Editorial: No, California didn’t legalize pedophilia. Here’s what a new law Newsom signed really does

Gov. Gavin Newsom deserves praise for signing a bill that equalizes penalties for perpetrators of certain sex offenses against minors. That’s because he no doubt knew the political hazards of SB 145. Examination of the bill shows that signing it ought to have been a no-brainer, even though critics are now ridiculously claiming it weakens the state’s prohibition on pedophilia.

The bill deals with sex acts between adults and minors (commonly referred to as statutory rape), which in California remain crimes punishable by up to four years in state prison and up to $25,000 in fines.

The only change is to the judge’s power to decide when to include, alongside the criminal penalties, a requirement that the convicted offender be added to California’s first-in-the-nation sex offender registry.

Judges have always had the power not to require registration in cases of young people convicted of criminal sex acts traditionally considered heterosexual. But registration was mandatory for young people convicted of criminal sex acts traditionally deemed homosexual. Judges lacked legal discretion over that portion of the penalty.

The bill erases the distinction between sex acts and grants prosecutors and judges discretion over sex offender registration equally.

Previously, for example, in the case of two high school seniors, one 17 and the other 18, who had sex on graduation night, the judge could decide not just whether to send the 18-year-old to prison but whether to make him register as a sex-offender — but only if the act being prosecuted was vaginal intercourse. If it was another sex act — and the statute is specific, referring to oral sex, anal sex and other acts — the judge would lose that discretion. Sex offender registration would be automatic.

Now the judge has discretion in both circumstances, so the requirements apply equally, whether the two teenagers are of the same or opposite sexes.

And that’s it. That’s all the bill does. It does not decriminalize any act, make prosecution any less likely or lessen any penalty — except for equalizing the requirement for sex offender registration.

There is no change to California’s laws punishing sex with minors under 14 or sex between an adult and a minor 10 or more years younger.

The bill was authored by Los Angeles County Dist. Atty. Jackie Lacey and strongly supported by criminal prosecutors around the state, so it’s hardly a soft-on-crime measure.

By the way, we want the judge to have that discretion, do we not? Depending on the totality of the circumstances, a judge may consider it foolish to impose any criminal punishment at all on the two teenagers, just a few weeks apart in age, doing what teenagers (many, anyway) do.

But if the older partner is 23 and the younger one 14, it looks a lot more like predation and abuse, and the judge may well deem it appropriate to impose tough penalties, including sex offender registration.

So wait, you may ask: Oral sex was considered a more serious offense than vaginal intercourse? Even though intercourse could cause unwanted pregnancy?

Well, sort of.

The history is convoluted. Like many states, California once had laws governing the legality of consensual sex acts between heterosexual married couples, and as in many states, the dividing line between acceptable and unacceptable acts revolved around the supposed purpose of sex: procreation. If sex between a husband and wife could result in pregnancy, it was legal. If not, it was banned.

When California legalized all sex between consenting adults in the 1970s, that distinction was erased, but it was kept, as an artifact, in cases of statutory rape. Perhaps the rationale was to distinguish between gay and straight sex in cases of statutory rape. But there is no justification for doing so; or if there were, one might presume that the illegal sex that could result in pregnancy would be treated more harshly, not less.