Doe, et al. v. Jindal, et al., No. 11-388 (E.D. La. Mar. 29, 2012)

This is an order by the United States District Court – Eastern District of Louisiana granting the plaintiffs' motion for summary judgment. The plaintiffs claimed mandatory sex offender registration under the harsher of Louisiana's two solicitation statutes violated their right to equal protection of the law under the Fourteenth Amendment. This is an important case for HIV advocates, as it illustrates the successful use of an Equal Protection claim to challenge the disparate criminal treatment of persons participating in identical sexual conduct. This disparate treatment – here, motivated by animus toward non-procreative sex acts traditionally associated with homosexuality – is analogous to statutes that target and more harshly punish persons living with HIV. Specifically, the mandatory sex offender registration that the plaintiffs challenge parallels similar requirements for persons convicted under various HIV criminal non-disclosure statutes.

Nine anonymous plaintiffs were convicted of violating Louisiana's Crime Against Nature by Solicitation statute (CANS) based on their agreement to engage in oral sex for compensation. Louisiana is the first and only state with a separate statute specifically criminalizing the offer or agreement to engage in oral or anal sex for compensation in addition to the state's prostitution statute, which criminalizes the solicitation and commission of "indiscriminate intercourse," including vaginal, oral, and anal intercourse, for compensation. Until August 15, 2011, a first CANS conviction was a felony offense, punishable by up to five years in prison, a maximum fine of $2,000, and mandatory sex offender registration; conviction under the prostitution statute was a misdemeanor and carried with it less severe penalties, including shorter prison sentences, lesser fines, and no sex offender registration requirement. The August 15, 2011 amendments equalized the penalties for the crimes of CANS and solicitation of prostitution, but these amendments were not made retroactive. The nine plaintiffs, convicted under CANS before August 15, 2011, were required to continue to register as sex offenders.

The plaintiffs filed suit against the defendants, several state and municipal officials, claiming a number of constitutional violations. They stated that the CANS statute targeted and more harshly punished "non-procreative sex acts traditionally associated with homosexuality solely on the grounds of moral disapproval of the specific sexual acts involved." The plaintiffs claimed no rational basis existed for treating them differently than those convicted of participating in identical conduct under the prostitution statute. Only their Equal Protection claim survived the defendants' motion to dismiss.

The court here agreed with the plaintiffs that the disparate treatment of identically situated persons convicted under the CANS and prostitution statutes was not rationally related to achieving any legitimate state interest. The court rejected the defendants' argument that such an Equal Protection claim was barred because, should the court find that the co-existence of the CANS and prostitution statutes violated the Fourteenth Amendment, this would necessarily invalidate the plaintiffs' CANS convictions. It dismissed as irrelevant case law that only narrowly found that CANS punished homosexuals and heterosexuals equally. Finally, the court dismissed as speculative the defendants' argument that, since CANS is a lesser offense to which other offenses (that require sex offender registration) can be pleaded down to, it is possible that the plaintiffs had been charged with "more heinous" crimes and were pleaded down to CANS charges. No Equal Protection claim would exist if the state legislature had imposed mandatory sex offender registration for all persons convicted of performing oral or anal sex for compensation – not just those convicted under CANS. The court found that "for those convicted [under CANS] before August 15, 2011, the burden remains unequal and any articulated purpose cannot explain the distinction."