In the face of numerous appeals cases, the California Supreme Court has decided to take a stand on sex offender registration. For the past few years, there has been considerable disagreement surrounding who has to register as a sex offender and whether or not it is possible to terminate the registration requirement using a constitutional argument. With this new ruling by the California Supreme Court, we now know very clearly what the registration requirement is. The bad news is that the law is now much more strict and some people who received relief from the registration requirement may have to register once again.
Equal Protection Argument
The source of the initial confusion was a case called Hofsheier, which was based on an equal protection argument. Equal protection is one of the most powerful protections provided by the Fourteenth Amendment of the United States Constitution. In brief summary, it requires States to treat similarly situated groups of people the same unless the State can present a valid reason for treating them differently. Different categories of people are protected to a different extent.
The highest level of protection is called strict scrutiny, which applies in the case of race. Under strict scrutiny, a state must be able to show that it is using the least restrictive means to further a compelling government interest. This argument could be used to in certain limited cases of affirmative action or state college admissions programs that consider race.
The intermediate level of protection is called intermediate scrutiny, which applies in the case of gender (but not sexual orientation). Under intermediate scrutiny, a state must be able to show that the law furthers an important government interest using methods substantially related to the interest. This argument has been satisfied in the past in order to support the military draft, which only requires that men register. Because the important government interest in the case of the draft is protection of the country through combat service, and because men tend to be larger/stronger than woman, the male-only draft has been upheld.
Sex Offender Registration and the Rational Basis Test
The lowest level of scrutiny is called the rational basis test. This test applies for everything else not covered in the previous two tests. This means that sex offender registration falls under the rational basis standard. In order to pass the rational basis test, the state must be able to show that the law is rationally related to furthering a legitimate government interest. This brings us to Hofsheier.
In Hofsheier, the court held that the State of California had no rational basis with which to distinguish between the offense of non forcible oral copulation with a person 16 years of age (CA PC § 288a(b)(1)), which has mandatory sex offender registration, and unlawful sexual intercourse with a same-aged minor (§ 261.5), which has only discretionary registration. Finding no rational reason to treat the one offense more harshly than the other, Hofsheier changed the law to make registration discretionary in both instances.1
After Hofsheier, California courts expanded Hofsheier to include other offenses, including nonforcible sodomy with 17-year-old minor (§ 286(b)(1)), nonforcible oral copulation of minor under 16 years (§ 288a(b)(2), 18-year-old defendant convicted of nonforcible digital penetration of 13-year-old (§ 289(h)), nonforcible oral copulation between 12-year-old juvenile and minor under 18 years (§ 288a(b)(1)), and nonforcible oral copulation while incarcerated (§ 288a(e)).2
How Johnson v. California Department of Justice Affects Sex Offender Registration
On January 29, 2015, the Supreme Court of California released its judgment for Johnson v. California Department of Justice (S209167). The effect of Johnson is to overrule Hofsheier and all of its later progeny.3 The reasoning given for this decision is that there was a valid rational basis for the state to treat people convicted of nonforcible oral copulation with a person 16 years of age (CA PC § 288a(b)(1)) and unlawful sexual intercourse with a same-aged minor (§ 261.5) differently. The rationally based reason for treating them differently is that sexual intercourse can lead to both teen pregnancy and parenthood. In the case that a pregnancy results, there are issues relating to child support and parenting which could allow a court to consider whether or not to require sex offender registration.4
Even though this is not the most compelling argument, the rational basis standard is a very low one. All that it requires is a “plausible basis” or a “reasonably conceivable factual basis.” Consequently, the issue of teen pregnancy, parenthood, and child support is sufficient to pass the test because it is plausible.5
Now that the Supreme Court has clarified that Hofsheier and its progeny are bad law, the question arises as to whether or not Johnson will be applied retroactively to people who had the registration requirement terminated early under Hofsheier.
Will the Ruling Apply Retroactively?
The California Supreme Court specifically stated that it is not deciding whether or not to apply its ruling retroactively to all cases.6 However, the Court is applying the ruling retroactively to any defendant’s who signed a plea deal in which they acknowledged by initial that they may have to register as a sex offender even if the registration requirement was terminated.7 This is likely to be the most common situation, which means that most people granted relief under Hofsheier will likely have to register.
Generally the retroactive effect of a law which is changed by the by the Court rather than by the legislature can be challenged under the arguments of reliance, equity, and public policy. However, if a plea deal has been made which acknowledges the possibility of registration, this challenge cannot be made because of this most recent case.8 If you did not make a plea deal acknowledging the possibility of registration, it is thus possible that you could challenge the retroactive application of the latest decision from Johnson.
Johnson v. California Department of Justice (S209167) can be found online at http://www.courts.ca.gov/opinions/documents/S209167.PDF.
Published January 29, 2014. Written by Kelton Johnson, a Graduate of Chapman University Dale E. Fowler School of Law.