“Megan’s Laws” reinforcing old patterns of anti-gay police harassment

“Megan’s Laws” reinforcing old patterns of anti-gay police harassment

Jacobson, Robert L

INTRODUCTION

Michael was a distinguished Korean War veteran, twenty-three years old and only sixteen days away from an honorable discharge. His arrest one night in 1956, for having sex with another man in a San Diego “lover’s lane,” however, changed that. He was convicted of the felony crime of “sexual perversion,” sentenced to five years of probation, fined, and given an undesirable military discharge. As he walked through a gauntlet of Navy officers who ripped the medals off his chest, he probably assumed that his troubles with the law were, at least, now behind him.1

Michael’s actions, however, took on unexpected significance nearly forty years later. In 1995, at the age of sixty-one, a letter from the Los Angeles Police Department ordered him to register with the state as a convicted sex offender.2 After a two-year struggle with hundreds of attorneys’ hours spent on his case, Michael finally was allowed to clear his name from the registry.3

This note examines sex offender registration statutes as overly broad tools that reinforce patterns of anti-gay harassment by the police.4 When the nation’s first sex offender registration law was enacted in California more than fifty years ago,5 it was created in large part as a tool to harass gay men. Police in the state, like those in the rest of the country, engaged in unrelenting ploys to ensnare closeted gay men and expose them.6 The registration statute perpetu

ated this harassment by requiring persons to register with the police for such minor and victimless crimes as consensual adult sodomy and gay solicitation.7

Now, in the 1990s, similar registration laws have blossomed across the nation. After prodding from Congress and from public pressure, every state has enacted a “Megan’s Law,” a statute that requires certain sex offenders to register with law enforcement agencies and potentially be the subject of public notification.8 Although the statutes are nominally designed to protect the public from dangerous sexual offenders, many of them have returned full circle to their roots of California’s anti-gay harassment. Several of the states require registration for consensual sodomy, purposefully branding gay men and lesbians as sex criminals.9 Many more states have unintentionally added to the harassment by requiring registration for minor crimes which are often enforced disproportionately against gay men.10 Still more states compound the problem by making their statutes retroactive, requiring registration for convictions from decades before, a time when police harassment of gay men was particularly severe.11

This note demonstrates how the Megan’s Laws of many states perpetuate discrimination against gay men by imposing registration unnecessarily and proposes possible alternatives to remedy the continuing harassment. Part I examines the context for the development of early sex offender registration statutes, like California’s. It describes the range of techniques that police employed in past decades to identify and harass gay men,12 ranging from raids of early gay bars to undercover decoys who enticed men into making “indecent” proposals. Part II explains how sex offender registration laws emerged in this climate, adding to the police arsenal of laws to regulate homosexuality by requiring thousands of men to register annually for gay-related “sex offenses” as minor as attempting to pick up another man in a gay bar. It then explains the factors leading to the resurgence of Megan’s Laws in the 1990s and describes the significant features of the modern statutes.

Part III explains how many of these modern registration statutes revive the anti-gay undercurrent of the original registration statutes in two significant ways. First, several states have intentionally singled out gay men and lesbians as sex offenders by requiring registration for convictions of gay-specific crimes

like consensual adult sodomy. Second, even more states require registration for convictions of crimes that commonly result from police stings of homosexual men for nonviolent sexual acts.

Finally, Part IV analyzes how two states have recognized the overinclusive nature of these registration statutes and have attempted to limit this problem. It first considers how California has narrowed its statute through legislative reform and relieved more than 1,000 elderly gay men of their annual duty to register with the police. It then discusses several judicial attempts to narrow the scope of the registration statutes, most notably an opinion by the Massachusetts high court that struck down mandatory registration, as applied to a gay entrapment arrest, as a violation of Due Process under the state constitution. It then concludes by proposing alternative legislative solutions to limit the scope of Megan’s Laws by eliminating registration for persons convicted of minor, nonviolent offenses. In addition, the Appendix contains a survey of how each state’s registration statute applies to nonviolent offenses.

I. Tim PERVASIVENESS OF POLICE HARAssmENT OF GAY MEN IN THE 1930s, ’40s, ’50s, AND ’60s

During the 1930s through the 1970s, gay men lived under the constant threat of arrest. Police viewed homosexuality as a contagious, perverted form of behavior that put children at risk and threatened to spread.13 Their relentless techniques to contain homosexuality left gay men in a triple bind, precluding their escape from police harassment in bars, in public, or even in their own homes.

Although bars were the principal place during this period for gay men and lesbians to find friendship and companionship, bar patrons faced significant risks just by visiting them.14 Merely attempting to pick up another person of the same sex was illegal in most places, violating statutes and city ordinances for

“disorderly conduct-degeneracy,” “lewd vagrancy,” or “lewd solicitation.”15 Undercover police would stake out the bars and flirt with patrons, waiting until one responded with an illegal sexual proposal.16 In a case from 1953, for example, a man named Shadforth struck up a conversation with an undercover officer in a New York bar and eventually invited the officer back to a friend’s apartment to “have a few beers and have some fun.”17 The invitation was not sufficiently explicit for an immediate arrest, so the officer followed Shadforth and his friend home, waiting until Shadforth had undressed before arresting him for disorderly conduct.18

Most states denied alcoholic beverage licenses to bars that “offended public morals” by serving homosexuals.19 Using the liquor laws as pretexts to justify mass raids on gay bars, police would arrest patrons under charges of lewdness if

the patrons dared to hold hands or dance together,20 under ordinances that prohibited cross-dressing if the patrons failed to wear gender-appropriate masculine or feminine attire,21 or under the catchall charge of disorderly conduct “for being in a place frequented by homosexuals.”22 The police often freely conceded their true motivation of harassing the patrons; one police captain bluntly stated that his goal through bar raids was “to keep after them until we run them out of town.”23

Rather than risk arrest while frequenting a bar, many men instead sought to pick up other men in known public meeting places, like a street corner, restaurant, theater, or park.24 A common police tactic used to combat this practice was to use a decoy to begin a casual conversation with a suspected gay man and entice him into making an illegal sexual proposal:

