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When power yields to justice: Doe v. Jindal and the campaign to dismantle Louisiana's crime against nature statute.


Hiroke Doe (1) is an African American transgender woman in her early thirties who has lived in New Orleans her whole life. She began her gender transition as a teenager, and like many transgender youth, she struggled to survive and had few resources available to her. Hiroke was ultimately arrested after an undercover police officer solicited oral sex from her and she agreed. Just as thousands of people do every day in a hostile and alienating criminal justice system, she took a guilty plea, assuming that she had been charged with a generic prostitution-related misdemeanor. (2) But when she later met with her parole officer, Hiroke learned that she had in fact been charged under an obscure (and nationally unparalleled) statute known as Crime Against Nature by Solicitation, or CANS. (3) To her horror, Hiroke learned that as a result of a CANS conviction, she had to register as a sex offender for fifteen years, pay the state hundreds of dollars in registration fees, and comply with humiliating community notification requirements. What ensued was years of embarrassment, fear, and struggle.

The CANS statute was adopted in 1982 when, in an unprecedented move, Louisiana expanded its Crime Against Nature statute (4) to include the CANS provision. CANS specifically criminalized offering to engage in oral or anal sex for money, even though existing prostitution laws already criminalized that conduct, along with vaginal sex. (5) But rather than simply being a redundant and anomalous statute, CANS had a clear purpose: to single out cases involving allegations of sodomy for particularly harsh punishment. Unlike prostitution, CANS was a felony; and unlike prostitution, it required registration as a sex offender. (6)

And so, for almost thirty years, Louisiana sent hundreds of people, like Hiroke, to prison for years at a time on the basis of allegations that they merely offered oral or anal sex for money, and then forced them to register as sex offenders. For a vulnerable population already struggling with poverty, lack of access to decent housing, services, and employment, and the hurdles that come with a criminal record, the practical consequences of a conviction under this statute have been utterly debilitating. (7)

As part of a litigation team that would challenge the constitutionality and discriminatory effects of the CANS statute in Doe u. Jindal, (8) I first met Hiroke, and many others affected by this law, in 2011. Why, they wanted to know, were African American women, including transgender women, and gay men so frequently being charged with CANS? (9) How were they supposed to get jobs in the mainstream economy, or safe and decent housing, when their driver's license prominently featured the words "sex offender" in bright orange letters? And how exactly were they supposed to afford the onerous fees required under the Registry Law? (10)

These questions coalesced into a powerful campaign against the CANS law. Led by fearless community members and groups, the campaign mobilized advocacy, lobbying, litigation, public education, and a press strategy to challenge the discrimination laws were common in the nineteenth and twentieth centuries, and were declared unconstitutional by Lawrence v. Texas, 539 U.S. 558 (2003). faced by those convicted of CANS. And in two short years, despite the state's strenuous effort to defend this law, a coalition of community advocates, lawyers and activists systematically and comprehensively dismantled its most pernicious effects, rendering the law truly redundant and functionally void.

From my perspective as a social justice lawyer, this two-year struggle has been an invaluable lesson in the power of social justice movements, and the role lawyers can and should play in the service of those movements. For 200 years, the archaic Crime Against Nature law has, in one iteration or another, been used to mete out harsh and discriminatory punishment. As a result of this campaign, the last chapter in that sorry history has been written.


Rooted in nothing more than moral and religious disapproval of nonprocreative sex acts that have become historically associated with homosexuality, Louisiana's Crime Against Nature statute has been mobilized in exceedingly harsh ways for over two centuries. Understanding this history is crucial, not only because it reveals how early nineteenth century morality and religious thought has, until now, guided criminal justice policy around this statute, but also because it reveals that the recent campaign against the CANS statute closes a long chapter of singling out "offenses" involving oral and anal sex for punitive treatment.

A. The Adoption and Interpretation of Louisiana's Crime Against Nature Statute.

Generally speaking, the history of the Louisiana's Crime Against Nature statute mirrors that of sodomy laws in the United States. Like most states, Louisiana criminalized sodomy throughout the nineteenth century and into the twentieth century. (11) "Sodomy was a criminal offense at common law, and was forbidden by the laws of the original thirteen states when they ratified the Bill of Rights." (12) Louisiana's first criminal code was enacted in 1805, and included a provision criminalizing what was described as "abominable and detestable Crime [A]gainst Nature, committed with mankind or beast." (13) As in most jurisdictions at the time, the precise conduct that constituted a Crime Against Nature did not appear on the face of the statute, but American courts and commentators in the nineteenth century uniformly followed English precedent in interpreting it to prohibit anal sexual intercourse with a man, woman, or animal. (14)

These sodomy laws were initially animated by religious and social prohibitions on nonprocreative sexual activity. (15) States like Louisiana outlawed the practice of anal sex altogether, irrespective of the sex, marital status, or consent of the participants. (16) These were disfavored forms of sexual conduct not because of the identity of the participants (as was to become the case in the twentieth century), but because the acts involved were not in the service of reproduction. (17) As Nan Hunter has explained,
   [t]he crime of sodomy originated in ecclesiastical
   regulation of a range of nonmarital, nonprocreative
   sexual practices. Nonprocreation was the central offense
   and the core of the crime.... The 'crime against nature'
   to which that phrase refers was not, as is often assumed
   today, a crime against heterosexuality, but a crime
   against procreation." (18)

Indeed, the Supreme Court recognized in Lawrence v. Texas that "early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally." (19) While sodomy statutes targeted same-sex activity, it was not the primary focus of concern.

Both Louisiana's legislature and its courts clarified-and systematically expanded- the scope of the Crime Against Nature statute over the course of the late nineteenth and early twentieth centuries. First, given its euphemistic wording, there was considerable confusion about what the statute actually outlawed, and the issue was litigated on more than one occasion. Louisiana's courts repeatedly upheld the statute, but seemed reluctant to specifically describe what exactly a "crime against nature" entailed. For example, in 1882 the Supreme Court of Louisiana rejected a vagueness challenge and stated, "[t]he euphemism by which the law describes pecatum illud horribile, does not, in our opinion, leave its meaning doubtful or obscure." (20) If Louisianans did not understand the phrase "crime against nature," then the Latin phrase peccatum illud horribile inter Christianos non nominandum (21) was apparently sufficient to put them on notice as to which sex acts to avoid.

