Articles Posted in Sex Crimes

BEGINNING JULY 1, 2021

Beginning July 1, 2021, many California residents who are required to register as sex offenders under Penal Code section 290 will be relieved of the lifetime registration requirement.

Who is eligible?

The #MeToo meme has been front and center news ever since the Harvey Weinstein story broke. Many a career has since been ended by revelations from inappropriate workplace flirting to aggressive sexual assault. If the adults can’t navigate this potential minefield, what about the college students? If any group is in the trenches, it’s the kids in college.

This demographic is characterized by raging hormones, immature decision-making skills, and for many, unfortunately, binge drinking. Yet, they are expected, actually required, to navigate the very treacherous territory of sexual consent.  The so-called “active consent” lawenacted in California in 2014, applicable to most colleges and universities in California, requires the schools to have a policy in place that sanctions sexual misconduct.  Sexual misconduct can be heinous acts such as a forced and violent rape, but it can also include an ambiguous sexual encounter. This gray area includes sex that was not affirmatively consented to.

What does that mean? It’s not entirely clear and the students subject to this policy cannot be expected understand the nuances of affirmative consent.  To begin, very often, both parties are inebriated. But under the active consent law, a person is not capable of consenting to sex if she (and it’s almost always a female) is “incapacitated” by drugs or alcohol, even when her intoxication was of her own volition. At what point does one become incapacitated? The law defines it a state induced by drugs or alcohol that prevents a person from understanding the fact, nature, or extent of the sexual activity. If a person has sex with another who is “incapacitated,” even if she was the initiator or aggressor, consent to the sex is, under this law, impossible. (It is similar to the laws that make consent of a person under the age of 18invalid because it assumed a minor does not have the capacity to consent.)

California’s sex offender registry currently lists over 100,000 sex offenders. The registry has a long history; it was first employed (although not in its current form) 70 years ago. It is estimated that around 650 registrants on the list today were first registered in the 19040’s and 50’s. Since many sex crimes in California mandate sex offender registration once convicted of the crime and in almost all cases, the mandate to register is a lifetime requirement, the registry has grown so large that it has become unwieldy. California is one of only four states in the country that requires a lifetime registration. Not only is the registry becoming unmanageable for law enforcement due to the number of individuals on the registry but the registry has also forced many registrants to live on the margins of society thereby imposing a kind of de facto life sentence.

The largest number of sex offenders on the registry, approximately 65,000, were convicted of misdemeanor or non-violent sex offenses. Some of these crimes were presumed by the offender to be a sex act with a consenting, but under age 18, partner (under California law, a minor cannot consent) or for something as non-threatening as indecent exposure. In previous decades, not that long ago, gay people were targeted by the police for having consensual sex in the park. Many of these individuals were arrested for indecent exposure and ended up with a conviction that required them to register as a sex offender. Those individuals are still required to register.

While some of the offenses may be deplorable, they do not in all cases mean the offender is a sexual predator that must be forever watched by law enforcement, yet that is how anyone on the sex offender registry is branded.

In 2014. Governor Jerry Brown signed into a law what is known as “active consent.” This law, incorporated in the California Education Code, applies to California campuses and has often been referred to as the “yes means yes” law. The law requires any post-secondary educational institution that receives state funds for financial student assistance—and basically that means almost every university, college, junior college, or trade school in the state—to enact an “affirmative consent” policy. The affirmative consent policy, as its name implies, means that before there is any sexual activity involving a student there must be ongoing conscious consent. Furthermore, the policy must stipulate that a person cannot give affirmative consent if he or she under the influence of drugs or alcohol to the extent that the nature of giving consent could not be understood. The law does not provide for criminal sanctions but you can easily see how this can be a slippery slope to rape charges.

And that is exactly where this story goes: Two USC undergrads “hooked up” at a club in the wee hours in the morning on April 1^st of this year; both were drinking. They ended up in the young woman’s dorm room. Several days later the young man found himself arrested by the Los Angeles Police Department on charges of rape by use of drugs and sexual penetration by a foreign object. The sexual assault was characterized in some newspaper articles as “shocking.”

Apparently, the young woman’s roommate walked into the dorm room in the middle of the alleged assault and the young man left at that point. The young woman reported the sexual assault to USC authorities and told police that she did not remember the encounter. Perhaps she did not.

On the night of January of 2015, two Stanford University graduate students were bicycling on campus when they saw a male behind a dumpster. The male was on top of a female who appeared to the grad students to be unconscious. The grad students approached to investigate at which point the male ran away, leaving the unconscious female lying, nearly naked, on the ground. One of the grad students chased the male, restraining him until the police arrived. The male turned out to be a 19-year-old Stanford University student athlete swimmer, Brock Turner. Mr. Turner was charged with felony sexual assault. The case went to a jury trial after Mr. Turner refused to accept a plea bargain.