[S]tandard procedure is for the decoy to approach the suspect, say that he is new in town or that his wife is out of town, and ask: “Where’s the action?” If

the decoy receives a favorable response, he will then ask the fatal question: “What do you like to do?” If the suspect answers specifying a lewd act, he is immediately arrested.25

Another common practice was for an attractive undercover officer to hint that he was looking for sex, then arrest the targeted man for assault when he reached over to touch the officer.26 Other times, police arrested men under sodomy charges for having sex in parked cars27 or in restrooms.28

Gay men could not even find sanctuary in their own homes or private places. In a 1937 case, for example, a California sheriff’s office received a tip that a large number of cars were visiting a secluded cabin at night.29 Several officers entered the cabin during the day, punched out some knots in the boards of the walls to create peepholes, and built an observation post on the roof of the cabin where they could spy through cracks in the roof. After returning several nights to observe parties with men “kissing and caressing each other” and dancing in a “highly improper” manner, the officers burst in and arrested seventeen men.30

Every arrestee was convicted of “conspiracy” to commit sodomy; some were also convicted of specific counts of sodomy for having sex in a bedroom.31 The convictions, which carried maximum prison sentences of seven to fifteen years,32 were sustained on appeal.33

Some of the in-home arrests reflected attempts by police to target particular individuals who were suspected of being gay. In a 1960 case, police from the District of Columbia’s Morals Division investigated a tip that Calvin Rittenour was homosexual.34 An undercover officer called Rittenour’s home and represented himself as a “down and out” worker who needed a place to stay.35 After he came over to Rittenour’s, the officer coyly suggested that he was looking for sex, then arrested Rittenour when Rittenour made an advance.36 In 1966, a California Supreme Court justice ruefully recounted an earlier unnamed case he had presided over in which the police, in order to gather evidence against a male couple, stood on a box to peer in through their bedroom window while they were having sex.37 The men were convicted of sodomy, a felony.38

While the cases and events cited above illustrate the tactics that police used to harass gay men, the numbers of arrests and convictions document how widespread the practices were. A seminal 1966 project by the University of California, Los Angeles (UCLA) Law Review quantified the number of men arrested and convicted in Los Angeles County through anti-gay entrapment and harassment techniques.39 It found that the sodomy laws were enforced frequently: 493 men were arrested for consensual sodomy over a three-year period in Los Angeles in the early 1960s, with 257 men convicted of sodomy and 104 men imprisoned.40 The sodomy arrests, however, represented only a small fraction of the total number of homosexual men arrested through police harassment techniques. The project found 475 men arrested in one year alone in the county on gay-related misdemeanor charges for nonviolent adult conduct41 like solicita

tion of “lewd or dissolute conduct,”42 lewd vagrancy (loitering with the intent to solicit “lewd or lascivious or any unlawful act”),43 and “outraging public decency”44-arrests that typically reflected men simply making advances at other men believed to be gay.45 These results correspond with those of other major cities, with substantial numbers of arrests for sodomy and many more for misdemeanor gay-related solicitation offenses.46

The penalties for convictions of the different offenses varied greatly. Consensual sodomy was a felony offense in almost every state47 and carried an average maximum prison term of ten years;48 only murder, kidnapping, and rape were penalized more severely.49 With the more common misdemeanor convictions, however, the defendant might only pay a minor fine or serve a short jail term.

Generally, the social consequences of an arrest could be as bad as the formal punishment. Those arrested might face extortion attempts by crooked police officers and attorneys.50 Newspapers would commonly publish the names of

persons arrested in bar raids or for solicitation, intending to ostracize the closeted men and women. A reporter for the Miami News explained ominously after a 1960 bar raid, for example, that “the public should know who these people are.”51 Further, private employers often would discharge or refuse to hire employees discovered to be gay through arrests for gay-related offenses,52 Professionals, such as teachers,53 attorneys,54 and doctors,55 could be stripped of their licenses for convictions related to homosexuality,56 and government employees were routinely fired after being discovered to be “sex perverts.”57 Men and women arrested on gay-related offenses were deprived of their liberty indefinitely through commitments to mental hospitals as “sexual psychopaths.”58

In this environment, the police had a full array of tools at their disposal to harass the emerging gay population, and as the cases and numbers demonstrate, they had no reluctance to use them. Social opprobrium added another layer of control to the formal regulations. Given the wealth of harassment methods already available to police, it is not clear that they needed further regulations. Nonetheless, beginning in the 1930s, cities began to experiment with citywide sex offender registration laws, efforts that were expanded into statewide laws in a few states beginning in the 1940s.

II. THE DEVELOPMENT OF SEX OFFENDER REGISTRATION LAws

A. EARLY SEX OFFENDER REGISTRATION STATUTES AS TOOLS TO REGULATE SAME-SEX BEHAVIOR

In this toxic atmosphere for gay and lesbian citizens in the middle years of the century, cities and states began to enact sex offender registration codes that explicitly required registration for the minor gay-related convictions described above in Part I. The movement towards sex offender registration codes began in 1933, when a large number of cities and towns began to adopt ordinances that required persons convicted of crimes to register with the police when they entered the town.59 Some of the ordinances required registration for all persons

convicted of any crime, while others limited registration to persons convicted of felonies, crimes involving “moral turpitude,” or particular enumerated offenses.60 A 1953 study reviewing the ordinances found that they were used primarily to harass “undesirables” through selective enforcement.61 Many of the cities adopted ordinances which required registration solely for sex of fenses.62

