The California Supreme Court has put some logic into sex registration law by holding that it violates the state constitution to require someone to register (for a lifetime) as a sex offender for having consensual oral sex with a 16-year-old and not to require the same for having consensual intercourse.

The case People v. Hofsheier holds that a court can choose to order the defendant to register – it’s not required by law.

As we know, America has a love-hate relationship with adults (persons 18 and above) who have sex with youth (persons under 18). Americans don’t complain when one of the major characters on “Desperate Housewives,” Mrs. Solis, has sex with her 17-year-old gardener, John.

Of course, much would probably change if Mr. Solis had sex with a 17-year-old girl. All hell would break loose.

Last year, San Diego LGBT Pride faced criticism for hiring registered sex offenders. I pointed out here the hypocrisy in the law. Some people wouldn’t have had to register if they had vaginal sex with underage females, but because they had oral sex with males, they had to register. The law shouldn’t distinguish based upon traditional heterosexual versus homosexual sex acts.

The California Supreme Court agreed. The case involved a man who was 22 when he had consensual oral sex with a 16-year-old girl. Because it is illegal under the California Penal Code for persons over 18 to have sex (of any kind) with those under 18, he pled guilty to a felony. The law required the judge to make him register as a sex offender for life.

The man argued that had he had intercourse instead of oral sex, the law wouldn’t require him to register. The court noted that before 1921, oral copulation was prosecuted, along with sodomy and bestiality, as “the infamous crime against nature.” Oral sex was punishable by a prison term of one to 15 years. The 1921 statute applied to all acts of oral copulation, but in 1975 the California Legislature amended it to exclude acts between consenting adults.

Today, the penalties for oral sex depend upon the age of the parties and the presence or absence of force or other coercion. The court noted that in 38 states, the age of consent is 16 years, or occasionally younger, “so voluntary sexual conduct with an adolescent 16 or 17 years of age is not a crime.” In the remaining 11 states, five require sex-offender registration for persons convicted of either voluntary oral copulation or voluntary sexual intercourse: Arizona, Illinois, New Mexico, North Dakota and Texas.

Two states, Louisiana and Tennessee, require registration for some persons convicted of statutory rape of a 16- or 17-year-old victim, but they do not require registration of persons convicted of voluntary oral copulation with adolescents 16 to 17 years of age. The other four states – Colorado, Florida, Iowa and Ohio – do not require registration of persons convicted of voluntary sexual acts with minors 16 or 17 years old.

In finding that California was engaging in discrimination based upon sexual acts, the court cited the Kansas Supreme Court case State v. Limon, in which a 19-year-old was convicted of homosexual sodomy with a minor 14 or 15 years old. A different Kansas statute prohibited heterosexual sodomy with a minor 14 or 15 years old, but it prescribed a lesser penalty and did not require sex-offender registration. The Kansas Supreme Court held that the statutory distinction between homosexual and heterosexual acts violated the equal protection clauses of the state and federal constitutions.

This prompted our California Supreme Court to reach a similar conclusion in this case. It found that there was no rational basis for distinguishing between oral sex and intercourse. If anything, unprotected intercourse leads to unwanted childbirth. And the Legislature on several occasions has rejected requiring registration in “statutory rape” cases.

In those cases, the law affords judges the ability to decide whether the offender must register, like it will now be with adult-minor oral sex. The judge decides whether the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.

The California Department of Justice will furnish the registrant’s name and ZIP code to inquiring members of the public. When it becomes publicly known that a person is a registered sex offender, the person may be at risk of losing employment, and may have difficulty finding a place to live. While the court’s result is fair, it is possible that the voters will, by initiative, impose the registration requirement on anyone convicted of any crime involving minors.