To the extent that any doubts about the activities prohibited by the statute lingered, the Louisiana legislature amended it in 1896 to explicitly outlaw oral sex. (22) Hearing a legal challenge to this new provision, the Supreme Court of Louisiana suggested that the statute had in fact criminalized both anal and oral sex since its inception: "[W]hy, in the common-law courts, the use of the mouth should not have been considered as much against nature, as though the act were committed per anum is incomprehensible." (23) Setting the stage for the harsh punishment that was, until recently, associated with a Crime Against Nature conviction, the court went on to ominously describe the penalties for sodomy:
   Blackstone speaks of [sodomy] as the 'infamous crime
   against nature; pecatum, illud horrible, inter christianos
   non nominandum,'--and says that, under the ancient
   law, the penalty was death by fire, and that Fleta was of
   the opinion that those convicted of it should be buried
   alive; but that, 'being in times of popery only subject to
   Ecclesiastical censures,' it was made a felony... and
   that hanging is the general punishment of all felonies. (24)

If the precise acts encompassed by the statute were cause for confusion, the religious and moral animus that animated these severe penalties were not. In 1914, the Supreme Court of Louisiana made it clear that it understood oral sex to be a criminal "perversion," reiterated that the statute applied to oral sex performed upon a man, and mused that it "perhaps" applied to "that other perversion called 'cunnilingus,' committed with the mouth and the female sexual organ." (25)

The legislature continued to tinker with the Crime Against Nature law in the mid-twentieth century, actually reducing the penalties associated with a conviction under the statute. (26) This was, however, the beginning of a discernible shift in how the Crime Against Nature law was thought of, and used, in Louisiana -a change that also occurred across the country. As sexual norms liberalized, the sexual conduct of heterosexuals began to be legally insulated by a cloak of privacy. Ruling in Griswold v. Connecticut, the landmark 1965 case declaring that married couples have a constitutional right to use contraception, the Supreme Court asked, "[w]ould we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship." (27) Thus, a privacy norm began to supplant the moral and religious prohibitions underscoring laws governing consensual sexual activity-including the activities prohibited by sodomy laws. While sodomy laws were rarely used to prosecute private, consensual, heterosexual activity, the Supreme Court announced unambiguously that state surveillance of such sexual activity, procreative or not, would be anathema to the sanctity of heterosexual marriage. (28) While never squarely addressing the applicability of sodomy laws to heterosexuals, the notion that these laws were applicable to private heterosexual actors began to erode.

But rather than fade into obscurity, a second wave of sodomy laws began to emerge across the country during and after the 1960s. For the first time, these laws were specifically focused on criminalizing homosexuality. Either implicitly or explicitly targeting same sex conduct, (29) and the legislative response to what has been described as a period of "antihomosexual kulturkampf," (30) these laws "were a development of the last third of the twentieth century and reflect [an] historically unprecedented concern to classify and penalize homosexuals as a subordinate class of citizens." (31) Some laws facially criminalized only same-sex activity, such as the Texas law that was eventually declared unconstitutional in Lawrence. (32) Others, like Louisiana's Crime Against Nature statute, remained facially neutral. But sodomy became increasingly understood as a euphemism for homosexuality, and, as Nan Hunter has pointed out, "[n]ew social understandings... converted sodomy into a code word for homosexuality, regardless of the statutory definition." (33) In short, sodomy laws were, by the latter third of the twentieth century, unambiguously motivated by animus against homosexuality. (34)

In keeping with this national trend, Louisiana's Crime Against Nature statute also began to be applied and expanded in new ways. In 1962, the legislature enacted the Aggravated Crime Against Nature statute, defined as an act of sodomy combined with force, the victim's inability to consent, or with an individual under the age of seventeen. (35) Rape and sexual assault laws already criminalized this conduct and so the statute was redundant. The fact that these generally applicable laws were deemed insufficient suggests a heightened sense of moral panic about sodomy, which was, at this stage, irrevocably associated with homosexuality.

Meanwhile, in 1964, rejecting a vagueness and overbreadth challenge brought by a man convicted under the Crime Against Nature statute for consensual homosexual activity, the Louisiana Supreme Court made its views on sodomy clear:
   The phrase "unnatural carnal copulation" that counsel
   points to in particular as being of obscure, vague, and
   indefinite meaning consists of words of common usage
   and indicate with reasonable clarity the kind and
   character of conduct the legislature intended to prohibit
   and punish. These words all have a well defined, well
   understood, and generally accepted meaning i.e., any and
   all carnal copulation or sexual joining and coition that is
   devious and abnormal because it is contrary to the
   natural traits and/or instincts intended by nature, and
   therefore does not conform to the order ordained by
   nature. To meet the test of constitutionality it is not
   necessary that the statute describe the loathsome and
   disgusting details connected with each and every way in
   which "unnatural carnal copulation" may be
   accomplished. (36)

The court upheld the defendant's sentence of three years imprisonment for a single act of consensual sex with another man. (37)

Louisiana's entire Crime Against Nature statute remained in force until 2003, when the United States Supreme Court held in Lawrence v. Texas that the liberty principles protected by the Due Process Clause gave consenting adults the right to engage in sodomy in private. (38) Though the Louisiana Supreme Court has never had an opportunity to squarely strike down the provision of the Crime Against Nature statute that criminalized private, consensual oral and anal sex, it has acknowledged in dicta that Lawrence has rendered it unconstitutional. (39)

B. The Passage of the Crime Against Nature by Solicitation Statute.

But unlike most sodomy laws elsewhere in the country, the history of Louisiana's Crime Against Nature statute does not end here. In 1982, Louisiana expanded the statute in an unprecedented way. The state had, of course, long outlawed prostitution, already criminalizing the exchange of oral, vaginal, or anal sex for money. (40) But in 1982, the legislature amended the Crime Against Nature statute for the first time since the 1890s, adding a provision that targeted so-called Crime Against Nature by Solicitation. (41) The CANS statute outlaws the "solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation." (42) A century of case law interpreting the Crime Against Nature statute had, of course, defined "unnatural carnal copulation" as oral or anal sex, even if had done so clumsily in the face of various vagueness challenges. (43) Despite the fact that this conduct was already illegal, Louisiana gave its law enforcement officers a powerful new tool: a discrete statute separate from existing prostitution laws that specifically singled out cases involving oral and anal sex.

