AB 2199: Sexual offenses against minors: persons in a position of authority.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-08-01
(1)Existing law provides various circumstances that constitute rape, which are punishable by imprisonment in the state prison for 3, 6, or 8 years, except as specified.
Existing law also prescribes circumstances that constitute unlawful sexual intercourse, some of which involve an adult perpetrator who engages in that unlawful intercourse with a minor, as specified. Unlawful sexual intercourse under those circumstances is punishable by imprisonment for 2, 3, or 4 years, and also may be subject to designated civil penalties or fines. Under existing law, any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to a specified provision of law for 2, 3, or 4 years.
This bill would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age and is convicted of a felony to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse. By changing the penalty for the commission of unlawful sexual intercourse under the above circumstances, the bill would impose a state-mandated local program.
(2)Existing law makes it a crime for a person to engage in specified acts of a sexual nature with a minor, including lewd and lascivious conduct when the victim is a child of 14 or 15 years of age and the person is at least 10 years older, and sodomy, oral copulation, or sexual penetration of a minor under 16 years of age when the person is 21 years of age or older.
This bill would impose an additional term of 2 years when a person who is convicted of a felony violation of the above crimes is a person who holds a position of authority, as defined, over the minor victim. By increasing the penalty for a crime, the bill would impose a state-mandated local program.
(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
(1)Existing law provides various circumstances that constitute rape, which are punishable by imprisonment in the state prison for 3, 6, or 8 years, except as specified.
Existing law also prescribes circumstances that constitute unlawful sexual intercourse, some of which involve an adult perpetrator who engages in that unlawful intercourse with a minor, as specified. Unlawful sexual intercourse under those circumstances is punishable by imprisonment for 2, 3, or 4 years, and also may be subject to designated civil penalties or fines. Under existing law, any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to a specified provision of law for 2, 3, or 4 years.
This bill would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age and is convicted of a felony to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse. By changing the penalty for the commission of unlawful sexual intercourse under the above circumstances, the bill would impose a state-mandated local program.
(2)Existing law makes it a crime for a person to engage in specified acts of a sexual nature with a minor, including lewd and lascivious conduct when the victim is a child of 14 or 15 years of age and the person is at least 10 years older, and sodomy, oral copulation, or sexual penetration of a minor under 16 years of age when the person is 21 years of age or older.
This bill would impose an additional term of 2 years when a person who is convicted of a felony violation of the above crimes is a person who holds a position of authority, as defined, over the minor victim. By increasing the penalty for a crime, the bill would impose a state-mandated local program.
(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
(1)Existing law provides various circumstances that constitute rape, which are punishable by imprisonment in the state prison for 3, 6, or 8 years, except as specified.
Existing law also prescribes circumstances that constitute unlawful sexual intercourse, some of which involve an adult perpetrator who engages in that unlawful intercourse with a minor, as specified. Unlawful sexual intercourse under those circumstances is punishable by imprisonment for 2, 3, or 4 years, and also may be subject to designated civil penalties or fines. Under existing law, any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to a specified provision of law for 2, 3, or 4 years.
This bill would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age and is convicted of a felony to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse. By changing the penalty for the commission of unlawful sexual intercourse under the above circumstances, this the bill would impose a state-mandated local program.
(2)Existing law makes it a crime for a person to engage in specified acts of a sexual nature with a minor, including lewd and lascivious conduct when the victim is a child of 14 or 15 years of age and the person is at least 10 years older, and sodomy, oral copulation, or digital sexual penetration of a minor under 16 years of age when the person is 21 years of age or older.
This bill would impose an additional term of 2 years when a person who is convicted of a felony violation of the above crimes is a person in who holds a position of authority, as defined. defined, over the minor victim. By increasing the penalty for a crime, this the bill would impose a state-mandated local program.
(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
(1)Existing law provides various circumstances that constitute rape, which are punishable by imprisonment in the state prison for 3, 6, or 8 years, except as specified.
Existing law also prescribes circumstances that constitute unlawful sexual intercourse, some of which involve an adult perpetrator who engages in that unlawful intercourse with a minor, as specified. Unlawful sexual intercourse under those circumstances is punishable by imprisonment for 2, 3, or 4 years, and also may be subject to designated civil penalties or fines. Under existing law, any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to a specified provision of law for 2, 3, or 4 years.
This bill would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age and is convicted of a felony to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse. By changing the penalty for the commission of unlawful sexual intercourse under the above circumstances, this bill would impose a state-mandated local program.
(2)Under existing law, any person who willfully and lewdly commits a lewd or lascivious act with a minor under 14 years of age with the intent of arousing the minor is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. Existing law makes it a public offense for a person to commit this act with the intent of arousing a minor of 14 or 15 years of age when the person is at least 10 years older than the minor, punishable by imprisonment in the state prison for one, 2, or 3 years, or by imprisonment in a county jail for no more than one year.
This bill would subject any person who willfully and lewdly commits a lewd or lascivious act with a minor under 14 years of age with the intent of arousing the minor, or who commits such an act with the intent of arousing a minor of 14 or 15 years of age when the person is at least 10 years older than the minor, to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act. By changing the penalty for the commission of a lewd or lascivious act under the above circumstances, this bill would impose a state-mandated local program.
(2)Existing law makes it a crime for a person to engage in specified acts of a sexual nature with a minor, including lewd and lascivious conduct when the victim is a child of 14 or 15 years and the person is at least 10 years older, and sodomy, oral copulation, or digital penetration of a minor under 16 years of age when the person is 21 years of age or older.
This bill would impose an additional term of 2 years when a person who is convicted of a felony violation of the above crimes is a person in a position of authority, as defined. By increasing the penalty for a crime, this bill would impose a state-mandated local program.
(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
(1)Existing law provides various circumstances that constitute rape, which are punishable by imprisonment in the state prison for 3, 6, or 8 years, except as specified.
Existing law also prescribes circumstances that constitute unlawful sexual intercourse, some of which involve an adult perpetrator who engages in that unlawful intercourse with a minor, as specified. Unlawful sexual intercourse under those circumstances is punishable by imprisonment for 2, 3, or 4 years, and also may be subject to designated civil penalties or fines. Under existing law, any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to a specified provision of law for 2, 3, or 4 years.
This bill would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age and is convicted of a felony to a sentence enhancement of 2, 4, or 6 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse. By changing the penalty for the commission of unlawful sexual intercourse under the above circumstances, this bill would impose a state-mandated local program.
(2)Existing law makes it a misdemeanor to annoy or molest a child under 18 years of age. Existing law makes it a misdemeanor to engage in conduct with an adult whom the perpetrator believes is a child if that conduct would otherwise violate the above provision if directed toward a child and if the perpetrator is motivated by an unnatural or abnormal sexual interest in children.
This bill would subject a person who violates those provisions with respect to a minor under 16 years of age over whom the person holds a position of authority to an additional term of imprisonment of 2, 4, or 6 years beyond the otherwise applicable term. By creating a new crime, the bill would impose a state-mandated local program.
(2)Under existing law, any person who willfully and lewdly commits a lewd or lascivious act with a minor under 14 years of age with the intent of arousing the minor is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. Existing law makes it a public offense for a person to commit this act with the intent of arousing a minor of 14 or 15 years of age when the person is at least 10 years older than the minor, punishable by imprisonment in the state prison for one, 2, or 3 years, or by imprisonment in a county jail for no more than one year.
This bill would subject any person who willfully and lewdly commits a lewd or lascivious act with a minor under 14 years of age with the intent of arousing the minor, or who commits such an act with the intent of arousing a minor of 14 or 15 years of age when the person is at least 10 years older than the minor, to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act. By changing the penalty for the commission of a lewd or lascivious act under the above circumstances, this bill would impose a state-mandated local program.
(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
(1)Existing law provides various circumstances that constitute rape, which are punishable by imprisonment in the state prison for 3, 6, or 8 years, except as specified.
Existing law also prescribes circumstances that constitute unlawful sexual intercourse, some of which involve an adult perpetrator who engages in that unlawful intercourse with a minor, as specified. Unlawful sexual intercourse under those circumstances is punishable by imprisonment for 2, 3, or 4 years, and also may be subject to designated civil penalties or fines. Under existing law, any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to a specified provision of law for 2, 3, or 4 years.
This bill would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age and is convicted of a felony a sentence enhancement of 2, 4, or 6 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse. By changing the penalty for the commission of unlawful sexual intercourse under the above circumstances, this bill would impose a state-mandated local program.
(2)Existing law makes it a misdemeanor to annoy or molest a child under 18 years of age. Existing law makes it a misdemeanor to engage in conduct with an adult whom the perpetrator believes is a child if that conduct would otherwise violate the above provision if directed toward a child and if the perpetrator is motivated by an unnatural or abnormal sexual interest in children.
This bill would subject a person who violates those provisions with respect to a minor under 16 years of age over whom the person holds a position of authority to an additional term of imprisonment of 2, 4, or 6 years beyond the otherwise applicable term. By creating a new crime, the bill would impose a state-mandated local program.
(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
(a)Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a minor is a person under 18 years of age and an adult is a person who is at least 18 years of age.
(b)Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c)Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d)Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e)Notwithstanding any other provision of this section, a person who is guilty of a felony pursuant to subdivision (d) who holds a position of authority over the minor with whom he or she has engaged in an act of unlawful sexual intercourse, shall be punished by an additional term of imprisonment in a county jail for two years.
(1)For purposes of this subdivision, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, or employer of one of those aforementioned persons.
(2)For purposes of this subdivision, undue influence includes, but is not limited to, the use of affection, intimidation, coercion, or deceit, the taking, withholding, or bestowing of a reward or benefit, or the promise or threat to take, withhold, or bestow a benefit or reward.
(f)(1)Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A)An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B)An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C)An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D)An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2)The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3)In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendants ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
SEC. 2.Section 287 is added to the Penal Code, to read:287.(a)A person who is guilty of a felony violation of paragraph (2) of subdivision (b) of Section 286, paragraph (1) of subdivision (c) of Section 288, paragraph (2) of subdivision (b) of Section 288a, or subdivision (i) of Section 289, and who holds a position of authority over the minor victim, shall be punished by an additional term of imprisonment for two years.
(b)For purposes of this section, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons.
