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Post-Prison Purgatory

[ – 5/23/18]

At Coalinga State Hospital, located in a desolate, dusty part of California’s Central Valley, 200 miles north of Los Angeles, 37-year-old Cory Hoch stands out. He’s well liked by other patients, and his dry sense of humor and lively intelligence come across almost immediately. His feathered earring and neon-green sneakers infuse some color into the surroundings, while his khaki scrubs identify him as a patient.

Since the age of 19, Hoch has lived most of his life in some form of cage. He is one of the more than 5,000 people in 20 states in the federal hospital system. They are trapped in a post-prison purgatory for those convicted of sex crimes, a system called “civil commitment.” While we found that many people with sex offense convictions are released after their sentences are up, some, like Hoch, serve their time and then are held indefinitely in state hospitals, exchanging one form of prison for another.

Under civil commitment, Hoch is supposed to be treated (and held) only until he is considered no longer a “risk to the public,” according to mental health experts contracted by the state. In reality, he may spend the rest of his life locked up. Perhaps more troubling is the overrepresentation of people like Hoch — gay, bisexual, and queer men — who are trapped in this system.

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A powerful article indeed…. but…. there seems to be 2 issues, one of civil commitment and another of lifestyle choices. Why did the 2 have to be mixed into one article? Is post-prison purgatory (hell) an issue or only an issue with ones in a lifestyle not so accepted by our biased and bigoted society?

I saw a program on CSPAN in which Mr. Souter stated he would now vote differently on Kansas V Hendricks. I will find the link.

When would not authority claim safety imperative in the utilization of ex-post law?
“Congress shall pass ‘no law’….”

What does that say about the state of our republic? The constitution in real time?
It IMHO is a figment. If our government refuses basic limitation, laid in charter, then no limit exists. The current debt load is reflective of the same notion.

Just play Taps.

Great article!
We need more and more peek through this draconian system to finally expose all that is wrong with it.

What a disgrace this is for California. I never thought our democratic state would be so hateful and revengeful to vote for or pass such horrifying measures/laws.

Yes, and I think (I hope) in the near future we will realize how wrong this is and has been….

I wonder what proportion of registrants are gay and bisexual men. A lot of conservatives are very unhappy with the social progress of the LGBT community, especially following the 2003 Lawrence vs. Texas ruling. Police still target gay men in public bathrooms, attempting to entrap them. Gay men are still on registries for consensual sex with other adult gay men prior to the 2003 ruling.

In Maine, statutes specifically allow judges to give harsher sentences to offenders if the victim is the same gender as the offender. Law enforcement in many states use the Static-99 to determine risk, which can affect probation requirements and other aspects of supervision and civil commitment. The Static-99 is notoriously biased against gay men – it penalizes offenders for having male victims (and the Static-99 only applies to male offenders), and it penalizes people for never having lived with a domestic partner or being married.

Here in California the law states that unlawful sexual intercourse with a minor is NOT a registrable offense, whereas sodomy or oral copulation with a minor IS a registrable offense. The last court to look at this reasoned that the state had an interest in protecting sexual intercourse because it could result in a pregnancy and thus they did not want to disenfranchise men who may need to be caring for newborn children. As a result, all illegal sexual acts between same-sex couples result in registration, but for opposite-sex couples, some illegal sexual acts, specifically the most traditional kind, does not require registration. See People v. Hofsheier (2006) and Johnson v. Department of Justice (2015).

The plight of all registrants is equally important, but understanding how bias affects specific classes of people will help us reform and ultimately eliminate the registry. I think it’s akin to understanding why racial minorities are disproportionately prosecuted for drug offenses and violent crimes. Make no mistake, the fight against the registry is a civil rights movement, nothing less, and although some of us are ashamed of our mistakes, we should never be ashamed of our humanity, nor stand for its compromise.

@ Sunny,

You do bring up a wonderful point.

So unlawful sex with a minor (statutory) isn’t subject to the registration, with the idea that a person needs to provide for the family should a girl get pregnant.

Point 1. The courts do state they are disenfranchising a person by subjecting him to the registry. Oh I need a link to this case and quote it! It helps with attacking PC 290.5 and 290.007 via 1203.4.

