Doe v. Hood

• Decision Date: 01 October 2018
• Docket Number: CAUSE NO. 3:16-CV-789-CWR-FKB
• Citation: 345 F.Supp.3d 749
• Parties: Arthur DOE; Brenda Doe; Carol Doe; Diana Doe; and Elizabeth Doe, Plaintiffs v. Jim HOOD; Marshall Fisher; Charlie Hill; Colonel Chris Gillard; and Lt. Colonel Larry Waggoner, Defendants
• Court: U.S. District Court — Southern District of Mississippi

345 F.Supp.3d 749

Arthur DOE; Brenda Doe; Carol Doe; Diana Doe; and Elizabeth Doe, Plaintiffs

v.Jim HOOD; Marshall Fisher; Charlie Hill; Colonel Chris Gillard; and Lt. Colonel Larry Waggoner, Defendants

CAUSE NO. 3:16-CV-789-CWR-FKB

United States District Court, S.D. Mississippi, Northern Division.

Signed October 1, 2018

Ghita Schwarz, Pro Hac Vice, Shayana Devendra Kadidal, Pro Hac Vice, Stephanie Llanes, Pro Hac Vice, Center for Constitutional Rights—New York, New York, NY, Jacob W. Howard, McDuff & Byrd, Robert B. McDuff, The Law Office of Robert McDuff, Jackson, MS, Matthew Strugar, Law Office of Matthew Strugar, Los Angeles, CA, for Plaintiffs.

Paul E. Barnes—State Gov., Wilson D. Minor—State Gov., Mississippi Attorney General's Office, Jackson, MS, Elliot Tarloff, Pro Hac Vice, Lindsay Harrison, Pro Hac Vice, Jenner & Block, LLP, Washington, DC, Oliver E. Diaz, Jr., Oliver Diaz Law Firm, Madison, MS, for Defendants.

ORDER

Carlton W. Reeves, UNITED STATES DISTRICT JUDGE

In 1978, Arthur Doe¹ pleaded guilty to violating Mississippi's "Unnatural Intercourse" law. Miss. Code Ann. § 97-29-59. The statute prohibits oral and anal sex, or what is also known as sodomy. As a result of his conviction, Doe was later required to register as a sex offender.

In Lawrence v. Texas , 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the Supreme Court held that a Texas statute, criminalizing same-sex sodomy, violated the Due Process Clause of the Fourteenth Amendment. That decision overruled Bowers v. Hardwick , 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), in which the Supreme Court had upheld the constitutionality of a Georgia statute that criminalized sodomy.

Fifteen years later, Mississippi continues to enforce its pre- Lawrence prohibition on "unnatural intercourse." Mississippi requires persons convicted under the statute, or an equivalent out-of-state offense, to register with the Mississippi Sex Offender Registry (MSOR).

Doe asserts that the anti-sodomy law is unconstitutional on its face and as applied to him under the Due Process Clause of the Fourteenth Amendment. Alternatively, he argues that his inclusion on the MSOR violates the Equal Protection Clause. Mississippi responds that Lawrence does not protect non-consensual acts of sodomy, and that it may enforce its sodomy prohibition when applied to such conduct, as in Doe's case.

The Court agrees with Doe that the statute appears to be unconstitutional. He should not be subjected to the stigmatizing requirements imposed by the MSOR. As discussed below, though, this Court may not be the appropriate forum for Doe to seek relief at this time. A hearing is necessary to determine whether Doe must first seek relief in state court.

I. Background

A. Procedural History

On October 17, 2016, five Mississippians filed this putative class action pursuant to 42 U.S.C. § 1983. Plaintiffs challenged the constitutionality of Mississippi's Unnatural Intercourse law, as well as their inclusion on the MSOR. They sought declaratory and injunctive relief.

Arthur Doe is a Mississippi resident convicted under Mississippi's Unnatural Intercourse statute. Brenda Doe, Carol Doe, Diana Doe, and Elizabeth Doe are Mississippi residents convicted of Louisiana's Crime Against Nature by Solicitation (CANS) law. Because of these offenses, the State required Plaintiffs to register with the Mississippi Department of Public Safety as sex offenders.

Defendants are five state officials responsible for enforcing Mississippi's sodomy prohibition or the MSOR: Jim Hood, the Attorney General of the State of Mississippi; Marshall Fisher, the Commissioner of the Department of Public Safety; Charlie Hill, Director of the Department of Public Safety Sex Offender Registry; Colonel Chris Gillard, the Chief of the Mississippi Highway Patrol; and Lieutenant Colonel Larry Waggoner, the Director of the Mississippi Bureau of Investigation.

A month after filing their Complaint, Plaintiffs moved for summary judgment and moved to certify a class. This Court denied both motions, and granted Defendants' request to take discovery relating to class certification issues.² Plaintiffs have since abandoned their claim for class certification.