A review of the development of the California regulations shows how a general-purpose criminal registration ordinance grew into a state law which targeted gay men. Los Angeles County enacted the first such ordinance in California as an emergency measure, initially requiring registration for any convicted felon.63 The ordinance was ostensibly designed to deter “habitual and dangerous criminals traveling from place to place;”64 boosters promoted the ordinance as a “quick move to rid the metropolitan area of organized crime and a possible reign of gangsterism.”65 Soon after, however, the ordinance was expanded to include specific gay-related misdemeanor sex crimes, like lewd vagrancy, singling out those petty solicitation offenses as more deserving of

registration than other misdemeanor offenses.66

The California legislature passed the country’s first sex offender registration statute, based on the Los Angeles ordinance, in 1947;67 the legislation was designed to provide “local police authorities with the knowledge of the whereabouts of habitual sex offenders and sex deviates.”68 As originally enacted, the statute required registration for violent felony sex offenses, like today’s Megan’s Laws, but also imposed registration for consensual sodomy69 and misdemeanor indecent exposure.70 An amendment two years later added registration for misdemeanor lewd vagrancy,71 the solicitation statute applied to the bulk of gay-related arrests.72

With the statute imposing registration for violations under the statutes used commonly against gay men, registration became a regular occurrence for the men arrested in bar raids, in street entrapment, or in their homes. The 1966 UCLA project found that about 260 men were convicted annually in Los Angeles of gay-related crimes which required registration, such as sodomy and lewd vagrancy.73 According to the project, the police viewed the registration statute as a useful tool to control homosexual behavior, but could not agree on the particular purpose that registration served; some thought it generally “effective as a deterrent to homosexual activity,”74 while others believed that registration was appropriate because “homosexuals are prone to commit violent crimes and crimes against children.”75

Because the California statute required lifetime registration for many, but not all, misdemeanor sex offenses, it gave enormous charging discretion to police and prosecutors. Police could charge a man arrested for a gay sex offense with the registrable offenses of sodomy, lewd vagrancy, or indecent exposure, or with the non-registrable offenses of disorderly conduct or outraging public decency.76 Most officers, being “very adamant in their desire to have homosexuals registered,” would charge gay men with the registrable offenses.77 With the arresting charge of a registrable offense, prosecutors could then leverage a plea bargain on a non-registrable lesser included offense from defendants who were desperate to avoid the disgrace of lifetime registration.78 The discretion also allowed merciful judges, however, to reduce charges to non-registrable offenses in sympathetic circumstances, such as when a professional license was at stake,79 or for sexual indiscretions by heterosexuals.80

California’s model of registering sex offenders on a statewide basis spread slowly to the other states.81 In the following thirty-five years, only four other states enacted similar statutes-Arizona in 1951, Nevada in 1961, Ohio in 1963, and Alabama in 1967.(82) Like California’s statute, these statutes generally required registration for violent sex offenses, but each one also required registration for consensual sodomy and certain misdemeanor offenses commonly used

against gay men;83 none of the statutes permitted community notification, a key feature of today’s Megan’s Laws.84

Even in California, however, the registration system fell into disuse. Several informal studies in the 1980s, including one attempt by a sheriff to use the registration data to locate a missing child, found that as many as ninety percent of the entries were inaccurate.85 The California legislature also resisted demands to open the registration lists to public inspection.86

Three reasons may account for the apathy of most states during this period toward registration programs. First, early registration information had limited practical value, merely allowing police to keep tabs on the registrants; because the collected registration data was confidential, the statutes did not require or even permit the police to notify communities about registered offenders.87 Further, as many California police officers learned, the enormity of the collected data, with registration lists filled with nonviolent offenders and outdated information, made the statutes ineffective tools to investigate serious, violent crimes.88

Second, government agencies that merely wanted to harass gay men could compensate for the lack of a formal registration statute through informal means by using data collected from gay-related arrests. The police in Tampa, Florida, for example, created a detailed mug book of “known homosexuals” living in or visiting the city as a part of a police campaign to “clean them up and get them out of town.”89 Similarly, beginning in 1947, the U.S. State Department compiled a list of 3,000 “homosexuals or alleged homosexuals” in its attempt to prevent them from obtaining government employment.90

Third, the cumulative weight of other statutes penalizing sex offenders may have made registration statutes redundant. The registration statutes, like other statutes to penalize same-sex intimacy, were premised in part on a belief that homosexuality could somehow be contained through aggressive law enforcement techniques.91 If homosexuals were not deterred, however, by sodomy statutes that threatened up to lifetime imprisonment, by sexual psychopath laws that threatened up to lifetime involuntary commitments, or by the community

ostracism and risk to a career that followed a gay arrest, why would they be deterred by a statute that simply required confidential, annual registration with the police?92 Other states, recognizing the inefficacy of these early sex offender laws, may have preferred to concentrate their resources on traditional techniques to harass gay men. Consequently, few states felt the need to duplicate California’s approach by registering sex offenders.

B. THE RAPID IMPLEMENTATION OF MEGAN’S LAWS IN THE 1990S

Before 1990, only a handful of states had enacted sex offender registration statutes; of those states that had enacted registration statutes, some, like California, enforced their statutes halfheartedly. This indifference changed quickly in the 1990s: after several released sex offenders attacked children in high-profile crimes, states responded by rushing to enact registration programs. Washington enacted the first modern sex offender registration statute in 1990 after a convicted rapist mutilated and raped a young boy;93 the statute was the first in the nation to authorize police to notify community residents when a released offender moved into the neighborhood.94

Several states followed Washington’s embrace of community notification. After seven-year-old Megan Kanka was murdered by a released child molester who lived across the street from her, the New Jersey legislature rushed to enact its namesake Megan’s Law as an emergency measure, bypassing the assembly’s normal committee process and public hearings.95 When New York legislators passed a comparable statute, the legislators demonstrated their retributive intent, characterizing released sex offenders as “depraved,” “animals,” and the “human equivalent of toxic waste.”96 Likewise, the California legislature amended its statute in 1994 to allow community notification, and state officials rushed to bring the registration list up to date.97

Congress responded to the public outcry over these crimes by enacting, in 1994, the Jacob Wetterling Crimes Against Children and Sexually Violent

Offender Registration Act,98 a statute that requires each state to enact its own sex offender registration program or lose ten percent of its federal crimefighting grants. Responding to this congressional mandate and public momentum, every state had enacted its own sex offender registration act by early 1996, most containing provisions for community notification.99

