The California State Legislature was Right to Pass SB-145 in 2020

Correcting the Record and Countering the Narrative of Journalist Abigail Shrier

Recently, journalist Abigail Shrier, who is famous for writing “Irreversible Damage: The Transgender Craze Seducing Our Daughters”,¹ attacked the passage of SB 145 (2020) in California as helping “reduce penalties for adult-child sex”.²

Shrier has directed a great deal of criticism against California State Senator Scott Wiener (D-San Francisco) for authoring laws she believes are assisting criminal sex offenders, including SB-145.³

Some of her criticisms of Senator Wiener are actually well-taken. However, on SB-145, which was also authored by then Assemblywoman (now Congresswoman) Sydney Kamlager-Dove (D-Los Angeles), Shrier’s criticisms miss the mark.

While what Shrier says is technically true regarding penalty reduction, her statement is misleading as it takes the legislation wildly out of context. SB-145 was a common sense measure that made our criminal codes conform to the principle of equality.⁴

Some background. In California, judges currently have discretion as to whether to place a criminal convicted of having sex with a minor on the permanent sex offender registry list when (1) the victim was at least 14 years old, (2) the offender was no more than 10 years older than the victim, (3) it is the only conviction of the criminal, and (4) the offender engaged in voluntary sex that would have otherwise been considered consensual if the victim was of the legal age of consent.⁵

The law recognizes there are certain situations where a crime still takes place but where the offense is not one in which someone should automatically have to register permanently as a sex offender.

For example, an 18 year old high school senior who has voluntary sex with a 14 year old high school freshman violates the law and commits a sex crime.⁶ However, the law recognizes the 18 year old is not necessarily a predator who is at risk to offend again, and does not require the 18 year old, under those circumstances, to register as a sex offender.⁷ Importantly, the judge can still require that 18 year old to register as a sex offender if the judge determines that this person is truly a predator.

This was the law in California law in 2006 when the California Supreme Court held that requiring a 22 year old man who pled guilty to having voluntary oral sex with a 16 year old girl to permanently register as a sex offender when he would not have had to register as a sex offender had he engaged in vaginal sex violated the Equal Protection Clause.⁸ Even under an extremely deferential standard of review, the Court held there was no rational basis to justify requiring those convicted of oral sex on a permanent sex offender registry while not requiring the same of those convicted of vaginal sex.⁹

However, in 2015, the California Supreme Court reversed itself, restricting judicial discretion as to whether a person should be placed on a convicted sex registry only to those convicted of illegal vaginal sex.¹⁰ Judicial discretion did not apply to those convicted of anal and oral sex, who were automatically placed on the sex offender registry regardless of the case facts. In discarding a recent precedent, the 2015 Court took “an unfortunate step backwards.”¹¹

Although the issue of sexual orientation discrimination was not presented for argument, the Court upheld a law that violated the California Equal Protection Clause by discriminating on the basis of sexual orientation.¹²

How?

The law treated exclusively straight sex differently than it did sex that gay and lesbian people would engage in.

Consider a situation in which two 17 year old boys, one straight and one gay, attend a high school. At this high school, two 25 year old teachers, one a straight woman and one a gay man, both decide to violate the statutory rape law. The straight female teacher has vaginal sex with the straight 17 year old boy. The gay male teacher has anal sex with the gay 17 year old boy.

Both teachers are prosecuted (as they should be) and convicted.

Under the 2015-2020 version of the law, the straight female teacher does not have to register as a sex offender. The gay male teacher does.

Switch the sexes and sexual orientations and the same result occurs. Two 17 year old girls, one straight and one gay, attend a high school. At this high school, two 25 year old high school teachers, one a straight man and one a lesbian woman, both decide to violate the statutory rape law. The straight male teacher has vaginal sex with the straight 17 year old girl. The lesbian female teacher has oral sex with the lesbian 17 year old girl.

Again, both are prosecuted (as they should be) and convicted.

Under the 2015-2020 version of the law, the straight male teacher does not have to register as a sex offender. The lesbian female teacher does.

Or take just one 25 year old bisexual teacher at a high school who wishes to sleep with under aged students. The teacher is male and has vaginal sex with a 17 year old girl and separately has oral or anal sex with a 17 year old boy.

The teacher is convicted of both crimes. Under the 2015-2020 version of the law, the teacher must register as a sex offender for sleeping with the gay boy, but not for sleeping with the straight girl.

Switch the sexes and sexual orientations and consider what would happen if the 25 year old bisexual teacher is a woman who has oral sex with a lesbian 17 year old girl and separately has vaginal sex with a straight 17 year old boy. The same result occurs. The teacher is convicted of both crimes. Under the 2015-2020 version of the law, the teacher must register as a sex offender for sleeping with the lesbian girl, but not for sleeping with the straight boy.

Any way you slice it, the law clearly discriminates on the basis of sexual orientation.¹³

The previous law made little sense, if any at all. Why should different types of illegal sex be treated differently under the law? Why should illegal vaginal sex be punished less harshly than illegal anal sex or illegal oral sex? How is illegal vaginal sex less predatory than illegal oral sex or illegal anal sex?

