Criminal Appeal

Oral Sex Up Among Teens; Cal. Supreme Court Reviewing Same. A recent, and well publicized, study shows that teens are engaging in oral sex at higher rates and they're doing so because they perceive it to be safer than intercourse. This new data may be of interest to the California Supreme Court, which has before a case presenting the question of whether the legislature had good reason (rational basis?) for penalizing oral sex with a minor more severly than vaginal intercourse with a minor. In California, oral sex with a  minor requires sex offender registration; vaginal intercourse with a minor does not require registration.

The case is People v. Hofsheier, no. S124636. In April 2004, 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. (The case involved a 22-year-old defendant and 16-year-old minor.) Earlier posts on Hofsheier can be read here and here. (By the way, contrary to the Supreme Court's electronic docket in Hofsheier, I don't believe the case involves a timber law preemption question. Let's see if it gets corrected.)

You can read a post on a related case, People v. Alcala, here. That post list the opinion's seven reasons why oral sex might treated more severly than intercourse.

Expiration of Two-Year SVP Commitment Does Not Moot Federal Habeas Challenge to Commitment; Due Process and EP Challenges Relating to Petitioner's Original Unlawful Commitment that Preceded SVP Commitment Rejected. Hubbart v. Knapp, no. 03-16877 (9th Cir. Aug. 13, 2004).

Holdings: (1) Mootness. the court rejected the state's argument that the habeas petition was moot because of expiration of the original two-year commitment challenged in the petition. The court specifically rejected the state's argument that the claims did not evade review because the California courts ruled on them: "for purposes of determining mootness in connection with California’s repeating pattern of two-year commitments under the SVPA, a federal constitutional claim evades review if the challenged action expires before a federal appellate court has the opportunity to fully consider the allegation."

(2) Due Process: state court's rejection of due process claim was not an unreasonable application of US Sup. Ct. case law. The Cal. SVP law provides that proceedings may only be initiated against persons already “in custody under the jurisdiction of the Department of Corrections.” When the petitioner was committed he was in the custody of the dept. of corrections, but that custody was illegal because appellant had been detained illegally under former parole revocation regulation § 2616(a)(7). According to the 9th Cir., "the state court held that 'an SVPA commitment resulting from unlawful custody [does not] violate due process where, as here, the unlawful custody was the result of a good faith error and where, as here, the SVP is provided with numerous procedural safeguards.'" The Ninth Cir. found this a reasonable application of due process law and affirmed.

(3) Equal Protection. The court also rejected equal protection challenges to the same commitment: one challenging the different treatment of those "in custody" pre-SVP commitment due to an unlawful parole revocation, as compared to those who did not have their parole revoked or whom successfully challenged their pre-SVP commitment; the other challenging the differing definitions of mental conditions under the SVP and California's Mentally Disordered Offender Law.

Panel: Goodwin, Canby, and Tallman (author)

Cal. Supremes To Decide Whether Oral Cop is Different. Today, the Court granted review of the Sixth Appellate District's decision in People v. Hofsheier, no. H026217 (Cal.Ct.App. (6th Dist.), Apr. 1, 2004), holding 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. (This case involved a 22-year-old defendant and 16-year-old minor.) Read my original post on Hofsheier here. This is not much of a surprise. Just two weeks ago, the Third Appellate District rejected the same equal protection claim in People v. Alcala.  Read my post on Alcala here.

Paul Couenhoven of the Sixth District Appellate Program represented Hofsheier in the Court of Appeal; Deputy A.G. John H. Deist represented the state. View the docket in People v. Hofsheier, no. S124636, here.

Update: The Court, today, also granted review in In re Martin M., no. S123963 (6th Dist. no. H025631), deferring briefing pending a decision in Hofsheier.

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.)

Registration Requirement for Oral Cop On Minor Violates Equal Protection Clause. (Or, What a Difference a Judge Makes)
Case: People v. Hofsheier, no. H026217 (Cal.Ct.App. (6th Dist.), Apr. 1, 2004)
Proceeding: Direct criminal appeal following guilty plea.

Holding: Imposing a sex offender registration requirement for consensual oral copulation with a minor but not for sexual intercourse with a minor violates equal protection.  (This case involved a 22-year-old defendant and 16-year-old minor.)

In so ruling, the Sixth District disagreed with its own opinion in People v. Jones (2002) 101 Cal.App.4th 220. What changed? The judicial lineup. In Jones,  Justice Patricia Bamattre-Manoukian wrote the majority opinion, joined by (Now Presiding) Justice Conrad Rushing.  Justice Nathan D. Mihara dissented in Jones. In the current case (Horsheier), Mihara authored the majority opinion (joined by Justice William M. Wunderlich) and Justice Bamattre-Manoukian dissented.

In addition to changing lineups on these cases, there's another reason this issue won't go away. The majority's willingness to find that no rational basis for the disparate treatment for oral copulation and intercourse was based on the fact that the prosecutor and the trial court agreed the distinction was irrational:

Because defendant’s assertion that there was no rational basis for the distinction was conceded below, and no evidence to the contrary has been produced, we must conclude in this case that the legislative classification lacked a rational basis.

Writing for the majority, Justice Mihara noted that "this issue has now reached this court three times, but no one has yet produced any statistics regarding the relative rates of recidivism. We publish this case to encourage the final resolution of this issue in some future case by the production of such statistical evidence in the trial court." Theoretically, differing rates of recidivisim for the two classes offenders could justify the distinction. (It's also possible that Penal Code section 290 has been amended so many times and is so long and so complicated that it's simply just a mess.)