Two web sources - Colorlines and Change.org - are reporting that New Orleans police are using the old Louisiana state sodomy law to increase the penalties imposed on (mostly) women convicted of prostitution from a misdemeanor to a felony, creating absurdly harsh punishments, based on the type of sexual activity involved. Wait, you may say, what about Lawrence v. Texas, the Supreme Court decision that ruled such "crime against nature" laws unconstitutional? Lawrence, however, specifically excluded commercial sexual encounters from the ambit of constitutional protection that it recognized for consensual sexual acts between adults. And the Louisiana statute specifically criminalizes solicitation for sodomy for payment. As a result, the state can argue that this portion of the law is not affected by Lawrence. (Like several other states, Louisiana did not repeal its sodomy law after the Supreme Court ruling.) Or, you might have thought that sodomy laws applied only to same-sex activity. Wrong again - sodomy at common law was defined the way that Louisiana defines it: as oral or anal sex between any two persons.
The result: sex workers in New Orleans who are arrested for soliciting johns for oral (or anal) sex are charged with felonies; those who don't mention or can't be tricked into mentioning blow jobs are charged only with misdemeanors. Ridiculous -- except if you're sent to prison for five years and then have to register as a sex offender when you are released.
This ought to be challenged as an outrageous equal protection violation - essentially imposing radically different penalties for the same behavior, for no rational reason. It's also a dramatic illustration of how local power structures can exclude the least powerful strata within a minority group from protections, such as the impact of the Lawrence decision, that protect others within the same group.
From the report in Change:
Normally, a first-time prostitution conviction is a misdemeanor leading to less than six months jail time. But Jordan Flaherty reports in Colorlines that many New Orleans sex workers are being charged for selling oral or anal sex under the crimes against nature law, which carries a first-time felony penalty of up to five years prison time and requires them to register as sex offenders.
When used against sex workers, these controversial registries, created to keep communities aware of child molesters, become a severe rights violation that endangers an already vulnerable population, and wastes resources that could be directed toward dangerous offenders. The New Orleans Police Department's own website on sex offender awareness states that only 4% of sexual assaults are perpetrated by women -- yet in New Orleans, women make up the vast majority of crimes against nature convictions, which account for a whopping 264 out of the city's 861 actively registered sex offenders, according to registry statistics provided by LA state police spokesperson Doug Cain.
Though the registry doesn't keep track of how many of these crimes against nature were for solicitation of sex, it's safe to assume that we're looking at convictions for sex workers...
Josh Perry, a former New Orleans public defender, estimates that about half of prostitution arrests get tried as crimes against nature. This is up to the discretion of the police and district attorney, and sex workers and their advocates allege the harsher law is disproportionately utilized against black and transgender women.
Flaherty reports an array of problems, such as that women registered as sex offenders are excluded from regular storm shelters... The sex offender shelters lack separate safe spaces for women... Furthermore, since a crimes against nature conviction is a felony right of the bat, unlike a normal prostitution conviction, these women -- who in many cases turned to sex work due to poverty and a lack of other options -- are unable to get public assistance such as food stamps. Many of these women are homeless, and if sympathetic non-profits did not allow them to use their locations for a permanent address, they would end up violating the terms of their sex registry.