Although states may enact more-stringent requirements for their registration programs, the Jacob Wetterling Act establishes certain minimum standards.100 To comply, states must require persons who are convicted either of sexual crimes against minors101 or of sexually violent offenses, like rape,102 to provide fingerprints and report their home address to a state law enforcement agency.103 States also must enact programs to notify the community of dangerous offenders.104

Notably, the Jacob Wetterling Act does not require registration of those convicted of nonviolent sexual offenses, such as indecent exposure, consensual sodomy, or statutory rape; the federal agency guidelines for the Act note specifically that requiring registration for consensual sodomy “would not further the Act’s objectives.”105 Congress expanded the Act in 1996 by directing the FBI to establish a national database of reported sexual offenders.106 Since the FBI relies on states to identify sex offenders for the national database, the

database could magnify the problem of overinclusive state registration statutes

by including within the database those convicted of minor sex offenses.107

Within these minimum standards, states have broad discretion to require registration for other crimes. Each state’s registration statute contains a list defining which offenses impose automatic registration. In addition to the crimes required by the Jacob Wetterling Act, many states impose registration for convictions of other serious sexual crimes, such as sexual battery, incest, and trafficking in child pornography,108 and several states authorize judicial discretion to impose registration for other crimes committed “as a result of sexual compulsion or for purposes of sexual gratification.”109

Because police engaged in anti-gay harassment techniques more frequently in earlier decades,110 sex offender registration laws are most pernicious when they apply retroactively to old convictions. Although not required by the Jacob Wetterling Act, most states apply their programs retroactively, either to persons under criminal supervision at the time of the statute’s enactment111 or to any living person ever convicted of the specified offenses.112 Other states, however, limit the registration program to crimes committed after their registration statute’s enactment,113 presumably to avoid constitutional ex post facto concerns.114

States also differ on how long registration must last. Under the Jacob Wetterling Act, individuals must register with their state annually for at least ten years for first-time sexual offenses and for their lifetime after second of fenses.115 Many states impose longer registration periods for first-time offenders, including lifetime registration, regardless of the nature of the crime or the individual’s evaluated risk of recidivism.116

To mitigate against the harsh effects of mandatory registration, a few states allow courts or administrative agencies to release an individual from the duty to register.117 Generally, however, these statutes allow for relief only after the offender has been registered for a period of years and do not authorize the sentencing judge to exempt an individual convicted of a minor crime, even when he clearly poses no danger to society.118

Significantly, a 1996 amendment to the Jacob Wetterling Act requires states to adopt some form of community notification by disclosing “relevant information that is necessary to protect the public” about released offenders.119 However, since the amendment lacks guidelines about how states should implement their programs, their procedures vary widely. Some simply make all information about released sexual offenders available “to any person upon request,”120

while others impose affirmative duties on local police departments to warn the public about certain released offenders.121 Louisiana’s statute provides the most aggressive community notification: sex offenders personally must mail notification of their conviction to every neighbor within a three-block radius of their home,122 and a judge may require them to provide additional notice like “signs, handbills, bumper stickers, or clothing labeled to that effect.”123

Generally, however, states attempt to limit community notification to the more dangerous offenders. Some simply require the police to exercise discretion about when to notify communities,124 while others create administrative agencies to evaluate offenders’ criminal records, assign appropriate risk designations, and notify the community accordingly.125

III. MODERN APPLiCATIONS OF SEX OFFENDER REGisTRATION STATUTES TO REGULATE SAME-SEX INTIMACY

The modern incarnations of sex offender registration statutes, often called Megan’s Laws, impose two distinct burdens on same-sex intimacy. First, several states intentionally stigmatize same-sex intimacy by requiring registration for nonviolent offenses, such as consensual sodomy, that apply primarily or exclusively to gay men and lesbians. Second, many more states automatically impose registration

for minor, nonviolent crimes that, while facially neutral, often merely reflect arrests for nonviolent behavior based in anti-gay police entrapment and decoy techniques.

Even today, police continue to selectively prosecute gay men while ignoring comparable heterosexual behavior, often using tactics no different from those in earlier decades. The assistant attorney general for Maryland, for example, suggested that solicitation laws would be enforced against men cruising for other men, but not against a stereotypical construction worker who harassed a woman on the street with lewd comments.126 In an arrest of a Virginia man for solicitation of sodomy after he propositioned another man, a police department spokesperson conceded that the police probably would not have arrested the man if he had proposed oral sex with a woman, even though solicitation for heterosexual sodomy also is, nominally, illegal in the state.127 In a landmark 1996 case, the California Supreme Court affirmed the dismissal of solicitation charges against several men after concluding that the police had engaged in a pattern of discriminatory arrests and prosecutions against gay men.128 Now, under the modern Megan’s Laws, these selective prosecutions take on a new severity because registration is required for many of the convictions.

A. REGISTRATION LAWS TARGETING CONSENSUAL GAY AND LESBIAN INTIMACY

1. Consensual Sodomy

Sodomy laws, while enforced haphazardly today, continue to impose a stigma by creating a “sword of Damocles” which hangs over gay men and lesbians by making them presumptive felons.129 Megan’s Laws that require registration for consensual sodomy impose two related problems: First, they purposely stigmatize the gay and lesbian community generally by labeling its members as dangerous sex offenders. Second, they humiliate those individuals actually convicted of sodomy, particularly when the statutes resurrect ancient convictions by applying retroactively.

