Sex Work

Federal Judge Says Forcing Some Prostitutes to Register As Sex Offenders Violates the Equal Protection Clause

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Yesterday a federal judge ruled that Louisiana had violated the 14th Amendment's guarantee of equal protection by requiring people convicted of "crimes against nature by solicitation" (CANS) to register as sex offenders. The charge can be brought against anyone accused of offering to engage in oral or anal sex for money; alternatively, completely at the discretion of police and prosecutors, those defendants can be charged with prostitution. Until the state legislature changed the law last year, the former charge carried more severe penalties plus a registration requirement. This case was brought by nine people who agreed to perform oral sex for compensation and were convicted of CANS before the revisions to the law, which were not retroactive, took effect last August. U.S. District Judge Martin Feldman concluded that Louisiana's distinction between CANS and prostitution was so illogical that it failed even the highly deferential "rational basis" test (which applies to equal protection cases that don't involve a "suspect class" such as race):

First, the State has created two classifications of similarly (in fact, identically) situated individuals who were treated differently (only one class is subject to mandatory sex offender registration). Second, the classification has no rational relation to any legitimate government objective: there is no legitimating rationale in the record to justify targeting only those convicted of Crime Against Nature by Solicitation for mandatory sex offender registration….

The defendants fail to credibly serve up even one unique legitimating governmental interest that can rationally explain the registration requirement imposed on those convicted of Crime Against Nature by Solicitation. The Court is left with no other conclusion but that the relationship between the classification is so shallow as to render the distinction wholly arbitrary.

The Center for Constitutional Rights (CCR), which represented the plaintiffs, reports that they already have suffered the consequences of being lumped in with rapists and child molesters:

Many of the plaintiffs in the case had been unable to secure work or housing as a result of their registration as sex offenders. Several had been barred from homeless shelters, one had been physically threatened by a neighbor, and another had been refused residential substance abuse treatment because providers will not accept registered sex offenders at their facilities. 

"Today's decision is a powerful vindication of our clients' right to equal protection before the law," said CCR staff attorney Alexis Agathocleous. "The court has agreed that they have been singled out for this harsh treatment without a legitimate or rational purpose, and that this cannot stand."

You can read Feldman's decision here. In my July Reason feature story "Perverted Justice," I noted that sex offender registries often include people, such as prostitutes, who pose no threat to the general public. Reason.tv also has covered the subject: