Ben Ehrenreich |
| Illustrations by Brooks Salzwedel |
The stories of Bill Smith and of a man whom, with all apologies
for unoriginality, I will call John Doe, begin not in this bright age of sexual
freedom, but beneath the shadow of decades gone by. Back then, from a distance
at least, Bill Smith could have passed for a postwar California Everyman. Tall
and blue-eyed, he grew up on the East Coast and joined the Air Force not long
after the bombing of Pearl Harbor. He returned from Europe in 1944, stopping
at home just long enough to meet a girl and marry her before shipping off to
a base in Northern California — en route, he thought, to the Pacific. But the
war ended, and Smith and his bride found they preferred the West, so he enrolled
in an aviation school just outside of Los Angeles. Eventually the pair settled
in the suburbs, in Torrance. They had a daughter. Smith got a job in the defense
industry. The sun shone almost every day. Smith was neck-deep in the New American
Normal, except that he was gay.
This was of course no more unusual in the 1950s than it is today,
but it was not something a man could afford to be open about. Social stigma
aside, sex between men was not only deemed a sign of madness (the American Psychiatric
Association considered homosexuality a pathology until 1973), but it was also
a crime. Even just kissing, dancing or holding hands in sight of a vice cop
was enough to get a man dragged off to jail. What gay scene existed in those
pre-Stonewall days was completely underground. “They had gay bars,”
Smith remembers, “but they were raided all the time. Often they would have
vice squads in there undercover, and if you even put your arms around or hugged
a guy, first thing you know, ‘You, you, you and you — you’re under arrest.’
And that was it.” But desires have a way of getting their way. Smith had
been involved with men before he married, and even had a lover for two years
in the service. For his first few years out of the military, Smith says, “I
kind of got away from the gay thing.” After several years of marriage,
though, Smith found himself cruising the bars. His wife, he now believes, knew
all along — “She just didn’t want to accept it.”
On the night of January 13, 1956, Smith dropped by the Borderline,
a gay bar between Compton and South Gate. “I met a fellow there,”
he recalls, “and we got to talking. We went out to the car and pulled around
a corner off the main street, and we were trying to set up a dinner engagement
to get together and all that. We weren’t there a few minutes when all of a sudden
the Sheriff pulled up.”
Smith was, he says, “scared to death.” Not only his
family but his livelihood was in jeopardy — in 1956, homosexuals were little
more welcome in the defense industry than communists. The two men were driven
to the Sheriff’s station in Norwalk, where they were separated and questioned.
Smith can laugh about it now: “All they were trying to do is find out if
we were performing sexual acts, which we weren’t — then. I mean, we were planning
on it for later.” The police kept him in Norwalk for the night, and then
transferred him to county jail, booked on a charge of “suspicion of sexual
perversion.” He spent a second night there in a cell reserved for gays.
“I had to sleep on the floor there were so many of us,” he remembers,
but the atmosphere was congenial enough. In the morning his cellmates found
him a comb and a razor so he could clean himself up for court, where he would
ultimately plead guilty to a reduced charge of vagrancy. (At the time section
647(a) of the California penal code defined a vagrant as “every lewd or
dissolute person.” The statute was frequently used against gays. Just two
slender parentheses differentiated it from section 647a, a now obsolete child-molestation
statute.) The judge gave Smith two years of probation and a fine of $500. As
part of his probation, he was required to see a psychologist, which he did,
Smith says with a chuckle, until “after a few sessions, he started cruising
me.”
Aside from the residual fear and humiliation, and a further dent
in an already troubled marriage, Smith’s ordeal, he thought, was over. “I
tried to erase it all, like it never happened,” Smith says. His wife performed
a similar feat of repression. “It was never discussed,” Smith says.
“Over all those years, I kind of forgot about it.” The Smiths stayed
together until the late 1970s. They never divorced and, though they now live
apart, remain close.
[
Today Bill Smith lives with a younger man named Dave in
an upscale, gated trailer park somewhere in the Southern California desert —
he would rather I didn’t tell you precisely where. Smith is 80 years old and,
despite some recent health troubles, remains fit, sharp and charming. He wears
a thin mustache and combs his white hair back with a Clark Kent curl in front.
Smith had no cause to think of his arrest outside the Borderline for nearly
five decades, until this past February, when he opened his mailbox and, he tells
me, sitting in his kitchen, photos of his grandchildren propped on an end table
a few feet away, he “just about came unglued.”
The first letter was mysterious — a form letter from the city
of Torrance, which hinted only that the “Torrance Police Department is
currently investigating a case in which the report indicates you have some involvement,”
and ended with a polite but ominous request that Smith please contact a Detective
Keith Thompson “regarding your obligation to register under California
Penal Code section 290(a) within five days from the date of this letter, or
a WARRANT will be issued for your arrest.”