(c)For purposes of this section, undue influence includes, but is not limited to, the use of affection, intimidation, coercion, or deceit, the taking, withholding, or bestowing of a reward or benefit, or the promise or threat to take, withhold, or bestow a benefit or reward.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a minor is a person under 18 years of age and an adult is a person who is at least 18 years of age.
(b)Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c)Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d)Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e)Notwithstanding any other provision of this section, a person who is guilty of a felony pursuant to subdivision (d) who holds a position of authority over the minor with whom he or she has engaged in an act of unlawful sexual intercourse, shall be punished by an additional term of imprisonment in a county jail for two years.
(1)For purposes of this subdivision, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee or employer of one of those aforementioned persons.
(2)For purposes of this subdivision, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code. includes, but is not limited to, the use of affection, intimidation, coercion, or deceit, the taking, withholding, or bestowing of a reward or benefit, or the promise or threat to take, withhold, or bestow a benefit or reward.
(f)(1)Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A)An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B)An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C)An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D)An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2)The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3)In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendants ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
SEC. 2.Section 287 is added to the Penal Code, to read:287.(a)A person who is guilty of a felony violation of paragraph (2) of subdivision (b) of Section 286, paragraph (1) of subdivision (c) of Section 288, paragraph (2) of subdivision (b) of Section 288a, or subdivision (i) of Section 289, and who holds a position of authority over the minor victim, shall be punished by an additional term of imprisonment for two years.
(b)For purposes of this section, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons.
(c)For purposes of this section, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code. includes, but is not limited to, the use of affection, intimidation, coercion, or deceit, the taking, withholding, or bestowing of a reward or benefit, or the promise or threat to take, withhold, or bestow a benefit or reward.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a minor is a person under 18 years of age and an adult is a person who is at least 18 years of age.
(b)Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c)Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d)Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e)Notwithstanding any other provision of this section, a person who is guilty of a felony pursuant to subdivision (d) who holds a position of authority over the minor with whom he or she has engaged in an act of unlawful sexual intercourse, shall be punished by an additional term of imprisonment in a county jail for two years.
(1)For purposes of this subdivision, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons.
(2)For purposes of this subdivision, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
(f)(1)Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A)An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B)An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C)An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D)An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2)The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3)In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendants ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
SEC. 2.Section 287 is added to the Penal Code, to read:287.(a)A person who is guilty of a felony violation of paragraph (2) of subdivision (b) of Section 286, paragraph (1) of subdivision (c) of Section 288, paragraph (2) of subdivision (b) of Section 288a, or subdivision (h) (i) of Section 289, and who holds a position of authority over the minor victim, shall be punished by an additional term of imprisonment for two years.
(b)For purposes of this section, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons.
(c)For purposes of this section, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a minor is a person under 18 years of age and an adult is a person who is at least 18 years of age.
(b)Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c)Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d)Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e)Notwithstanding any other provision of this section, a person who is guilty of a felony pursuant to subdivision (d) who holds a position of authority over the minor with whom he or she has engaged in an act of unlawful sexual intercourse, shall be punished by an additional term of imprisonment in a county jail for two years.
(1)For purposes of this subdivision, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons.
(2)For purposes of this subdivision, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
(f)(1)Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A)An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B)An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C)An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D)An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2)The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3)In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendants ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
SEC. 2.Section 288 of the Penal Code is amended to read:288.(a)Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
(b)(1)Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
(2)Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
(c)(1)Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.
(2)Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.
(3)Any person who is guilty of a felony pursuant to subdivision (a) or is guilty of a public offense pursuant to paragraph (1), and who holds a position of authority over the minor with whom he or she has engaged in an act of unlawful sexual intercourse, shall be punished by an additional term of imprisonment for two years.
(A)For purposes of this paragraph, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons.
(B)For purposes of this paragraph, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
(d)In any arrest or prosecution under this section or Section 288.5, the peace officer, district attorney, and the court shall consider the needs of the child victim or dependent person and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or to prevent psychological harm to the dependent person victim resulting from participation in the court process.
(e)Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837.
If the court orders a fine imposed pursuant to this subdivision, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.
(f)For purposes of paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c), the following definitions apply:
(1)Caretaker means an owner, operator, administrator, employee, independent contractor, agent, or volunteer of any of the following public or private facilities when the facilities provide care for elder or dependent persons:
(A)Twenty-four hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B)Clinics.
(C)Home health agencies.
(D)Adult day health care centers.
(E)Secondary schools that serve dependent persons and postsecondary educational institutions that serve dependent persons or elders.
(F)Sheltered workshops.
(G)Camps.
(H)Community care facilities, as defined by Section 1402 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I)Respite care facilities.
(J)Foster homes.
(K)Regional centers for persons with developmental disabilities.
(L)A home health agency licensed in accordance with Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code.
(M)An agency that supplies in-home supportive services.
(N)Board and care facilities.
(O)Any other protective or public assistance agency that provides health services or social services to elder or dependent persons, including, but not limited to, in-home supportive services, as defined in Section 14005.14 of the Welfare and Institutions Code.
(P)Private residences.
(2)Board and care facilities means licensed or unlicensed facilities that provide assistance with one or more of the following activities:
(A)Bathing.
(B)Dressing.
(C)Grooming.
(D)Medication storage.
(E)Medical dispensation.
(F)Money management.
(3)Dependent person means any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. Dependent person includes any person who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(g)Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) apply to the owners, operators, administrators, employees, independent contractors, agents, or volunteers working at these public or private facilities and only to the extent that the individuals personally commit, conspire, aid, abet, or facilitate any act prohibited by paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c).
(h)Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) do not apply to a caretaker who is a spouse of, or who is in an equivalent domestic relationship with, the dependent person under care.
(i)(1)Any person convicted of a violation of subdivision (a) shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim.
(2)The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved.
(3)As used in this subdivision, bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense.
SEC. 2.Section 287 is added to the Penal Code, to read:287.(a)A person who is guilty of a felony violation of paragraph (2) of subdivision (b) of Section 286, paragraph (1) of subdivision (c) of Section 288, paragraph (2) of subdivision (b) of Section 288a, or subdivision (h) of Section 289, and who holds a position of authority over the minor victim, shall be punished by an additional term of imprisonment for two years.
(b)For purposes of this section, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons.
(c)For purposes of this section, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a minor is a person under the age of 18 years of age and an adult is a person who is at least 18 years of age.
(b)Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c)Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d)Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e)Notwithstanding any other provision of this section, a person who is guilty of a felony pursuant to subdivision (d) who holds a position of authority over the minor with whom he or she has engaged in an act of unlawful sexual intercourse, shall be punished by an additional term of imprisonment in a county jail for two, four, or six two years.
(1)For purposes of this subdivision, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a parent, stepparent, foster parent, relative, partner of the parent or relative, parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons, or coworker. persons.
(2)For purposes of this subdivision, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
(f)(1)Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A)An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B)An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C)An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D)An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2)The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3)In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendants ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
SEC. 2.Section 288 of the Penal Code is amended to read:288.(a)Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
(b)(1)Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
(2)Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
(c)(1)Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.
(2)Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.
(3)Any person who is guilty of a felony pursuant to subdivision (a) or is guilty of a public offense pursuant to paragraph (1), and who holds a position of authority over the minor with whom he or she has engaged in an act of unlawful sexual intercourse, shall be punished by an additional term of imprisonment for two years.
(A)For purposes of this paragraph, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons.
(B)For purposes of this paragraph, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
(d)In any arrest or prosecution under this section or Section 288.5, the peace officer, district attorney, and the court shall consider the needs of the child victim or dependent person and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or to prevent psychological harm to the dependent person victim resulting from participation in the court process.
(e)Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837.
If the court orders a fine imposed pursuant to this subdivision, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.
(f)For purposes of paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c), the following definitions apply:
(1)Caretaker means an owner, operator, administrator, employee, independent contractor, agent, or volunteer of any of the following public or private facilities when the facilities provide care for elder or dependent persons:
(A)Twenty-four hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B)Clinics.
(C)Home health agencies.
(D)Adult day health care centers.
(E)Secondary schools that serve dependent persons and postsecondary educational institutions that serve dependent persons or elders.
(F)Sheltered workshops.
(G)Camps.
(H)Community care facilities, as defined by Section 1402 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I)Respite care facilities.
(J)Foster homes.
(K)Regional centers for persons with developmental disabilities.
(L)A home health agency licensed in accordance with Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code.
(M)An agency that supplies in-home supportive services.
(N)Board and care facilities.
(O)Any other protective or public assistance agency that provides health services or social services to elder or dependent persons, including, but not limited to, in-home supportive services, as defined in Section 14005.14 of the Welfare and Institutions Code.
(P)Private residences.
(2)Board and care facilities means licensed or unlicensed facilities that provide assistance with one or more of the following activities:
(A)Bathing.
(B)Dressing.
(C)Grooming.
(D)Medication storage.
(E)Medical dispensation.
(F)Money management.
(3)Dependent person means any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. Dependent person includes any person who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(g)Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) apply to the owners, operators, administrators, employees, independent contractors, agents, or volunteers working at these public or private facilities and only to the extent that the individuals personally commit, conspire, aid, abet, or facilitate any act prohibited by paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c).
(h)Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) do not apply to a caretaker who is a spouse of, or who is in an equivalent domestic relationship with, the dependent person under care.
(i)(1)Any person convicted of a violation of subdivision (a) shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim.
(2)The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved.
(3)As used in this subdivision, bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense.
SEC. 2.Section 647.6 of the Penal Code is amended to read:647.6.(a)(1)Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.
(2)Every person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child under 18 years of age, which conduct, if directed toward a child under 18 years of age, would be a violation of this section, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail for up to one year, or by both that fine and imprisonment.
(b)Every person who violates this section after having entered, without consent, an inhabited dwelling house, or trailer coach as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building, shall be punished by imprisonment in the state prison, or in a county jail not exceeding one year, and by a fine not exceeding five thousand dollars ($5,000).
(c)(1)Every person who violates this section shall be punished upon the second and each subsequent conviction by imprisonment in the state prison.
(2)Every person who violates this section after a previous felony conviction under Section 261, 264.1, 269, 285, 286, 288a, 288.5, or 289, any of which involved a minor under 16 years of age, or a previous felony conviction under this section, a conviction under Section 288, or a felony conviction under Section 311.4 involving a minor under 14 years of age shall be punished by imprisonment in the state prison for two, four, or six years.