Over the next year, the parties worked to resolve the claims of the "CANS Plaintiffs," individuals who were convicted under the Louisiana anti-sodomy law and required to register as sex offenders in Mississippi. A Louisiana district judge had ordered that Louisiana remove CANS offenders from its own sex offender registry. See Doe v. Jindal , 851 F.Supp.2d 995, 1009 (E.D. La. 2012) (granting summary judgment to individuals with CANS convictions because they were deprived of equal protection in violation of the Fourteenth Amendment). On May 10, 2018, the parties reached an agreed resolution removing the CANS Plaintiffs, and any other individuals on the MSOR because of CANS convictions, from the MSOR. See May 10, 2018 Order.

Now one plaintiff, Arthur Doe, remains. He brings two claims. First, he asserts facial and as-applied due process challenges to the anti-sodomy law. In the alternative, he argues that his classification as a sex offender violates the Equal Protection Clause. The Court takes up his claims on the parties' Cross-Motions for Summary Judgment.³

B. Mississippi Law

Doe seeks to enjoin the State from enforcing its sodomy prohibition, Mississippi Code § 97-29-59, and to remove the statute as an offense subject to the MSOR under § 45-33-47(2)(c)(i)(2).

1. "Unnatural Intercourse" Statute

From 1962 to 2003, sodomy decriminalization proceeded rapidly.⁴ Twenty-six states and the District of Columbia repealed their anti-sodomy laws, and state courts struck down an additional 10 state laws. When Lawrence arrived at the Supreme Court, only 13 states— including Mississippi—still had sodomy prohibitions on the books.⁵ In the wake of the decision, state legislatures in Missouri and Kansas amended or repealed their laws,⁶ and the Fourth Circuit invalidated Virginia's sodomy prohibition. MacDonald v. Moose , 710 F.3d 154 (4th Cir. 2013).

Mississippi is among those states that still criminalizes consensual anal and oral sex. The state prohibition has existed in some form for over 200 hundred years. In 1802, Mississippi first recognized sodomy as a common law crime, and in 1839, the state legislature codified the prohibition.⁷ Over a century later, Mississippi recodified the law under a new title, "Unnatural Intercourse." The current statute prohibits, in pertinent part, "the detestable and abominable crime against nature committed with mankind."⁸ Miss. Code Ann. § 97-29-59. Those convicted of the offense face up to 10 years' imprisonment. Id.

The Mississippi Supreme Court has defined the statute to encompass an act of sodomy, i.e. , anal or oral sex. See, e.g. , Miller v. State , 636 So.2d 391 (Miss. 1994) ; State v. Mays , 329 So.2d 65 (Miss. 1976). These decisions have made clear that a prosecutor need only prove a single element—that the defendant engaged in anal or oral sex. The prosecutor does not have to prove that the sex was non-consensual. In other words, the statute criminalizes consensual sex acts between adults and applies to both males and females.

2. Sex Offender Registration

In 1995, Mississippi enacted the Mississippi Sex Offenders Registration Law. Miss. Code Ann. §§ 45-33-21 et seq. The legislature found "that the danger of recidivism posed by criminal sex offenders and the protection of the public from these offenders is of paramount concern and interest to the government." Id. § 45-33-21. The law established the MSOR, which requires registration for a range of offenses including convictions under the Unnatural Intercourse law or any "similar law of another jurisdiction." Id. § 45-33-47(2)(c)(i).

Approximately 35 Mississippi residents have convictions for Unnatural Intercourse or an out-of-state statute that criminalizes oral or anal sex with no additional elements. Of these, about 22 individuals are registered on the MSOR.

The registration law classifies offenses into "tiers" that determine the length of time an individual must register before she is allowed to petition a circuit court for removal from the registry. Id. § 45-33-47(2). Individuals with one conviction under the Unnatural Intercourse law (or a statute that Mississippi deems equivalent) fall into "Tier Two" and must register for a minimum of 25 years. Id. § 45-33-47(2)(c)(i). Two such convictions require lifetime registration with no possibility of removal. Id. § 45-33-47(d)(xvi). After Tier Two registrants complete 25 years on the registry, they may petition the court in which they were convicted for removal. Id. § 45-33-47(2). But incarceration for any offense restarts the minimum time requirement. Id. § 45-33-47(2)(a). Only four individuals have successfully petitioned for removal.

Registrants must adhere to a number of sweeping requirements. Every 90 days, they must re-register in-person with the Department of Public Safety and pay a fee. Id. § 45-33-31(1). Registration includes the submission of current personal information, including their street address and telephone number as well as the street address and telephone number of their employer. Id. § 45-33-25(2). They must carry state identification cards or driver's licenses that "bear a designation identifying the cardholder as a sex offender." Id. § 45-35-3(2).

A registrant that wishes to volunteer with an organization must disclose her sex offender status to the organization if it has "direct, private, and unsupervised contact with minors." Id. § 45-33-32(1). If the organization accepts the registrant as a volunteer, it must notify the parents of any minors involved in the organization of the registrant's criminal record. Id. § 45-33-32(2).

The Department of Public Safety lists registrants on its public website and discloses registrants to schools, social service agencies, prosecutors' offices, and law enforcement offices within the registrant's jurisdiction.⁹ Id. §...