Four days went by before Smith was able to get Thompson on the
phone. Thompson explained, Smith says, that Smith was required to register as
a sex offender. When he protested, Thompson told him, Smith says, “that
it was better for me to register first and then clear up any problem later.”
The detective promised to mail him the paperwork for his registration.
That envelope arrived two days later. With immaculate bureaucratic
logic, Thompson (who did not return calls requesting an interview for this story)
instructed Smith in a cover letter to contact him again after he had registered,
promising that at that point, “I will obtain copies of your court docket
in order to determine if you are required to register.” He sent along a
transcript of Smith’s criminal record. To Smith’s horror, the printout identified
him as a “convicted sexual offender,” and listed his 1956 conviction
not as 647(a), the vagrancy charge, but “647a Annoy Molest Children.”
Smith was, he says, “completely devastated.” He wrote
to Thompson, who again responded, Smith says, “You register, then we’ll
try to clear it up.” Smith wrote to the courts requesting his case files.
The Compton court wrote back that his records had been destroyed. (Courts generally
do not keep records of misdemeanor convictions for longer than 10 years.) The
county had nothing, and neither did Torrance. Smith wrote to Sacramento, and
the state eventually sent him a copy of his arrest report, which recorded that
he was charged with “Suspicion/Sex Perversion,” but said nothing about
the final disposition of his case.
Smith put together a packet of documents to try to plead his case
to Thompson. In response, Smith says, Thompson called to tell him that if he
didn’t register by the next day, a squad car would arrive at his home, and he
would be arrested. So on February 23, Bill Smith drove to his local Sheriff’s
station and reluctantly signed his name to the forms declaring him a successfully
registered sex offender.
Though it has not always been strictly enforced, California
has had a sex-offender-registration statute in effect since 1944. At the time,
very few states had similar laws on the books, and none as harsh as California’s,
which required anyone convicted of certain sex crimes to register with the police
once a year or whenever they changed addresses, for the rest of their lives,
because, as the statute had it, “The Legislature deemed them likely to
commit similar offenses in the future.” Those crimes included not just
rape and child molestation, but even the most innocent and consensual touching
between adults of the same sex, so long as a vice cop was around to declare
it “lewd and dissolute.” Child pornographers and those convicted of
bestiality, or of raping “a person incapable of giving consent,” on
the other hand, faced no such restrictions.
So by law, Bill Smith was made to register as a sex offender immediately
after pleading guilty to vagrancy. Five workdays after his birthday every year
thereafter he should have marched down to the Sheriff’s station to re-register.
He never did and, he says, never knew he had to. But some things have changed
since 1956. In 1975, the California Legislature repealed the laws criminalizing
sodomy and oral copulation between consenting adults by a margin of one vote
(the lieutenant governor had to be called in to break a tie). The laws stayed
on the books — section 288a of the penal code, for instance, today bans oral
copulation, but since 1975, it has only applied to nonconsensual oral sex, or
oral sex with minors. Four years later, the state Supreme Court ruled that the
phrase “lewd and dissolute conduct” in the anti-vagrancy statute —
which was still, 23 years after Bill Smith’s arrest, being used to arrest gays
in stings on public bathrooms and parks, gay bars and adult bookstores — was
“unconstitutionally vague.”
[
Attorney Jay Kohorn, who in the 1980s shepherded a number of landmark
gay-rights battles through the California courts and is now the assistant director
of the California Appellate Project (a nonprofit entity operated by the state
bar association), says that the sex-offender registry was nonetheless “clogged
with these guys who didn’t do anything but engage in consensual acts of brief
touching with a vice officer.” In 1983, in a case litigated by Kohorn,
the California Supreme Court ruled that requiring gays convicted under vagrancy
laws to bear the “ignominious badge” of lifetime sex-offender registration
constituted cruel and unusual punishment. Earlier this year, in a vastly different
political climate, the court, now composed of a majority of Pete Wilson appointees,
reversed that ruling. (Registration, the justices determined, is purely “regulatory
in nature” and not punishment at all.) In the meantime, though, the Legislature
removed the vagrancy offense of which Bill Smith was convicted from the list
of crimes requiring registration.
Something happened in the 1990s. Until then, registration appeared
to be on its way out, an artifact of a more fearful and repressive age. By the
early ’80s, California was one of only five states requiring any kind of sex-offender
registration. But in July of 1994, 7-year-old Megan Kanka was raped and killed
by a convicted sex offender living across the street from her New Jersey home.
Within two years, all 50 states and the federal government had adopted some
version of what would come to be known as Megan’s Law. Just three months after
Kanka’s murder, California updated its registration law, expanding the list
of qualifying crimes and establishing a 900 number which residents could call
to find out if a sex offender lived among them. (Later the state would make
CD-ROMs of the registry available for the public to search at local police stations.)