(d)A person who violates this section with respect to a minor under 16 years of age over whom the person holds a position of authority shall be punished by an additional term of imprisonment for two, four, or six years beyond any term otherwise applicable under this Section.
(1)For purposes of this subdivision, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a parent, stepparent, foster parent, relative, partner of the parent or relative, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employee of one of those aforementioned persons, or coworker.
(2)For purposes of this subdivision, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
(e)(1)In any case in which a person is convicted of violating this section and probation is granted, the court shall require counseling as a condition of probation, unless the court makes a written statement in the court record, that counseling would be inappropriate or ineffective.
(2)In any case in which a person is convicted of violating this section, and as a condition of probation, the court prohibits the defendant from having contact with the victim, the court order prohibiting contact shall not be modified except upon the request of the victim and a finding by the court that the modification is in the best interest of the victim. As used in this paragraph, contact with the victim includes all physical contact, being in the presence of the victim, communication by any means, any communication by a third party acting on behalf of the defendant, and any gifts.
(f)This section does not prohibit prosecution under any other provision of law.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a minor is a person under the age of 18 years and an adult is a person who is at least 18 years of age.
(b)Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c)Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d)Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e)Notwithstanding any other provision of this section, a person who is guilty of a felony pursuant to subdivision (d) who holds a position of authority over the minor with whom he or she has engaged in an act of unlawful sexual intercourse, shall be punished by an additional term of imprisonment in a county jail for two, four, or six years.
(1)For purposes of this subdivision, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a parent, stepparent, foster parent, relative, partner of the parent or relative, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employee of one of those aforementioned persons, or coworker.
(2)For purposes of this subdivision, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
(e)
(f)(1)Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A)An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B)An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C)An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D)An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2)The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3)In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendants ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
SEC. 2.Section 647.6 of the Penal Code is amended to read:647.6.(a)(1)Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.
(2)Every person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child under 18 years of age, which conduct, if directed toward a child under 18 years of age, would be a violation of this section, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail for up to one year, or by both that fine and imprisonment.
(b)Every person who violates this section after having entered, without consent, an inhabited dwelling house, or trailer coach as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building, shall be punished by imprisonment in the state prison, or in a county jail not exceeding one year, and by a fine not exceeding five thousand dollars ($5,000).
(c)(1)Every person who violates this section shall be punished upon the second and each subsequent conviction by imprisonment in the state prison.
(2)Every person who violates this section after a previous felony conviction under Section 261, 264.1, 269, 285, 286, 288a, 288.5, or 289, any of which involved a minor under 16 years of age, or a previous felony conviction under this section, a conviction under Section 288, or a felony conviction under Section 311.4 involving a minor under 14 years of age shall be punished by imprisonment in the state prison for two, four, or six years.
(d)A person who violates this section with respect to a minor under 16 years of age over whom the person holds a position of authority shall be punished by an additional term of imprisonment for two, four, or six years beyond any term otherwise applicable under this Section.
(1)For purposes of this subdivision, a person is in a position of authority if he or she, by reason of that position, is able to exercise undue influence over a minor. A position of authority includes, but is not limited to, a parent, stepparent, foster parent, relative, partner of the parent or relative, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employee of one of those aforementioned persons, or coworker.
(2)For purposes of this subdivision, undue influence has the same meaning as that term is defined in Section 15610.70 of the Welfare and Institutions Code.
(d)
(e)(1)In any case in which a person is convicted of violating this section and probation is granted, the court shall require counseling as a condition of probation, unless the court makes a written statement in the court record, that counseling would be inappropriate or ineffective.
(2)In any case in which a person is convicted of violating this section, and as a condition of probation, the court prohibits the defendant from having contact with the victim, the court order prohibiting contact shall not be modified except upon the request of the victim and a finding by the court that the modification is in the best interest of the victim. As used in this paragraph, contact with the victim includes all physical contact, being in the presence of the victim, communication by any means, any communication by a third party acting on behalf of the defendant, and any gifts.
(e)Nothing in this section prohibits
(f)This section does not prohibit prosecution under any other provision of law.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
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Date
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Status
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|---|---|
| May 11, 2016 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Aug 11, 2016 | In committee: Held under submission. |
| Aug 1, 2016 | In committee: Referred to APPR. suspense file. |
| Aug 1, 2016 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on APPR. |
| Jun 28, 2016 | Read second time and amended. Re-referred to Com. on APPR. |
| Jun 27, 2016 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (June 21). |
| Jun 9, 2016 | Referred to Com. on PUB. S. |
| Jun 2, 2016 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Jun 1, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 77. Noes 3.) |
| Jun 1, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 77. Noes 3. Page 5119.) |
| Jun 1, 2016 | Read third time. Passed. Ordered to the Senate. |
| May 31, 2016 | Read second time. Ordered to third reading. |
| May 27, 2016 | From committee: Do pass. (Ayes 19. Noes 1.) (May 27). |
| Feb 18, 2016 | Read first time. To print. |
| Apr 26, 2016 | Re-referred to Com. on APPR. |
| Apr 25, 2016 | Read second time and amended. |
| Apr 21, 2016 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (April 19). |
| Apr 12, 2016 | In committee: Hearing postponed by committee. |
| Apr 11, 2016 | Re-referred to Com. on PUB. S. |
| Apr 7, 2016 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Apr 5, 2016 | In committee: Set, second hearing. Hearing canceled at the request of author. |
| Mar 31, 2016 | Re-referred to Com. on PUB. S. |
| Mar 30, 2016 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Mar 29, 2016 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Mar 3, 2016 | Referred to Com. on PUB. S. |
| Feb 19, 2016 | From printer. May be heard in committee March 20. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 1, 2016 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jun 21, 2016 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
|
| Jun 1, 2016 | AB 2199 CAMPOS Assembly Third Reading | Assembly Floor |
Passed |
|
| May 27, 2016 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 19, 2016 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| calbudgetcenter.org | ** Support | Jun 1, 2016 |
| calbudgetcenter.org | ** Against | Jun 1, 2016 |
| California District Attorneys Association | * Support | Jun 21, 2016 |
| California Police Chiefs Association | ** Support | Jun 1, 2016 |
| Corrections-Spendin | ** Support | Jun 1, 2016 |
| Corrections-Spendin | ** Against | Jun 1, 2016 |
| Crime Victims United Of California | ** Support | Jun 1, 2016 |
| g-Remains-High-Under-the-Governor%E2%80%99s-Proposed-Budget-Despi | ** Support | Jun 1, 2016 |
| g-Remains-High-Under-the-Governor%E2%80%99s-Proposed-Budget-Despi | ** Against | Jun 1, 2016 |
| Legal Services for Prisoners with Children | ** Against | Jun 1, 2016 |
| Los Angeles County District Attorney'S Office | * Support | Jun 21, 2016 |
| McHugh, Koepke & Associates | * For If Amend | Jun 21, 2016 |
| Page M | ** Support | Jun 1, 2016 |
| PUB. S. | ** Against | Jun 1, 2016 |
| te-Big-Drop-in-Correctional-Populations.pdf | ** Against | Jun 1, 2016 |
| te-Big-Drop-in-Correctional-Populations.pdf | ** Support | Jun 1, 2016 |
| The Child Abuse Prevention Center | ** Support | Jun 1, 2016 |
| uploads | ** Against | Jun 1, 2016 |
| uploads | ** Support | Jun 1, 2016 |
| wp-content | ** Against | Jun 1, 2016 |
| wp-content | ** Support | Jun 1, 2016 |
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 2199 (Campos) - Sexual offenses against minors: persons in a position of authority
Version: August 1, 2016 | Policy Vote: PUB. S. 7 - 0 |
Urgency: No | Mandate: Yes |
Hearing Date: August 1, 2016 | Consultant: Jolie Onodera |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 2199 would define a two-year sentence enhancement where a defendant who committed a sex crime against a minor held a position of authority over the minor, as specified.
Fiscal Impact:
- State prisons: Potentially significant future increase in state costs (General Fund) for longer prison sentences resulting from imposition of the two-year sentence enhancement, or alternatively, more upper term sentences being imposed. CDCR data indicates over 600 commitments to state prison in 2015 under the specified crimes potentially impacted by this measure. The number of inmates potentially subject to the sentence enhancement is unknown, but for every 5 percent of annual commitments potentially impacted, annual incarceration costs could increase over $500,000, cumulatively increasing to over $1 million annually thereafter. Staff notes the net cost increase due to the enhancement would be somewhat mitigated in part to the extent defendants that otherwise would have been subject to an upper term sentence under existing law are instead sentenced to lower or middle terms in conjunction with the enhancement. Alternatively, more upper term sentences could result under a court’s ability to impose the upper term if the enhancement is struck.
- County jails: Potential future increase in local incarceration costs (Local Funds/General Fund*) for longer county jail sentences resulting from the two-year sentence enhancement.
- Trial courts: Potential increase in court costs (General Fund**) for separate court trials as required to impose a sentence enhancement.
- Proposition 30*: Provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency, as specified, apply to local agencies only to the extent the State provides annual funding for the cost increase. Although legislation creating a new crime or revising the definition of an existing crime is exempt from Proposition 30 state funding requirements, legislation that changes the penalty for an existing crime is not similarly specifically exempt. The offenses specified in this measure are existing crimes against minors under state law. To the extent the two-year sentence enhancement to be imposed in specified cases is determined to change the penalty for these crimes, any increase in costs to local agencies attributable to provisions of this legislation could potentially require annual funding from the State.
*Trial Court Trust Fund
Background:
Existing law provides that any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, punishable in county jail for up to one year or by imprisonment in county jail (or state prison if convicted of a current or prior serious or violent felony or offense requiring registration as a sex offender) for two, three, or four years. (Penal Code (PC) § 261.5 (d).)
Existing law additionally provides for the following sex offenses against a minor:
- Sodomy, oral copulation, or sexual penetration when the adult is 21 years of age or older, and the minor is under 16 years of age are felony offenses, punishable by imprisonment in state prison for 16 months, two years, or three years. (PC §§ 286(b)(2), 288a(b)(2), 289(i).)