In other words, since 1982, prosecutors in Louisiana have had their pick of how to prosecute a person who offers oral and anal sex for money: either through the solicitation provision of the prostitution statute, or through the CANS statute. The two statutes target identical conduct. The element of intent is also identical. The only difference between the two statutes is that prostitution also encompasses solicitation of vaginal intercourse. And prosecutors have had unfettered discretion in choosing which charge to pursue.

Why would the state adopt a redundant statute, and expand its sodomy law for the first time in almost a century? The answer lies in a comparison of the penalty provisions triggered by a conviction under the CANS and prostitution statutes. For years, Louisiana punished an individual convicted of CANS far more harshly than an individual convicted of prostitution. While a prostitution conviction was a misdemeanor, punishable by a fine of no more than $500 and/or a maximum term of imprisonment of six months, (44) CANS was a felony-punishable by up to five years in prison. (45) Additionally, in what became the central issue in Doe v. Jindal, even a single CANS conviction required mandatory registration as a sex offender, though prostitution convictions do not. (46) In keeping with the history of the Crime Against Nature statute more broadly, Louisiana singled out cases involving allegations of oral or anal sex and attached particularly harsh penalties to those cases. Where exactly the same conduct was treated more leniently elsewhere in the criminal code, the "loathsome and disgusting" (47) acts singled out by CANS were to be treated differently because of their association with homosexuality, and the state's law enforcement officers were free to decide exactly when and to whom it would apply this powerful tool.


Before Lawrence, sodomy statutes were rarely enforced across the country, and the power of the statutes was largely perceived as symbolic. (49) By contrast, one of the remarkable things about Louisiana's CANS statute is its widespread use. Prosecutors were not reluctant to mobilize this unparalleled and powerful tool. By mid-2012, nearly 500 people across the state were forced to register as sex offenders simply as a result of a CANS conviction, (50) and the majority of these individuals were convicted in the 2000s. (51) These figures vastly outpace the use of sodomy laws in other states. (52)

Also notable is who was swept up by the use of this statute. Approximately seventy-five percent of the individuals registered as sex offenders in Louisiana as a result of a CANS conviction were women, and approximately sixty-five percent were African American. (53) The majority of CANS cases, meanwhile, were in

New Orleans. (54) In February 2011, when Doe v. Jindal was filed, there were 812 registered sex offenders in Orleans Parish, of whom 292 were registered solely because of a CANS conviction. (55) This means that an astonishing thirty-six percent of all registered sex offenders in the jurisdiction were there simply because they were prosecuted under the state's sodomy law. Of these 292 individuals, 219 (or seventy-five percent) were women, and 230 of them (or seventy-nine percent) were African American. (56) Ninety-seven percent of all women on the registry in Orleans Parish were there as a result of a CANS conviction. (57) Thus, a statute that was adopted for purposes of expressing moral distaste for nonprocreative sex acts historically associated with homosexuality primarily ended up being used to prosecute African American women.

Those convicted of CANS paid dearly for a prosecutor's arbitrary charging decision. First, the sentences served by those convicted of CANS are shocking. Ian Doe, a plaintiff in Doe v. Jindal, is a gay man in his thirties who was forced to leave home at the age of thirteen when his family discovered he was gay. He served four years in state prison for a single CANS conviction. (58) There, like many other people particularly vulnerable to sexual assault in prison because of their sexual orientation and/or gender expression, (59) he was raped by a prison guard, and contracted HIV. (60) Becca and Eve Doe, also plaintiffs in the case, were each sentenced to forty months imprisonment with hard labor as a result of their first CANS convictions. (61)

Compounding the effects of such harsh prison terms, and the devastating economic impact of a felony conviction, those convicted of CANS were forced to register as sex offenders upon their release from prison, and to comply with the Registry Law's onerous and myriad requirements. (62) Individuals like Audrey Doe, an African American grandmother in her mid-fifties who was convicted of CANS on multiple occasions while she was struggling with poverty, substance abuse and mental health issues, spent hundreds of dollars on annual registration fees, the cost of printing and mailing notification postcards to neighbors, and the fees for placing announcements in the newspaper disclosing her registration as a sex offender (expenses that accrue every time one moves). (63) Carla Doe, an African American woman in her mid-forties, was required to pay hundreds of dollars to comply with community notification requirements after she moved to escape a physically abusive common law husband. (64)

Sex offender registration also erected significant barriers between people and much-needed employment, services, and housing. All registered sex offenders in Louisiana are forced to carry identification cards that included the words "sex offender" in bright orange letters. (65) Both Becca and Carla described how, every time they applied for a job that required them to show a driver's license or identification card, they were denied employment on the spot. (66) And as Ian explained, "because of this charge I can't get a decent job now, I can't do anything.... I've been everywhere trying to get employment. The minute they find out I'm a registered sex offender, they tell me, 'no thank you,' or [that] they'll call me back, or they'll get back with me, and they never do." (67)

