Suit v. Sodomy Sex Offender Status OKed

Archaic Louisiana law making oral, anal sex solicitation “registry” offense challenged

A federal district judge has a allowed a lawsuit challenging the requirement that defendants convicted under an archaic Louisiana Crime Against Nature by Solicitation Act maintain their registration as sex offenders.

Judge Martin L.C. Feldman found that a group of such individuals can sue for a violation of their right to equal protection of the laws under the US Constitution’s 14th Amendment.

The sex offender registry requirement applied to those soliciting anal and oral sex, but not vaginal sex.

Under a reform measure that Republican Governor Bobby Jindal signed on August 15, the requirement for sex offender registration ended, but, according to Associated Press, law professor Davida Finger of Loyola University of New Orleans stated that about 400 people previously convicted under the statute must maintain their registration. That penalty is at issue in this case.

The ruling in Doe v. Jindal granted the state’s motion to dismiss due process and 8th Amendment cruel and unusual punishment claims, however, as well as finding that Jindal qualified for immunity against the lawsuit.

Until the August reform law took affect, Louisiana statutes provided that those convicted of solicitation for prostitution were guilty of a misdemeanor that did not require registration as a sex offender, but the Crime Against Nature by Solicitation statute, which the Huffington Post reports was originally adopted in 1805, imposed longer prison sentences, larger fines, and, in recent years, a sex offender registration requirement. The statute was clearly a lingering remnant of the tradition of criminalizing oral and anal sex.

Lawrence v. Texas, the 2003 US Supreme Court ruling that struck down the nation’s remaining sodomy laws, ended penalties for oral and anal sex for consenting adults in their private behavior. The high court, however, made clear it was not ruling on the constitutionality of laws governing commercial sex.

The argument made in this lawsuit is that there is no rational basis for imposing a more draconian punishment on prostitution solicitation when it involves oral or anal sex than in cases of vaginal intercourse. Indeed, the misdemeanor law concerning solicitation for prostitution clearly covered oral and anal sex, but that behavior was also separately singled out for harsher treatment.

The plaintiffs argued that the main purpose for the sex offender registry is to protect children from sexual assaults, but that the crimes covered by the solicitation statute bore no rational relationship to that purpose.

In deciding this case, Feldman cited a 1972 Supreme Court ruling that struck down a Massachusetts law that prohibited distribution of contraceptives to single people while allowing it for married couples. The right of married couples to access birth control had been guaranteed under a high court ruling seven years earlier.

More directly on point, the court noted, was a 2006 California Supreme Court decision striking down, on equal protection grounds, a law imposing higher penalties on those who engaged in oral sex with a teenager than those who had vaginal intercourse with the same person. In that case, only those found guilty of oral sex with a teen were made to register as sex offenders. The California court found both groups of defendants “similarly situated in terms of the nature of their misconduct.”

Feldman pointed out the absurd lengths to which Louisiana’s counsel went in trying to justify having essentially the same conduct treated differently.

“When asked during oral argument why the Legislature has two statutes on the books if the sex acts of the Prostitution statute consume all of the acts of the Crime Against Nature by Solicitation statute, counsel persisted in advancing the fiction that bestiality was an act not covered by the Prostitution statute but is covered by the Crime Against Nature statute,” the judge wrote. “That comment defies credulity. Its absurdity is betrayed by the statutory text, the Louisiana Supreme Court’s pronouncements, and common sense.”

Feldman rejected the argument that the distinction could be justified out of public morality and public safety concerns. On its face, he found, the plaintiffs alleged a “plausible equal protection claim.” Whether the state can justify the differential treatment “must await a merits-inquiry,” he concluded.

Feldman did not, however, approve the plaintiffs’ rights to pursue a privacy claim under the Constitution’s Due Process Clause, pointing out that every attempt to challenge the constitutionality of sex offender registry laws with that argument has been unsuccessful.

On the 8th Amendment cruel and unusual punishment claim, Feldman clung to the absurd contention –– accepted by other courts –– that requiring somebody to register as a sex offender is not “punishment.” That conclusion flies in the face of clear evidence that registered sex offenders are severely hobbled in their ability to carry on a normal life, but the myth of the non-punitive registry lives on for now.

Students at Loyola Law School’s Clinic in New Orleans are working on this case, as well as pro bono attorneys from Cleary Gottlieb in New York and Brooklyn attorney Andrea J. Ritchie. The plaintiffs are suing as “Doe” to preserve anonymity.

The Huffington Post reports that the sex offender requirement as applied to the 1805 law disproportionately affected gay and transgender defendants as well as poor women, many of them African-American, who engaged in “survival sex.”

The judge decided that the state’s demand to know the identity of the plaintiffs need not be decided at this stage of the proceeding.

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