No, California Democrats Did Not Introduce an “LGBTQ Bill” That Would “Protect Pedophiles who Rape Children”

On Thursday, a right-wing website, the Washington Pundit, put up a post with the clickbait headline “CA Democrats Introduce LGBTQ Bill that would Protect Pedophiles who Rape Children.” Currently, the post has been shared 11,478 times on Facebook, with right-wing pages like “Trump for President 2020” and “Occupy Dims” serving as major sources of the post’s spread.

Most of those posting on social media are expressing fear, disgust, and moral outrage over the bill. For those naïve enough to take the post at face value, it’s understandable why they would be upset. But thankfully, the contents of the headline and the article are misleading. Here’s a post aimed at clearing things up.

In trying to help mitigate the negative impact of the original misleading post, I’ve tried to do three things. First, I’ve attempted to help explain how the Washington Pundit post is misleading. Second, I present the actual facts. Third, I provide resources to help you go look up the facts yourself if you don’t want to take my word for it.

The Misleading Post

The Washington Pundit’s post is written in a manner that invites confusion. Here’s one example that helps identify how they’ve mislead their audience. Then we’ll move on to the facts.

The Washing Pundit post states that “There is no age limit or range specified, except for existing law which already excludes lewd acts with children under 14.” But then in the very next sentence they write “SB 145 appears to allow adults to victimize minors by luring them with the intent to have sex, and then shields the predator from being automatically registered as a sex offender, as in the case of a 25 year old luring a 15 year old for sex, or a 22 year old luring a 12 year old.”

Okay, let’s break this down.

First, the post is inconsistent. If the bill doesn’t apply to “lewd acts with children under 14” it wouldn’t “shield” a “22 year old luring a 12 year old.” If they can articulate that the law doesn’t apply to an instance where someone lures a 12 year old, they show themselves to be an unreliable source by turning around and implying that it does so apply in the very next sentence.

Second, they are sloppy with the facts. The claims that existing law “already excluded lewd acts with children under 14” is close but inacurate. Current law already excludes lewds acts with children under 15 — i.e. through age 14. So nothing in the proposed bill in question applies to anyone under 15.

Third, the Washington Pundit manipulatively employ framing effects. If they had gotten the age right (which they didn’t) their claim that “There is no age limit or range specified, except for…” claim would have been strictly speaking true but still misleading.

If I say that “there is no height limit or range specified for how tall someone has to be to go on the roller coaster, except for a requirement that you need to be at least 48 inches tall” what I’ve said is strictly speaking true, but it’s apt to mislead a reader who is in a worked up state and reads what I’ve said quickly. That person is much more apt to mistakenly come away with the false belief that there are no height restrictions for the ride at all.

So having given an example of how this article was irresponsibly misleading, let’s turn to the facts.

The Actual Facts of the Bill

You can find the complete contents of the bill here. As you’ll see, the text of the bill isn’t very long, but it references a bunch of other portions of the California Penal Code. The fact that it references, but doesn’t explain, these other portions of the code is a normal way of amending legal code. There’s nothing shady about this. But it does make it tricky for someone not familiar with other portions of the code to figure out what’s going on. That’s why I’ve included the third section which provides a way for others to look up those portions of the code themselves.

But here are the facts.

First, this bill only deals with a narrow category of legal offenses called statutory rape, which is nonforcible sexual contact where one of the individuals is under the legal age of consent. This law does not apply to instances where force, coercion, duress, or threats are used to obtain sex.

Second, this bill only deals with cases where the victim is between 15–17 years of age, and the perpetrator must be within ten years of the victim’s age. (E.g. if the victim is 16, the perpetrator must be 26 or younger.)

Third, this bill is only about who automatically must register for the California Sex Offenders Registry. This bill is not about what counts as a sex crime. Statutory rape is illegal in California and this bill isn’t trying to change that.

Fourth, the law proposed in this bill is already sex registration for vaginal intercourse in California. All the bill is trying to do is change the law so that it applies to other kinds of sex like oral and anal. The reason this bill is associated with the LGBTQ community is because of the argument that the current law is unfair to young LGBTQ guys who are having anal and oral sex instead of vaginal. As Senator Scott Wiener who proposed the bill pointed out, right now an 18 year old gay guy has to automatically register as a sex offender for having anal sex with his 17 year old boyfriend while an 18 year old straight guy doesn’t have to automatically register as a sex offender for having vaginal sex with his 17 year old girlfriend. That doesn’t seem fair or just.

Reasonable minds can disagree over whether or not the proposal in this new bill is a good one, but if you object to this new bill, you should also object to current California law, which is not that different than the statutory rape laws in lots of other states.

If you were misled by the sloppy reporting in the original story, you should let the Washington Pundit know you disapprove of their tactics and you shouldn’t contribute to their profits by clicking and sharing their posts in the future.

But, unlike the Washington Pundit, I not only carefully did my homework, but I’ve included below instructions to help you look into the matter more in detail for yourself.

Check For Yourself

You can search the California Code for yourself by going to California Legislative Information’s code search page. Because we’re looking at California’s criminal code — i.e. penal code — in the box marked “Code” select “PEN,” which will limit the search to the penal code.

Let’s return to the bill in question, SB 145. SB 145 is an amendment to Section 290.5 of the penal code, so let’s go see what Section 290.5 says.