Point 2. What if the transgression does occur and pregnancy does not occur? Then the result is equal to that of oral copulation and sodomy, provided it’s statutory. Actually, isn’t impregnating a girl more detrimental to a person’s life?

Why are oral copulation and sodomy defined to be far more egregious than traditional sex? Shouldn’t they all be considered sexual relations? It does seem like a civil rights issue that the only type of statutory sex that isn’t registrable is traditional sex. The only reason why is the courts do not want to disenfranchise a man so that he cannot provide for the newborn. Yet the registry still does disenfranchise people to provide. Disenfranchised people still need to provide for themselves.

I had a non-sex lawyer query why a bj is far worse than sex? If a person would just have sex with a minor instead of oral copulation, then there’s no registration. Does that logically make any sense?!

I really do like this angle. Why aren’t oral copulation and sodomy cases compared to traditional sex cases where they’re similar? They’re all sex acts. From an LGBT point of view, it’s discriminating to register every sex act that isn’t non-traditional. The courts have already stated that the registry will disenfranchise you from society.

Hofsheier only won half of the way, making oral copulation discretionary to the registry as opposed to mandatory. Still, that was a cop out for the judicial system to make it discretionary. Why? Exactly how many people who were convicted with 288a(b)(1) were not put on the registry since Hofsheier?

See, this makes no sense that there is discretion involved at all when 261.5 requires no discretion at all. This is actually ripe for addressing. Why is there discretion at all for oral copulation or mandatory registration for sodomy, where they’re both statutory? Someone should bring this to head and truly query about the significant difference between statutory offenses still not being completely equal.

Oh my!

I didn’t know that Johnson v DOJ reversed Hofsheier, making all oral copulation mandatory again in 2015!

The reversal sounds awkward, only based upon what “potentially” can occur, which is pregnancy. And based upon that potential, it can disenfranchise a “father”.

What’s odd about that presentation was they cited that there has been an explosion in cost for teenage households from the state welfare support. So allowing a father to be able to work freely and not be disenfranchised will help reduce that support. Wait… what? If you make 261.5 mandatory for registration, then maybe it might reduce the rate of teenage pregnancy. That’s another way to reduce costs. But the state isn’t going to do that.

The majority is only looking at potential post-consequences to traditional sex, but at the same time denote that the registry disenfranchises a person from society.

1970 was when 261.5 was not made mandatory to the registration scheme because (I got this from the dissent in that case):

When one bill analysis ties this goal specifically to enabling offenders to support a child convceived by the offense, other legistlative history refers more generally to “eliminating the social stigma attached to the term rapist” and helping offenders obtain employment by “eliminating the social stigma which arises when the distinction between forcible rape and intercourse with a consenting female minor is not made”

Just from that quote, the purpose not to make 261.5 subject to the registry is to differential between forcible rape and intercourse with a consenting minor. That difference can improve the chances of acquiring employment.

Please note, that in 1970’s decision to not make 261.5 subject to the registry, all oral copulation (288a) and sodomy (286) were banned as sexual perversions. It wasn’t until 1975 that oral copulation and sodomy between consenting adults were decriminalized in California.

That chronological timeline is very important as the basis for equal protection and identifying discrimination.

If I were to attack this overruling of Hofsheier, then I would focus specifically on 1970’s specific reasoning for not applying registration to statutory infractions – to distinguish between forcible rape and intercourse with a consenting female minor. But I would update that thought with “to distinguish between forcible rape and sexual act(s) with a consenting minor”. I would question what the difference is between a intercourse with a consenting female minor with an older male, oral copulation with a consenting female minor with an older male, sodomy with a consenting female minor with an older male, intercourse with a consenting female minor with an older female, oral copulation with a consenting female minor with an older female, and sodomy with a consenting female minor with an older female. I would also want to identify what is common between them all: consenting minors.

LGBT could attack this reversal and 261.5 to be discriminatory. 261.5 was removed from the registration scheme, in it’s basic form, to differentiate between rape and intercourse with a consenting minor in order to improve the opportunity to acquire employment back in 1970. That was to ensure the possibility if a teen would become pregnant, then the father can gain employment. Not all transgressions result in pregnancy. That is an important aspect to emphasize.