The sodomy laws which remain today are anachronisms. In nineteen states, it remains illegal for homosexuals (and sometimes heterosexuals)130 to engage in

private, consensual oral and anal sex.131 In addition to criminal penalties, many courts use the sodomy laws to justify discrimination against gay men and lesbians in the workplace and to deny child custody.132 Despite this, these state sodomy laws have continued to fade away. Since 1986, when the Supreme Court affirmed the constitutionality of Georgia’s sodomy statute in Bowers v Hardwick,133 the sodomy laws of seven states have been repealed or struck down.134 Those of three states have been overturned within the past year, including, ironically, the Georgia statute that Bowers had affirmed.135 Those sodomy statutes which remain in force reflect their archaic origins, like Massachusetts’s language prohibiting “the abominable and detestable crime against nature, either with mankind or with a beast.”136

However, six states-Alabama, Idaho, Louisiana, Mississippi, Missouri, and

South Carolina-have pointedly defied the growing recognition that sodomy laws are unjustifiable by imposing compulsory Megan’s Laws registration for convictions of consensual adult sodomy.137 Their actions reflect their desire to ratchet up the level of stigma by creating a new scarlet letter for gay and lesbian intimacy. Further, these provisions are particularly troublesome because they lack any rational relationship to the goal of Megan’s Laws: to protect the public from dangerous offenders.138 Although most of these states do not require convictions for consensual sodomy to be publicized through affirmative community notification, any sex offender registration information collected in Mississippi, Missouri, and South Carolina is available to the public upon request,139 and Louisiana requires every sex offender to notify his neighbors of the conviction.140

Because sodomy laws were enforced frequently in prior decades,141 today’s registration statutes have a particularly perverse effect when they apply retroactively and dredge up ancient convictions from police entrapment and harassment. Alabama, Mississippi, and South Carolina apply registration retroactively to include every person convicted in the past for consensual sodomy and require registration for the duration of their lives;142 Missouri requires registration for any felony sodomy conviction since 1979.(143)

A recent case confirms that Louisiana applies its sodomy law actively in police entrapment of gay men.144 One night in 1992 in the French Quarter of New Orleans, Johnny Baxley approached an undercover police officer and offered him twenty dollars for sex. Ordinarily, an arrest for solicitation of prostitution in Louisiana is a misdemeanor145 and does not require registration as a sex offender. Because Baxley had proposed sex with another man, however, he was charged with the felony of “solicitation of crime against nature,”146

which carries a maximum prison sentence of five years.’4′ In addition, a conviction imposes mandatory registration as a sex offender for ten additional years148-a fact the Louisiana Supreme Court noted with approval as it upheld the sodomy statute against Baxley’s constitutional challenges.149 Other Louisiana cases suggest that police enforce the state’s sodomy statute rather frequently through undercover operations, including for consensual, noncommercial homosexual sex.150

Although few states appear today to enforce their sodomy laws through a concerted effort, other states occasionally prosecute individuals who are arrested under fortuitous circumstances. In Texas, for example, police arrested two men in 1998 for having sex in their home after the police entered the home on a false report by a third party that an armed intruder had broken in.151 Since many sodomy arrests are pled down to lesser charges or are not appealed, it is difficult to establish how many sodomy prosecutions are actually initiated. In 1997, for example, a maintenance worker visited the home of Andrew Adamson in Fairfax County, Virginia to give him an estimate for cleaning his deck, and Adamson suggested that they have sex.152 The maintenance worker left the house and contacted the police, who arrested Adamson at his home for solicitation of oral sodomy, then brought him to the police station in handcuffs. Adamson was fearful of contesting the charges-a felony-before a jury in the conservative county, so he pled instead to a misdemeanor count of disorderly conduct and was sentenced to forty hours of community service.153 Regardless of how often the sodomy laws are enforced, however, Megan’s Laws that require registration for consensual sodomy offer a crude and unnecessary reminder that gay men and lesbians are still criminals in the eyes of the laws of many states.

2. Loitering and Solicitation

Undercover vice officers frequently engage today in the same entrapment

techniques as those used fifty years ago.154 In many areas, police continue to engage in aggressive efforts to prohibit gay solicitation.155 Virginia police, for example, routinely arrest men for solicitation of sodomy for discussing (not engaging in) sexual activity in gay cruising areas.156

In those states that require registration for consensual adult sodomy, convictions for “solicitation of sodomy” or “attempted sodomy” that follow from entrapment arrests might be sufficient to trigger a duty to register.157 In a 1996 case that reached the Georgia Supreme Court, L. Chris Christensen was sitting at a picnic table by a highway rest stop in Rockville County, Georgia, when an undercover police officer carrying a concealed tape recorder approached him and initiated a conversation.158 After a discussion, the two agreed to go to a nearby motel for sex; no money was involved. En route, Christensen was pulled over and arrested for “solicitation of sodomy.”159 The trial court sentenced him to twelve months of probation, and the Georgia Supreme Court affirmed the conviction, stating that the statute “further[s]. .. the moral welfare of the public.”160 Because Georgia only requires sex offender registration for consensual sodomy when the other party is under eighteen,161 however, Christensen escaped a duty to register.

Although police arrested men for sodomy frequently in the past, most arrests

of gay men historically have been for other misdemeanor offenses. California police, for example, charged most men arrested in anti-gay arrests under the misdemeanor lewd vagrancy statute,162 and the state required registration for those convicted of the statute until 1994.163 Similarly, other states today may require registration for gay solicitation under general solicitation or disorderly conduct statutes. Michigan requires registration for violations of a general solicitation and disorderly conduct statute that prohibits “indecent or obscene conduct,”164 as well as failure to provide child support, prostitution, public intoxication, vagrancy, and lawyers’ solicitation for clients.165 Other states require registration for convictions under particularly vague statutes, like Nevada’s prohibition of “open and gross lewdness,” which could apply to gay solicitation.166

B. MANDATORY REGISTRATION UNDER NEUTRAL STATUTES THAT OFTEN REFLECT ENTRAPMENT FOR NONVIOLENT BEHAVIOR In addition to registration statutes that single out gay-specific crimes, a broader problem is that many Megan’s Laws require registration for offenses like indecent exposure and sexual assault that, while neutral on their face, often reflect arrests from modern forms of anti-gay police harassment. While some of the defendants’ behavior is inappropriate, many of these arrests merely represent minor indiscretions, not the danger to the public with which registration laws are concerned. Further, many of the arrests reflect intentional selective prosecution of gay men, with a blind eye turned to comparable heterosexual behavior.