When the new law took effect in 1995, the state Department of Justice began
updating its old files, and local police departments began making efforts to
track down everyone who had ever registered, or who they thought should have.
The problem with this approach — enforcing something as potentially
catastrophic as the registration mandate based on a database patched together
out of old and often incomplete, misleading or entirely missing records — became
evident soon enough. In 1997, the Los Angeles Times published an article
about other men in Smith’s situation — some of them married, some as old as
90, guilty at the most of an ancient, slightly-too-public indiscretion, nonetheless
getting letters in the mail lumping them in with pedophiles and rapists, demanding
that they show themselves at their local police stations and declare themselves
sex offenders. The ACLU got involved, and, in late 1997, the Legislature revised
the state’s registration laws, establishing a legal process through which gay
men could appeal to have their names removed from the registry. The following
year, the Department of Justice was also required to comb through the list and
weed out anyone who shouldn’t be on it. One thousand and nine names were removed,
says Hallye Jordan, Attorney General Bill Lockyer’s press secretary, “on
the basis that evidence in their folder showed that [their offense] was consensual.”
Another 706 were taken off the list because, it turned out, they were dead.
In addition, Jordan says, “We had 22 letters from registrants asking to
be deleted.” Of those, only one was denied.
But in the years after that, the state has done nothing more to
solve or even evaluate the problem, and nothing has been fixed. The Justice
Department did the bare minimum to comply with the law, and since that 1998
review, has kept no records that would allow it to gauge the present accuracy
of the registry. No one knows how many people have been removed from the registry
in the meantime, or how many have even applied to be removed, simply because,
Jordan admits, “Nobody’s counting.”
John Doe was not among the lucky 1,009. John Doe is, of
course, not his real name, which he has been anxious to protect since early
1996, when he opened his mailbox and was alarmed to encounter a letter from
the Attorney General’s Office informing him that he was required to register
as a sex offender. Ten years younger than Bill Smith, Doe is also blue-eyed
if not quite as tall. Slender and tan, he wears jeans and a blue T-shirt and
a thin gold chain around his neck. Sitting straight-backed on the plush, floral-patterned
couch in the living room of his Hollywood Hills home, Doe recounts the events
of September 6, 1973.
[
That afternoon, as he tells the story, he had just finished shopping
at a pottery store on Robertson Boulevard and stopped in the small park wedged
between Robertson and San Vicente to use the bathroom. “When I went in,
there was a guy standing on one wall and a guy standing on the other wall,”
Doe says. “Well, I’m not stupid. I figured it’s a pickup joint. But I didn’t
care, I had to really go to the bathroom.” The moment he was done, he says,
“One guy comes over and touches me. I pushed him away and the other guy
arrests me.” Another officer entered the bathroom, and Doe says, put both
him and the man who touched him in cuffs and drove them to the West Hollywood
Sheriff’s station.
“I panicked,” Doe says. He worked in the entertainment
industry in a sufficiently public role that he was terrified of publicity. Doe
was in a longterm relationship with another man and was open about his sexuality
to his friends, but, he says, “I was raised in a society where you didn’t
flaunt it. People weren’t out like they are now.” When a Sheriff’s deputy
gave him a “release form” to sign, he signed it without reading it.
“Not bright,” he says now. The man with whom he was arrested called
a lawyer who agreed to represent Doe as well. (Doe says he does not remember
the attorney’s name, and kept no record of it.) When the lawyer arrived, Doe
says, he was shocked to find that Doe had been charged with a felony. “I
said, ‘What’s a felony?’ “
A few weeks later, Doe met the attorney at the Beverly Hills Courthouse.
“He said, ‘Just plead guilty and you’ll pay a little fine and have a short
probation.’ I said, ‘What am I pleading guilty to?’ He said, ‘You’re pleading
guilty that you were looking for sex,’ and I said, ‘But . . .’ He said, ‘Just
plead guilty. It’ll be fine — it’s been reduced to a misdemeanor.’ “
Eager to put the arrest behind him, Doe says, he pleaded guilty.
He never knew, he claims, exactly what charge he pleaded to. He just wanted
it all to be over as quickly as possible. He was fined, he says, “either
$140 or $160” and given, he remembers, three months’ probation. “I
left. I gave the lawyer his money. That was the end of it.”
Until 1996, that is, when the envelope from the Attorney General’s
Office arrived. “I just freaked,” he says. Doe wrote to Sacramento
for his file. “I got the sheet of paper, and it said ‘oral copulation.’
I’m positive I was never told I was pleading to that,” Doe says. He called
the courts to request his records and had the same experience as Smith — nothing
had been preserved; no one had anything. He hired another lawyer who had his
conviction vacated. He figured he was all right.