- Lewd acts with a minor of 14 or 15 years old, when the adult is at least 10 years older than the minor. This offense is punishable as an alternate felony/misdemeanor, punishable in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. (PC § 288(c)(1).)
This bill seeks to impose a sentence enhancement for the specific circumstance of holding a position of authority over a minor.
Proposed Law:
This bill would define a two-year sentence enhancement where a defendant who committed a sex crime against a minor held a position of authority over the minor. Specifically, this bill:
- Provides that any person who is found guilty of felony statutory rape (when the adult is 21 years of age or older, and the minor is under 16 years of age) who holds a "position of authority" over the minor is subject to an additional term of imprisonment of two years.
- Provides that any person who is found guilty of the following acts who holds a "position of authority" over the victim is subject to an additional term of imprisonment of two years in state prison if convicted of the felony offense in lieu of the alternate misdemeanor offense (when the offenses are alternate felony/misdemeanors):
- Sexual penetration, oral copulation and sodomy when the adult is 21 years of age or older, and the minor is under 16 years of age.
- Lewd acts with a 14-15 year old when the adult is at least 10 years older than the minor.
- Defines an offender in a "position of authority" over a victim as a person, by reason of that position, is able to exercise undue influence over a minor. A “position of authority” includes, but is not limited to, a stepparent, foster parent, partner of the parent, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, or employer of one of the aforementioned persons.
- Provides that for purposes of this measure, “undue influence” includes, but is not limited to, the use of affection, intimidation, coercion, or deceit, the taking, withholding, or bestowing of a reward or benefit, or the promise or threat to take, withhold, or bestow a benefit or reward.
Related Legislation:
None known.
Staff Comments:
This bill seeks to impose a sentence enhancement for a specific circumstance (holding a position of authority over a minor) that is in many cases inherent in the underlying crimes (sex offenses against a minor) and the basis for the punishment imposed under existing law.
By defining a two-year sentence enhancement on a defendant who committed a sex crime against a minor and held a position of authority over the minor, this bill could potentially result in future increases in state and local incarceration costs should the measure result in longer prison and jail sentences.
Statistics from the DOJ indicate nearly 1,500 felony arrests annually for each of the past three years and over 725 felony convictions for the crimes specified in this measure that could potentially be subject to an additional two-year sentence enhancement. However, conviction data is unavailable on the number of these convictions that involved a defendant who held a position of authority over a minor.
CDCR data indicates over 600 commitments to state prison in 2015 under the specified crimes subject to the two-year sentence enhancement. The number of commitments potentially impacted by the establishment of the sentence enhancement cannot be estimated with certainty given the numerous factors involved in charging and sentencing, including but not limited to judicial and prosecutorial discretion, the prior criminal history of the defendant, and the elements specific to each case.
As applied in the context of existing sentencing law, it is unclear to what degree the sentence enhancement provided in this measure will have an impact on the prison sentences imposed in these cases. Under California Rule of Court 4.420(d), a fact that is an element of or inherent in an offense cannot be used as a factor in aggravation or an enhancement. As explained in the Senate Committee on Public Safety analysis of this measure, “It is another basic feature of California sentencing law that a fact used to impose an enhancement cannot be used to impose an upper term. An upper term is essentially considered a sentence enhancement. (PC § 1170 (b)) If a defendant was convicted of engaging in sexual conduct with a minor under the age of 16 and the prosecutor proved that the defendant occupied a position of authority, the court could impose the two-year enhancement described by this bill. However, the court could not likely impose an upper term based on the aggravating factor that the defendant “took advantage of a position of trust or confidence” to commit the crime, as that factor greatly overlaps with an enhancement based on the defendant’s use of a position of authority to commit the crime. This is particularly likely because this bill defines a position of authority in terms of “undue influence over the minor.”
Alternatively, the establishment of the two-year sentence enhancement could potentially result in more upper term sentences being imposed. Under California Rule of Court 4.420(c), “a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term.”
The Three-Judge Court has ordered the State to reduce its prison population to 137.5 percent of the prison system’s design capacity by February 28, 2016. Pursuant to its February 10, 2014 order, the Court has ordered the CDCR to implement several population reduction measures, prohibited an increase in the population of inmates housed in out-of-state facilities, and indicated the Court will maintain jurisdiction over the State for as long as necessary to ensure that the State’s compliance with the 137.5 percent final benchmark is durable, and that such durability is firmly established. Any future increases to the State's prison population challenge the ability of the State to reach and maintain such a “durable solution,” and could require the State to pursue one of several options, including contracting-out for additional bed space or releasing current inmates earlier onto parole.
Recommended Amendments:
Staff recommends the following technical amendment to have a consistent definition of “position of authority” under both Penal Code sections being amended by this bill:
On page 5, in line 3, strike “employer,”
On page 5, in line 4, strike “or employee” and insert “or employer”
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2199 Hearing Date: June 21, 2016
Author: | Campos | ||
Version: | April 25, 2016 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | JM | ||
Subject: Sexual Offenses Against Minors: Persons In a Position Of Authority
HISTORY
Source: Author
Prior Legislation: None Known
Support: Association for Los Angeles Deputy Sheriffs; Board of Behavioral Sciences;
California Association of Code Enforcement Officers; California Police Chiefs Association; California District Attorneys Association; California Narcotic Officers Association; California Police Chiefs Association; California State Sheriff’s Association; Child Abuse Prevention Center; Crime Victims United of California; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Riverside Sheriffs Association; Secular Coalition for California
Opposition: American Civil Liberties Union of California; Legal Services for Prisoners with Children
Assembly Floor Vote: 77 - 3
PURPOSE
The purpose of this bill is to define a two-year sentence enhancement where a defendant who committed a sex crime against a minor held a position of authority over the minor, as specified.
Existing U.S. Supreme Court decisional law establishes that California’s determinate sentencing law prior to enactment of SB 40 (Romero) in 2007 violated the Sixth Amendment right of the accused to a trial by jury. (Cunningham v. California (2007) 549 U.S. 270.)
Existing U.S. Supreme Court decisional law established that to conform California law to Constitutional requirements, California may either require juries “to find any fact necessary to the imposition of an elevated sentence” or “permit judges genuinely ‘to exercise broad discretion . . . within a statutory range.’” (Cunningham v. California, supra, 549 U.S. 270.)
Existing law provides, in response to the Cunningham decision, that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen. Code § 1170, subd. (b); (SB 40 (Romero) – Ch. 3, Stats. 2007.)
Existing law provides that prior to sentencing, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation, as specified. In determining the appropriate term, the court may consider the record in the case and other relevant material, testimony and argument. (Pen. Code § 1170, subd. (b).)
Existing law provides that the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed. (Pen. Code § 1170, subd. (b).)
Existing law provides that the Judicial Council shall promote uniformity in sentencing through rules providing criteria for the sentencing court to consider in making any sentencing decision, including imposition the lower, middle or upper term or a sentence enhancement. (Pen. Code 1170.3.)
Existing California Rules of Court, provide that:
- When a sentence of imprisonment is imposed, or the execution of a sentence of imprisonment is ordered suspended, the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170(b) and these rules.
- In exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing.
- To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term.
- A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.
- The reasons for selecting one of the three authorized prison terms referred to in section 1170(b) must be stated orally on the record, including where the court imposes the middle term. (Cal. Rule of Court, 4.420.)
- Examples of factors most relevant to the aggravated manner in which a sex crimes was committed against minor include:
- The defendant induced a minor to commit or assist in the commission of the crime;
- The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
- The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
- The defendant took advantage of a position of trust or confidence to commit the offense.
.
- Specified aggravating factors also in include a defendant’s criminal history and
- The court can consider other factors statutorily declared to be circumstances in aggravation.
This bill provides that any person who is found guilty of felony statutory rape (when the adult is 21 years of age or older, and the minor is under 16 years of age) who holds a "position of authority" over the minor is subject to an additional term of two-years.
This bill provides that any person who is found guilty of the following acts who holds a "position of authority" over the victim is subject to an additional term of two-years in state prison if convicted of the felony offense in lieu of the alternate misdemeanor offense (when the offenses are alternate felony/misdemeanor "wobblers"):
- Sexual penetration, oral copulation and sodomy when the adult is 21 years of age or older, and the minor is under 16 years of age.
- Lewd acts with a 14-15 year old when the adult is 10 years older or more.
This bill defines an offender in a "position of authority" over a victim as "a person, by reason of that position, is able to exercise undue influence over a minor." A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of the aforementioned persons.
This bill defines “undue influence” through a reference to Welfare and Institutions Code Section 15610.70, which defines the term as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” In determining whether a person exercised undue influence over another, the following factors are applied:
- The victim was vulnerable, as shown, for example by the victim’s age, incapacity, education, impaired cognitive ability, or related factors.
- The basis or nature of the apparent “authority,” including, for example, being the victim’s fiduciary, family member, health care provider, spiritual adviser or a related position.
- The actions or tactics used by the “influencer, including, for example,
- Controlling life necessities, medication, sleep and access to information or others
- Use of affection, intimidation or coercion
- Changes in personal property rights, especially with secrecy or haste
- The equity of the result, including, for example, economic consequences, divergence from the victim’s plans or intents.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
- 143% of design bed capacity by June 30, 2014;
- 141.5% of design bed capacity by February 28, 2015; and,
- 137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
- Whether a proposal erodes a measure which has contributed to reducing the prison population;
- Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
- Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
- Whether a proposal corrects a constitutional problem or legislative drafting error; and
- Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The dynamic between the perpetrators and victims in statutory rape situations are often very unequal because perpetrators have the power to shape the victims intuitions and feelings about the relationship, especially perpetrators who hold a position of authority over the minor like a teacher, coach, family friend or family member. 14 and 15 year olds are the most vulnerable to the influences of a person in a position of authority, in addition to being one of the most targeted age groups because these perpetrators know their victim’s ages, their vulnerabilities and have direct responsibility over them and can exert undue influence.
Statutory rape cases are often misconceived as a consensual relationship between an adult and a minor, however, researchers state that many victims have a delayed reaction to being manipulated into a sexual relationship, which can lead to negative outcomes like an increased risk for delinquency and longer-term psychological effects. Although the victims may deny harm, researchers argue this cannot be taken at face value because victims often have delayed reactions and “later come to understand the inherent power differential in the relationship, the subtle manipulation they were subjected to, and the adult’s use of implied or actual threats” (Grover, 2003).