1. Indecent Exposure

Indecent exposure is a charge that can apply to a wide variety of crimes, ranging from public urination167 to aggressive, threatening behavior.168 Twelve states automatically impose sex offender registration for convictions of indecent exposure, regardless of the dangerousness reflected in the underlying circumstances.169

Indecent exposure charges are often applied to arrests of homosexual men for engaging in sexual behavior in such semi-public areas as bathroom stalls or secluded parks.170 The arrests typically occur when the men, believing they are alone or out of view, are observed through covert police operations using peepholes or hidden cameras.171 Other times, arrests for indecent exposure are made when men respond to undercover police decoys.172 Although this behavior may be inappropriate, none of it suggests the threat to children or the public that sex offender registration laws are designed to address. Further, many of these arrests arise from conduct for which heterosexuals in comparable situations, like teenagers having sex in a car, might be let off with warnings and a wink by police.173 Under these nonviolent circumstances, there is little to suggest that sex offender registration is necessary or appropriate for public safety.

2. Sexual Assault

Even a sexual assault statute intended to prohibit violent or nonconsensual conduct can be manipulated by police officers and prosecutors to fit entrapment arrests. In Doe v Attorney General,174 the petitioner, a grandfather in his

sixties,175 went to a wooded area adjacent to a Massachusetts highway rest stop that was known as an area for consensual sex between men. He approached an undercover police officer, conversed with him for several minutes, and then placed his hand on the officer’s groin.176 He was then arrested and pled guilty to indecent assault and battery; he was fined $62 and sentenced to two years of probation.177 His Massachusetts conviction, however, also imposed a duty to register as a sex offender for at least fifteen years.178

The circumstances of Doe’s arrest and conviction for sexual assault reflect a common pattern of police harassment of gay men. A police officer often engages in conversation or behavior with a suspected gay man to suggest that the officer would be a willing participant to sexual activity,179 only to claim “assault” when the target responds as anticipated.180 While many sexual assault convictions reflect the violent behavior that sex offender registration laws were designed to address, the circumstances of gay entrapment arrests like Doe’s illustrate how automatic registration for sexual assault is overinclusive because it can also apply to nonviolent, consensual behavior between adults.

3. Crimes with “Sexual Motivations”

Although most states limit the applicability of their Megan’s Laws to particular enumerated crimes, several also allow judges to impose registration for additional crimes, such as for crimes committed “as a result of sexual compulsion or for purposes of sexual gratification”181 or, more bluntly, for “any act of

sexual perversion.”182 As one Arizona appellate court noted critically in dicta, these catchall provisions could allow courts to require registration for “such situational and often victimless misdemeanors as adultery, sodomy, lewd and lascivious acts, and open and notorious cohabitation.”183

In Arizona, for example, Justin Cameron was caught masturbating in a public restroom by an undercover police officer in 1994, and was charged and convicted of a misdemeanor count of public sexual indecency.184 Although Arizona’s Megan’s Law did not require registration for indecency, the magistrate judge found it appropriate to require Cameron to register as a sex offender for life.185 The appellate court sustained this registration as rational since “people who engage in public masturbation may engage in more serious sex crimes.”186

While the appellate court’s rationale is conceivably true, there is no evidence to support its belief. The Arizona legislature’s choice not to require registration for misdemeanor indecency suggests that the legislature does not view the crime as particularly dangerous. Further, in this case, there were no aggravating circumstances which made registration more appropriate for Cameron than for typical violators of the indecency statute; the circumstances of Cameron’s arrest hint that the arrest was a typical gay sting. Discretionary registration provisions in this context are particularly troublesome because they allow judges to impose registration based upon their personal biases and without compelling justification, with no guidelines from the legislature to indicate whether registration is appropriate.

IV. LEGISLATIVE AND JUDICIAL REFoRm OF OVERINCLUSIVE REGISTRATION ACTS

The broad scope of many sex offender registration laws raises two primary concerns. First, when targeted specifically at sodomy and gay solicitation charges, the laws perpetuate harassment and stigmatization of the gay community. Second, from a purely practical perspective, the broad scope of the laws fills the registration lists with nonviolent offenders, increasing the registration laws’ significant administrative costs and rendering the registration lists less suitable for their ostensible purpose of protecting communities from predatory offenders. These problems can be mitigated either through legislative changes

or through constitutional challenges in the courts. Because most states have adopted their registration statutes only over the past decade, however, very few legislatures have taken steps to constrain their statutes’ scope.

The experiences of two states illustrate the different methods that other states can adopt to narrow the scope of their statutes. California, which has the oldest statute and had a large number of persons registered for minor sex offenses, has modified its statute through a series of incremental judicial and legislative changes. The Massachusetts Supreme Judicial Court, on the other hand, narrowed the application of its new registration statute suddenly and dramatically by holding that potential registrants, including ones convicted of potentially– serious offenses like sexual assault, are constitutionally entitled to a hearing to determine whether registration is appropriate.187

These two methods of change are appropriate in specific circumstances. Across-the-board statutory changes, like California’s 1994 legislation to remove every misdemeanor lewd vagrancy violation from its registration act, are easier to implement since they can be applied categorically to nonviolent offenses. Changes requiring case-by-case determinations of registration, like that in Massachusetts, allow a state to target dangerous offenders more selectively– and thus exempt only non-dangerous offenders-but impose the higher cost of individualized hearings.