If you keep “PEN” selected for Code and type “290.5” you can find this portion of the code. You’ll note that when you hit the search, you’re given two options, an amended version of the law or a repealed version. The reason for this is that California recently passed legislation that revised its sex offender registration law. Up until 2017, California had one of the strictest and harshest sex offender registration policies in the United States. The revised version may mean that California’s sex offender registration law now looks a lot more like your state’s sex offender registration law. Here’s a webpage from a law firm that has a video and lots of other helpful information that explains how the new system works.

The fact that there are two sets of laws to look at is confusing, but here’s something that’s importantly the same about both versions: they’re both limited to discussion of who needs to be registered for the California Sex Offender Registry. You can see that this is so if you look at the page for Section 290. You’ll see that this section of the code is dealing specifically with the Sex Offender Registration Act and nothing else. This section is only about who has to register as a sex offender. It does not effect which sexual acts are considered crimes in California.

Returning to SB 145, the bill that’s been proposed, you’ll note that it has two major parts: (a) and (b). Subdivision (a) reads as follows:

“A person convicted of an offense specified in subdivision (b) may, by writ of mandate, seek discretionary relief from the duty, imposed as a result of that conviction, to register pursuant to the act if, at the time of the offense, the person is not more than 10 years older than the minor, as measured from the minor’s date of birth to the person’s date of birth.”

If this bill passed, subdivision (a) means that those who committed the crimes that are listed in subdivision (b) wouldn’t automatically be required to register as sex offenders in California. Instead, judges could use their discretion to determine if the offender should be listed (i.e. “discretionary relief” from the duty to register).

So, all that’s left now is to figure out which offenses are listed in subdivision (b). Subdivision (b) reads:

“This section applies to the offenses described in subdivision line 4 (b) of Section 286, subdivision (b) of Section 287, Section 288.3, line 5 and subdivisions (h) and (i) of Section 289.”

So, let’s go look up those sections. You can keep looking up these code numbers manually using “PEN” as the Code and the appropriate section number or you can follow the links I’ve provide. Section 286(b) reads as follow.

“(b) (1) Except as provided in Section 288, any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year.

(2) Except as provided in Section 288, any person over 21 years of age who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony.”

Section 286 refers to a subset of individuals who commit “sodomy” with minors. Sodomy is defined in 286 as “sexual conduct consisting of contact between the penis of one person and the anus of another person.”

Notice that Section 286 excludes offenses referred to in Section 288. So, in order to understand 286, we need to look up Section 288.

Section 288 is about sex acts with children age 15 and under. 288(a) deals with instances where the victims are children aged 13 and under and doesn’t take into account how old the perpetrator was, while 288(c) deals with victims who are children aged 14 and 15, and deals with perpetrators who are a decade or more older than the victims.

Because Section 286 doesn’t apply to individuals who commit those crimes in Section 288, that means that SB 145 also doesn’t apply to individuals who commit the crimes listed in Section 288 so long as no other section listed in subdivision (b) includes perpetrators who commit such crimes. That is to say, SB 145 doesn’t apply to those who commit sex crimes against those 13 or under regardless of the age of the perpetrator or to those who commit sex crimes against those aged 14 or 15 if they’re more than 10 years older than the victims by virtue of its inclusion of 286(b).

One other thing to notice about Section 286 is that 286(c) deals with cases of anal sex with minors “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” Section 286(b) does not include those instances. This is what makes SB 145 relevant only to statutory rape and not cases of rape where the victim refuses, resists, or expresses a lack of desire for the sexual contact.

Section 287(b) is about those who commit sex crimes via oral sex. (So like 286 but about oral sex instead of anal sex.) It reads as follows.

“(b) (1) Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.

(2) Except as provided in Section 288, any person over 21 years of age who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony.”

Just like Section 286, Section 287 doesn’t include what’s covered in Section 288 and Section 287(b) doesn’t apply to instances of oral sex via force, violence, duress, or threat.

SB 145 subdivision(b) also applies to two other portions of California Penal Code.

Section 288.3 criminalizes when someone “contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor” with the intent of committing certain sex crimes. This deals only with the criminalization of the act of communication. This is independent from other offenses that one may be charged with if they succeed.

Finally, SB 145 subdivision (b) applies to subdivisions (h) and (i) of Section 289. Subdivisions (h) and (i) of Section 289 similarly exclude Section 288 and deal generally with “sexual penetration.” (There is a reference in SB 145 to “line 5” of Section 289. I can’t find any obvious reference for “line 5” in Section 289. Any numbered subsections don’t pass (3). I welcome input on what “line 5” might refer to.)

So in sum, if you look at the code, you’ll see that this new law only applies to 1) perpetrators within ten years of the age of a 15–17 year old victim, 2) only deals with statutory rape, and 3) only applies to registration as a sex offender, not the general criminalization of the behaviors.

If you’re wondering about the motivation for the law, it seems to be in part motivated by a very normal legislative process: i.e. overturning a ruling from a judge that the legislature doesn’t like. Between 2006 and 2015, California judicial precedent held that equal protection rights required that sexual oral, anal, and vaginal sex crimes against minors needed to be punished the same way. However, in 2015, the California Supreme Court overturned its previous ruling and held that these offenses could be punished in different ways. SB 145 is an attempt to create legislation that would fix what the legislators who brought the bill thought was a bad decision on the part of the California Supreme Court.

You can read about the 2006 case that established the original law here, and the 2015 case that overturned it here.