Housing providers were equally hostile. Diane Doe was repeatedly told by housing agencies that she was ineligible for subsidized housing because of her registration as sex offender, leaving her trapped in an abusive relationship and worried that she would never be able to secure housing if she had to escape her husband. (68) Ian was asked to leave a homeless shelter when staff discovered that he was a registered sex offender. (69) So too were service providers reluctant to help. Eve, a forty year-old transgender woman, has battled drug addiction for years. When she attempted to obtain treatment, three separate organizations providing substance abuse services denied her treatment because of her status as a registered sex offender. (70) She attempted to get temporary housing at a non-profit agency but was refused placement for the same reason. (71) She explains:
   Trying to get my life back in order, it is seemingly
   impossible because I'm unable to access any kind of help
   that I need to find any normalcy to guide my life back on
   the right track.... I have tried numerous times to get
   into drug treatment facilities and the doors were
   slammed in my face because I was a sex offender.... I'm
   also HIV positive and there are times when I struggle
   because of joblessness and homelessness. I'm not allowed
   to access the housing programs because of the stigma of
   being a sex offender. I've sought out help for the last
   thirteen years.... [B]eing transgendered puts even
   more stigma on it because we're already looked on as
   social outcasts. The discrimination is just ongoing and
   ongoing and ongoing. (72)

If the obligations imposed by the Registry Law were not brutal enough, the systematic marginalization resulting from registration impacted the lives of those convicted of CANS just as profoundly. During evacuation from New Orleans prior to Hurricane Gustav in 2008, Diane evacuated separately from her children and family members because she knew that the law required her to show her ID stating that she was a registered sex offender at emergency shelters, and she did not want her seventy-seven year-old grandmother to learn of her status. (73) Indeed, current protocols forbid registered sex offenders who need publicly-run emergency shelter from remaining with their children and families in the event of an evacuation. (74)

And the public exposure that sex offender registration imposes left many feeling unsafe and vulnerable. Audrey lived in fear that people in her neighborhood would physically harm her whenever she was required to send out community notifications. In 2008, after circulating such notifications, rocks were thrown through her windows. (75) At one point, a stranger came to Becca's residence looking for sex, indicating that he had seen her photograph "on the internet." (76)

Most people affected by this law reported that, aside from all the ways in which registration as a sex offender made their lives so much harder as a practical matter, they suffered considerable depression, humiliation, and alienation as a result of their legal status. Fiona Doe, an African American transgender woman in her thirties, spoke of her feelings of depression in the face of having to register as a sex offender for the rest of her life. (77) She felt constantly aware that her neighbors and other community members perceived her as a danger to themselves and specifically to children. (78) Hiroke Doe, an African American transgender woman in her early thirties, learned to avoid situations in which she had to use her identification card so that she did not have to expose herself as a registered sex offender. (79)

As the impact of this law became more and more unbearable, those most affected began to ask questions. Ian, reflecting on his struggles as a young person and his subsequent registration as a sex offender after being convicted of CANS, put it this way:

What happened when I was thirteen years old and
   everyone knew I was on the streets and homeless? The
   crime was committed there. What happened when I went
   to prison and caught HIV? The crime was committed
   there. And this was all behind saying 'fifty dollars' [in
   exchange for sex]. (80)

And as these voices grew into a chorus, a movement began to emerge.


The campaign to dismantle the devastating effects of the CANS statute found its genesis at a community organization called Women With A Vision (WWAV). WWAV is a New Orleans-based grassroots group that works to "improve the lives of marginalized women, their families, and communities by addressing the social conditions that hinder their health and well-being" using a combination of "advocacy, health education, supportive services, and community-based participatory research." (81) In the months after Hurricane Katrina, WWAV began to notice that more and more women seeking their services were struggling with the stigma of sex offender registration as a result of a CANS conviction. More of their clients were being forced to register, and more of them were, for the first time, being forced to comply with some of the more onerous aspects of registration, such as community notification. Amassing information about how a CANS conviction affected their clients' ability to access employment, housing, treatment, social services, health care, not to mention their peace of mind and sense of dignity, WWAV built a campaign that they called NO Justice. (82) The campaign had three principle and mutually-reinforcing facets: community-based legislative advocacy, movement lawyering, and a media and public education strategy. (83) In an extraordinarily short period of time, it would systematically undo the legal infrastructure around the CANS statute.

The legislative campaign sought to untether the sex offender registration requirement from the CANS statute by educating sympathetic lawmakers about who was being affected by this charge, and how. The legislative advocacy focused on the stories of the women and members of the LGBT community who were being disproportionately targeted and affected by the CANS statute. First, members of the campaign-including Deon Haywood from WWAV and lawyers from the Doe u. Jindal team--met with State Representative Charmaine Marchand Stiaes, highlighting these stories, and explaining both the injustice and unconstitutionality of how the CANS statute was operating. The team then met with other legislators and state officials, and appeared at public hearings, to explain in unflinching detail how a 200-year-old sodomy statute was being used so destructively a decade into the twenty-first century. And, in the face of those stories and that effort, the unimaginable happened. In just two sessions, the Louisiana legislature systematically dismantled the differential treatment meted out under the CANS statute. First, in 2010, a first CANS conviction was demoted to a misdemeanor and the statute was amended so that a first conviction no longer required sex offender registration. (84) Then, in 2011, Representative Marchand Stiaes sponsored a bill that would eliminate all differences between how CANS and Prostitution convictions were treated for those convicted after August 15, 2011. (85) After members of the NO Justice campaign testified before criminal justice subcommittees in both the House and Senate, the legislature equalized all penalties with the prostitution statute, and eliminated the sex offender registration requirement completely. (86) As a result, all penalties associated with the CANS statute are now identical to those associated with a prostitution conviction.

The NO Justice campaign understood, however, that struggles for social justice-particularly around issues as thorny and unpopular as this-require multifaceted approaches and strategies. And so, simultaneous to this legislative campaign was a litigation strategy. NO Justice sought out a team of lawyers to bring civil rights litigation in federal court to challenge the legality of Louisiana's practices. Community groups including WWAV, VOTE (Voice of the Ex-Offender), and the Women's Health & Justice Initiative met with lawyers from the Center for Constitutional Rights (CCR), the Stuart H. Smith Law Clinic and Center for Social Justice at Loyola University New Orleans College of Law, and police misconduct attorney Andrea Ritchie, and described what was happening in and around New Orleans as a result of the CANS statute. After hearing the stories of the people most affected by the law, the legal team performed extensive legal research and presented the NO Justice coalition with its legal options. After the coalition decided independently that litigation should be part of its campaign, the legal team filed Doe v. Jindal in the federal district court for the Eastern District of Louisiana in February 2011. (87) Within six months, the legislature eliminated all differences between how CANS and Prostitution convictions were treated. (88) But none of the amendments were retroactive, leaving behind those convicted prior to August 15, 2011. This victory did nothing, in other words, to mitigate the havoc wreaked by the CANS statute on the lives of those against whom it had been wielded for years, demonstrating that no single strategy can guarantee total victory. These individuals became the focus of the litigation.