A. POLITICAL CHALLENGES TO REGISTRATION

On occasion, successful lobbying has prevented legislatures from adding anti-gay provisions to state Megan’s Laws. In March of 1995, for example, an amendment adding consensual sodomy to Montana’s sex offender registration bill caused a furor. A Republican senator fanned the flames by describing gay sex as worse than rape. Protests were called in Helena, Billings, and Missoula, with speakers comparing the statute to laws in Nazi Germany that required registration for homosexuals.188 After fielding a deluge of telephone calls, many from tourists who threatened to boycott the state, the governor immediately pledged to veto the bill unless the provision was removed. 189

Similarly, in 1997, an amendment to the California registration statute narrowed its overreaching effects. When the California General Assembly had amended its registration statute in 1994 to authorize community notification and public access to the list, it also removed certain misdemeanor convictions, such

as lewd vagrancy, from the list of crimes requiring registration.190

The California Department of Justice culled through the list at that time to eliminate its notorious inaccuracies,191 deleting 8,000 persons who were either dead or whose crimes no longer required registration.192 The department also identified persons (sometimes incorrectly) who were not in compliance with their duty to register, dredging up convictions of gay men arrested through police entrapment cases in the past.193 These humiliated elderly men complied dutifully with orders to re-register by showing up at their local police stations to be fingerprinted and photographed.194 In one instance, a 90-year-old resident of Leisure World was ordered to re-register for his 1944 conviction of lewd conduct, in which police arrested him after he placed his hand on another man’s knee inside of a parked car. More than fifty years later, the police sent him an enveloped stamped “SEX CRIME” in red ink, which his wife opened. 195 In another instance, a seventy-year-old World War II veteran had been convicted in 1957 for “sexual perversion” (oral sex) in a public restroom.196 He paid a fine and was sent home, and later had the record expunged. Thirty-seven years later, police showed up at his nephew’s house, telling the nephew mistakenly that they were looking for a child molester. When the man explained the circumstances of his arrest, the police agreed that it was ridiculous to make him register, but they were unable to clear his name from the registration list because they no longer had the records of the original conviction. Instead, they gave him a handwritten note and told him to keep it in his wallet in case he were to be stopped by police again.197

Despite the 1994 amendments narrowing the registration statute, the state continued to require registration for ancient convictions of consensual sodomy-a statute that was no longer on the books. Although the legislature had repealed the statute prohibiting consensual adult sodomy in 1975,(198) the state’s sex offender registration statute continued to require every person convicted of consensual sodomy to register. The legislature anticipated significant logistical

problems in eliminating convictions for consensual sodomy because the pre1975 records only stated that a person had been convicted for sodomy, rather than distinguishing between consensual adult activities and sodomy by force.199 Not wanting to expunge rapists from the registration list, but unwilling to direct the California Department of Justice to sort through old records to determine the nature of each sodomy convictions, the legislature continued to require registration for every person convicted of sodomy.200

To end this Kafkaesque situation of requiring registration for a statute no longer on the books, the American Civil Liberties Union of Southern California later forged an unusual alliance with the state department of justice and a Republican assemblywoman who was a proponent of community notification and the sponsor of the 1994 amendments.201 In October 1997, the California Assembly passed a new amendment allowing those convicted of consensual sodomy to expunge their convictions from the registration list.202

The 1997 amendment requires persons convicted of consensual adult sodomy to apply to the state department of justice for relief and to state the circumstances of their conviction. An applicant must either provide official documentation describing the nature of his conviction, such as court records, or submit a signed statement that his arrest was for consensual adult conduct.203 The amendment leaves the burden of proof on the applicants and allows the department to deny a claim if the evidence is insufficient to establish that an arrest was for consensual conduct.204 Otherwise, the department must remove the applicant from the sex offender registry within thirty days.205

The California Department of Justice responded decisively after the amendment passed, reviewing the criminal history folders of 4,783 persons arrested for sodomy before 1976. It found that 706 persons were dead. Of the people still living-their average age being seventy-five-the Department expunged the records of 1,009 individuals because their convictions had been for consensual sodomy; it also required 932 persons to continue to register because their files either indicated that their offense was violent or the records were ambiguous.206

Twenty-two of those denied individuals responded with petitions for removal, and the Department approved all but one.207

In 1997, some members of Congress attempted to pass similar legislation on a national scale. They noted that many states had gone far beyond the Jacob Wetterling Act’s208 congressional intent of registering predatory rapists and child molesters.209 Rep. Charles Schumer offered an amendment to the Jacob Wetterling Act that would require states not to register persons for consensual sodomy because he found that it was it “unconscionable” to force persons convicted under “homophobic sodomy statutes” to be victimized further by registering with the police as sex offenders.210 Despite the support of eleven other members of the House Judiciary Committee, the amendment failed on a party-line committee vote.211

B. CONSTITUTIONAL CHALLENGES TO REGISTRATION

Although states can use across-the-board statutory changes to remove sex offender registration for particularly minor offenses, such as consensual sodomy or solicitation, states cannot make categorical generalizations about offenses which are more ambiguous: those, such as public exposure or sexual assault, which might or might not reflect a conviction for dangerous behavior. The supreme courts of both California and Massachusetts have interpreted their registration laws as unconstitutional when applied to sex offenses for nonviolent conduct, providing a judicial buffer from the automatic imposition of registration.

In 1983, the California Supreme Court held that while section 647(a) of the California Penal Code, which prohibited a person from soliciting “lewd or dissolute conduct,” was constitutional, it was cruel and unusual punishment to automatically require persons convicted of the statute to register as sex offenders.212 In an earlier decision, the court had construed the lewd or dissolute conduct statute narrowly, applying only to sexual contact with another person in public that could cause other persons present to be offended.213 The court noted that the prohibited conduct is “[bly contemporary standards … relatively

minor.”214 Since the state’s registration act imposed the “lifelong stigma of sex offender registration on persons who often have committed little more than a sexual indiscretion, involving no violence,”215 the court concluded that the punishment was disproportionate to the crime.216 The case required lower courts to consider the appropriateness of registration for other crimes, like indecent exposure, on a case-by-case basis.217

The Massachusetts Supreme Judicial Court mandated an expansive procedural change in 1997, stating that every low-risk sexual offender, regardless of the charge on which the person was convicted, is entitled to an administrative hearing to determine whether registration is appropriate. In Doe v Attorney General,218 the petitioner had pled guilty in 1990 to indecent assault and battery for fondling a decoy police officer in a wooded area known for consensual sex between men. Under Massachusetts law, all persons convicted of that crime were automatically required to register as sex offenders for at least fifteen years.219 The petitioner, a bisexual man, sought an injunction to prevent the state from making him register, believing that registration as a sexual offender would destroy his marriage, make him a pariah in his community, and destroy his business as a self-employed carpenter.220 He conceded that registration might be appropriate for some convictions of indecent assault and battery, but argued that the circumstances of his conviction showed that he did not pose a threat to anyone, particularly children.221

