There had been a lot of scrutiny around Senate Bill–145 which was introduced in the May of 2019 to the California Senate. The bill aimed to establish a state standard across the board for sexual misconduct. Before, the introduction of Senate Bill-145 (SB-145), the punishment for sexual offences varied depending on the type of sex, especially when it involved minors. Until the passing of SB-145 California weighed sexual misconduct that didn’t involve intercourse differently than the ones that did. SB-145 is a bill that attempts to address the inequality that exists in the state of California which is skewed against the LGBTQ community.
In one line if we were to describe it, we can say that SB-145 is an “anti-discriminatory law” that “ends discrimination against LGBTQ people on the sex offender registry.” The bill removes the distinction between sex acts and grants prosecutors and judges’ discretion over sex offender registration equally.
Here’s what the bill states: “This bill would exempt from mandatory registration under the act a person convicted of certain offences involving minors if the person is not more than 10 years older than the minor and if that offence is the only one requiring the person to register.”
The main issue behind SB-145 and what it hopes to achieve.
Under current California law, statutory rape is treated differently depending on what type of penetration occurred.
Before the bill was passed for all sexual conduct involving intercourse the predators had to register as sex offenders. This was a prerequisite and the predators had to do this irrespective of the outcome of the hearing or the opinion of the judge adjudicating on their matter. For sexual misconduct that did involve intercourse, however, the judge could decide if the perpetrator had to register as a sex offender or not.
The problem with this type of scenario was that it led to a bias against the LGBTQ community and more and more young members of the community had to register as lifelong sex offenders as compared to heterosexual offenders as the majority of cases regarding sexual offences including the LGBTQ members on either side of the offence didn’t involve intercourse.
The previously prevailing situation unfairly penalized people who did not engage in penile-vaginal intercourse
This would be better illustrated with an example which is a direct quote from Senator Weiner
“A 19-year-old has a 17-year-old girlfriend and they have sex, that is statutory rape. But the law right now says that the judge does not have to put that 19-year-old boy on the sex offender registry because of the kind of sex that they were having. But if it’s a 19-year-old boy having sex with a 17-year-old boyfriend, the judge must put that 19-year-old onto the sex offender registry, even if it was completely consensual, even if they were boyfriends, even if there was nothing coercive or predatory about it.”
And that is what the bill hopes to achieve which is not to determine the punishment on the basis of a rule that seems to target people in the LGBTQ community but on the merits of each case and whether or not the actions, consensual in nature, illegal or not should be subject to lifelong sex offender registration.
Criticism regarding SB-145
One of the main criticisms behind this bill was that SB-145 legalizes sex with minors thereby legalizing paedophilia. But we need to understand here is that in no case does SB-145 legalize or weaken the penalties for any conduct. These offences remain punishable by law and it depends upon the judge’s discretion to put the predator on the registry based on the merits of the case. Just like a judge had the power to do with penile-vaginal intercourse before the passing of this legislation.
SB-145 does not protect rapists and applies to voluntary sex and is not applicable in cases where one party does not believe the sexual contact was voluntary or the behaviour was predatory.
Critics of SB-145 were concerned that SB-145 changes the age of consent and condones these behaviours. It will allow 24-year-olds to prey on 14-year-olds. But what we need to understand here is that the age of consent remains unchanged. Under the current law, it is illegal for anyone over 18 to have any type of sex with a 14-, 15- or 16-year-olds and this remains illegal under SB-145 and is punishable by law.
The only change is that a judge can decide when the sexual contact is oral, anal, or digital, whether or not the older party should be on the sex offender registry – for example if the age gap between the couple is close and the behaviour was voluntary. Courts already have this discretion when the offence is penile-vaginal sex.
The bill was introduced because the sex offender registry requirements were biased against the members of the LGBTQ community. With the passing of this bill, one of the criticisms is that SB-145 will weaken the sex offender registry. But that is a misconception and with the passing of this bill, law enforcement will be able to solve future sex crimes by tracking past offenders that are at risk of offending in an unbiased and equal manner. Since these low-level offences carry mandatory versus discretionary registration, the registry itself has become so bloated it has become an unworkable and useless tool for law enforcement to track predators and solve future crimes.
With the registration depending upon the discretion of the judge based on the merits of the case the sex offender registry is bound to be stronger than ever after the passing of such a bill by the Senate.
Previously, for example, in the case of two high school seniors, one 17 and the other 18, who had sex on graduation night, the judge could decide not just whether to send the 18-year-old to prison but whether to make him register as a sex offender — but only if the act being prosecuted was vaginal intercourse. If it was another sex act — and the statute is specific, referring to oral sex, anal sex, and other acts — the judge would lose that discretion. Sex offender registration would be automatic.
Now the judge has discretion in both circumstances, so the requirements apply equally, whether the two teenagers are of the same or opposite sexes.
This article is written by Sparsh Jain, a 3rd-year law student at Symbiosis Law School, Noida.