Research on sex offender laws and their effects on people and society

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The National Center for Missing & Exploited Children, a quasi-government agency that publishes information about the registries, has a Web page called, Sex-Offenders: History that starts with, “Prior to 1994 few states required convicted sex offenders to register their addresses with local law enforcement.” This is true, but it gives the impression that the history of government tracking of sex offenders started in the 1990s. That is far from true.  

In 1931, the United States was gripped by the Great Depression. Mafia kingpins exerted a reign of terror over New York, Chicago, and other major centers in the Northeast. Los Angeles County district attorney Buron Fitts¹ proposed an ordinance to keep organized crime out of the area. The idea, called “convict registration” or the “gangster law,” was to require anyone who had been convicted of certain crimes to register with the sheriff if they lived in the county or visited for more than five days.² When the measure passed nearly simultaneously in the County and City of Los Angeles in 1933, it covered conviction for any felony as well as lesser drug or weapons charges.³ Many other municipalities in California and other states soon adopted similar laws.⁴

In the meantime, the country was also experiencing growing anxiety about another kind of crime: sex. A tug-of-war was building between social liberals who viewed consensual sexual activity as a private matter that was no business of the law and moralists who believed that growing sexual license was ruining the society. Military and police operatives began using subterfuge to entrap homosexuals in lewd acts.⁵ Consensual homosexual activity between adults was a felony, with long prison terms often followed, in many states, by indefinite civil commitment that could keep the “pervert” locked up for the rest of his life.

In 1938, the Los Angeles Police Department established its Bureau of Sex Offenses. The bureau began keeping careful records, with fingerprints and photographs, of sex offenders, and operated a clinic for performing psychiatric evaluations of people arrested on sex charges. LAPD Chief James E. Davis⁶ explained the need for the bureau on “the theory that each minor sex offender is a potential major sex criminal.”⁷ Two years later, the Los Angeles Times reported that the records had been used to select a suspect to look for in the kidnapping of a nine-year-old girl.⁸ 

The next month, the local chapter of the Parent-Teacher Association conceived a plan for combining Chief Davis’s sex offender index with the convict registry. The organization passed a resolution at its conference on April 4, 1940, asking the city council to add certain sex crimes to the list of those that required registration. The crimes listed were child molesting, consensual oral sex, and indecent exposure.^3,9

Crimes Listed in PTA’s Letter to LA City Council in 19403
Penal Code section	Description of Crime10
288	“lewd or lascivious act” on or with a child under 14
288a	“Sex perversions.” Participating in oral sex
311(1, 2)	Indecent exposure

In its letter to the city, the PTA stated that “the safety and morals of our children are menaced through an alarming increase in cases of indecent exposure and lewd conduct.” Although the Chief of Police and the Police Commission endorsed the proposal enthusiastically, it is not clear that there had actually been a significant increase in sex crimes, according to statistics published by the Police Department during the period.

Arrest Statistics for Selected Sex Crimes in Los Angeles, 1933..40
PC §	Description	1933..3411	194011
288	Sex crime on child	122	155
288a	Oral copulation	24	22
311(1, 2)	Indecent exposure	103	133
647(5)	Lewd vagrancy	471	216
Population		193012	194012
(in thousands)		1,238	1,504

The crime of “lewd vagrancy,” which was (along with the similar “dissolute vagrancy”) the second most common sex crime next to prostitution, is included in this table because the letter from the PTA complained of “lewd conduct,” although this crime was not included in the list of sex crimes as originally proposed or as signed into law. Lewd and dissolute vagrancy laws were typically used in California and some other states to harass and arrest adult men seeking or engaging in consensual sexual activity with each other.¹³

As the PTA proposal went through the process of being turned into law, the city added more sex crimes to the original suggested list. When the ordinance passed and was signed by the mayor on September 25, it included rape, loitering around children, and consensual anal sex along with the crimes first proposed by the PTA.³

Crimes Added to PTA’s List in LA’s SO Registry Amendment, 19403
PC §	Description of Crime10
264	Rape (intercourse with non-wife female under 18 or by force, threat, or guile)
265	Involuntary abduction of woman for marriage or sex
286	“crime against nature [anal sex] … with mankind or … animal”
647a	Annoy or molest a school child or loiter around school children

Thus the innovative convict registry in 1933 to keep gangsters out of Los Angeles, seven years later also became the world’s first sex offender registry. This happened at the suggestion of the local chapter of the PTA, based on a false claim that sex crimes in the city were increasing. The crimes it covered included consensual oral and anal sex, which were illegal at the time, even between husband and wife.

