This happens, I imagine, not infrequently. It's undoubtedly annoying (if you're not interested, anyway), and properly illegal.
So what's the right penalty? The guy's charged and put on three years probation. That seems fine to me. Maybe even a little bit overly harsh for an awkward (but common) way of seeking to have a consensual sexual encounter, but okay. I might give a dude like that a year probation, but the trial court gives him three. I can get behind that.
But here's the rub (if you'll pardon the pun): the guy also gets mandatory lifetime registration as a sex offender. I'm not cool with that. At all.
Dropping your towel to a dude in a sauna you think's interested in a little action isn't the same as flashing a woman or little kid on the street. With the latter, yeah, you're a sex offender, and I'm okay with registration. No so the sauna dude. He's doing something qualitatively different. The mandatory lifetime registration here just seems massive overpunishment to me.
I blame two groups here. First, prosecutors. I'd have charged the guy with lewd conduct, which doesn't carry mandatory lifetime registration. Indeed, that's what the guy was initially charged with. But on the day of trial, the prosecutor added the charge of indecent exposure and thus the mandatory registration punishment. Why? Because the defendant had the audacity to ask for a trial. Apparently what everyone does is to use the greater charge as a "stick" to get you to plead guilty, but if you don't, boom, mandatory lifetime registration.
That's wrong to me. The Larry Craigs of this world have a right to go to trial without the fear of massive overcharging. If the right charge is -- as here -- lewd conduct, that's what should be the charge. Prosecutors who think that their job is to get a guilty plea at all costs or to get the largest penalty available aren't, in my mind, doing their job, and are instead committing injustice.
Second, the Legislature. If a trial court is allowed (as here) to sentence someone to probation, and chooses to do so, I think that's a darn good sign that mandatory lifetime registration may be an unwarranted and excessive penalty. Seems to me that in such cases, the Legislature should allow discretionary lifetime registration, or mandatory registration only during the period of probation and discretionary registration thereafter.
But that'd be "soft on sex offenders," right? God forbid we should have that label attached. A flaming electoral defeat may well follow. Simply not worth the risk to actually do justice.
I'm not necessarily blaming the Court of Appeal here, which is largely stuck with a statute and exercise of executive discretion that's unreviewable. But I'll not leave it entirely out of my rant either. The Court of Appeal repeatedly says that mandatory registration doesn't violate equal protection because a person who engages in indecent exposure, unlike lewd conduct, "is necessarily engaged in a purposeful and aggressive sexual display designed to provoke others."
Not true. Unless by "provoke" you mean to include "arose" and by "aggressive" you mean to include "exciting." Dudes in a sauna like Honan aren't looking to upset people. They just want to give (or get) a blowjob. They're hoping for a consensual encounter, and do what they do in the (potentially mistaken, as here) belief that the other guy's looking for action too. They're not in the market -- as some others are -- for shock. They just want some consensual boy-on-boy sauna love. But the indecent exposure statute criminalizes that because it only requires that the exposure occur in a place "where there are present other persons to be offended." Even if you did not intend offense, but rather intended joyful reciprocity, you're guilty. Which, under the facts of this particular case, is what I'm confident Honan did.
So I don't think the Court of Appeal is entirely blameless in this one as well, and operates under assumptions that are simply factually inaccurate.
Not that I necessarily expect the justices to know the ins and outs of how people proposition others in single-sex saunas. Though it shouldn't be that hard to figure out.
In short, if you'll pardon a final pun, no one comes out especially cleanly here.
