California Supreme Court sex-crime ruling criticized as unfair to gays

Justice Kathryn Mickle Werdegar, joined by Justice Goodwin Liu, said distinguishing oral sex from intercourse stemmed from a period of "irrational homophobia."
Justice Kathryn Mickle Werdegar, joined by Justice Goodwin Liu, said distinguishing oral sex from intercourse stemmed from a period of “irrational homophobia.”
(Associated Press)

The California Supreme Court decided Thursday that adults convicted of engaging in unforced oral sex with minors must register as sex offenders — while those guilty of sexual intercourse with minors may not have to.

In the 5-2 ruling, which overturned a 9-year-old precedent, the two dissenting justices said it would treat gays and lesbians more harshly than heterosexuals.

The court majority said the state was not discriminating by making sex offender registration mandatory for adults who have unforced oral sex with 16- and 17-year-olds but leaving it up to a judge for adults who have sexual intercourse with people the same age.

Sexual intercourse “is unique in its potential to result in pregnancy and parenthood,” Justice Marvin R. Baxter wrote for the court. “The support of children conceived as a result of unlawful sexual intercourse provide more than just a plausible basis” for distinguishing the sex crimes.


The decision overturned the high court’s 2006 precedent that found the distinction was discriminatory and a relic of a different era. Baxter said that ruling was wrong and the Legislature decades ago had a rational reason for distinguishing the sex acts.

Justice Kathryn Mickle Werdegar, joined by Justice Goodwin Liu, said the distinction stemmed from a period of “irrational homophobia” and would continue to affect gay people in “a differentially harsh way.”

Oral sex was historically considered more problematic under the law because “it was regarded as unnatural and perverted and was associated with homosexuals,” she said.

Thursday’s ruling reinstates “a scheme that had a disproportionately adverse effect on gay and lesbian youth and unnecessarily saddled nonpredatory offenders of either sexual orientation with the stigma and restricted liberties attendant on sex offender registration,” Werdegar wrote.

She noted that California already leads in the nation in the number of registered sex offenders, who must abide rules that restrict where they can live.

Marilee Marshall, who represented the defendant in the case, said she would ask the court to reconsider now that two new justices appointed by Gov. Jerry Brown have joined the court. Baxter retired this month, and the fifth vote in Thursday’s ruling came from a Court of Appeal justice who was filling a vacancy.

Rulings do not become final for 30 days, and a change in membership on the court can create a new majority.

Marshall predicted that many counties may enforce the ruling retroactively if it is not overturned.

“Suppose people have bought a house and now will be told they cannot live where they live,” she said.

Her client, James Richard Johnson, a heterosexual, challenged the distinction after being required to register as a sex offender for having oral sex with a minor.

Marshall said Johnson would not be directly affected because he probably would have been required to register even if the decision had been left up to the trial judge.

San Bernardino County Deputy Dist. Atty. Brent J. Schultze, who represented the prosecution in the case, could not be reached for comment. A spokesman said the office believes the decision will be retroactive.
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