He wasn’t. Despite the expungement of his conviction, and the
Justice Department’s 1998 review of its records, John Doe’s name was not removed
from the list of those required to register, presumably because the state possessed
no evidence indicating that his offense was consensual, or, for that matter,
any evidence about his case at all. In 1998, he got a phone call from a Hollywood
LAPD officer telling him to come down and register. Doe’s lawyer brought the
expungement paperwork to the station house and, for a little while, everything
once again seemed settled. Then in February of this year, another officer from
the Hollywood station called to tell Doe he had to come in and register. His
lawyer accompanied him to the station and spoke with the police. Afterward,
standing outside the station, Doe says, the lawyer told him he shouldn’t have
to register and that everything would be fine, but that Doe should be sure never
to get pulled over. He gave Doe the phone number of a bail bondsman, just in
case. Doe was, he says, “a nervous wreck.”
Soon thereafter, the police called again. Everything was not fine.
The officer, Doe says, told him, ” ‘You’ve got to do something right away.
The charge that is on here goes under the umbrella of child molestation.’ I
said, ‘What are you talking about?’ “
[
The bind in which Doe found himself, ironically, derives from
the Legislature’s 1975 decriminalization of gay sex. After 1975, oral copulation
remained a crime and 288a of the penal code stayed on the books — it just no
longer applied to consenting adults. If police officers today see 288a on an
arrest record, unless they are extremely well-informed, they have every reason
to assume that either a minor or violence was involved. But if the fog of amnesia
and naiveté surrounding Doe’s story at times strains its credibility,
one thing is clear: Had he been convicted of any offense involving either force
or a minor, he would have been sentenced to far more than probation and a small
fine.
This was precisely the sort of mix-up that the 1997 amendment
to the registration law was intended to fix, but no matter. After that, Doe
says, “It was always on my mind: How can this be? How can this have happened
when . . . nothing happened? It’s been very, very, very, very difficult to try
to think about — if this isn’t resolved, then how do you live with it? Because
we live in a witch-hunt world in many ways, and it’s frightening.”
Late this February, Bill Smith came across an article in
The Desert Sun about a bill that proposed posting California’s sex-offender
registry on the Internet. (Governor Schwarzenegger signed the bill into law
in late September.) The article quoted an ACLU lobbyist opposed to the law.
“My whole worry,” Smith says, “was that I should die and leave
a legacy of being a child molester with my family.” He wrote to the ACLU
immediately, and found a sympathetic ear in ACLU staff attorney Ben Wizner.
Wizner wrote to the Attorney General’s Office, explaining that Smith had been
convicted of vagrancy under penal code 647(a), for which registration is no
longer required — not, as the state had it, under 647a, the now-obsolete child-molestation
statute. Somehow, over the years, the parentheses dropped out.
It worked. Wizner soon heard back from Sacramento: Smith’s name
had been removed from the registry, and Torrance police had been told to lay
off. More than 48 years after his arrest, Smith’s tribulations were finally
over.
Sacramento was somewhat less accommodating with John Doe. Wizner
wrote a similar letter to the Attorney General’s Office on Doe’s behalf in July,
and received a perfunctory reply from a low-level official stating that until
Doe could provide evidence that he should not be, he would remain on the register.
“The penal code is pretty specific,” says the Justice Department’s
Hallye Jordan. “You can be removed from the registry if you prove that
the crime was consensual.”
In Wizner’s view, this unconstitutionally left the burden of proof
in Doe’s lap. “He was in effect being told he had to produce documents
that don’t exist, or he’s a sex offender.” Late in August, the ACLU wrote
another letter, this time directly to Lockyer, and incorporating an implicit
threat of a lawsuit. At around the same time, Doe heard from the LAPD again.
His birthday was approaching, and the officer insisted that he register. Wizner
accompanied Doe to the police station, and he registered.
On October 5, Doe got a call from the ACLU. Lockyer’s office had
backed down. In the absence of any evidence of his guilt, Doe would not be required
to prove his innocence. His name would be removed from the registry. “This
has been a nightmare for so long,” Doe says, “that when I heard it
I couldn’t believe it.”
If the endings of Bill Smith and John Doe’s stories are happy
enough, innocent gay men are still being lumped in with rapists and child molesters.
And despite the 1997 fixes to the registration law, getting your name removed
from the registry is still, to use Doe’s word, a “nightmare.” “Even
with a lawyer working on [John Doe’s] case,” Wizner points out, “it
took months to get him off the list — that’s one person.”
“More and more this is a database society,” Wizner observes,
“but a database is only as good as the information that’s put into it.
And once you’re in one, it’s very hard to get out of it.” If the government’s
reliance on databases — from the sex-offender registry to the No-Fly List to
California’s ever-growing gang-member database — continues to expand, Wizner
warns, “Many people are going to experience some version of what [John
Doe] is going through.”
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