Thursday, February 17, 2011
In the landmark case of Lawrence v. Texas, the United States Supreme Court held a statute criminalizing sodomy violated due process as guaranteed by the Fourteenth Amendment. The opinion specifically noted that the case did not involve commercial sex.
But may a state constitutionally punish commercial sex involving sodomy more severely than commercial sex generally?
The complaint in Doe v. Jindal contrasts two types of commercial sex offenses: the "Crime Against Nature by Solicitation" statute criminalizes solicitation of "unnatural carnal copulation for compensation;" the general prostitution statute criminalizes solicitation of "indiscriminate sexual intercourse" for compensation. Because of the broad definition of "sexual intercourse," the general prostitution statute actually includes any act punishable by the more narrow "unnatural carnal copulation" statute.
However, the punishment for two statutes is not identical, even after recent amendments. Additionally, only convictions under one of these statutes requires registration as a sex offender. According to the complaint, Louisiana is the only state that requires sex offender registration for any solicitation offense.
The complaint alleges that this statutory scheme is a denial of equal protection, due process, and the Eighth Amendment. While due process may be the most obvious claim after Lawrence, recall O'Connor's concurring opinion in Lawrence on equal protection grounds and recall Powell's concurring opinion in Bowers v. Hardwick (the case Lawrence overruled) raising the specter of the Eighth Amendment.