Currently, cases covered under this bill receive similar sentences to non-violent offenses like car theft because unlike the sentences for sexual relations with minors 13 and younger that have strong penalties (3, 6 or 8 year or life sentences), cases with 14 and 15 year olds are minimal (16 months, 2 years or 3 years).
2. Existing Penalties for the Offenses Subject to Enhancement Under This Bill
Under existing law "unlawful sexual intercourse" and related forms of illegal sodomy, oral copulation, sexual penetration and lewd and lascivious acts with a minor who is 14 or 15 years of age are punished on a scale depending on the conduct of the perpetrator, and the respective ages of the defendant and the victim of the crime.
Minors, by law, do not have the capacity to consent to sexual acts. The essence or purpose of the laws to which the enhancement defined by this bill would apply is to protect children from adults who are in a position of authority or influence over the minors involved. This bill thus would impose an enhancement for something that is typically inherent in the underlying crime and the basis for the punishments imposed under existing law.
3. Basic Sentencing Rules and Procedures applied to this Bill – A Fact used to Impose an Enhancement cannot Support an Upper Term Sentence
The Enhancement in this Bill Considered Alone
The sentencing laws are designed to allow the sentencing court to rely on a wide range of aggravating and mitigating factors to impose an upper term, middle or lower term. The court must state on the record the reasons for any sentencing choice. (Pen Code §§ 1170, subds. (b)-(c), 1170.1, subd. (d).)
This bill would define a sentence enhancement in sex crimes against a minor that are based on the age of the defendant and the minor. An enhancement of two years would be imposed where the defendant held “a position of authority” over the minor. The bill further defines “position of authority” as a position or relationship that gives the perpetrator “undue influence” over the minor.
Because abuse of a position of authority occurs in many cases where an adult engaged in illicit sexual conduct with a minor, the bill appears to be a penalty increase applicable to a very large proportion of these offenses. The application of the bill, however, would be affected by other sentencing rules.
The Enhancement in this Bill Applied in the Context of Existing Sentencing Law
The Rules of Court provide guidance to the sentencing court in imposing sentence. The rules include a list of specified factors in aggravation, although courts are not limited to the enumerated factors. A common factor in aggravation in a sex crime committed by an adult against a minor is the following: “The defendant took advantage of a position of trust or confidence to commit the offense.” The abuse of a position of influence or trust is often the major reason the defendant was able to commit the offense. The author’s statement in the Assembly analysis refers to this point.
A fact that is an element of or inherent in an offense cannot be used as factor in aggravation or an enhancement. (Cal. Rules of Court, rule 4.420 (d).) For example, the fact that the defendant suffered great bodily harm cannot be used as to enhance the sentence for manslaughter. (People v. Piceno (1987) 195 Cal.App.3d 1353, 1357; See, People v. Dixon (1993) 20 Cal.App.4th 1029, 1038.) The fact that a defendant took advantage of an elderly person to commit a financial crime could not likely be used as a factor in aggravation to impose an upper term in a conviction under Penal Code Section 368 for a financial crime against a person older than 65 years of age. The use of great violence could not likely be used as a factor in aggravation in a murder committed with a firearm, as such a crime inherently involves violence and an enhancement of 25 years would be imposed because the defendant used a firearm.
It is another basic feature of California sentencing law that a fact used to impose an enhancement cannot be used to impose an upper term. An upper term is essentially considered a sentence enhancement. (Pen. Code § 1170, subd. (b).) If a defendant was convicted of engaging in sexual conduct with a minor under age of 16 crime and the prosecutor proved that the defendant occupied a position of authority, the court could impose the two-year enhancement defined or described by this bill. However, the court could not likely impose an upper term based on the aggravating factor that the defendant “took advantage of a position of trust or confidence” to commit the crime, as that factor greatly overlaps with an enhancement based on the defendant’s use of a position of authority to commit the crime. This is particularly likely because this bill defines a position of authority in terms of “undue influence over the minor.”
For example: If the court imposes the two-year enhancement because the defendant had a position of authority, the court could only impose the lower (16 months) or middle ( two years) term, if no other factors in aggravation exist. The crimes covered by the enhancement defined in this bill do not involve force, violence or weapons. Thus, in many cases the only significant aggravating factor is likely to be an abuse of a position of authority or trust. The result would be a maximum possible increase of one year over the upper (three years) term maximum sentence under current law. If the court imposed the enhancement and the lower term (16 months), the maximum sentence would be three years and 4 months.
The court could, however, rely on the defendant’s position of authority or undue influence over the minor as a factor in aggravation to impose an upper term, and not the enhancement. This sentencing choice would result in no change over the current maximum sentence.
Prosecutor’s Arguments that other Factors in Aggravation would Justify Imposition of the Upper Term
In discussions with committee staff, prosecutors have argued that these cases generally involve factors other than abuse of a position of authority and trust that the court could rely upon in imposing an upper term. Specifically mentioned were the degree of callousness involved, the vulnerability of the victim, whether the victim induced a minor (other than the victim) to assist in the crime, planning and sophistication and whether the defendant interfered with the judicial process.
Arguably, it would be difficult to separate the callous nature of the offense, the vulnerability of victim and the defendant’s planning or sophistication from the fact that an adult defendant abused a position of authority and trust to prey on minor for sexual gratification. The victim is vulnerable because of the defendant’s position of authority and influence and the defendant would show callousness in abusing his or her position. The ability to manipulate a vulnerable victim also arguably shows planning and sophistication, possibly merging that factor with the enhancement as well. The fact that a defendant used another minor to commit the offense would be a separate factor in aggravation. Interference with the judicial process can often be charged as a felony. (Pen. Code § 136.1) If the defendant recruited others to interfere with the judicial process, a conspiracy could be charged. However, if interfering with the judicial process is not charged as a separate crime, that can be the basis of a factor in aggravation.
Sentencing law is complex and it is difficult to predict how the enhancement would be applied in individual cases. The application of the enhancement defined by this bill is likely to be fully determined through litigation over time. This bill would add to the complexity of sentencing law, which is so complex currently that judges often make errors in imposing sentence. These errors would be subject to challenge and correction on appeal.
4. California Sentencing is so Complex as to often Result in Sentencing Errors That Require Remand to Trial Courts or Correction of Unauthorized Sentences
While sentences may not change substantially if this bill is enacted, sentencing calculations and decisions will become more complex. Courts and practitioners very often make mistakes in sentencing. It is not uncommon for cases to be remanded to the trial court from the appellate court to fix a sentencing error. Sentencing has become so complex that it is not unusual for an inmate to learn that he or she faces a greater sentence than the one the court imposed, because the court failed to impose a mandatory penalty. While a defendant cannot receive a greater sentence because he or she appealed, an “unauthorized” sentence can be corrected at any time.
5. The Definition of Undue Influence in the Bill is Drawn from Elder Financial Abuse Law and May be Difficult to Apply in Sex Crimes Against Minors
This bill imports a definition of “undue influence” from the Welfare and Institutions Code that is complex on its own. This standard or definition of undue influence was added to the code by AB 140 (Dickinson) Ch. 668, Stats. 2013. The standard is designed for cases of financial abuse of elderly persons. Many of the factors in the standard would not apply in a case involving sex between an adult and a minor. This could lead to confusion for juries and be the basis for defendants to argue that their conduct is not described in the applicable definition of an abuse of authority or influence.
6. Author’s Proposed Amendment to Strike the Reference to an “Employee” as a Person of Authority Over a Minor
The bill includes an “employee” as a person of authority who could exert undue influence on a minor. Prosecutors have informed the author that an “employee” should not be included as a person of authority over a minor. The author has agreed to amend the bill to strike “employee” from the descriptive list of persons in a position of authority.
7. Deterrence and Punishment Issues Generally
Punishment Theory – Just Deserts
The use of criminal sentences to punish, rather than rehabilitate or incapacitate an offender, is described as “just deserts” in criminology. A 2002 article in the Journal of Personality and Social Psychology succinctly described the theory:
The theory of just deserts is retrospective rather than prospective. The punisher need not be concerned with future outcomes, only with providing punishment appropriate to the given harm. Although it is certainly preferable that the punishment serve a [deterrence] function… its justification lies in righting a wrong, not a … future benefit. The central precept… is that the punishment be proportionate to the harm. The task …is to assess the magnitude of the harm and to devise a punishment that is proportionate in severity, if not in kind. Kant (1952) recommended censure proportionate to a perpetrator’s “internal wickedness,” a quantity that may be approximated by society’s sense of moral outrage over the crime. (Why do We Punish?, Journal of Personality and Social Psychology, (2002) Vol. 83, No. 2, 284–299, Carlsmith, Darley and Robinson.)[1]
Deterrence Issues
Criminal justice experts and commentators have noted that, with regard to sentencing, “a key question for policy development regards whether enhanced sanctions or an enhanced possibility of being apprehended provide any additional deterrent benefits.
Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits.[2]
A comprehensive report published in 2014, entitled The Growth of Incarceration in the United States, discusses the effects on crime reduction through incapacitation and deterrence, and describes general deterrence compared to specific deterrence:
A large body of research has studied the effects of incarceration and other criminal penalties on crime. Much of this research is guided by the hypothesis that incarceration reduces crime through incapacitation and deterrence. Incapacitation refers to the crimes averted by the physical isolation of convicted offenders during the period of their incarceration. Theories of deterrence distinguish between general and specific behavioral responses. General deterrence refers to the crime prevention effects of the threat of punishment, while specific deterrence concerns the aftermath of the failure of general deterrence—that is, the effect on reoffending that might result from the experience of actually being punished. Most of this research studies the relationship between criminal sanctions and crimes other than drug offenses.
In regard to deterrence, the authors note that in “the classical theory of deterrence, crime is averted when the expected costs of punishment exceed the benefits of offending. Much of the empirical research on the deterrent power of criminal penalties has studied sentence enhancements and other shifts in penal policy. . . .
