Sex Offender Registration – Reaction or Policy? (CA Penal Code 290)

In a bizarre and mostly academically dishonest opinion, (Johnson v. Department of Justice) the Supreme Court of California essentially overruled the previously controlling opinion in People v. Hofsheier.  Hofsheier meant to correct an obvious conflict in the California Penal Code section 290.  Simply put, CA Penal Code section 290 requires those who orally copulate a minor (CA Penal Code Section 288a(b)(2) to register as sex offenders while not requiring those who have sex with a minor (CA Penal Code section 261.5) the same.  For years, no one doubted the obvious rationale behind this ruling.  Courts, DA’s and defense counsel found Hofsheier intuitive and rational.

The Supreme court’s reasoning is hard to decipher.  In order to overrule the previous opinion, the courts cites the preservation of family as a possible legislative intent behind the statutory scheme in CA PC 290.  That is, the court states that the statutory scheme is not contradictory as the legislature’s inclusion of obviously less severe conduct (oral copulation) is meant to protect those who may have had sex with a partner it can cause a pregnancy and requiring the father of such a relationship to register as a sex offender may interfere in the formation of a healthy family.

This is clearly an absurd conclusion for many reasons:  First, the defendant who orally copulates a minor, is not less likely to marry the minor and produce offspring.  Second, given that CA PC 261.5 contemplates only heterosexual intercourse, Any homosexual behavior is therefore subject to the registration requirement.  Finally, as the court states, CA PC 290 is meant to allow police and probation departments to keep track of certain predatory individuals.  It is time we admit that requiring so many defendants to register as sex offenders makes it impossible to keep track of those more likely to reoffend.  At a time when every county in the state is making budget cuts, it is imperative that only those defendants that are likely to reoffend should be subject to mandatory life time registration.

The opinion is unclear on whether previous plea agreements, in which defendants were charged with a registrable offense, but which entered a plea to CA PC 261.5, most likely for the express purpose of avoiding sex offender registration, may be subject to petitions by the District Attorney for inclusion in the list.

It is clear that this opinion is a move in the wrong direction.  It is up to the defense bar to navigate this obscure reasoning and avoid this serious consequence for our clients.  This opinion makes our task more difficult and society less safe.