Also an important aspect to emphasize what that all oral copulation and sodomy (adult and minor) were still criminal acts in 1970. It wasn’t until 1975 that oral copulation and sodomy between consenting adults were decriminalized. That means 288a or 286 was never factored in with the 1970 decision for 261.5 to not be a part of the registry scheme.

Remember, 261.5 doesn’t state unlawful sex with a minor that produces a child. It simply states unlawful sex with a minor. Heck, with today’s technology, a girl can take a pregnancy test and you’d know right away if a child is to bear. We don’t have to deal with potentiality at all.

Now, as for this child business and providing for it, LGBT can simply point to the possibility that such a couple could adopt a child in the future. And that the registry is impairing the employment of the elder partner. Isn’t that what the Johnson legislation is basing all this on, potential to provide for a child?

As of today, the registry doesn’t differentiate between forcible rape and sex acts with a consenting minor unless it’s for a traditional sex act between a man and younger woman. Federally, all registrants in California are not eligible for HUD housing assistance because they are all deemed lifetime registrants.

If this is regulatory and not punishment, then why is the state punishing those of similar situations of being involved with a sexual act with a minor by disenfranchising them from securing employment? Not all 261.5 situations result in pregnancy and not all 261.5 situations that result in pregnancy will see a child born. Why deal with fictitious situations of only one extreme?

Yes, I was just about to update you on the Hofsheier reversal. That reversal actually happened in 2014. It was around the time I was filing a Hofsheier motion to end registration (after earning my 1203.3, 17b and 1203.4) and it was denied. The DA’s reasoning was that the original jurisdiction OC can only rule on that. I kept stating that the entire case was transferred to SF and therefore the judge can rule on the this motion just as she did on the previous motions. I lost. I still have to register. Instead she said file a COR, which I can’t do until 2020.

Anyway, it actually made the news here in SF, with most of the general (Non-RC) population questioning why a judge would reverse it. Most figured that since she was a newly appointed judge, she was trying to make a name for herself.

What is really hard to grasp is an openly gay prosecutor in favor of these laws that clearly affect LGBTQ’s disproportionately. San Diego’ s soon to be former DA was a staunch supporter of registry laws. “District Attorney Bonnie Dumanis has been an outspoken supporter of the law (Jessicas Law). A spokeswoman from her office said in a statement … that the law made possessing child pornography a felony, expanded the legal definition of a “sexually violent predator” and enhanced existing laws that punish habitual sex offenders,” according the the San Diego Union Tribune. When you have such friends, who needs enemies.

It’s not so hard to grasp when you factor in the period of the late 1970s up until today. This was a period that began with Anita Bryant organizing the modern anti-gay movement at the same time as “The Moral Majority” was just kicking-in to high gear to coalesce American Evangelicals into a potent political force. At the same time, feminism had become more stridently anti-male and anti-male-sexuality as it moved from a demand for “equity” to a much more militant, “women’s-studies'” supremacist position (gender feminism). The fledgling gay liberation movement went on the defensive against this double-threat by purifying their ranks and recasting itself very publicly as a more exclusive club in which those regarded as “sex offenders” would find no home and no support. By this purification, they became much narrower in their presentation to the world and campaigned upon a much-reduced vision for liberation. Defending “sex offenders” came to be seen as radioactive in this context as gay men and lesbians fell all over themselves to quickly claim the moral high-ground against “sex offenders” which no longer included them, of course. So, Bonnie Dumanis, a lesbian AND a District Attorney who established her establishment bona fides by crusading against “sex offenders”, isn’t such a surprise, given that history. We should never confuse her, and others like her, as “friends” nor be surprised or disappointed when they act like our enemies because that’s exactly what they are.

These discrepancies ……are the exact reasons why it is absurd to expect and demand ex cons to abide by ever changing laws and be subject to punishment if not obeyed ! If the law wants everyone to know of offenses, the law should put all information on sex offender websites ! And all crimes have database sites for all crimes and show live executions ! We The People can have one hell of a POW WOW ! And all HELL can break loose with Civil unrest ! But hence we the readers know hypocrisy works silently and deadly …… slowly killing individuals in the name of the Law !

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