A Louisiana judge has refused to throw out a lawsuit filed against the state on behalf of a group of plaintiffs who were convicted under an archaic law that makes the solicitation of oral or anal sex a felony.
The case, Doe v. Jindal, was filed by the Center for Constitutional Rights in March on behalf of nine anonymous plaintiffs against the state, Gov. Bobby Jindal (R) and a host of state agencies. The plaintiffs and other opponents of the 206-year-old Crime Against Nature law say it is unconstitutional, discriminatory and that it targets poor women and the gay and transgendered community, who engage in what they call "survival sex."
In the past, penalties for a crime against nature conviction included the requirement that individuals register as sex offenders. Most who have been convicted of this crime are poor, hard-luck black women, the majority addicted to drugs. In New Orleans, more than 40 percent of the people on the sex offender registry are registered because of a crime against nature conviction, according to the Center for Constitutional Rights. Of that 40 percent, well over 80 percent are black women.
The nine plaintiffs in the lawsuit include women and men, each of whom have been convicted of such charges and must register as sex offenders for 15 years to life.
Louisiana is one of only a few states, if not the only one, that makes the solicitation of different sexual acts separate crimes. While offering to trade oral or anal sex for money has long been a felony offense, soliciting vaginal sex is classified legally as prostitution, a misdemeanor. And Louisiana is the only state that requires people who sell their bodies to register as sex offenders.
“There are a number of absurd things in the Louisiana laws, and this is one of the more absurd,” R. Judson Mitchell, a law professor at the law clinic at Loyola University in New Orleans told the Huffington Post earlier this year. “There are crimes against nature happening at strip clubs on Bourbon Street every single night. The difference is we are dealing with women that didn’t have a fancy strip club to go to.”
Though recent changes in the law have lessened the burden on those convicted of such crimes, convictions can still carry a maximum penalty of up to five years in prison, and those already convicted of so-called "crimes against nature" must still register as a sex offender.
Judge Martin Feldman of the District Court for the Eastern District of Louisiana heard oral arguments on a motion to dismiss the lawsuit in August and refused to do so on Tuesday.
"It's time for the State of Louisiana to give them justice, and we are deeply gratified that the court will hear their case," said Deon Haywood in a statement. Haywood is executive director of Women with a Vision, an outreach group that deals with women on the margins and that has led the fight against the crime against nature legislation and stigma.
Those caught up by the law and registered as sex offenders "have been living with the scarlet letter," Haywood said. "Our clients are mothers, daughters and veterans. Yet, because of this law, they have been forced to live on the fringes of the community, disconnected from many support systems."
In March, the Justice Department issued a scathing report detailing the many failures of the New Orleans Police Department. Federal investigators said the NOPD engaged in targeted and biased policing and abuse of the crime against nature law. Investigators also found that police targeted the LGBT community.
"Transgender residents reported that officers are likelier, because of their gender identity, to charge them under the state's 'crimes against nature' statute -- a statute whose history reflects anti-LGBT sentiment," the report noted. "For the already vulnerable transgender community, inclusion on the sex offender registry further stigmatizes and marginalizes them, complicating efforts to secure jobs, housing and obtain services at places like publicly-run emergency shelters."
"We are pleased that the court has vindicated our clients and allowed this challenge to go forward," said Alexis Agathocleous, an attorney with the Center for Constitutional Rights. "Our clients have been labeled as sex offenders simply because they were convicted of Crime Against Nature by Solicitation rather than Prostitution, which encompasses exactly the same conduct. In a significant victory for our clients, the court will now scrutinize their claim that this distinction is unconstitutional because it results only from moral disapproval of sex acts associated with homosexuality."