The court assumed that the petitioner would be classified as a low-risk, “level one” offender.222 Under the Massachusetts registration act, police do not engage in any affirmative community notification for level-one offenders, but information about them is available to the public upon request.223 The court found that this availability of information could stigmatize him as a sex offender and expose him to adverse economic consequences and held that these risks triggered a liberty and privacy interest under the Massachusetts constitution.224 Given these interests, the court held that procedural due process entitled the petitioner to a hearing to determine whether the state’s interest in protecting the

public justified registering him.225 The Court found that nothing inherent in a conviction for indecent assault and battery, or in the circumstances of the plaintiff’s arrest, demonstrated that registering him would serve the purposes of the state’s registration act-protecting vulnerable individuals from sexual predators.226

C. RECOMMENDATIONS

The methods adopted by California and Massachusetts to narrow their registration laws illustrate how different methods of change-statutory and judicial– may be appropriate under different circumstances. The easiest change to accomplish is removing crimes like consensual adult sodomy and solicitation from Megan’s Laws. Laws that require registration for these crimes are unjustifiable, reflecting nothing more than an intent to stigmatize gay men and lesbians. Because the crimes themselves never include violent behavior, the registration statutes can be amended to remove these crimes from registration without compromising the central purposes of the registration statutes.227

A more ambiguous problem exists with facially neutral statutes that are disproportionately applied to gay men arrested for minor, nonviolent indiscretions. As these arrests show, the definitions about who should register cannot always be determined by bright-line formulas; violent criminals might be pled down to minor charges, while persons arrested under nonviolent circumstances can be charged under weighty charges like sexual assault. Consequently, individualized determinations will be necessary to strike the right balance between protecting the community from crime, protecting gay men from unnecessary harassment, and reducing unnecessary expense in administering registration laws.

This narrowing of the laws’ application can be accomplished through several methods. First, many states have administrative bodies that review each sex offender’s risk of recidivism and assign the offender to one of several categories for community notification.228 This administrative agency could be required first to make a threshold determination that the individual does, indeed, pose some actual risk to the community, the result of the Massachusetts Supreme Judicial Court’s holding in Doe v Attorney General.229 If the circumstances of

an individual’s arrest and his criminal history show that he is harmless, then registration could be waived.

A second method would require the sentencing judge to evaluate the offender’s risk of recidivism to determine whether registration is appropriate. The judge’s familiarity with the facts of the case would give the judge a sense of whether the individual poses a threat to the community. However, rather than give unfettered discretion to judges, a process that risks divergent results based on the biases of individual judges,230 a better scheme would provide guidelines to the judges to indicate which factors are relevant in assessing an individual’s risk to the community. For relatively minor crimes like misdemeanor indecent exposure, this framework should create a rebuttable presumption against registration that could be overcome by a factual determination by the judge that the offender poses a threat to the community.

A third method would use an offender’s criminal history as a proxy for an individualized determination about the risk of recidivism. Several states, for example, only require registration for a second or third conviction of misdemeanor indecent exposure,231 ensuring that people arrested a single time for minor indiscretions are not required to register. While effective at reducing unnecessary registration, it also carries the risk of excluding more-serious first-time indecent exposure convictions where registration might be appropriate. Consequently, individualized determinations through the first or second method would be more closely tailored to the goal of requiring registration only for those persons who pose a threat to the community.

A final method to reduce the harshness of automatic registration is to eliminate retroactive application of the registration statutes for minor crimes. While it is understandable to require registration for old convictions of rape or child molestation, for example, it is not clear that community safety is improved by requiring registration for thirty-year-old convictions of indecent exposure, as some states require.232 Statutes could instead be amended to apply retroactively only to more serious crimes that suggest a continuing threat to the community.

CONCLUSION

The first sex offender registration statutes grew out of a troubling environment of overt and purposeful police harassment of gay men. Several states today seem intent on reaffirming and perpetuating this official stigmatization of gay men and lesbians by requiring sex offender registration for crimes like consensual sodomy and solicitation. Many states that require registration for

nonviolent and facially neutral charges may lack discriminatory intent, but nevertheless brand as sex offenders a number of gay men arrested for crimes that are minor, nonviolent, or result from police entrapment or harassment, a problem compounded by statutes that dredge up old convictions from past decades.

After maintaining its registration statute for fifty years, in part, as a tool to harass gay men, California’s legislature has narrowed the statute to remove convictions for gay solicitation and for consensual sodomy. The move to reform the statute was motivated as much by a desire for administrative efficiency as for humanitarian reasons; the California attorney general’s office stated pragmatically that “if they’re not dangerous . . . we’re not interested in them registering on the database and taking up space.”233

The Massachusetts Supreme Judicial Court took a broader step toward ending the unnecessary harassment associated with its statute. Rather than singling out particular offenses as undeserving of registration, it requires the state to justify the application of the registration statute to each offender. This step goes further than the California statute by ensuring that, regardless of the type of conviction, the humiliation of gay men arrested through modern entrapment techniques will not be compounded by unnecessary registration.

Because most states have only had a few years of experience with their registration statutes, more states are likely eventually to follow the lead of California and Massachusetts by confronting the problems of overinclusive registration statutes. The approaches of these two states represent different ways of ensuring that Megan’s Laws accomplish what they were intended to do: to protect the community, especially children, from dangerous offenders, not from gay men arrested for nonviolent offenses.

ROBERT L.JACOBSON*

* J.D. candidate, Georgetown University Law Center, 2000; B.A., University of Minnesota, 1995. I would like to thank Professor Craig Hoffman of Georgetown, Christopher E. Anders of the American Civil Liberties Union, and Daniel M. Anderson for their encouragement and helpful comments on earlier drafts of this note.

Copyright Georgetown University Law Center Jul 1999

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