Ironically, at a conference of the same local PTA chapter a few weeks later, the keynote speech stressed the importance of personal freedom in a democracy. “We must maintain our freedom to think for ourselves instead of as some dictator tells us, to listen to what we want to hear rather than what a dictator wants us to hear, to choose our education and our work according to our choice and our abilities.”14 This was stated in contrast to the rising tide of fascism in Europe at the time. Later in the meeting, a resolution was passed to send commendations to city officials for passing the ordinance to add sex offenders to the convict registry. In the spirit and attitude of the day (and, for many people in America, still today), it probably seemed perfectly natural for the measure to include oral and anal sex, thereby affirming that the personal freedom lauded was not to include the freedom for people to decide on their own how to make love. While it is true that these laws even applied between husband and wife, they were almost always used to prosecute pairs of consenting men.

 

Although the initiative to begin the original convict registry had been taken by the County of Los Angeles and was copied by the City, it was the city that instituted the sex offender provision. The county did not follow suit immediately, but several years later, the new district attorney proposed that either the county or the state ought to adopt a similar measure.¹⁵ The California legislature followed up on the suggestion. In July 1947, the state added Section 290 to its Penal Code to require anyone in the state who has been convicted of any of a list of particular sex crimes to register with the local police. The list of crimes was somewhat further expanded from that used by the City of Los Angeles, and now included seduction by promise of marriage, incest, and lewdly influencing a person under 21 to become delinquent.^16,17

Crimes Subject to Registration in California, 194717
Code §	Description of Crime10
PC 261(3, 4)	Rape of non-wife female by force, threat, or drug
266	Entice chaste female under 18, or trick any female, into having sex
267	Abduct female under 18 into prostitution without parents' permission
268	“Seduction.” Have sex with chaste female by promise of marriage
285	Incest (marriage or fornication with too closely related)
286	“infamous crime against nature [anal sex] … with mankind or … animal”
288	“lewd or lascivious act” on or with child under 14
288a	“Sex perversions.” Participating in oral sex
311(1, 2)	Indecent exposure
647a	(1) Annoy or molest child. (2) Loiter around school children
WIC 702	Lewdly contribute to delinquency of a person under 21

Penal Code Section 290 remains to this day the law governing registration of sex criminals in California. As of August 2009, the list of registrable crimes for adults has grown from the eleven shown here to 169. (Juveniles have their own list of 61 crimes.)

Sidebar Summary History of Sex Offender Registry 1931 • Convict registry proposed for LA County.2 1933 • Convict registry established for LA County and City.3 1938 • LAPD establishes sex offender index and clinic.7 1940 • PTA proposes adding three sex crimes to registry.3,9 • LA City puts seven sex crimes on registry.3,9 1947 • California establishes statewide registry for 11 sex crimes.16,17 1949 • CA adds lewd vagrancy to registry crimes.18 1950 • Over 90% of registrable arrests in LA are for consensual homosexual acts.19 1951 • Arizona establishes sex offender registry.20 1950s • Florida SO registry.20 1960 • Non-SO municipal convict registries struck down in California.21 1961 • Nevada SO registry.20 1963 • Ohio SO registry.20 1967 • Alabama SO registry.20 1987 • Mississippi SO registry.20 1989 • Montana SO registry.20 1993 • 12 states have SO registry.20 1994 • US requires SO registry in all states.22 1996 • Massachusetts becomes last state to have SO registry.20 • US establishes federal portal for state SO registry data.23 2003 • US requires states to put SO registries online.24 • US Supreme Court strikes down laws against anal and oral sex.25 2006 • US requires states to expand definitions of sex offenders, to include 14-year-olds on registry, to lengthen duration of registration, and other changes.26 2008 • US has approximately 550,000 registered sex offenders, including about 19,000 for juvenile offenses.27 • NCMEC over-reports the number of registered sex offenders by over 10% at about 640,000.27 • One out of every 220 men in the US is a registered sex offender.27

Arizona followed California’s lead and set up a sex offender registry in 1951, as did Florida later in the 1950s, Nevada in ’61, Ohio in ’63, Alabama in ’67, Mississippi in ’87, and Montana in ’89.²⁰. By the early 1990s twelve states had established registries. In 1994, the federal government required all states to have one,²² with a three-year deadline to avoid a financial penalty. The remaining 38 states then stepped up quickly and in August 1996 Massachusetts became the last state to set one up. A national registry was established that same year to combine the data from all the state registries.²³

And what happened to the gangster law that got the whole thing started? It was annulled by the California Supreme Court in 1960. The court determined that since the state had made laws about registering people for a selected set of crimes, that took jurisdiction to do so away from local governments. Since the state government had decided (and maintains to this day) that registration should only be for sex crimes, the City of Los Angeles and other municipalities are no longer free to impose their own ordinances that require registration by violent felons or any other criminals they wish to keep track of.²¹ 

	Black political activist Bayard Rustin was caught giving oral sex to two white men in the back seat of their car in Pasadena, CA, in 1953. He was charged with sex perversion, a felony, but pled guilty to misdemeanor lewd vagrancy, which still required him to register as a sex offender. All three men spent 60 days in jail for the incident.28

Although the registrable crimes included anal and oral sex, which were typically only used against homosexuals, arrests on those charges were fairly uncommon. However a change in the law in 1949 turned the registry into a tool of homosexual persecution. In that year, the legislature added lewd vagrancy as a registrable crime.¹⁸ This was represented by Penal Code Section 647(5), which specified that a “vagrant” included “Every idle, or lewd, or dissolute person, or associate of known thieves.” (“Dissolute” means, essentially, immoral.) This vague statute section had always given police great latitude in dealing with anyone they considered undesirable. In particular, it was commonly used to charge men found hanging around in parks, restrooms, or dark alleys looking for or having clandestine encounters with other men.¹³

Statistics from the annual report of the Los Angeles Police Department in 1950 show how the addition of lewd vagrancy began to swell the registry with homosexuals.