Deterrence theory is underpinned by a rationalistic view of crime. In this view, an individual considering commission of a crime weighs the benefits of offending against the costs of punishment. Much offending, however, departs from the strict decision calculus of the rationalistic model. Robinson and Darley (2004) review the limits of deterrence through harsh punishment. They report that offenders must have some knowledge of criminal penalties to be deterred from committing a crime, but in practice often do not.”[3]
Members may wish to discuss whether imposing enhancements for factors that are often inherent in crimes involving illicit sexual conduct between minors and adults would deter possible offenders.
The authors of the 2014 report discussed above conclude that incapacitation of certain dangerous offenders can have “large crime prevention benefits,” but that incremental, lengthy prison sentences are ineffective for crime deterrence:
Whatever the estimated average effect of the incarceration rate on the crime rate, the available studies on imprisonment and crime have limited utility for policy. The incarceration rate is the outcome of policies affecting who goes to prison and for how long and of policies affecting parole revocation. Not all policies can be expected to be equally effective in preventing crime. Thus, it is inaccurate to speak of the crime prevention effect of incarceration in the singular. Policies that effectively target the incarceration of highly dangerous and frequent offenders can have large crime prevention benefits, whereas other policies will have a small prevention effect or, even worse, increase crime in the long run if they have the effect of increasing postrelease criminality.
Evidence is limited on the crime prevention effects of most of the policies that contributed to the post-1973 increase in incarceration rates. Nevertheless, the evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure. Specifically, the incremental deterrent effect of increases in lengthy prison sentences is modest at best. Also, because recidivism rates decline markedly with age and prisoners necessarily age as they serve their prison sentence, lengthy prison sentences are an inefficient approach to preventing crime by incapacitation unless they are specifically targeted at very high-rate or extremely dangerous offenders. For these reasons, statutes mandating lengthy prison sentences cannot be justified on the basis of their effectiveness in preventing crime.[4]
WOULD REQUIRING ENHANCEMENTS BASED THE DEFENDANT’S POSITION OF AUTHORITY IN SEX CRIMES DEFINED BY THE AGE OF THE PARTICIPANTS DETER PERSONS FROM COMMITTING SUCH OFFENSES?
-- END –
http://www.colgate.edu/portaldata/imagegallerywww/184416d4-5863-4a3e-a73b-b2b6b86e7b60/ImageGallery/Carlsmith_Darley_Robinson_2002.pdf ↑
Valerie Wright, Ph.D., Deterrence in Criminal Justice Evaluating Certainty vs. Severity of Punishment (November 2010), The Sentencing Project (http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pdf.) ↑
Id. at 132-133. ↑
Id. at 155-156 (emphasis added). ↑
ASSEMBLY THIRD READING
ATR Bill Id:AB 2199
Author:(Campos)
As Amended Ver:April 25, 2016
Majority vote
Committee | Votes | Ayes | Noes |
Public Safety | 5-2 | Melendez, Lackey, Lopez, Low, Santiago | Jones-Sawyer, Quirk |
Appropriations | 19-1 | Gonzalez, Bigelow, Bloom, Bonilla, Bonta, Calderon, Chang, Daly, Eggman, Gallagher, Eduardo Garcia, Roger Hernández, Holden, Jones, Obernolte, Santiago, Wagner, Weber, Wood | Quirk |
SUMMARY: Specifies that persons who commit specified sex offenses involving minors shall be subject to an additional two-year sentence enhancement if the offender is a person in a "position of authority" over the victim, as specified. Specifically, this bill:
- Defines an offender in a "position of authority" over a victim as "a person, by reason of that position, is able to exercise undue influence over a minor." A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of the aforementioned persons.
- Provides that any person who is found guilty of felony statutory rape (when the adult is 21 years of age or older, and the minor is under 16 years of age) who holds a "position of authority" over the minor is subject to an additional term of two-years.
- Provides that any person who is found guilty of the following acts who holds a "position of authority" over the victim is subject to an additional term of two-years in state prison if convicted of the felony offense in lieu of the alternate misdemeanor offense (when the offenses are alternate felony/misdemeanor "wobblers"):
- Sexual penetration (when the adult is 21 years of age or older, and the minor is under 16 years of age)
- Sodomy (when the adult is 21 years of age or older, and the minor is under 16 years of age).
- Lewd acts (with a 14-15 year old when the adult is 10 years older or more).
- Oral copulation (when the adult is 21 years of age or older, and the minor is under 16 years of age).
EXISTING LAW:
- Specifies that "unlawful sexual intercourse" is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age.
- Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
- Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment for 16 months, two, or three years in the county jail for a violation of the felony provision.
- Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in county jail for two, three, or four years.
- Provides that any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes as provided, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (Pen. Code § 288, subd. (a).) Any person convicted shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim. The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved. As used in this subdivision, "bodily harm" means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense.
- States that any person who commits these acts by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
- Provides that any person who is a caretaker and commits these acts upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
- Provides that any person who commits a lewd or lascivious act with the intent described, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.
- States that any person who is a caretaker and a lewd or lascivious act with the intent described upon a dependent person, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.
FISCAL EFFECT: According to the Assembly Appropriations Committee, significant fiscal impact to the Department of Corrections and Rehabilitation (CDCR). According the CDCR statistics, there were almost 100 persons serving prison time for the crimes cited that would add two years in state prison; if 20% of these individuals were in a "position of authority," CDCR's cost would be approximately $580,000 General Fund(GF) the first year and $1.16 million (GF) the second year, and every year thereafter.
Moderate, nonreimbursable costs for the additional two years of incarceration, for those terms served in county jail.
COMMENTS: According to the author, "Statutory rape cases are often misconceived as a consensual relationship between an adult and a minor. The perpetrator often has great influence over his or victim; this is especially true when the offender is in a position of authority, particularly a coach or a teacher. And although the victims may deny harm, researchers argue that many of these youth often have delayed reactions and later come to realize the inherent power difference in the relationship. These situations can lead to negative effects for the victims. This includes an increased risk for unintended pregnancies, contraction of sexually transmitted infections, delinquency, and long-term psychological effects among adolescents.
"People in a position of authority know their victims ages as well as their vulnerability. Therefore, when perpetrators are in a position of authority, they should be punished accordingly. AB 2199 would assist in this effort by providing prosecutors the discretion of a sentence enhancement for adults charged with felony statutory rape."
Analysis Prepared by: Gabriel Caswell/ PUB. S. / (916) 319-3744 FN: 0003360
Date of Hearing: May 11, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
ABPCA Bill Id:AB 2199
Author:(Campos) – As Amended Ver:April 25, 2016
Policy Committee: | Public Safety | Vote: | 5 - 2 |
Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill specifies that persons who commit specified sex offenses involving minors shall be subject to an additional two-year sentence enhancement if the offender is a person in a "position of authority" over the victim, as specified.
FISCAL EFFECT:
Significant fiscal impact to the Department of Corrections and Rehabilitation (CDCR). According the CDCR statistics, there were almost 100 persons serving prison time for the crimes cited that would add two years in state prison; if 20% of these individuals were in a “position of authority,” CDCR’s cost would be approximately $580,000 (GF) the first year and $1.16 million million (GF) the second year, and every year thereafter.
Moderate, nonreimbursable costs for the additional two years of incarceration, for those terms served in county jail.
COMMENTS:
- Purpose. Under existing law "unlawful sexual intercourse" (also known as "statutory rape") and lewd and lascivious acts are both punished on a scale depending on the conduct of the perpetrator, and the respective ages of the defendant and the victim of the crime. For example:
- Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
- Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment for 16 months, two, or three years in the county jail for a violation of the felony provision.
- Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in county jail for two, three, or four years.
- Any person who commits any one of specified acts by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
- Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
- Purpose. According to the author, "Statutory rape cases are often misconceived as a consensual relationship between an adult and a minor. The perpetrator often has great influence over his or victim; this is especially true when the offender is in a position of authority, particularly a coach or a teacher. And although the victims may deny harm, researchers argue that many of these youth often have delayed reactions and later come to realize the inherent power difference in the relationship. These situations can lead to negative effects for the victims. This includes an increased risk for unintended pregnancies, contraction of sexually transmitted infections, delinquency, and long-term psychological effects among adolescents.
"People in a position of authority know their victims ages as well as their vulnerability. Therefore, when perpetrators are in a position of authority, they should be punished accordingly. AB 2199 would assist in this effort by providing prosecutors the discretion of a sentence enhancement for adults charged with felony statutory rape."
AB 2199 adds a two-year sentence enhancement to specific violations that are served in state prison. These sentence enhancements are to be served after the underlying criminal penalties, which range from one to three years in state prison, are served.
- Support.: According to the California Police Chiefs Association, "By strengthening our laws to protect children from those who would use their influence and authority for exploitive purposes, our judicial system will now have an added tool to combat these crimes."
- Opposition. According to The American Civil Liberties Union, “While the intent of AB 2199 appears to be to provide greater protection for minors, research has shown that more severe sentences do not actually enhance public safety. Studies have concluded that the severity of punishment does not generally have an increased effect on deterrence. Rather, researchers have found that certainty of punishment – that someone will be punished for a particular crime – has a greater deterrent effect than the severity of the punishment itself.”
- Related Legislation. AB 1708 (Gonzales), also on today’s agenda, in part, clarifies that solicitation of a minor can be solicitation of a person posing as a minor if the person engaged in the solicitation had the specific intent to solicit a minor, and increases mandatory minimum jail time for solicitation of a minor from two days to 72 hours. Also, specifies that the fine for solicitation of a minor shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081
Date of Hearing:
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 2199
Author:(Campos) – As Amended Ver:April 7, 2016
As Proposed to be Amended in Committee
SUMMARY: Specifies that persons who commit specified sex offenses involving minors shall be subject to an additional two-year sentence enhancement if the offender is a person in a "position of authority" over the victim, as specified. Specifically, this bill:
- Defines an offender in a "position of authority" over a victim as "a person, by reason of that position, is able to exercise undue influence over a minor." A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of the aforementioned persons.
- Provides that any person who is found guilty of felony statutory rape (when the adult is 21 years of age or older, and the minor is under 16 years of age) who holds a "position of authority" over the minor is subject to an additional term of two-years.
