California Senate Bill 145 would fix homophobic sentencing law

California Senate Bill 145

California Senate Bill 145 would erase a discriminatory sentencing law that has disproportionately targeted members of the LGBTQ community to register on California’s sex offender list has received support from law enforcement and civil rights advocates. Photo: iStock.

Update: Gov. Gavin Newsom signed SB 145 until law.

Discrimination in a sentencing law that has harmed LGBTQ youth related to California’s sex offender registry is one step closer to being fixed.

Senate Bill 145 passed both houses of the State Legislature late Monday evening and will be sent to Gov. Gavin Newsom.

He has until September 30 to sign or veto the bill.

SB 145, which is authored by Sen. Scott Wiener (D-San Francisco), was introduced last year; however, it was blocked by Assemblywoman Lorena Gonzalez, who spread false information about the bill.

SB 145

SB 145 does not legalize any kind of sex with a minor younger than 14 years old and does apply to intercourse of any kind with minors who are younger than 14. The bill also does not change the potential sentence for anyone convicted of having sex with anyone younger than 14. In those cases, mandatory sex offender registration is required by law.

The age of consent for sexual intercourse in California is 18. Accordingly, any sex act with a person younger than 18 is a crime, though whether it is a misdemeanor or felony depends on the age of the people involved, according to the California Penal Code.

Rather, SB 145 bill simply gives judges the ability to decide whether or not someone should be required to register as a sex offender for consensual anal or oral sex. Judges already have that discretion with vaginal intercourse cases.

“The passing of SB 145 guarantees equal and fair application of California’s sex offender registration law regardless of sexual orientation,” Los Angeles Deputy District Attorney Bradley McCartt said in a statement. “Ordering someone onto the sex offender registry carries lifelong consequences. Allowing judges and prosecutors to evaluate cases involving voluntary sex acts between young people on an individual basis will ensure justice for all Californians.”

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SB 145 supporters

SB 145 has huge support. It is co-sponsored by the Los Angeles County District Attorney’s Office and Equality California. It also is supported by both law enforcement and civil rights advocates, including the American Civil Liberties Union, the Anti-Defamation League, the California Public Defenders Association, Children Now, the California Coalition Against Sexual Assault, Lambda Legal, and the National Center for Lesbian Rights.

Current law

Under the law, an offender who commits consensual yet illegal “sexual intercourse,” meaning vaginal intercourse, between a teenager age from 14 to 17 years of age and a partner within 10 years of age, is not required to be listed on the state’s sex offender registry. Instead, the judge has discretion to decide, based on the facts of the case, whether the sex offender registration is warranted or unwarranted.

However, for all other forms of intercourse — specifically, oral and anal intercourse — sex offender registration is required under all situations, with no judicial discretion.

This disparity specifically harms members of the LGBTQ community.

Homophobic relic

This legal distinction in the law — which treats oral and anal sex as worse than penile-vaginal sex — is a relic of anti-sodomy laws. Although California’s anti-sodomy laws were repealed more than 40 years ago, this discriminatory relic has remained and is harming young people.

Here’s how the law specifically targets LGBTQ people.

If an 18-year-old heterosexual man has penile-vaginal intercourse with his 17-year-old girlfriend, he is guilty of a crime, but he is not automatically required to register as a sex offender. The judge will decide based on the facts of the case whether registration is warranted. By contrast, if an 18 year old gay man has sex with his 17 year old boyfriend, the judge must place him on the sex offender registry, regardless of the circumstances.

“We must stop criminalizing LGBTQ young people,” Wiener said in a statement. “There is no logical reason to treat different sex acts differently, and that distinction only exists under California due to egregious legally sanctioned homophobia from the past.”

About the author

Phillip Zonkel

Award-winning journalist Phillip Zonkel spent 17 years at Long Beach's Press-Telegram, where he was the first reporter in the paper's history to have a beat covering the city's vibrant LGBTQ. He also created and ran the popular and innovative LGBTQ news blog, Out in the 562.

He won two awards and received a nomination for his reporting on the local LGBTQ community, including a two-part investigation that exposed anti-gay bullying of local high school students and the school districts' failure to implement state mandated protections for LGBTQ students.

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