Oral Cop is Different. People v. Alcala, no. C037000 (Cal.Ct.App. (3d Dist.) May 27, 2004).

Last Month, the Sixth Appellate District held that imposing a sex offender registration requirement for consensual oral copulation with a minor but not for sexual intercourse with a minor violates equal protection. (Read my post on People v. Hofsheier, no. H026217 (Cal.Ct.App. (6th Dist.), Apr. 1, 2004) here. Today, without mentioning Hofsheier, the Third Appellate District rejected the same argument, concluding that "there is a plausible reason why the Legislature has applied the mandatory sex offender registration requirement to the crime of oral copulation with a minor, but made it optional as to the crime of unlawful sexual intercourse with a minor."  Applying a rational basis test (no fundamental liberty at stake here), the court identified SEVEN "plausible" reasons for the distinction:

(1) oral copulation does not pose the same risks as sexual intercourse, e.g., pregnancy; (2) oral copulation is easier to commit than sexual intercourse since (a) oral copulation can be accomplished more surreptitiously, and (b) victims are less likely to resist oral copulation than sexual intercourse because oral copulation is not as physically painful to a minor and it was more widely acceptable among youth in the culture of the 1980’s; (3) because oral copulation does not carry the same risks as sexual intercourse, is less physically painful to a minor, and is more widely acceptable among youth in our culture, the minor victim is less likely to report an act of oral copulation than to report an act of sexual intercourse; (4) absent a complaint by the victim, oral copulation is more difficult to detect by a third person than is sexual intercourse because oral copulation never results in pregnancy and ordinarily does not result in physical trauma; (5) more minors are at risk of being the victims of oral copulation than of sexual intercourse because an adult male can commit oral copulation with boys as well as girls; (6) for all of these reasons, there is a wider “victim base” for oral copulation with a minor than for sexual intercourse with a minor; and (7) there is particular need for the state to prevent recurring oral copulation with minors because it often is used to “groom” the victims for other sex acts by making them less likely to resist those acts than if they had never been subjected to acts of oral copulation; thus, it creates a wider victim base for other sexual acts with minors.

Despite these seven plausible reasons why oral cop. offenders should register while those engaging in intercourse should not, the Court recognized the stupidity of all this: "the statutory scheme would make more sense, would be more just, and would result in fewer costly legal challenges, if the trial court has discretion whether to impose the sex offender registration requirement for oral copulation with a minor, like the trial court has for unlawful sexual intercourse with a minor."

And Justice Morrison wrote a separate concurrence to emphasize why this scheme is nonsense:

Forcing a defendant who commits oral copulation on a child to register while no such requirement exists for a defendant who has intercourse with a child seems a vestige of the legal view that oral copulation is unnatural under any circumstance. That time has passed. Except where force is used or a participant is a prisoner, the Legislature decriminalized adult oral copulation in 1975. (See People v. Collins (1978) 21 Cal.3d 208, 211.) In my view unlawful sexual intercourse with a minor is far more dangerous and has more serious consequences than oral copulation with a minor. I urge the Legislature to address the disparate treatment of these two crimes.

A petition for review was filed in the Sixth District case (Hofsheier) on May 7, 2004. (No. S124636.)