Last edited: November 23, 2003


ACLU Scores Win for Gay Men Swept Up in CA Sex Offender Law

American Civil Liberties Union, November 12, 1997

For Immediate Release

SACRAMENTO, CA -- A crucial but little known provision of the recently enacted Sex Offender Registration Law will allow individuals convicted of consensual gay sex under now-defunct criminal statutes to expunge their names from the state’s sex offender registry. They will no longer be required to register as sex offenders or be listed in California’s sex offender registry. Those already listed can request to be deleted from the registry.

The change comes from language drafted by the ACLU and included in Assembly Bill 290 written by State Assembly member Barbara Alby, R-Fair Oaks, and signed by Governor Wilson on October 8, 1997. The law -- which alters California’s interpretation of Megan’s Law -- went into effect thirty days following the Governor’s signature.

"Gay men no longer face the indignity of having to undergo annual registration as sex offenders, forced to submit fingerprints and photographs to the police like common criminals," said Elizabeth Schroeder of the ACLU of Southern California.

"They will no longer live in fear that neighbors will shun them by mistakenly lumping gays convicted under out-dated laws with felons convicted of child molestation and rape," Schroeder added. "This law is long overdue; the state should, on its own, have purged these records more than twenty years ago."

The ACLU was also able to eliminate from the list of registrable offenses in the bill, individuals convicted under Penal Code Section 647(d) -- loitering around a public toilet -- a provision historically used in sting operations targeting gay men.

Prior to the decriminalization of consensual gay sex in the mid-1970s, a number of men were convicted and placed on California’s sex offender registry. The registry was allowed to languish for a number of years. However, with the recent passage of Megan’s Law, many of these individuals were contacted by the Department of Justice and told that they, like those convicted of rape and child molestation, must also register as convicted sex offenders and face possible community notification.

"This provision is especially important for gay men who have been unjustly targeted by repressive laws for so many years," said Kelli Evans, staff attorney for the ACLU of Northern California. "Although the laws under which these men were convicted were struck down decades ago, the men were still in jeopardy of being stigmatized as sex offenders. Hopefully, they will now be protected from being swept up by the unduly broad brush of sex offender registration laws."

By July 1998, the state justice department will issue a report which will include the number of people convicted for consensual gay sex before January 1, 1976, the number of these individuals convicted for subsequent sex offenses, and the number of people who have applied for relief from registration. This information will be used to purge the sex offender registry.

An individual who wants to have his name removed from the list now can submit to the justice department either official documentary evidence, such as court records or police reports which demonstrate that the conviction was for conduct between consenting adults, or submit a confidential declaration stating that the conviction was for conduct between consenting adults. Because many of the convictions are more than two decades old, and official records may no longer exist, the declaration must include the person’s name, address, telephone number, date of birth, and a summary of the circumstances leading to the conviction, including the date of conviction and county in which it occurred.

If the justice department determines that the conviction was based on consensual conduct between adults, within 60 days the DOJ shall notify the local law enforcement agency that the person is no longer required to register (unless the person has other convictions that require registration) and the local law enforcement agency must remove the person from its registry within 30 days. If the justice department finds that the information submitted is insufficient to justify removal from the sex offender registry, an individual can appeal the decision to the superior court.

"The Department of Justice should have taken these individuals off the sex registry list a very long time ago," said ACLU Legislative Director Francisco Lobaco, who worked on the passage of the provision. "We expect this new law will facilitate the process by which these innocent individuals can finally have their names removed from the sex registry list."

Removing Names from the Registry

Individuals convicted of consensual gay sex who seek removal from the sex offender registry can send a cover letter and official documentary evidence or confidential declarations to: Criminal Justice Information & Analysis Sex and Arson Registration Program P.O. Box 903387 Sacramento, CA 94203-3870

For information or to check on the status of requests, call the Sex Offender Registration Unit 916-227-3288.

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