Has a mature minor been criminally violated any more because they had voluntary oral or anal sex with an adult who should have refrained? Has a mature minor been criminally violated any less because they had voluntary vaginal sex with an adult who should have refrained?

Perhaps, the law treats vaginal sex differently because vaginal pregnancy can result from vaginal sex.¹⁴ And thus, vaginal sex with a minor could result in greater consequences far beyond the sex itself. But logically, that should not lead to a law that punishes illegal oral sex and illegal anal sex more harshly. If anything, that should lead to a law that punishes illegal vaginal sex more harshly than other types of illegal sex.

To be clear, an adult who has voluntary sex with a mature minor and should have reasonably known the true age of the minor should know better than to have sex with that minor. If a 25 year old high school teacher who develops a sexual attraction to a one of his or her 17 year old students and decides to have voluntary sex with that student, it doesn’t matter that the 17 year old student said “yes”, that is still a crime and should remain so.

While determining what the legal age of consent should be is an imperfect science, we nevertheless, as a society, have made a judgment call about where we draw the line and properly punish those who criminally cross that line.¹⁵

But criminal punishments for crossing that line need to operate uniformly. The 25 year old teacher should not be held less culpable for sleeping with a 17 year old student because they engaged in an act of vaginal sex, instead of oral or anal sex.

The only justification for this differential treatment is one of morality. But morality cannot be the source of a law even under the United States Constitution.¹⁶

If the crime is a crime, the type of sex defining the crime should not be relevant to the determination. In the context of straight sex (and both California Supreme Court decisions in question involved straight defendants), the law is “uncommonly silly”.¹⁷ But given that this law guarantees differential treatment on the basis of sexual orientation, it becomes clear that this law was blatantly unconstitutional.¹⁸ And maintaining the discriminatory laws was wrong.

SB-145 is not the first time the State Legislature has had to fix discriminatory penal code legislation after the California Supreme Court ruled the wrong way.

In 1979, the Court ignored its own precedents on sex and gender discrimination to uphold a statutory rape conviction under a law that punished men for sexual behavior that it then made legal for women.¹⁹ The law defined “unlawful sexual intercourse” as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years”.²⁰ In affirming the conviction, the Court took a step backwards towards sex equality under the law.²¹

However, in 1993, the State Legislature subsequently changed the law, making statutory rape a crime regardless of the sex or gender of either the perpetrator or the victim.²² In 2020, the State Legislature acted in the same manner, fixing the mistake that the Court made by enacting SB-145.

Now, does this mean, as is intimated by Shrier, that these are no longer crimes?

No. SB-145 did not make sex between adults and minors legal. Just as a reminder:

• An adult above the age of 21 who has anal sex with a minor below the age of 16 is guilty of a felony.²³

• An adult who has anal sex with a minor between 16 and 18 is guilty of a misdemeanor.²⁴

• Having anal sex with a minor under 14 who is more than ten years younger remains a felony without exception.²⁵

• An adult above the age of 21 who has oral sex with a minor below the age of 16 is guilty of a felony.²⁶

• An adult who has oral sex with a minor between 16 and 18 is guilty of a misdemeanor.²⁷

• Having oral sex with a minor under 14 who is more than ten years younger remains a felony without exception.²⁸

The same exact rules apply for under-age vaginal intercourse:

• An adult above the age of 21 who has vaginal sex with a minor below the age of 16 is guilty of a felony.²⁹

• An adult who has oral sex with a minor between 16 and 18 is guilty of a misdemeanor.³⁰

• Having vaginal sex with a minor under 14 who is more than ten years younger remains a felony without exception.³¹

Now, some who opposed SB 145 suggested that those who were guilty of crimes of vaginal sex with minors should be forced to register as sex offenders too. That would, of course, be fine, as a matter of equal protection under the law. But this was never proposed by any legislator or promoted by any lobbying organization.

As one might imagine, SB-145 was controversial to pass. Legislators received death threats over it.

Those being discriminated against were not particularly sympathetic figures. However, that’s really irrelevant.

Fights for equality can be difficult, especially when they involve unpopular individuals or icky concepts. And certainly, this is a very icky concept. But the principle of equality under the law must be protected. Our constitutional guarantees prohibiting discrimination do not cease to apply simply because society decides that it favors the discrimination.

Nor should it. If corners can be cut here to discriminate on the basis of sexual orientation, they can easily be cut elsewhere.

In taking this position on SB-145, one might get labeled a “pedophile”. However, believing that a white serial killer and a black serial killer should receive the same sentence does not mean that one is a white supremacist or that one supports serial killers. Nor does ensuring a white serial killer and a black serial killer receive the same sentence for committing the exact same crimes does not make serial killing in any way legal or socially desirable.³²

Equality under the law means equality under the law.

SB-145 rectified a bad opinion from the California Supreme Court that strayed from that principle and fixed a bad law. Abigail Shrier is wrong in her criticism of this bill. The California State Legislature was right to pass SB-145.

1. https://imprimis.hillsdale.edu/gender-ideology-run-amok/

2. https://twitter.com/AbigailShrier/status/1668047376442073088

3. https://www.city-journal.org/article/predators-paradise

4. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.