Red Letter Days

Alex Woodward on the revision of Louisiana's crime-against-nature laws ... and why they don't do anything for those already convicted.


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Louisiana retooled its "scarlet letter" statute to remove the solicitation of oral and anal intercourse as a "sex offender" offense. But there are still hundreds of people on the registry for a crime opponents say shouldn't have existed in the first place.

Last week, the state rolled out its latest batch of laws — more than 200 of them — from changing the state's gemstone to allowing the sale of cars with dashboard TV screens (but not for the driver). However, one law, which prohibits sex offenders from joining social networking websites, has sparked furious disapproval from civil rights groups.

The Louisiana American Civil Liberties Union said it would try to block the law, claiming it's too broad and could be interpreted to include any website with some degree of "social networking," like comment boards and blogs.

That same week, civil rights attorneys and advocacy groups were fighting another law that targeted sex offenders — legislation that has been on the books for decades. That law specifically targets people convicted of solicitation for Crimes Against Nature, a more than 200-year-old Louisiana statute that has remained relatively unchanged for years. The Crimes Against Nature law separates the solicitation of oral and anal sex (which it refers to as "unnatural carnal copulation") from prostitution. Civil rights advocates and attorneys argue it singles out gay and transgender people, and if they are charged with the offense, they face stiffer fines and longer jail sentences than are handed down in prostitution cases — including having to register as a sex offender.

Until this month, people convicted of solicitation of Crimes Against Nature (or "SCAN") were required to register as sex offenders and be included in a searchable registry on the Louisiana State Police's sex offender and child predator registry alongside convicted child molesters, rapists and pedophiles.

"Being registered means your name, your photo, your address, appear on the website," explains Alexis Agathocleous, staff attorney with the Center for Constitutional Rights (CCR). "You're carrying around a drivers' license and ID that says 'sex offender' in bright letters, you've got to send notifications to neighbors — that includes schools, parks, rec centers, businesses — saying who you are and where you live, that you're convicted of a Crime Against Nature, and also that you're being labeled as a sex offender."

In June. Gov. Bobby Jindal signed HB 141, sponsored by Rep. Charmaine Marchand Stiaes, D-New Orleans, to remove sex offender registration from the SCAN statute. The law equalizes the penalties for both SCAN and prostitution, so those convicted of either (or both) face the same penalties, including not having to register as a sex offender.

The new law went into effect last week — but it's not retroactive. It doesn't remove the more than 400 names already on the sex offender registry for Crimes Against Nature. Those 400 people make up 40 percent of the names on the registry, according to Bill Quigley, director of the Loyola University Law Clinic and Poverty Law Center. And most of them, according to the Louisiana Justice Institute, are poor people of color, including women, transgender women and gay men — and many are victims of rape, sexual harassment and domestic violence.

The CCR has filed a federal lawsuit (Doe et al vs. Jindal et al) to remove those people from the state's sex offender registry. The defendants — including the state, Jindal and Attorney General Buddy Caldwell — want the suit to be dismissed.

"It's a modern-day scarlet letter," Quigley says. "Everything else on the (sex offender) registry involves kids, or force, or coercion or some sort of violence. This is prostitution. But if you show up for a job interview and have 'sex offender' on your driver's license in red letters, (the prospective employer is) probably not going to take the time to figure out what kind of sex offender you are, and is just going to assume you were involved in doing something with kids or violence."

That information, and the bold red letters on a state-issued ID, gets into the hands of not only potential employers and schools but also drug treatment facilities and shelters, which reserve the right to turn away convicted sex offenders.

"We're punishing people disproportionately," Agathocleous says. The law marginalizes those "struggling with poverty and other socioeconomic issues. It's only compounding the problem," he says.

The CCR recorded testimonies from several of the "Doe" plaintiffs, including "Ian," a gay man who says he sold himself for sex after being kicked out of his home when he was 13 years old. "Because of this charge, I can't get a decent job, I can't do anything. ... The minute they find out I'm a sex offender they say 'No thank you,' ... or don't call me back." He says he was raped by an officer during his four-year prison term and is HIV-positive.

"We don't deserve this," he says. "The crime was committed [against] me. Why wasn't the man arrested when I was 13 years old for bringing me into a hotel room? ... What happened when I was 13 years old and everybody knew I was on the streets and homeless? What happened when I went to prison and caught HIV?"

In the 2003 case Lawrence v. Texas, the Supreme Court ruled against Texas' sodomy laws, defined loosely in the same manner as Louisiana's "unnatural carnal copulation," which effectively singles out sex among gay men. The ruling was hailed as a victory among the lesbian, gay, bisexual and transgender (LGBT) community. But the Supreme Court's decision made an exception to the rule: While private consensual sex was determined lawful, it didn't remove criminal penalties for "public conduct" and prostitution.

Arresting officers have "absolutely no guidance" in their discretion of charging people with SCAN versus prostitution, according to Andrea J. Ritchie, a police misconduct attorney. Ritchie says officers "regularly discriminatorily charge" LGBT people with SCAN. "When charging transgender women of color with solicitation of oral or anal sex for compensation, [police will] almost always use SCAN," she says. In researching cases and listening to testimonials from sex workers, Ritchie says she learned that officers also have used the threat of the harsher penalty under SCAN to extort sexual favors

The 2011 Department of Justice (DOJ) investigation into the New Orleans Police Department (NOPD) found "reasonable cause to believe that NOPD practices lead to discriminatory treatment of LGBT individuals," pointing to the state's Crimes Against Nature statute as having a "history (that) reflects anti-LGBT sentiment." The "national anomaly," as Agathocleous calls it, of the specific nature of Crimes Against Nature and its enforcement meriting DOJ comment "speaks to the severity of the problem in New Orleans," Ritchie says.

(NOPD superintendent Ronal Serpas told Gambit in June that the DOJ investigation "can help point out to the community things that the NOPD does well, things that the NOPD could do better, and things the NOPD should not be doing at all. And we will embrace every one of those recommendations.")

Women with a Vision, a New Orleans-based grassroots human rights organization, has fought SCAN laws for several years and has spearheaded the push to remove the sex offender registration requirement. Executive Director Deon Haywood applauded the recent changes to the law, but said in a statement, "We will continue to fight for justice for all those still living under the penalties of the past. There is still serious work to be done."

Judge Martin Feldman requested both parties in the lawsuit submit additional briefs Aug. 17 before he decides whether or not to dismiss the case. If Feldman rules in the plaintiff's favor, the suit will move forward.

"The Legislature made a big step forward and showed that the state is not really interested in putting these people on the registry, and really sent a message how important this issue is by doing it that way," Quigley says. "We hope that the state attorney general and the governor and Department of Corrections in the lawsuit will voluntarily lift this, but we haven't had any indication yet that they're ready to do this. So it's up to Judge Feldman to decide."


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