Patterico's Pontifications


California Supremes Declare Unconstitutional Sex Registration Requirement for Oral Copulation with a Minor

Filed under: Crime — Patterico @ 9:59 pm

Howard Bashman reports:

Supreme Court of California rules that a state law requiring an adult who has oral copulation with a minor to register with police as a sex offender is unconstitutional because no such requirement exists for adults who have sexual intercourse with minors: Today’s ruling, by a 6-1 margin, can be accessed here.

My wife, who has prosecuted sex crimes for years, always thought this was an odd discrepancy.

P.S. Mrs. P. notes that, as a practical matter, the only time you’d ever use this statute is when the child is sixteen or seventeen and the act was “consensual,” since other (harsher) laws apply to younger minors or forcible oral copulation.

3 Responses to “California Supremes Declare Unconstitutional Sex Registration Requirement for Oral Copulation with a Minor”

  1. I read the opinion. It adopts a minority view of proportionality in criminal punishment just as the Kansas court did in Limon. The court, here, as a matter of fact cites Limon. I was under the impression, though, that Limon was decided under Due Process (Lawrence v. Texas) and not equal protection grounds.

    The prevailing view is that if the criminal statute adequately informs a defendant of the illegality of his particular conduct, he cannot complain that other conduct is punished less severely or not at all. (Cf. A recent prostitution case in New York where the court ruled that the exemption of porn film actors did not deny equal protection the the old-fashined kind of prostitutes.)

    The only case in my state involved a statute which punished delivery of fake controlled substances more severely than actual controlled substances. The court ruled that it did not meet the rationality test to punish someone more severely for selling milk sugar than for selling heroin. Otherwise, we can punish burglary of an auto with five years while theft of the whole auto only carries three years. The legislature can weigh many factors such as the incidence of a particular type of crime and the difficulty in preventing it (in my burglary of an auto case the legislature had responded to a highly publicized rash of “smash and grab” incidents).

    I believe that California and Kansas will likely remain in the minority on this. I noticed that the Court cited the California Constitution as well as the U.S. Constitution. The U.S. Supreme Court, as best as I can tell, has never applied this analysis.

    nk (bfc26a)

  2. I aslo read the opinion. The test used, “rational basis”, is a well-established test for equal protection claims. The issue is not disparity of sentence for different crimes. The real issue here is the discussion over the diference, if any, between “voluntary” sexual intercouse and “vomuntary” oral sex with a minoir.

    The opinion, with which I agree, argues that both voluntary acts are essentially similar, and simply naming them two different crimes doesn’t get around that fact.

    Consigliere (3f8ad8)

  3. I’m not judging, just relating. It is the minority view as I said in my earlier post. I suspect that the California statute was aimed at homosexuals and the Court caught on to that (see its citation of Limon) but it is always dangerous to read between the lines in court opinions — especially opinions which strike statutes as unconstitutional. In any event, in my state the statute would have been upheld. The Court would have said, “The legislature may well have found that young girls people are more easily induced to indulge in oral sex by being persuaded that it is not “actual sex” while still being in danger of contracting STDs. This is a sufficient rational basis and it it not the function of this Court to substitute its judgment for that of the legislature. We reject the equal protection argument. Neither this Court nor the U.S. Supreme Court have ever held that a “protected group” under the Equal Protection Clause is defined by its conduct — only by inate, unalterable characteristics it is unable to help.”

    By the way, in my younger days doing criminal appeals, I brought at least half a dozen cases where I argued the issue of proportionality. The burglary of an auto case in my earlier comment was one I lost (and created precedent for future prosecutions). I have mellowed since but I still have some of the libertarian streak which makes me think that every criminal statute should be given First Amendment strict scrutiny.

    nk (2e1372)

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