Why Is Gay Underage Sex Criminalized When Straight Sex Is Not?

A "Romeo & Juliet" law in California keeps many young adults out of the state's sex offender registry, but not in the case of two Romeos or two Juliets. Now, a new bill filed by state Sen. Scott Wiener, D-San Francisco, could end that inequity and prevent stigma on many LGBTQ young adults in the Golden State.

It's illegal in California for an adult to engage in sexual intercourse with a minor and normally lands individuals on a registry if convicted. But a provision in the law says that in cases where one partner is age 15 or older and their partner is within 10 years of their age, the adult in the relationship won't automatically go on a registry even if convicted of having inappropriate relations.

In other words, in an 18-year-old "Romeo" has vanilla, missionary sex with his 17-year-old "Juliet," he can still be charged with a crime, but he won't be branded in a public database as a sex offender automatically. A judge can still decide to do so if circumstances of the case warrant it, and this only applies with willing partners.

But if there's any oral or anal sex involved, the provision goes out the window. Those wicked sodomite tricks land someone in the registry regardless of age or consent. The particularly complicates matters for Romeo-Romeo or Juliet-Juliet relationships where the partners may fall into the same age windows, but the law will consider sex acts so odious it will land the older partner of the registry regardless.

"SB 145 puts an end to blatant discrimination against young LGBT people engaged in consensual sexual activity," Wiener said. "This bill is about treating everyone equally under the law. Discrimination against LGBT people is simply not the California way."

Equality California has championed the shift in California law for years.

"There's no reason for the law to treat a high school senior dating a high school junior differently because of their sexual orientation or gender identity," said Equality California Executive Director Rick Zbur. "We've been working to make this common-sense fix and ensure LGBTQ young people are treated the same as their peers."

Wiener makes clear the law seeks only to create equity. Sex with anyone age 14 or younger, same-sex or otherwise, still counts as statutory rape and automatically lands an adult on the registry. But it seeks to end California's odd ranking of sexual sins that looked down upon acts practiced by gay, lesbian and bisexual partners.

"These laws were put in place during a more conservative and anti-LGBT time in California's history," Wiener said. "They have ruined people's lives and made it harder for them to get jobs, secure housing, and live productive lives. It is time we update these laws and treat everyone equally."

The San Francisco lawmaker already landed support from the Los Angeles District Attorney's Office.

"Justice should be applied fairly and equally regardless of a person's sexual orientation," said Jackie Lacey, Los Angeles County District Attorney. "I support this bill to correct the unjust application of the law." It may even lead to quicker plea deals for young adults in relationships with older teenagers and who fought charges for fear of being labeled "sex offenders."

The change would also put in statute what used to be California case law. A 2006 state Supreme Court decision, People v. Hofsheier, had ruled treating oral sex as a worse offense than vaginal sex violated the equal protection clause. But a 2015 ruling in Johnson v. Department of Justice overturned that.