Though other claims were raised, (89) the lawsuit focused on a novel equal protection claim. It is, of course, axiomatic under equal protection jurisprudence "that States must treat like cases alike," unless (under rational basis review) there is a legitimate rationale for doing otherwise. (90) This principle, plaintiffs argued, applied squarely to those convicted of CANS: because these individuals were identically situated to those convicted of prostitution, but they alone were forced to register as sex offenders, the equal protection clause was offended. (91) First, there was no doubt that individuals convicted under these two statutes were identically situated: the statutes shared the same elements, punished the same conduct, and required the same showing of intent. Further, there was no doubt that individuals convicted under the two statutes were being treated differently: those convicted of CANS were required to register as sex offenders, while those convicted of prostitution were not. And finally, plaintiffs argued, there could be no possible legitimate rationale for this differential treatment.

In making this argument, plaintiffs relied not on Lawrence u. Texas, but on Eisenstadt v. Baird, (92) another landmark Supreme Court case. In Eisenstadt, the Supreme Court struck down a Massachusetts law that prohibited the distribution of contraception to unmarried people, even though married people were allowed access to contraception. (93) The Court rejected various purported governmental rationales for treating married and unmarried individuals differently, holding that "whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike." (94) In language that would ultimately prove critical in Doe v. Jindal, the Court explained: "In each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious." (95)

In other words, where the state, for whatever reason, had not asserted an interest in prohibiting married persons from using contraception, it could not, consistent with the Equal Protection Clause, assert such an interest with respect to unmarried people. As the Court concluded:
   [N]othing opens the door to arbitrary action so effectively
   as to allow [government] officials to pick and choose only
   a few to whom they will apply legislation and thus to
   escape the political retribution that might be visited
   upon them if larger numbers were affected. Courts can
   take no better measure to assure that laws will be just
   than to require that laws be equal in operation. (96)

The plaintiffs argued that the logic in Eisenstadt squarely applied to them and articulated why their constitutional rights were being violated. Given that the CANS and prostitution statutes were identical in all material respects, there was no discernible or defensible reason why the government was allowed to single out those convicted of CANS for such harsh treatment. Given that both statutes targeted exactly the same "evil," it could not assert an interest in registering some, but not identically-situated others, as sex offenders.

The state of Louisiana struggled mightily to counter this argument. The CANS statute, it claimed, applied not just to oral and anal sex, but acts of bestiality, thus differentiating it from prostitution. (97) This argument, the Court ruled, "defies credulity. Its absurdity is betrayed by the statutory text, the Louisiana Supreme Court's pronouncements, and common sense." (98) The state then argued that even though the elements of the statutes were the same, perhaps there was a legitimate rationale for only requiring those convicted of CANS to register. The state claimed that its interests in public safety, health and welfare justified the sex offender requirement prompted by a CANS conviction. (99) But if these interests did not require those convicted of prostitution to register as sex offenders, plaintiffs countered, why should the materially identical CANS statute trigger such interests? How did someone convicted of CANS threaten public safety, health and welfare such that this drastic measure was necessary, where someone convicted of prostitution did not?

In March 2012, the Court agreed and granted plaintiffs summary judgment. Adopting plaintiffs' argument almost entirely, the Court noted that the state had:
   [F]ail[ed] to credibly serve up even one unique
   legitimating governmental interest that can rationally
   explain the registration requirement imposed on those
   convicted of Crime Against Nature by Solicitation. The
   Court is left with no other conclusion but that the
   relationship between the classification is so shallow as to
   render the distinction wholly arbitrary. (100)

The court declared that requiring those convicted of CANS to register as sex offenders was unconstitutional, ordered the State to cease and desist from continuing to register people convicted of CANS, and struck the plaintiffs from the registry. (101)

In many respects, the equal protection theory that prevailed in this case turned on a fairly academic, and in many ways highly textualist, analysis. It hinged, in essence, on a clinical comparison of two statutes, and the strict application of a canonical Supreme Court case. But there were intangible aspects of the litigation that both humanized the issue before the court and highlighted the injustice of what was happening to those affected by the CANS statute. First, though the Complaint filed in the case laid out the allegations necessary for the equal protection theory, it also detailed the devastating effects of a CANS conviction on the plaintiffs' lives. And second, the courtroom hearings in the case (on the state's motion to dismiss, and then the plaintiffs' motion for summary judgment) were widely attended by community members, students, advocates, individuals affected by this law, and members of the media. Packing the courtroom is a longstanding feature of civil rights lawyering. Though it will not sway an independent-minded judge, it serves other important functions. It signals widespread community concern about social justice issues. It allows those usually excluded or, at best, marginalized by the legal process to claim ownership over what happens in court in their name. And here, it forced the state to stand up before the people and defend its practices-practices that are ostensibly in the public interest, and are paid for with tax dollars. These intangibles are not to be underestimated, and are a critical component of any movement lawyering effort.

Finally, the NO Justice campaign engaged in a media campaign to complement its efforts in the legislative and judicial arenas. Individuals affected by the law, advocates from WWAV, and the attorneys involved in the litigation educated journalists about why this was such a crucial justice issue. On the day the case was filed, three of the plaintiffs gave anonymous statements on a teleconference with members of the press, telling their stories as no lawyer or legal pleadings could ever hope to do. (102) Ian, Hiroke, and Eve explained in devastating detail the abuse, humiliation, and systematic marginalization they had experienced simply because the state had arbitrarily chosen to charge them with CANS. (103) These efforts culminated in crucial coverage of the campaign and lawsuit in both the local and national press, in the form of articles, blog posts, and op eds. (104) Crucially, an editorial appeared in the Times Picayune that condemned the irrationality of the sex offender registration requirement associated with a CANS conviction, just as the legislature was preparing to vote on the crucial 2011 amendments to the CANS statute. (105) Though also intangible, these efforts were critical in taking a thorny issue and laying out the fundamental justice issue at its core for the public and lawmakers.