Criminal Charges Filed for Sex Crimes in Los Angeles, 1950
Crime	Charges11	Registrable?
Rape	161	Mostly yes
Prostitution and commercial vice	1,959	Mostly no
Sex perversion (i.e., homosexuality)	2,225	Yes
Other sex offenses	44	Mostly yes

A footnote in the LAPD report explains that “sex perversion” in this table consists of the crime against nature (anal sex), sex perversion (oral sex), sodomy (also anal sex), and lewd or dissolute vagrancy (PC 647(5)). In other words, this category is a catch-all for charges that were primarily made for homosexual activities.

Since most prostitution charges were (and still are) not registrable, over 90 percent of registrable sex charges filed by the LAPD in 1950 were for “sex perversion,” i.e., primarily for homosexuality. With the addition in 1949 of lewd vagrancy to the list of registrable crimes, the terms “sex offender” and “homosexual” became largely synonymous.  

In the 1940s and ’50s, hatred of homosexuals was rampant, bitter, and openly expressed. A scan of the archives of the Los Angeles Times from the period shows how both government officials and the public were loud and crude in their condemnation of, interchangeably, sex offenders and homosexuals.

• June 1938. The keynote speaker at a conference of the American Psychiatric Association explained German Nazism in terms of what he called “cultural homosexuality, ” a form of “extreme nationalism [caused by] the attractive power between persons of the same sex”²⁹

  	Los Angeles Times, May 31, 195130

• November 1949. A reader wrote in that “all proven sex offenders [should] be castrated.”³¹
• December 1949. In a meeting between the governor of California and senior police and medical authorities, resolutions were passed calling for the death penalty for non-murder sexual activity with a child under 14 and increasing the penalty for consensual anal sex to 20 years.³²
• January 1950. A medical doctor urged that sex offenders get “indeterminate [i.e., life] sentences, on first offense, to a State institution … [a work camp] … Responsible relatives should reimburse the State.”³³

  Los Angeles Times, August 23, 195034

• August 1950. A popular magazine advertized an upcoming article about homosexuality with the headlines, America’s Most Insidious Moral Problem and How Homosexuality Endangers your Children.³⁴
• May 1951. The speaker of the California Assembly said that “sex psychopaths might be tattooed or given some mark of distinction so that they could readily be spotted in public.”³⁵
• May 1951. A reader anticipated today’s Megan’s Law websites when she proposed that there should be a “file [with] photographs, and all information pertaining to [sex offenders’] residences and places of employment, as well as complete descriptions of automobiles registered to them [, all] available to the public;”³⁶
• May 1951. A reader wrote in with a proposal to “brand sex offenders by removing a good-sized chunk from an ear; or better, trim both ears to a sharp peak. Even children could then identify them for what they are.”³⁰
• June 1951. The California Assembly passed a bill providing for automatic life sentences for certain sex crimes, with the defendant given the option to avoid prison by agreeing to be castrated.³⁷
• July 1951. The governor vetoed the bill because it would have created a way for sex offenders (i.e., mostly homosexuals) to avoid going to prison.³⁸
• March 1952. California passed a law prohibiting anyone convicted of certain sex crimes (primarily homosexual activity) from being a teacher.^39,16

  	Los Angeles Times, January 12, 195033

• September 1952. A reader wrote in, asking to “round up all sex offenders and keep them interned, giving medical treatment to those who can be cured and life terms to those that can’t … Merely to register them, like buying licenses for dogs, and then free them is a silly, costly and dangerous procedure.”⁴⁰
• March 1953. “The State Department announced today that it has fired 16 homosexuals and five other persons as security risks” in the past two months.⁴¹
• April 1953. “‘Homosexual proclivities’ have led to the dismissal of 425 State Department employees since 1947.”⁴²
• August 1953. The Times’ medical columnist said that “a medical editor … once refused to let me even mention homosexualism in an article on serious neuroses. He said he was proud of the fact that he had never permitted the use of ‘that vile word’ in his journal!”⁴³
• October 1953. “The White House announced today that 1456 government employees were dismissed or forced to resign for security reasons in the [preceding] four months … a quick exit for drunks, homosexuals, persons classed as blabbermouths and those of questionable habits as well as outright subversives.”⁴⁴

What started out as an effective tool for keeping Mafia gangsters out of Los Angeles was over the course of two decades transformed into a tool for persecution of homosexuals.