William S. MacDonald was convicted for sodomy in 2005 in Virginia. The law bans oral and anal sex between consenting adults. The age of consent in Virginia is 15. The court found that he had sex with two female co-workers aged 16 and 17. He was sentenced to 20 years in prison with 17 of those years stayed.

A similar sodomy law in Texas was declared unconstitutional by the Supreme Court in 2003. At the time everyone thought that the Supreme Court action would affect the Virginia law and those of other states that banned sodomy. But thus far MacDonald’s efforts to clear his record have been rebuffed since the Supreme Court exempted cases involving minors in Lawrence v. Texas However this leads to a confusing situation. Since the Virginia age of consent is 15 enforcing the anti-sodomy acts against those that have anal or oral sex with 16 and 17 year olds does not make vaginal sex with 16 and 17 year olds illegal. The California Supreme Court has ruled that making anal and oral sex illegal while allowing vaginal sex violates equal protection. The Constitution’s equal protection clause prohibits making illegal one activity and allowing another when there is no rational reason to differentiate between two similarly situated groups in an unequal manner.

While waiting for a Supreme Court decision on whether to hear the case MacDonald is subject to Jessica’s Law. He told the New York Times that he is unable to live with his wife and he is forced to be homeless.

The sodomy law appears to be aimed particularly at Gay and Lesbian citizens since it does not ban male/female vaginal sex. But as in MacDonald’s case it can be used against consenting heterosexuals also. No doubt it was used in this case because of the 25 year difference between MacDonald and the two teenagers. ¹

California state courts have been flooded with claims by people required to register as sex offenders challenging the residency restrictions of Jessica’s Law. Jessica’s Law mandated that registered sex offenders live at least 2000 feet from any school, playground or place where children congregate. While this may sound good in theory it has caused a lot of problems. For one thing, there are whole counties in the state which have no residences or very few places that meet this qualification. At the same time many registrants are under conditions of parole that they live within a certain county.

Last February, the Supreme Court in In Re E. J held that the constitutionality of the residency restriction must be decided on a case by case basis. Since then numerous suits have been filed by those required to register. While these suits can crawl along at a very slow pace many judges have restrained the state from enforcing the residency restrictions against the individuals who have sued and some judges have gone so far as to order countywide bans on enforcement. In Los Angeles County the Superior Court has prohibited enforcement of the registration requirement countywide until the individual suits have been decided.

California State Senator Mark Leno is attempting to terminate the residency ban in order to improve public safety. The ban forces many sex offenders to live on the street. As a result of the ban over 2100 sex offenders, statewide, are homeless. Approximately one third of the states paroled sex offenders are homeless. This makes it more difficult for law enforcement officials to keep track of the parolees. California’s version of Jessxica’s Law was passed as an initiative in 2006. Since that time the number of homeless sex offender parolees has increased by 24-fold. In San Francisco 80 per cent of sex offenders on parole are homeless. But Leno has an uphill battle. Since it was enacted as a statewide proposition it either requires another statewide vote or a two thirds majority in the legislature. Jessica’s Law still has strong support in the legislature where Democrats do not want to appear to be soft on crime and Republicans want to support law and order. In order to be successful Leno will have to show his fellow legislators that amending Jessica’s Law will improve public safety by getting sex offenders off the street and improving the ability of parole officers and police to keep track of sex offenders whereabouts.

A Los Angeles judge issued a temporary restraining order prohibiting the enforcement of the residential ban in Jessica’s Law in the county.

Earlier this year the California Supreme Court upheld most of Proposition 83 which included the California version of Jessica’s Law. Jessica’s Law is a Florida law prohibiting convicted sex offenders from living within 2000 feet of a public school, park, or other places that children hang out. But the California Supreme Court held that the residential ban would have to be decided on a case-by-case basis in the local superior courts.