At the trial in early 2016, it was established that both Mr. Brock and his victim attended the same party where the both became highly intoxicated. They did not know each other prior to the party. Mr. Brock insisted that the sex behind the dumpster was consensual. The victim testified that she didn’t remember anything and would not have given her consent to a strange man to have sex behind a dumpster. Ultimately, the jury convicted Mr. Brock on three felony charges of sexual assault. The convictions exposed Mr. Brock to a potential 14 years in prison.

But at the sentencing, the judge sentenced Mr. Brock to six months in county jail and a three-year term of probation. Mr. Brock, by operation of law, was also required to register as a sex offender for the rest of his life. There was an immediate outcry at the seemingly light sentence. The details of the assault, as they came out in the trial, were brutal and the jury verdict established that the victim did not consent. Many people were outraged by the verdict because they believed it was unusually lenient due to the fact that Mr. Turner was a privileged white student at Stanford University. If the perpetrator had been a non-white underclass 19-year-old, the critics argued, the sentence would have been far harsher.

California’s sex offender laws are among the strictest in the country. Even relatively minor sex offense convictions usually end up requiring a lifetime registration on the sex offender list. So what is a “relatively minor” sex offense you might ask. Well, consider the 18-year-old who is arrested for having consensual sex with a minor— that minor being his 16-year-old girlfriend. Or how about an adult of 19 who is convicted of making obscene and harassing phone calls to a minor, that minor being his younger brother’s friend and the acts, while immature, were done as a joke. While these acts and other similar crimes aren’t acts to be excused, they are hardly acts that suggest the offender poses a significant and lifetime risk of committing sex crimes. But that is how almost all so-called sex crimes are treated.

There are almost 100,000 sex offenders registered in California and this state is one of only four that requires a lifetime registration. The U.S. Justice Department estimates that more than a quarter of the sex crime registrants were minors at the time of the offense. According to the California Sex Offender Management Board, almost 900 of the registered sex offenders committed their last sex crime over 55 years ago. The strict requirements placed on sex offender registrants regarding where they can live has created an underclass marginalized by society.

How did the sex offender laws become so stringent in this country, and especially in this state? Even after serving the sentence for the crime, the sex offender is never relieved of the burden. The idea behind the registration laws is that sex offenders are likely to recommit sex crimes and therefore present an ongoing risk to society. But is this true?

The Sex Predator Next Door

In 1996, with the federal enactment of “Megan’s Law”, California began disseminating identifying information about sex offenders on CD-ROM on a monthly basis to all sheriff and police departments throughout the state. This information was made available to the public. Since then, the information available to the public has expanded to include information about individuals who have been convicted of a variety of sex crimes against both adults and children and is available to all via the Internet.

Since Megan’s Law was enacted, public awareness of sex offenders has increased and with that awareness has come more laws and restrictions on individuals convicted of sex crimes. In 2006, California voters enacted Proposition 83, known as “Jessica’s Law”, which placed mandatory residency restrictions on registered sex offenders. While it is certainly in the public’s interest to be protected from violent sexual predators, Jessica’s Law, which placed onerous restrictions on where a sex registrant can live, coupled with the readily available information to the public, created a class of homeless undesirables. The California Supreme Court noted that sex offenders registered as transient nearly tripled from 2,050 in 2007 (just after Jessica’s Law was passed) to 6,012 in 2011.[1]

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Facebook, Instagram, selfies—we live in an age of instantaneous electronic communication. The teens of today share the details of their lives via social media; they seem to spend much of their time snapping photos to share and conversing by text message. But some teens go beyond sharing the everyday details of their lives—they share the intimate details of their lives or the lives of others by engaging in what’s commonly called “sexting”. Sexting is the sending of a nude or revealing photo of oneself or of another person to someone via cell phone text messaging.

Certainly teen sexting is a cause for concern to parents and often ends up causing the teens involved a lot of embarrassment, but the consequences of teen sexting can be far worse than an angry parent and teenage embarrassment. While many states have laws that specifically address teen sexting, California does not. In the State of California, a teen who is caught sexting or, even simply possessing a sext message on his or her phone may face charges under the California sex offense statutes.

It is illegal in California to produce, possess or distribute “obscene matter[1]” of a child under the age of 18. (Pen. Code §311.1, 311.2 and 311.3). Violation of this law applies to any obscene image of a child, whether it’s a hard copy or an electronic image. When a text message depicts obscene images of a minor under the age of 18, the person who takes the photo, sends it as a text, or just simply possesses the text[2] can be prosecuted under the child pornography statute. The law applies to minors as well as adults.

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