Is a blatant anti-homosexual law alive and unwell in the state of California? 286 (e) of the California Penal Code makes it a misdemeanor to engage in consensual sodomy while incarcerated. Subsection ‘e’ is the only law on the books that I know of prohibiting consensual sodomy with an adult. Given the need for rules and discipline in a penal setting, as well as to protect those who might be involved in a not-so-consensual manner, the presence of the law itself is not the question here. The question lies in its inclusion in PC 290.
PC 290 requires those with past convictions of certain sex offenses to register with the police for the rest of their lives. The law came into effect in 1998, but because the laws protecting people from retroactive punishment take a hiatus when it comes to sex offenders, those convicted prior to the law’s effect must register. Therefore, the many people out there who took a deal prior to 1998 for a relatively lenient sentence, whatever their chances of winning at trial (or whatever may have actually happened), face a possible felony conviction if they fail to make their sex offender status public, forever.
A recent client, CF, was convicted of PC 286 (e) in 1985 when he was 18. He says he is still a friend of the other person involved (there’s no place for the word “victim” here). He is currently on parole for 2nd degree, or commercial, burglary. Given the aforementioned hiatus from the laws against retroactive punishment, a parolee with a 290 offense at any time in his or her past is subject to the residency restrictions of Proposition 83, or “Jessica’s Law”: They cannot reside within 2000 feet of a park or a school. In other words, someone paroled to a Bay Area county with these conditions will likely be homeless by law.
When I saw that CF’s sole 290 offense was the PC 286 (e) conviction in 1985, I went to the Penal Code hoping for that “gotcha” moment where I could show the Board of Prison Terms that he never had to register in the first place. That moment never came: The list in PC 290 includes all of PC 286, with no subsections excluded. Therefore, a person whose sole sex offense was consensual sex with another adult (over 20 years ago) has to register as a sex offender for the rest of his life and must be homeless while on parole.
The inclusion of PC 286 (e) in PC 290, or rather, the non-exclusion of subsection (e), was either missed by the legislature or is a blatant anti-homosexual law in which Justice Scalia can take some small comfort after laws prohibiting consensual sodomy outside the prison walls were found unconstitutional. Feel free to contact your California representative and inform her or him about the mistaken and/or bigoted inclusion of Section 286 (e) of the California Penal Code in Section 290.
MARC GARDNER is a defense lawyer in the Bay Area. He can be reached at: firstname.lastname@example.org