- Provides that any person who is found guilty of the following acts who holds a "position of authority" over the victim is subject to an additional term of two-years in state prison if convicted of the felony offense in lieu of the alternate misdemeanor offense (when the offenses are alternate felony/misdemeanor "wobblers"):
- Sexual penetration (when the adult is 21 years of age or older, and the minor is under 16 years of age)
- Sodomy (when the adult is 21 years of age or older, and the minor is under 16 years of age).
- Lewd acts (with a 14-15 year old when the adult is 10 years older or more).
- Oral copulation (when the adult is 21 years of age or older, and the minor is under 16 years of age).
EXISTING LAW:
- Specifies that "unlawful sexual intercourse" is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age. (Pen. Code, § 261.5, subd. (a).)
- Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (Pen. Code, § 261.5, subd. (b), emphasis added.)
- Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment for 16 months, two, or three years in the county jail for a violation of the felony provision. (Pen. Code, § 261.5, subd. (c), emphasis added.)
- Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in county jail for two, three, or four years. (Pen. Code, § 261.5, subd. (d), emphasis added.)
- Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (Pen. Code, § 261.5, subd. (b), emphasis added.)
- Provides that any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes as provided, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (Pen. Code § 288, subd. (a).) Any person convicted shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim. The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved. As used in this subdivision, "bodily harm" means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense. (Pen. Code § 288 subd. (i).)
- States that any person who commits these acts by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years. (Pen. Code § 288, subd. (b)(1).)
- Provides that any person who is a caretaker and commits these acts upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years. (Pen. Code § 288, subd. (b)(2).)
- Provides that any person who commits a lewd or lascivious act with the intent described, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child. (Pen. Code § 288, subd. (c)(1).)
- States that any person who is a caretaker and a lewd or lascivious act with the intent described upon a dependent person, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. (Pen. Code § 288, subd. (c)(2).)
- States that any person who commits these acts by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years. (Pen. Code § 288, subd. (b)(1).)
FISCAL EFFECT: Unknown
COMMENTS:
- Author's Statement: According to the author, "Statutory rape cases are often misconceived as a consensual relationship between an adult and a minor. The perpetrator often has great influence over his or victim; this is especially true when the offender is in a position of authority, particularly a coach or a teacher. And although the victims may deny harm, researchers argue that many of these youth often have delayed reactions and later come to realize the inherent power difference in the relationship. These situations can lead to negative effects for the victims. This includes an increased risk for unintended pregnancies, contraction of sexually transmitted infections, delinquency, and long-term psychological effects among adolescents.
"People in a position of authority know their victims ages as well as their vulnerability. Therefore, when perpetrators are in a position of authority, they should be punished accordingly. AB 2199 would assist in this effort by providing prosecutors the discretion of a sentence enhancement for adults charged with felony statutory rape."
- Existing Penalties for these Offenses: Under existing law "unlawful sexual intercourse" (also known as "statutory rape") and lewd and lascivious acts are both punished on a scale depending on the conduct of the perpetrator, and the respective ages of the defendant and the victim of the crime.
The entire concept of making these non-forcible crimes illegal is that the minors involved do not have the capacity to consent to sexual acts. The purpose of these laws is to protect children from adults, who are by their age in a position of authority over the minors involved. The reason that these crimes are punished as severely as they are under existing law is that these offenders are taking advantage of minors who are too young to make the decision to engage in sexual acts. This bill seeks to add a sentence enhancement for persons in a position of authority, but the underlying legislation and the prescribed punishments as they currently exist were created for that very reason.
Additionally, there are a number of criminal offenses from forcible rape to simple sexual assault which carry a wide range of penalties from misdemeanor to life in state prison. For the specific sections this bill is seeking to add a sentence enhancement to, the following penalties apply:
- Non-forcible, unlawful sexual intercourse (between a defendant 21 years or older, and a victim under 16 years) is punishable as a misdemeanor (year in the county jail) or a felony carrying two, three, or four years in county jail. This bill would add an additional two years in county jail to any felony sentence if the defendant is in a position of authority over the victim.
- Sexual penetration (when the adult is 21 years of age or older, and the minor is under 16 years of age) is punishable as a felony carrying 16 months, two, or three years in state prison. This bill would add an additional two years in state prison if the defendant is in a position of authority over the victim.
- Sodomy (when the adult is 21 years of age or older, and the minor is under 16 years of age) is punishable as a felony carrying 16 months, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim.
- Lewd acts (with a 14-15 year old when the adult is 10 years older or more) is punishable as a misdemeanor (year in the county jail) or a felony carrying one, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim.
- Oral copulation (when the adult is 21 years of age or older, and the minor is under 16 years of age) is punishable as a felony carrying 16 months, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim.
- On-Going Concerns for Prison Overcrowding: On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.
In February of last year the administration reported that as "of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity." (Defendants' February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).
However, even though the state has complied with the federal court order, the prison population needs to be maintained, not increased. And according to the Legislative Analyst's Office (LAO), "CDCR is currently projecting that the prison population will increase by several thousand inmates in the next few years and will reach the cap by June 2018 and exceed it by 1,000 inmates by June 2019." (http://www.lao.ca.gov/reports/2014/budget/criminal-justice/criminal-justice-021914.aspx.) The LAO also notes that predicting the prison population is "inherently difficulty" and subject to "considerable uncertainty." (Ibid.) Nevertheless, creating a new exclusion for county jail sentences when the prison population is already expected to increase seems imprudent.
This bill would add a two-year sentence enhancement to violations of Pen. Code § 288, which are served in state prison. These sentence enhancements are to be served after the underlying criminal penalties which range from three years in state prison, to ten years in state prison. Additionally, if the victim sustains bodily harm during the commission of the offense, than the defendant can already receive a life sentence.
- Criminal Penalty Increases: Over the last few years, Governor Brown has vetoed bills that create new crimes or particularize otherwise prohibited conduct. This bill would go much farther, by actually creating sentence enhancements which are served after the time prescribed by the underlying offense. Additionally, depending on the offense, some of these enhancements are intended to be served in the county jail, and others in state prison. Both our jails and prisons are currently overcrowded.
Governor Brown said, in a blanket veto message sent October 3, 2015 which returned nine bills, “Each of these bills creates a new crime – usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.
“Over the last several decades, California’s criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded.
“Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective.”
- Argument in Support: According to the California Police Chiefs Association, "AB 2199 would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse.
"By strengthening our laws to protect children from those who would use their influence and authority for exploitive purposes, our judicial system will now have an added tool to combat these crimes."
- Argument in Opposition: According to The American Civil Liberties Union, "The American Civil Liberties Union of California regrets to inform you of our opposition to AB 2199, a bill that provides additional sentence enhancements for individuals convicted of certain crimes involving minors if the accused person was “in a position of authority” as defined. In light of existing law regulating such conduct, the changes proposed by AB 2199 appear unnecessary and counterproductive.
"While the intent of AB 2199 appears to be to provide greater protection for minors, research has shown that more severe sentences do not actually enhance public safety.[1] Studies have concluded that the severity of punishment does not generally have an increased effect on deterrence.[2] Rather, researchers have found that certainty of punishment – that someone will be punished for a particular crime – has a greater deterrent effect than the severity of the punishment itself.[3]
"California law already provides significant punishments for the crimes listed in AB 2199. Under existing statutes, a person who is 21 years of age or older that has unlawful sexual intercourse with a person who is under age 16 can be punished with up to four years in custody. (Penal Code, §261.5(d).) If the conduct involves evidence of force, duress or coercion, then the offense is punished under other statutes with much lengthier sentences. Similarly, under existing law, a person who commits a lewd act on a minor under 14 years of age can be punished with up to eight years in state prison and more if duress, force or coercion are involved. (Penal Code, §288(a) and (b).) These punishments can be further enhanced by a myriad of existing sentence enhancements.
"Indeed, Governor Brown has criticized our state’s criminal laws, particularly the number of sentencing enhancements, observing, “[t]here are now 400 separate enhancements that can add up to 25 years, each one of them, and now you have over 5,000 separate criminal provisions.”[4] As the Governor stated in his veto message of several bills last fall, “[t]his multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.”[5]
"Additionally, now is not the time for California to be adding longer prison sentences to crimes, particularly when it is not clear that these longer sentences will have any greater deterrent effect. Corrections spending remains high; the Governor’s proposed 2016-17 provides $11.2 billion for adult corrections and an additional $1.2 billion for other parts of the state corrections system.[6] Rather than enacting new, longer penalties, the Legislature should strive to simplify the state’s complex Penal Code, unless longer sentences are truly necessary. While protecting minors from victimization is an extremely important objective, we believe that lengthening sentences for the offenses referenced in this bill will not accomplish that goal. For these reasons, we must oppose AB 2199."
REGISTERED SUPPORT / OPPOSITION:
Support
California Police Chiefs Association
Child Abuse Prevention Center
Crime Victims United of California
Opposition
American Civil Liberties Union
Legal Services for Prisoners with Children
Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744
Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment (Sentencing Project 2010) available at http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf ↑
Id. ↑
Id. ↑
Scott Shafer, Prosecutors Cry Foul Over Jerry Brown’s Ballot Measure, KQED, Feb. 12, 2016, available at http://ww2.kqed.org/news/2016/02/12/prosecutors-cry-foul-over-jerry-browns-ballot-measure ↑
Patrick McGreevy, With Strong Message Against Creating New Crimes, Gov. Brown Vetoes Drone Bills, LA Times, Oct. 3, 2015, available at http://www.latimes.com/politics/la-me-pc-gov-brown-vetoes-bills-restricting-hobbyist-drones-at-fires-schools-prisons-20151003-story.html ↑
Scott Graves, Corrections Spending Remains High Under Governor’s Proposed Budget, Despite Big Drop in Correctional Populations (California Budget and Policy Center 2016) available at http://calbudgetcenter.org/wp-content/uploads/Corrections-Spending-Remains-High-Under-the-Governor%E2%80%99s-Proposed-Budget-Despite-Big-Drop-in-Correctional-Populations.pdf ↑
Date of Hearing:
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 2199
Author:(Campos) – As Amended Ver:April 7, 2016
SUMMARY: Specifies that persons who commit specified sex offenses involving minors shall be subject to an additional two-year sentence enhancement if the offender is a person in a "position of authority" over the victim, as specified. Specifically, this bill:
- Defines an offender in a "position of authority" over a victim as "a person, by reason of that position, is able to exercise undue influence over a minor." A position of authority includes, but is not limited to, a stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of the aforementioned persons.
