The California Supreme Court recently overruled People v. Hofsheier, deciding that requiring mandatory sex offender registration for unforced oral sex convictions does not violate Equal Protection (Johnson v. Department of Justice 2015 DJDAR 1837).

In Hofsheier, the court decided that mandating registration for unforced oral sex with a minor was unconstitutional because there was no registration requirement for unforced sexual intercourse with a minor. Rather, PC 290 registration was left up to the judge to decide. The Hofsheier court saw this distinction as a relic of an intolerant and homophobic era because oral sex was historically associated with homosexuality. They justified their decision by finding no rational reason to support treating sexual intercourse and oral sex differently. The court recently found that reasoning to be flawed because sexual intercourse could result in pregnancy. This fact alone, the court said, necessitated the need for flexibility in punishment of offenders who would have to support a child.

What This Means for Convicted Sex Offenders

Hofsheier motion
Are you being forced to register as a sex offender under PC 290?

The court’s recent ruling could have some very harsh practical consequences for those convicted of sex crimes with minors. The court ruled that retroactive application of the law is permitted as long as it is equitable and would not violate public policy on a case-by-case basis. On the other hand, if an offender has justifiably relied on the previous decision in Hofsheier, then the offender may not be subject to mandatory sex offender registration.

Until recently, one consequence is that registered sex offenders were subject to certain housing restrictions. Specifically, Jessica’s Law made it unlawful for registered sex offenders to “live within 2,000 feet of any school or park where children regularly gather.” This law forced offenders subject to these restrictions to move or relocate to avoid being prosecuted. However, the California Supreme Court also recently overturned Jessica’s Law, declaring this blanket requirement unconstitutional.

Other consequences, however, may not be so easily avoided. For one, failure to register is a continuing offense. Offenders who fail to report or update residency info can be prosecuted for separate crime. Failing to register as a sex offender is punishable by up to three years in prison and up to $10,000 in fines. 1 Those who were not subject to the requirement and are now forced to register may not be informed of this new requirement and thus could face prosecution for failing to register.

Moreover, failing to register could be a violation of California’s Three Strikes Law as long as the underlying crime is a violent or serious felony. 2

Does this Ruling Discriminate against Gays?

Opponents of the court’s ruling argue that mandating registration for oral copulation and not for unlawful sexual intercourse (PC 261.5) discriminates against gays. However, this position assumes that homosexuals are more likely to have oral sex than heterosexual individuals.

California defines sexual intercourse as any penetration, no matter how slight. 3 Sexual intercourse for the purposes of PC 261.5 can involve vaginal or anal intercourse, regardless if it occurs between members of the same sex. This means that all individuals convicted of violating PC 261.5 may benefit from avoiding mandatory registration.

The court’s rationale for overturning Hofsheier may be more difficult to reconcile. The court said that because “intercourse is unique in its potential to result in pregnancy and parenthood,” it is more than enough to satisfy a rational basis needed for their decision. Clearly, this reasoning gives preferential treatment to those capable of procreating.

Call the Criminal Defense Attorneys at Wallin & Klarich

If you or a loved one has been charged with a sex crime, you need to contact an experienced Wallin & Klarich criminal defense attorney immediately. At Wallin & Klarich, our skilled attorneys have been successfully defending clients facing criminal charges over 30 years. We’ve helped thousands of individuals in their time of legal need. Let us help you now.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.


1. [Pen. Code § 290.018]
2. [Pen. Code § 667]
3. [Pen. Code § 263]

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