Within two years, three things happened that at the outset of the NO Justice campaign had seemed unimaginable. First, the legislature eradicated all of the inequitable and discriminatory features of the CANS statute. In equalizing all penalties between CANS and prostitution, and eliminating the sex offender registration requirement, the legislature essentially rendered the CANS statute redundant-laying to rest a 200 year-old statute rooted in nothing more than irrational and discriminatory animus. Second, a federal court declared that the sex offender registration requirement associated with a CANS conviction offended the federal Constitution, ordered the Doe v. Jindal plaintiffs removed from the sex offender registry, and instructed the state to cease and desist from placing any individuals convicted of CANS on the registry. And third, what began as a relatively obscure and uncomfortable issue became a rallying cry for advocates and community groups across Louisiana and indeed the country.

To be sure, the criminal justice system in Louisiana, just as across the country, continues to treat prostitution in irrational, draconian, and counter-productive ways. A national conversation is needed to end the vicious cycle of criminalization, incarceration, and marginalization that currently monopolizes policies around sex work. These are complex issues that were beyond the scope of the campaign against the CANS statute. But what the campaign did achieve was a significant change in how Louisiana polices, charges, prosecutes, and regulates prostitution. No longer can prosecutors wield the threat of a felony charge in order to pressure defendants to plead guilty to lesser (though still deeply consequential) prostitution-related charges without exercising their right to trial. No longer can police threaten to charge vulnerable individuals with a felony that requires sex offender registration rather than a misdemeanor that does not, in order to extort sex from vulnerable individuals. And no longer are individuals convicted of solicitation-related offenses subjected to the indignity and debilitating effects of sex offender registration.

These changes would not have been possible without the bravery of nine individuals who were willing to step forward and challenge this law in the most intimidating of settings: a federal court. Also, it would not have been possible without the leadership of a courageous community group that decided enough was enough, or without a creative team of lawyers that followed the lead of the community and only brought litigation when asked. But none of these individual groups could have achieved any of this alone. No lawsuit, advocacy campaign, or editorial can single-handedly dismantle decades of injustice, no matter how dedicated those involved in these efforts may be. It takes a concerted and coordinated approach that taps into the myriad talents and perspectives of a diverse group of committed individuals to engineer this kind of victory. It takes organizing, campaigning, lobbying, educating, and sometimes litigating to do this work, and these efforts must be mutually-accountable and mutually-reinforcing in order to be effective. Sometimes conflicts will arise, but it is by confronting these conflicts and endeavoring to harmonize these efforts that allow struggles for justice to succeed. And finally, communities must themselves articulate and define the struggles they face, and guide and shape the strategies used to tackle these issues. When all this comes together, power will occasionally be forced to yield to justice.

Of course, there is still work to be done. Months after Doe v. Jindal was decided, Louisiana had still not purged its sex offender registry of hundreds of people who were there simply because of a CANS conviction, taking the position that the lawsuit benefited only the nine named plaintiffs even though the Court unambiguously declared the practice unconstitutional across the board. And so, in June 2012, CCR, along with its co-counsel, filed a follow-up suit, Doe v. Caldwell, to force the state to extend the relief won in Doe v. Jindal to the hundreds of others who are identically situated. (106) That case is ongoing, and we are confident that everyone registered as a sex offender as a result of a CANS conviction will soon be removed from Louisiana's sex offender registry. But these are the last days of a sorry chapter in Louisiana's legal history, and a fatal blow to what remains of sodomy laws in this country. This is surely cause for celebration.

(1.) The names used in this article are the same pseudonyms used in the Complaint filed in Doe v. Jindal, in order to maintain the plaintiffs' privacy. See Complaint at 1 n.l, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(2.) See LA. Rev. STAT. Ann. [section] 14:82 (2012); see also infra note 41 and accompanying text.

(3.) La. rev. Stat. [section] 14:89.2(A) (2012).

(4.) See discussion infra Part B. The Crime Against Nature statute was a generic sodomy statute that outlawed engaging in oral or anal sex. As discussed below, such

(5.) La. Rev. Stat. Ann. [section] 14:89.2(A) (2012).

(6.) See Doe, 851 F. Supp. 2d at 1003 ("The record also confirms that each plaintiff is required to register as a result of a Crime Against Nature by Solicitation conviction[.]").

(7.) See infra notes 61 & 73.

(8.) Doe, 851 F. Supp. 2d at 997-98.

(9.) See discussion infra Part C.

(10.) See LA. REV. STAT. ANN. [section] 15:542(D) (2012) (detailing fees associated with sex offender registration).

(11.) See Bowers v. Hardwick, 478 U.S. 186, 192-93 (1986) ("In 1868, ... all but 5 of the 37 States... had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy....") More than half of the states repealed their sodomy statutes in the latter half of the twentieth century; but by the time Bowers was decided by the Supreme Court in 1986, 24 states, along with the District of Columbia, still criminalized sodomy, irrespective of the consent of the participants or privacy of the acts. See id. at 193-94.

(12.) Id. at 192.

(13.) 1805 La. Acts No. 50 (1805).

(14.) George Painter, The Sensibilities of our Forefathers: The History of Sodomy Laws in the United States, Louisiana, GLAPN.ORG (last updated Aug. 10, 2004),

(15.) Nan Hunter, Life After Hardwick, 27 HARV. C.R.-C.L.L. REV. 531, 533 (1992).

(16.) See infra note 23 and accompanying text.