- Provides that any person who is found guilty of felony statutory rape (when the adult is 21 years of age or older, and the minor is under 16 years of age) who holds a "position of authority" over the minor is subject to an additional term of two-years.
- Provides that any person who is found guilty of the following acts who holds a "position of authority" over the victim is subject to an additional term of two-years in state prison if convicted of the felony offense in lieu of the alternate misdemeanor offense (when the offenses are alternate felony/misdemeanor "wobblers"):
- Sexual penetration (with a person under the age of 18)
- Sodomy (when the adult is 21 years of age or older, and the minor is under 16 years of age).
- Lewd acts (with a 14-15 year old when the adult is 10 years older or more).
- Oral copulation (when the adult is 21 years of age or older, and the minor is under 16 years of age).
EXISTING LAW:
- Specifies that "unlawful sexual intercourse" is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age. (Pen. Code, § 261.5, subd. (a).)
- Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (Pen. Code, § 261.5, subd. (b), emphasis added.)
- Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment for 16 months, two, or three years in the county jail for a violation of the felony provision. (Pen. Code, § 261.5, subd. (c), emphasis added.)
- Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in county jail for two, three, or four years. (Pen. Code, § 261.5, subd. (d), emphasis added.)
- Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (Pen. Code, § 261.5, subd. (b), emphasis added.)
- Provides that any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes as provided, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (Pen. Code § 288, subd. (a).) Any person convicted shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim. The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved. As used in this subdivision, "bodily harm" means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense. (Pen. Code § 288 subd. (i).)
- States that any person who commits these acts by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years. (Pen. Code § 288, subd. (b)(1).)
- Provides that any person who is a caretaker and commits these acts upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years. (Pen. Code § 288, subd. (b)(2).)
- Provides that any person who commits a lewd or lascivious act with the intent described, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child. (Pen. Code § 288, subd. (c)(1).)
- States that any person who is a caretaker and a lewd or lascivious act with the intent described upon a dependent person, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. (Pen. Code § 288, subd. (c)(2).)
- States that any person who commits these acts by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years. (Pen. Code § 288, subd. (b)(1).)
FISCAL EFFECT:
COMMENTS:
- Author's Statement: According to the author, "Statutory rape cases are often misconceived as a consensual relationship between an adult and a minor. The perpetrator often has great influence over his or victim; this is especially true when the offender is in a position of authority, particularly a coach or a teacher. And although the victims may deny harm, researchers argue that many of these youth often have delayed reactions and later come to realize the inherent power difference in the relationship. These situations can lead to negative effects for the victims. This includes an increased risk for unintended pregnancies, contraction of sexually transmitted infections, delinquency, and long-term psychological effects among adolescents.
"People in a position of authority know their victims ages as well as their vulnerability. Therefore, when perpetrators are in a position of authority, they should be punished accordingly. AB 2199 would assist in this effort by providing prosecutors the discretion of a sentence enhancement for adults charged with felony statutory rape."
- Existing Penalties for these Offenses: Under existing law "unlawful sexual intercourse" (also known as "statutory rape") and lewd and lascivious acts are both punished on a scale depending on the conduct of the perpetrator, and the respective ages of the defendant and the victim of the crime.
The entire concept of making these non-forcible crimes illegal is that the minors involved do not have the capacity to consent to sexual acts. The purpose of these laws is to protect children from adults, who are by their age in a position of authority over the minors involved. The reason that these crimes are punished as severely as they are under existing law is that these offenders are taking advantage of minors who are too young to make the decision to engage in sexual acts. This bill seeks to add a sentence enhancement for persons in a position of authority, but the underlying legislation and the prescribed punishments as they currently exist were created for that very reason.
Additionally, there are a number of criminal offenses from forcible rape to simple sexual assault which carry a wide range of penalties from misdemeanor to life in state prison. For the specific sections this bill is seeking to add a sentence enhancement to, the following penalties apply:
- Non-forcible, unlawful sexual intercourse (between a defendant 21 years or older, and a victim under 16 years) is punishable as a misdemeanor (year in the county jail) or a felony carrying two, three, or four years in county jail. This bill would add an additional two years in county jail to any felony sentence if the defendant is in a position of authority over the victim.
- Sexual penetration (with a person under the age of 18) is punishable as a misdemeanor (year in the county jail) or a felony carrying 16 months, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim.
- Sodomy (when the adult is 21 years of age or older, and the minor is under 16 years of age) is punishable as a felony carrying 16 months, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim.
- Lewd acts (with a 14-15 year old when the adult is 10 years older or more) is punishable as a misdemeanor (year in the county jail) or a felony carrying one, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim.
- Oral copulation (when the adult is 21 years of age or older, and the minor is under 16 years of age) is punishable as a felony carrying 16 months, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim.
- On-Going Concerns for Prison Overcrowding: On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.
In February of last year the administration reported that as "of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity." (Defendants' February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).
However, even though the state has complied with the federal court order, the prison population needs to be maintained, not increased. And according to the Legislative Analyst's Office (LAO), "CDCR is currently projecting that the prison population will increase by several thousand inmates in the next few years and will reach the cap by June 2018 and exceed it by 1,000 inmates by June 2019." (http://www.lao.ca.gov/reports/2014/budget/criminal-justice/criminal-justice-021914.aspx.) The LAO also notes that predicting the prison population is "inherently difficulty" and subject to "considerable uncertainty." (Ibid.) Nevertheless, creating a new exclusion for county jail sentences when the prison population is already expected to increase seems imprudent.
This bill would add a two-year sentence enhancement to violations of Pen. Code § 288, which are served in state prison. These sentence enhancements are to be served after the underlying criminal penalties which range from three years in state prison, to ten years in state prison. Additionally, if the victim sustains bodily harm during the commission of the offense, than the defendant can already receive a life sentence.
- Criminal Penalty Increases: Over the last few years, Governor Brown has vetoed bills that create new crimes or particularize otherwise prohibited conduct. This bill would go much farther, by actually creating sentence enhancements which are served after the time prescribed by the underlying offense. Additionally, depending on the offense, some of these enhancements are intended to be served in the county jail, and others in state prison. Both our jails and prisons are currently overcrowded.
Governor Brown said, in a blanket veto message sent October 3, 2015 which returned nine bills, “Each of these bills creates a new crime – usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.
“Over the last several decades, California’s criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded.
“Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective.”
- Argument in Support: According to the California Police Chiefs Association, "AB 2199 would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse.
"By strengthening our laws to protect children from those who would use their influence and authority for exploitive purposes, our judicial system will now have an added tool to combat these crimes."
- Argument in Opposition: According to The American Civil Liberties Union, "The American Civil Liberties Union of California regrets to inform you of our opposition to AB 2199, a bill that provides additional sentence enhancements for individuals convicted of certain crimes involving minors if the accused person was “in a position of authority” as defined. In light of existing law regulating such conduct, the changes proposed by AB 2199 appear unnecessary and counterproductive.
"While the intent of AB 2199 appears to be to provide greater protection for minors, research has shown that more severe sentences do not actually enhance public safety.[1] Studies have concluded that the severity of punishment does not generally have an increased effect on deterrence.[2] Rather, researchers have found that certainty of punishment – that someone will be punished for a particular crime – has a greater deterrent effect than the severity of the punishment itself.[3]
"California law already provides significant punishments for the crimes listed in AB 2199. Under existing statutes, a person who is 21 years of age or older that has unlawful sexual intercourse with a person who is under age 16 can be punished with up to four years in custody. (Penal Code, §261.5(d).) If the conduct involves evidence of force, duress or coercion, then the offense is punished under other statutes with much lengthier sentences. Similarly, under existing law, a person who commits a lewd act on a minor under 14 years of age can be punished with up to eight years in state prison and more if duress, force or coercion are involved. (Penal Code, §288(a) and (b).) These punishments can be further enhanced by a myriad of existing sentence enhancements.
"Indeed, Governor Brown has criticized our state’s criminal laws, particularly the number of sentencing enhancements, observing, “[t]here are now 400 separate enhancements that can add up to 25 years, each one of them, and now you have over 5,000 separate criminal provisions.”[4] As the Governor stated in his veto message of several bills last fall, “[t]his multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.”[5]
"Additionally, now is not the time for California to be adding longer prison sentences to crimes, particularly when it is not clear that these longer sentences will have any greater deterrent effect. Corrections spending remains high; the Governor’s proposed 2016-17 provides $11.2 billion for adult corrections and an additional $1.2 billion for other parts of the state corrections system.[6] Rather than enacting new, longer penalties, the Legislature should strive to simplify the state’s complex Penal Code, unless longer sentences are truly necessary. While protecting minors from victimization is an extremely important objective, we believe that lengthening sentences for the offenses referenced in this bill will not accomplish that goal. For these reasons, we must oppose AB 2199."
REGISTERED SUPPORT / OPPOSITION:
Support
California Police Chiefs Association
Child Abuse Prevention Center
Crime Victims United of California
Opposition
American Civil Liberties Union
Legal Services for Prisoners with Children
Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744
Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment (Sentencing Project 2010) available at http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf ↑
Id. ↑
Id. ↑
Scott Shafer, Prosecutors Cry Foul Over Jerry Brown’s Ballot Measure, KQED, Feb. 12, 2016, available at http://ww2.kqed.org/news/2016/02/12/prosecutors-cry-foul-over-jerry-browns-ballot-measure ↑
Patrick McGreevy, With Strong Message Against Creating New Crimes, Gov. Brown Vetoes Drone Bills, LA Times, Oct. 3, 2015, available at http://www.latimes.com/politics/la-me-pc-gov-brown-vetoes-bills-restricting-hobbyist-drones-at-fires-schools-prisons-20151003-story.html ↑
Scott Graves, Corrections Spending Remains High Under Governor’s Proposed Budget, Despite Big Drop in Correctional Populations (California Budget and Policy Center 2016) available at http://calbudgetcenter.org/wp-content/uploads/Corrections-Spending-Remains-High-Under-the-Governor%E2%80%99s-Proposed-Budget-Despite-Big-Drop-in-Correctional-Populations.pdf ↑
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Bill Co-Author(s):
