and have their names removed from the database, Van Winkle said. But that process almost destroyed Harold, a 63-year-old Korean War veteran who one drunken night in 1956 was caught having oral sex with another sailor in a car parked in the hills above La Jolla.

Harold pleaded to lewd conduct charges and was dishonorably discharged. His record was eventually expunged, and he thought his troubles were over--until he received a letter in 1995 from the LAPD. The letter erroneously arrived at his next door neighbor’s house. She opened it and handed it to Harold.

“At my age, I thought my battles were over,” Harold said. “I had served my country for so long, now what had it done to me?”

Living in a cramped Los Angeles duplex on his Social Security checks, Harold has since spent sleepless nights fearing that police will drag him away and he will be humiliated before his neighbors and friends. Only with the aid of a bevy of attorneys who donated their services and spent 16 months struggling with Sacramento was Harold’s name removed this month.

Elizabeth Schroeder, the associate director of the Southern California American Civil Liberties Union who helped Harold, said he was lucky.

“It took the considerable efforts of an attorney going through 40-year-old court records to get him [Harold] off in the first place,” she said. “Most people don’t have those kinds of resources.”

Harold says he worries about others who must face the sex offender laws on their own.

“I imagine people would commit suicide over something like this,” Harold said. “I felt like that sometimes.”

As dozens of states around the country have passed their own versions of Megan’s Law, named after a New Jersey girl allegedly slain by a paroled molester, reports have surfaced nationwide of gay men and others landing on sex offender registers even though their crimes have nothing to do with rape or child molestation.

“I heard the term ‘sex offender’ and I did not think ‘gay.’ I thought it was about kids and I thought it was about rapists. I didn’t think it was about gay sex,” said Mary Bonauto, a gay rights attorney from Boston who says she has received thousands of calls on Megan’s Law from concerned gay men.

Vague Statutes

A lack of focus in many versions of Megan’s Law has resulted in the registration of an array of offenders whose actions are far different from those of the violent predators the law was intended to cover.

In Massachusetts, a homeless man who changed clothes in his car pleaded to public exposure and is now a registered sex offender. In Wisconsin, a 15-year-old girl who had consensual sex with a 13-year-old boy must register. In New Jersey, prosecutors registered a 12-year-old boy who fondled his younger step-brother in the bathtub.

“Registration statutes tend to capture all kinds of people who are at a very low level of risking to re-offend,” said Eric Lotke, a research associate at the National Center on Institutions and Alternatives, a treatment center for sex offenders. “The politics lead to a very large range of people who must register as a sex offender.”

There is another factor, said Lotke, who monitors the laws: No bureaucrat wants to be known as the one who failed to register a potential child molester or killer.

“There’s a certain amount of bureaucratic self-protection incentive to over-classify people,” Lotke said.

That’s true, said Department of Justice spokesman Van Winkle: “We’re going to err on the side of leaving them on.”

Proponents say that is the only approach to take.

“There may be a need for some tweaking, but there isn’t another mechanism of keeping track of where these offenders are going,” said Sean Doherty, a spokesman for Assemblyman Bob Margett (R-Arcadia), a supporter of Megan’s Law. Margett is now backing a bill to require convicted child molesters to wear electronic monitoring bracelets once they are released from prison.

But while Doherty and others insist that Megan’s Law is the best solution in an era when criminals can easily hide their identities and child molesters can solicit victims on the Internet, experts say the misregistration problem goes back decades.

California’s sex registration laws are unique. They dates to 1944, when they were largely used to monitor gays, said attorney Jay M. Kohorn, who has fought to limit the reach of registration laws.

Police routinely raided gay bars and swept through local parks, arresting thousands of men a year for such offenses as dancing together or touching.

As societal mores changed, police used the register mainly to track child molesters, but the names of the men prosecuted in previous decades remained. In 1983, Kohorn brought a case before the state Supreme Court, arguing that people convicted of misdemeanor lewd conduct should not have to register.

Even the Los Angeles city attorney at the time, Ira Reiner, agreed, writing in a friend-of-the-court brief that registration of minor sex criminals was clogging up the court system. Investigators had tried to use the register to determine the identity of the Hillside Strangler, but instead wound up with a cascade of names of minor sex criminals.

The state Supreme Court ruled that forcing people convicted of lewd conduct to register was unconstitutionally cruel and unusual punishment because it placed a lifelong burden on minor lawbreakers.

At the time, the state’s registry was in chaos from disuse. By the early 1990s, officials could not be certain that the information on as many as 60% of their registrants was accurate, according to Department of Justice officials. Even now, an estimated 20% of the state’s registered offenders cannot be found, officials concede.

Over the last two years, as Megan’s Law and other sex offender statutes have been enacted, law enforcement agencies across the state have struggled to update their records. “People got caught up in the tide,” Kohorn said.

That includes people like Paul, Harold and untold others whose old convictions would constitute misdemeanor lewd conduct today.

“Some of this stuff goes back to the ‘40s,” said Van Winkle. “There were different code sections then. There was a different tolerance to a lot of behavior.”

From late 1994 through 1995, a special squad of Department of Justice workers sorted through the database and deleted more than 8,000 entries. Some were removed because they had died or left the state; others were judged to have committed crimes that would no longer require them to register. Van Winkle said there was no record of how many were removed for the latter reason.

As an example of the problems the department has encountered, Van Winkle cited the case of a man who, in the 1940s, was convicted of statutory rape for having sex with a 16-year-old.

That girl became his wife and the two remain married today, Van Winkle said. But the man’s criminal record indicated none of this and he was left on the register.

The man, now 80, was removed from the list only after community members contacted officials and pleaded his case, Van Winkle said.

For countless others, the results of obsolete laws and records clashing with modern fervor for absolute knowledge can verge on the surreal.

Living in Fear

Take the case of Leonard, a 70-year-old Los Angeles man who won a Purple Heart in Okinawa in World War II.

One night in 1957, Leonard met another man in a restroom in a Long Beach park. The two exposed themselves and the police picked them up.

Leonard pleaded to a sexual perversion charge, paid a $200 fine and went home. His record was later expunged.

But it all came back one autumn day in 1995, when authorities showed up at his nephew’s house near Riverside.

“They knocked on his door, and they said ‘Where’s your uncle?’ and something about . . . a child molester,” Leonard said. “It just shocked me to no end. . . . I felt like my civil rights had been threatened.”

Leonard made the trip to Los Angeles police headquarters to register his address and let authorities take his fingerprints and picture.

But there was one problem: The LAPD had no record of his offense.

“Even the cops at Parker Center said this was the most ridiculous thing they’d ever heard of,” he said. So they pulled out a form and scribbled a note that says Leonard made an attempt to register, and told him to keep it in his wallet.

“I still carry it with me, in case a police officer stops me,” he said. “You don’t feel free. I’ll never feel free, until Sacramento writes a new law.”

Kohorn doesn’t expect that any time soon.

“Not a whole lot happens in Sacramento that doesn’t have a constituency pushing for it,” he said. “You’re not going to find gay men who are embarrassed about ever having been arrested banding together to get this stuff to happen.”

“You’re going to have . . . politicians taking every opportunity to do something that appears to help to curb the fear of crime. And that includes keeping track of criminals and registering more people. That may not have a . . . depth of logic, but it has a knee-jerk logic.”