(17.) See Lawrence v. Texas, 539 U.S. 558, 568 (2003) ("Nineteenth-century commentators... read American sodomy, buggery, and crime against nature statutes as criminalizing certain relations between men and women and between men and men.") (citing J. BISHOP, CRIMINAL LAW [section] 1028 (1858); J. CHITTY, CRIMINAL LAW 47-50 (5th ed. 1847); R. DESTY, A COMPENDIUM OF AMERICAN CRIMINAL LAW 143 (1882); J. MAY, THE LAW OF CRIMES [section] 203 (2d ed. 1893)).

(18.) Hunter, supra note 15.

(19.) Lawrence, 539 U.S. at 568.

(20.) State v. Williams, 34 La. Ann. 87, 88 (1882).

(21.) The phrase "peccaium illud horribile, inter Christianos non nominandum" was commonly used in law books and in legislative debate at the time, and translates as "that horrible crime not to be named among Christians." See 4 SIR WILLIAM Blackstone, Commentaries on the Laws of England 215 (1769).

(22.) 1896 La. Acts No. 69, [section] 1 (1896). The revised statute read, "Whoever shall be convicted of the detestable and abominable Crime against Nature committed with mankind or with beast with the sexual organs, or with the mouth, shall suffer imprisonment at hard labor for not less than two years and not more than ten years."

(23.) State v. Vicknair, 52 La. Ann. 1921, 1925 (1900).

(24.) Id. at 1923-24.

(25.) State v. Murry, 136 La. 253, 260 (1914).

(26.) See Painter, supra note 15 (In 1942, the Louisiana Criminal Code was comprehensively revised, and the Crime against Nature statute was amended. The text of the statute read: "Crime Against Nature is the unnatural carnal copulation by a human being with another of the same or opposite sex or with an animal. Emission is not necessary, and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime." The maximum penalty was reduced from ten to five years, and a fine of up to $2,000 was added. The two-year minimum sentence remained, but the hard labor provision was made optional.).

(27.) Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).

(28.) See id.

(29.) See Lawrence v. Texas, 539 U.S. 559, 570 (2003) (citing nine states that had adopted sodomy statutes in the 1970s targeting same-sex activity including: Arkansas, Kansas, Kentucky, Missouri, Montana, Nevada, Oklahoma, Tennessee, and Texas).

(30.) See WILLIAM N. ESKRIDGE JR., DISHONORABLE PASSIONS: SODOMY LAWS IN America 1861-2003, 73-108 (2008).

(31.) Brief of Professors of History George Chauncey, Nancy F. Cott, et. al. as Amici Curiae in Support of Petitioners, Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02102), 2003 WL 152350 at *3.

(32.) TEX. PENAL Code Ann. [section]21.06(a) (2003) (Texas struck down Lawrence providing: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.").

(33.) Hunter, supra note 16, at 542; see also Lawrence, 539 U.S. at 578 (recognizing the irrelevance of the facial neutrality of some sodomy laws when it described sodomy as "sexual practices common to a homosexual lifestyle").

(34.) See, e.g., Lawrence, 539 U.S. at 570.

(35.) 1962 La. Acts. No. 60 [section] 1 (1962).

(36.) State v. Bonnano, 163 So. 2d 72, 73-74 (La. 1964).

(37.) Id.

(38.) Lawrence v. Texas, 539 U.S. 558, 558 (2003).

(39.) See State v. Thomas, 891 So. 2d 1233, 1235 (2005) ("The Supreme Court majority recognized 'an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private matters pertaining to sex'... [basing its decision] on the liberty interest found in a substantive component of the Due Process Clause of the Fourteenth Amendment to the Unites States Constitution.") (citing Lawrence, 539 U.S. at 572).

(40.) See LA. REV. STAT. ANN. [section] 14:82(A)(2)-(B) (2012) (The solicitation provision of Louisiana's prostitution statute outlaws "[t]he solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation." The statute defines "sexual intercourse" as "anal, oral, or vaginal sexual intercourse.").

(41.) H.R. 853, 1982 Reg. Sess. 703 (La. 1982); see also State v. Forrest, 439 So. 2d 404, 407 (La. 1983).

(42.) LA. Rev. STAT. [section] 14:89.2(A) (2012). The wording of the statute has changed slightly over the years, but the conduct targeted and element of intent have remained the same.

(43.) See, e.g., State v. Smith, 766 So. 2d 501, 504-05 (La. 2000); State v. Murry,

136 La. 253, 257-59 (1914); State v. Long, 133 La. 580, 582-83 (1913); State v. Vicknair, 52 La. Ann. 1921, 1925 (1900).

(44.) See LA. REV. STAT. Ann. [section] 14:82(C)(1) (2012).

(45.) See LA. REV. STAT. ANN. [section] 14:89(B) (2012). Until August 15, 2010, a first CANS conviction was treated as a felony offense, punishable by a term of imprisonment of up to five years, with or without hard labor, and/or a fine of not more than $2,000.

(46.) See La. Rev. STAT. Ann. [section] 15:541(24)(a) (2012); see also Doe v. Jindal, 851 F. Supp. 2d 995, 1006 (E.D. La. 2012) (stating, "examination of the two statutes reflects that [the state] treat[s] differently identically-situated individuals, because plaintiffs are required to register as sex offenders simply because they were convicted of Crime Against Nature by Solicitation, rather than solicitation of Prostitution (conduct chargeable by and covered under either statute").

(47.) State v. Bonnano, 163 So. 2d 72, 74 (La. 1964).

(48.) See note 73.

(49.) The implications of this symbolic power should not, however, be underestimated. Indeed, the fact that the Supreme Court in Bowers initially upheld sodomy statutes regulating homosexual sex allowed conservative jurists to reason that, if homosexual sex could be criminalized, there was a legitimate rationale for anti-LGBT (lesbian gay bisexual transgender) animus in other contexts. And as the Supreme Court recognized in Lawrence, "[.Bowers'] continuance as precedent demeans the lives of homosexual persons.... The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." Lawrence v. Texas, 539 U.S. 558, 575, 578 (2003).