Since the Supreme Court’s decision the lower courts have been inundated with suits claiming that Jessica’s Law unconstitutionally prohibits the plaintiffs from residing in the county. In Los Angeles County, California’s largest 650 suits have been filed. In heavily populated counties there are few if any places that convicted sex offenders can live. In San Francisco the only place sex offenders can legally live is in a parking lot belonging to A T & T Park. The effect of the law is that many sex offenders have been forced to become homeless. Ironically homeless sex offenders are more difficult to keep track of and provide greater problems for police and parole officers. Furthermore there is no evidence that Jessica’s Law prevents children from being molested. Most cases of child molestation are committed by family members. The law makes it more difficult for convicted sex offenders to obtain jobs, maintain family relationships, and get therapy. As a result it increases the likelihood that sex offenders will reoffend and commit other crimes.

A couple of days ago we reported on People v. McKee in which the California Supreme Court opened up the opportunity to challenge Proposition 83, also known as Jessica’s Law on equal protection grounds. Monday the court in In re E. J. again considered Jessica’s Law. This time it rejected claims that it was being used retroactively against parolees and remanded to the lower courts to consider on an individual basis whether it violates the constitutional rights of those required to register as sex offenders by preventing them from living within 2000 feet of “any public or private school, or park where children regularly gather.”

The law was challenged by four parolees who were released on a new grant of parole after the effective date of the proposition for non-registerable offenses but who due to previous convictions have a lifetime registration requirement. Compliance with the Proposition 83 requirements was made a condition of the new parole grant.

The parolees argued that the law was illegally being enforced retroactively. The majority opinion finds that it is not a violation of either Penal Code Section 3 which prohibits the retroactive enforcement of criminal law unless the law specifically allows retroactive enforcement or the ex post facto sections of the state and Federal constitutions. The court found, as to the four petitioners, it was only being alleged as a condition of parole granted after the effective date of the proposition and it was only governing activity that happens after the effective date. Generally ex post facto laws are prohibited because they punish activity without prior notice of the illegality of the activity. Here the petitioners were given notice when they were placed on parole that they could not live in certain areas. They were not being punished for the original offense which led to the registration requirement. Rather they could be punished for moving into certain areas when they were paroled after the proposition’s effective date.

As to the constitutionality of the stay away requirement, the Supreme Court requested superior courts in the county of parole to hold hearings to determine whether the residential restrictions violate the petitioners constitutional rights. The court indicated that there might be a constitutional violation if there was only a limited area in the county of parole where the petitioner could live. Many sex registrants have become homeless or at least have registered as being homeless because the parole boards have treated the homeless as not being in violation of the residential restrictions as long as they do not stay in an area within 2000 feet of a park or school for an extended period of time.

The California Supreme court ruled in People vs McKee that the Sexually Violent Predator Act (SVP) is subject to an equal protection challenge.

Proposition 83, also known as Jessica’s Law,passed by California voters, changed the SVP from a civil commitment that had to be renewed every two years, only if the government proved by a beyond a reasonable doubt standard that a person met the SVP requirements, to an indefinite commitment where the committed person must prove that he/she does not meet the standards by a preponderance of the evidence standard.

The Supreme Court remanded the case to the trial court with an order to hold a hearing, using a strict scrutiny standard, to determine if the SVP violates equal protection. The Equal Protection Clause of the Fourteenth Amendment requires equal treatment for people equally situated. This does not mean all people must be treated equally. But it does mean that people who are similar circumstances, as to relevant criteria must be treated equally. In this case the California Supreme Court determined that those alleged to be sexually violent predators are similarly situated with those alleged to be mentally disordered offenders (MDO) and those found to be not guilty by reason of insanity (NGI). All three groups involve people who committed violent felonies as a result of mental illness. While the predicate felonies for each of the categories is somewhat different, they all involve violent offenses and they are all determined to be a danger to society.

But unlike the MDO and NGI, the SVP ia given an indeterminate sentence and is not given a jury trial, after the initial determination, where the jury must find that the people have proven their case by a beyond a reasonable doubt standard. The MDO is give a one year commitment. After the initial commitment the SVG has the burden of proof by a preponderance of the evidence standard. The NGI’s term is limited to the maximum for the alleged crime.

On remand the people must attempt to show that there is a reasonable distinction between those who come under the SVP and those who are either MDO or NGI and that as a result of that distinction indefinite commitments and putting the burden of proof on the person committed is reasonable. If they cannot do that, pending any changes the legislature wants to make in the law those alleged to be sexually violent predators will be dealt with in the same manner as mentally disordered offenders.