The third week of February, attorneys from New Orleans-based and national organizations brought a federal civil rights complaint against Louisiana's 205-year-old “crime against nature” statute, a law designed to penalize sex acts associated with gays and lesbians. The law, as enforced, specifically singles out oral and anal sex for greater punishment for those arrested for prostitution, including a requirement that those convicted register as sex offenders in a public database. Advocates say the law has further isolated women on the fringes of society, including those who are forced to trade sex for food or a place to sleep at night.
In 2003, the Supreme Court outlawed this country's sodomy laws with its decision in Lawrence v. Texas. However, instead of striking down Louisiana's law in its entirety, the state has chosen to only enforce the portion of the law that concerns “solicitation” of a crime against nature.
The decision on whether to charge those who are accused of selling sex of committing a “crime against nature,” which is a felony, instead of misdemeanor prostitution is left entirely in the hands of police and prosecutors. “This leaves the door wide open to discriminatory enforcement targeting poor black women, transgender women and gay men for a charge that carries much harsher penalties,” says police misconduct attorney and organizer Andrea J. Ritchie, a co-counsel in the lawsuit. Seventy-five percent of those on the database for crime against nature offenses are women, and 80 percent are African-American. Evidence gathered by advocates suggests a majority are poor or indigent.
Louisiana is the only state that requires people who have been convicted of crimes that do not involve sexual violence or sex with minors to register as sex offenders. In 1994, Congress passed Megan's Law, also known as the Wetterling Act, which mandated that states create systems for registering sex offenders. The act was amended in 1996 to require public disclosure of the names on the registries and again in 2006 to require sex offenders to stay in the public registry for at least 15 years.
The Wetterling Act, also known as the Crimes Against Children and Sexually Violent Offender Registration Act was clearly not targeted at prostitution. However, Louisiana lawmakers opted to apply the registry to the crime against nature statute as well, and at that moment started down the path to a new level of punishment for sex work. “This archaic law is being used to mark people with a modern-day scarlet letter,” says attorney Alexis Agathocleus of the Center for Constitutional Rights, another party in the lawsuit. “Inclusion on the sex-offender registry violates basic constitutional equal protection principles and constitutes cruel and unusual punishment.”
Those who have been victimized by this law must carry a state identification card with the words “sex offender” printed below their name. If they have to evacuate because of a hurricane, they must stay in a special shelter for sex offenders that has no separate facilities for men and women. They have to pay a $60 annual registration fee, in addition to $250-$750 to print and mail postcards to their neighbors every time they move. The postcards must have their name and address, and a photo is often required, as well. Failing to register and pay the fees, a separate crime, can carry penalties of up to ten years in prison.
These sex workers' names, addresses and convictions are also printed in the newspaper and on a public online sex-offender database, and are also displayed at public sites like schools and community centers. Women – including one mother of three – have complained that because of their appearance on the registry, they have had men come to their homes demanding sex. A plaintiff in the suit had rocks thrown at her by neighbors. “This has forced me to live in poverty, be on food stamps and welfare,” explains a man who was on the list. “I've never done that before.”
In Orleans Parish, 292 people are on the registry for selling sex, versus 85 people convicted of forcible rape and 78 convicted of “indecent behavior with juveniles.” Almost 40 percent of those registered in Orleans Parish are listed solely because they were accused of offering anal or oral sex for money. Legal advocates credit on-the-ground organizing and the advocacy of Women With a Vision (WWAV) for making them aware of this discriminatory law. WWAV, a 20-year-old New Orleans-based organization, provides health care and other services to marginalized communities, including women involved in survival sex work. “Many of these women are survivors of rape and domestic violence themselves,” says WWAV executive director Deon Haywood, “yet they are being treated as predators.”
Speaking anonymously on a recent phone call set up by advocates, some of the plaintiffs in the suit shared their stories.
“Ian Doe” was homeless from the age of 13 and began trading sex for survival. When an undercover officer approached him and asked him for sex, “All I said was fifty dollars, and they put me away for four years,” he said. In prison, Ian was raped by a correction officer and by other prisoners and contracted HIV. Now, he says, potential employers see the words “sex offender” written on his ID and will not hire him. “Do I deserve to be punished any more than I've already been punished?” he asks. “I was 13 years old. That's the only way I knew how to survive.”
“Eve Doe” is a transgender woman living in rural southern Louisiana. She was molested as a child and kicked out of her home at the age of 14. She spent two years in prison. During her time behind bars, she was raped and has also contacted HIV. “I have tried desperately to change my life,” she says, but her status as a sex offender stands in the way of housing and other programs. “When I present my ID for anything,” she says, “the assumption is that you're a child molester or a rapist. The discrimination is just ongoing and ongoing.”
“Hiroka Doe,” a New Orleans resident, was the last person to speak on the call. “I had just graduated from high school and was just coming out as transgender,” she says. Hiroka was arrested and convicted while still a teenager. As she began to describe her experience, Hiroka's voice began to shake. “I was being held with men in jail at the time …. ” she began. Then there was silence on the line. Holding back tears, Doe then apologized for being unable to continue.
The Louisiana legislature recently passed a reform of the crime against nature statute , but for the vast majority of those affected, the reform makes little to no difference. Although the new law takes away the registration component for a first conviction, a second conviction requires 15 years on the registry, and up to five years imprisonment. A third conviction mandates a lifetime on the registry. More than 538 men and women remain on the registry because they were convicted of offering anal or oral sex, with more names added almost every day.
The lawsuit, called Doe v. Jindal, has been filed in Louisiana's US District Court Eastern District on behalf of nine anonymous plaintiffs. It was filed by the Center for Constitutional Rights, Ritchie and the law clinic at Loyola University New Orleans College of Law. The anonymous plaintiffs include a grandmother, a mother of four, three transgender women and a man, all of whom have been required to register as sex offenders from fifteen years to life as a result of their convictions for the solicitation of oral sex for money.
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