(50.) Complaint at 53, Doe v. Caldwell, No. 12-1670, 2012 WL 6674415 (E.D. La. Jun. 27, 2012).

(51.) Ctr. for Constitutional Rights, Breakdown of CANS Convictions by YEAR (2011) (on file with author).

(52.) Lawrence, 539 U.S. at 581 (noting that prosecutions under the Texas sodomy law at issue in Lawrence were "rare").

(53.) Ctr. for Constitutional Rights, Breakdown of CANS Convictions by SEX AND RACE (2012) (on file with author).

(54.) Complaint at [paragraph] 122, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(55.) Id.

(56.) Id. at [paragraph][paragraph] 123, 125.

(57.) Id. at [paragraph] 124.

(58.) Id. at [paragraph] 179.

(59.) See generally JUST DETENTION INT'L, A CALL FOR CHANGE: PROTECTING THE RIGHTS of LGBTQ Detainees (2009), available at http://www.justdetention. org/pdf/CFCLGBTQJan09.pdf (Sexual orientation is the single most predictive characteristic of who is targeted for sexual assault in detention.).

(60.) Multimedia Audio Feature: Plaintiff Ian Doe relates his experience (Feb. 16, 2011), [hereinafter Ian Statement],

(61.) Complaint at [paragraph][paragraph] 139, 157, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(62.) Registration as a sex offender requires, among other mandated acts and prohibitions, the payment of annual registration fees, LA. REV. STAT. Ann. [section] 15:542(D) (2012), extensive community notification obligations, LA. REV. STAT. ANN. [section] 15:542.1 (2012), inclusion of the words "sex offender" in bright orange capital letters on one's driver's license or state-issued identification card, La. REV. STAT. ANN. [section] 40:1321(J)(1) (2008), and adherence to separate evacuation protocols in the event of a state emergency, La. REV. STAT. Ann. [section] 15:543.2 (2012). Failure to comply with registration requirements carries significant penalties, including incarceration for periods of up to twenty years at hard labor - without the possibility of parole, probation or suspension of sentence. See La. Rev. STAT. Ann. [section] 15:542(A) (2012).

(63.) Complaint at [paragraph] 133, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(64.) Id. at [paragraph] 147.

(65.) LA. REV. STAT. ANN. [section] 40:1321(J)(1) (2008).

(66.) Complaint at [paragraph][paragraph] 143, 148, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(67.) Ian Statement, supra note 61.

(68.) Complaint at [paragraph] 152, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(69.) Id. at [paragraph] 182.

(70.) Id. at [paragraph] 160.

(71.) Id.

(72.) Multimedia Audio Feature: Plaintiff Eve Doe relates her experience (Feb. 16, 2011), [hereinafter Eve Statement].

(73.) Complaint at [paragraph] 153, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(74.) See DEP'T OF SOC. SERV., DSS ESF-6 PROTOCOLS FOR EVACUATING AND Sheltering Registered Sex Offenders (Unique Population) (2009).

(75.) Complaint at [paragraph] 134, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(76.) Id. at [paragraph] 141.

(77.) Id. at 37 [paragraph] 167.

(78.) Id.

(79.) Id. at 38 [paragraph] 177.

(80.) Ian Statement, supra note 61.

(81.) Mission, WOMEN WITH A VISION, (last visited Jan. 24, 2013).

(82.) NO Justice, WOMEN WITH A VISION, (last visited Feb. 14, 2013).

(83.) Louisiana Women's Advocacy Alliance, WOMEN WITH A VISION, alliance (last visited Feb. 14, 2013).

(84.) S. 381, 2010 Reg. Sess., Act 882 (La. 2010).

(85.) Compare La. Rev. Stat. Ann. [section] 14:82(C) (2012) with H.R. 141, 2011 Reg. Sess., Act 223 (La. 2011).

(86.) H.R. 141, 2011 Reg. Sess., Act 223 (La. 2011).

(87.) Complaint, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D.La. 2012) (No. 11-388).

(88.) See H.R. 141, 2011 Reg. Sess., Act 223 (La. 2011).

(89.) Complaint at [paragraph][paragraph] 190-207, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388) (raising substantive due process, procedural due process, and Eighth Amendment claims).

(90.) Vacco v. Quill, 521 U.S. 793, 799 (1997) (citing Plyer v. Doe, 457 U.S. 202, 216 (1982)).

(91.) See supra note 47 and accompanying text.

(92.) Eisenstadt v. Baird, 405 U.S. 438 (1972).

(93.) Id. at 440-41, 443.

(94.) Id. at 453.

(95.) Id. at 454.

(96.) Id. (quoting Railway Express Agency v. New York, 336 U.S. 106, 112-13 (1949) (Jackson, J. concurring)).

(97.) Order and Reasons at 23, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(98.) Id.

(99.) Doe v. Jindal, 851 F. Supp. 2d 995, 1007, 1008-09 (E.D. La. 2012).

(100.) Id. at 1009.

(101.) Judgment, Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (No. 11-388).

(102.) See Ian Statement, supra note 61.

(103.) Id.

(104.) See, e.g., Trymaine Lee, Sex Crime in New Orleans, Separate and Unequal, HUFFINGTON POST, May 6, 2011,; Alexis Agathocleous, Eight Years After Lawrence, Sodomy Laws Are Alive and Kicking, BILERICO, Feb. 16, 2011, _a.php; Jarvis Deberry, Op-Ed, Sex Offender Label for Streetwalkers Is Misplaced, Times Picayune, Aug. 12, 2011, sex_offender_label_for_streetw.html.

(105.) Editorial, These Two Sex Crimes Should Be Treated the Same, TIMES PICAYUNE, May 30, 2011, _sex_crimes_should_be.html.

(106.) Complaint at [paragraph] 53, Doe v. Caldwell, No. 12-1670, 2012 WL 6674415 (E.D. La. Jun. 27, 2012).

Alexis Agathocleous is a staff attorney at the Center for Constitutional Rights (CCR), and was lead counsel in Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012).
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Author:Agathocleous, Alexis
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Date:Mar 22, 2013
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