On March 29, 2012, a Louisiana federal court held that the sex offender registration requirement of the Louisiana Crimes Against Nature by Solicitation (CANS) statute, La.R.S. 14:89(B), was an unconstitutional violation of the Equal Protection Clause when the same conduct did not require registration as a sex offender if prosecuted under the Prostitution statute, La.R.S. 14:82(A)(2).

Nine anonymous persons who had been convicted under the CANS statute prior to August 15, 2010, brought a 42 U.S.C.1983 civil rights action in federal court against various government officials because they were required to register as sex offenders for 15 years if they had a single CANS conviction and for life if they had more than one CANS conviction but persons convicted of identical conduct under the Prostitution statues were not required to register. The plaintiffs asked that the court declare the registration requirement unconstitutional and that their constitutional rights had been violated and order defendants to permanently remove plaintiffs from the registry, inform all agencies receiving information from the registry of the changes, and cease placing persons convicted of CANS on the registry.

Each plaintiff had been convicted of agreeing to perform oral or anal sex in exchange for money, conduct that both statutes criminalized. However, a conviction under CANS was a misdemeanor with a sex offender registration requirement whereas, under the Prostitution statute there was no registration requirement. A second conviction under CANS was a felony with a lifetime registration requirement whereas no number of convictions under the Prostitution statute triggered any registration requirements.

On August 15, 2010, the Louisiana legislature equalized the penalties for CANS and Prostitution and removed the registration requirement, but did not make the change retroactive to convictions which occurred prior to August 15, 2010, offering the plaintiffs no relief.

The court noted that Louisiana was the only state in the nation to adopt a freestanding statute that specifically criminalizes offering or agreeing to engage in oral or anal sex for a fee in addition to its prostitution statute. The unspoken reason for this is that homosexuals were charged with CANS while heterosexuals were charged under the Prostitution statue. The court noted, but did not address the issue of discrimination against homosexuals.

After noting the substantial burden of registration – annual registration fees, extensive community notification requirements, the words "SEX OFFENDER" included prominently on the registrants' driver's licenses and a mandatory separate state emergency evacuation protocol – the court held that the plaintiffs had shown an actual, concrete and particularized injury . The court then phrased the test as whether there was a rational basis for the CANS registration requirement if the same conduct is prohibited by the Prostitution statute with no similar registration requirement. It then found that the statutory classification drawn between individuals convicted of CANs and those convicted of Prostitution is not rationally related to any legitimate state interest. The court also found that the state had created two classifications of similarly situated individuals who were treated differently. This violates the Equal Protection Clause of the Fourteenth Amendment. Therefore, the court granted summary judgment in the plaintiffs' favor and instructed the plaintiffs to submit a proposed judgment. See: Doe v. Jindal, U.S.D.C.-E.D.La., No. 2:11-cv-00388-MLCF-ALC.

Subscribe today

Already a subscriber? Login

Related legal case