AB 29: Prisoners: credits reducing period of confinement: rape of an unconscious person.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-08-04
Existing law proscribes the crime of rape, including the rape of an unconscious person and the rape of the unconscious spouse of the perpetrator. The punishment for the crime of rape is generally imprisonment in the state prison for 3, 6, or 8 years, except as specified.
Existing law provides that it is the intent of the Legislature that persons sentenced to prison for a determinate sentence serve the entire sentence imposed by the court, except for a reduction in the time served in the custody of the Secretary of the Department of Corrections and Rehabilitation, as specified. Existing law generally authorizes a prisoner to earn one day of credit for each day in custody, up to a maximum of 6 months for every 6 months served, except as otherwise provided.
Under existing law, for each 4-day period in which a prisoner is confined in or committed to a county jail, industrial farm, or road camp, up to 2 days may be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned or the prisoner has not satisfactorily complied with the reasonable rules and regulations.
This bill would make a person who has been convicted of raping an unconscious person, or of raping his or her unconscious spouse, ineligible to receive a reduction in the time served or a deduction from his or her period of confinement pursuant to those provisions.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law, the California Community Care Facilities Act, provides for the licensing and regulation of community care facilities by the State Department of Social Services. Existing law requires every community care facility that provides adult residential care or offers an adult day program to, for the purpose of addressing issues that arise when an adult resident or an adult day program participant is missing from the facility, develop and comply with an absentee notification plan for each resident or participant, and requires the plan to include a requirement that an administrator of the facility, or his or her designee, inform the residents or participants authorized representative when that resident or participant is missing from the facility and the circumstances in which an administrator of the facility, or his or her designee, shall notify local law enforcement when a resident or participant is missing from the facility. A violation of the provisions relating to community care facilities is a misdemeanor.
This bill would also require every community care facility that provides residential care for minors to, for the purpose of addressing issues that arise when a minor resident is missing from the facility, develop and comply with an absentee notification plan for each minor resident. The bill would require the plan to include a requirement that an administrator of the facility, or his or her designee, inform the minors parent or guardian when that minor is missing from the facility and include provision for notification of local law enforcement. By expanding the scope of an existing crime, the bill would impose a state-mandated local program.
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.
Existing law, the California Community Care Facilities Act, provides for the licensing and regulation of community care facilities by the State Department of Social Services. Existing law requires every community care facility that provides adult residential care or offers an adult day program to, for the purpose of addressing issues that arise when an adult resident or an adult day program participant is missing from the facility, develop and comply with an absentee notification plan for each resident or participant, and requires the plan to include a requirement that an administrator of the facility, or his or her designee, inform the residents or participants authorized representative when that resident or participant is missing from the facility and the circumstances in which an administrator of the facility, or his or her designee, shall notify local law enforcement when a resident or participant is missing from the facility. A violation of the provisions relating to community care facilities is a misdemeanor.
This bill would also require every community care facility that provides residential care for minors to, for the purpose of addressing issues that arise when a minor resident is missing from the facility, develop and comply with an absentee notification plan for each minor resident. The bill would require the plan to include a requirement that an administrator of the facility, or his or her designee, inform the minors parent or guardian when that minor is missing from the facility and include provision for notification of local law enforcement. By expanding the scope of an existing crime, the bill would impose a state-mandated local program.
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.
Existing law prohibits a person from engaging in unlawful sexual intercourse, as defined, with a minor and prescribes punishments for unlawful sexual intercourse. Existing law makes a person who commits sexual battery, as provided, liable for specified damages. Existing law establishes the defense of consent in civil actions.
This bill would prohibit, in any civil action involving sexual battery by an adult of a minor, as defined, the defense that the minor consented to the sexual battery if the adult is in a position of trust, authority, or supervision, or acts as a caretaker, in relation to the minor. The bill would also provide that the minors consent does not mitigate damages in these circumstances.
Existing law prohibits a person from engaging in unlawful sexual intercourse, as defined, with a minor and prescribes punishments for unlawful sexual intercourse. Existing law makes a person who commits sexual battery, as provided, liable for specified damages. Existing law establishes the defense of consent in civil actions.
This bill would prohibit, in any civil action involving sexual intercourse between battery by an adult and of a minor, as defined, the defense that the minor consented to the sexual intercourse. battery if the adult is in a position of trust, authority, or supervision, or acts as a caretaker, in relation to the minor. The bill would also provide that the minors consent does not mitigate damages in these circumstances.
Existing law prohibits a person from engaging in unlawful sexual intercourse, as defined, with a minor and prescribes punishments for unlawful sexual intercourse. Existing law makes a person who commits sexual battery, as provided, liable for specified damages. Existing law establishes the defense of consent in civil actions.
This bill would prohibit, in any civil action involving sexual intercourse between an adult and a minor, as defined, the defense that the minor consented to the sexual intercourse.
(a)Notwithstanding Section 2933.1 or any other law, any person who is convicted of the rape of an unconscious person, as defined in paragraph (4) of subdivision (a) of Section 261, or paragraph (3) of subdivision (a) of Section 262, shall not accrue any credit, as specified in Section 2933.
(b)The limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law.
(c)Notwithstanding Section 4019 or any other law, a person specified in subdivision (a) may not earn any credit pursuant to Section 4019 against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp or a city jail, industrial farm, or road camp, following his or her arrest.
SEC. 2.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure the safety of the community as soon as possible, it is necessary that this act take effect immediately.
SECTION 1.Section 1507.16 is added to the Health and Safety Code, to read:1507.16.(a)Every community care facility that provides residential care for minors shall, for the purpose of addressing issues that arise when a minor resident is missing from the facility, develop and comply with an absentee notification plan for each minor resident. The plan shall be part of the written needs and services plan if the minor has a plan. The plan shall include, but not be limited to, both of the following:
(1)A requirement that an administrator of the facility, or his or her designee, inform the minors parent or guardian when that minor is missing from the facility.
(2)The circumstances under which an administrator of the facility, or his or her designee, shall notify local law enforcement when a minor is missing from the facility.
(b)In preparing the absentee notification plan, the facility shall consider the status of the minor as a victim of human trafficking. In this situation, the plan may include a requirement to notify law enforcement immediately after the minor is missing.
SEC. 2.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)Every community care facility that provides residential care for minors shall, for the purpose of addressing issues that arise when a minor resident is missing from the facility, develop and comply with an absentee notification plan for each minor resident. The plan shall be part of the written needs and services plan if the minor has a plan. The plan shall include, but not be limited to, both of the following:
(1)A requirement that an administrator of the facility, or his or her designee, inform the minors parent or guardian when that minor is missing from the facility.
(2)The circumstances under which an administrator of the facility, or his or her designee, shall notify local law enforcement when a minor is missing from the facility.
(b)In preparing the absentee notification plan, the facility shall consider the status of the minor as a victim of human trafficking. In this situation, the plan may include a requirement to notify law enforcement immediately after the minor is missing.
SEC. 2.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.
SECTION 1.Section 1708.5.5 is added to the Civil Code, to read:1708.5.5.(a)For the purposes of this section, the following definitions shall apply:
(1)Adult means a person who is at least 18 years of age.
(2)Minor means a person who is under 18 years of age.
(b)Notwithstanding Section 3515, in any civil action involving sexual battery, as defined in Section 1708.5, by an adult of a minor, it shall not be a defense that, nor mitigate damages if, the minor consented to the sexual battery if the adult is in a position of trust, authority, or supervision, or acts as a caretaker, in relation to the minor.
(a)For the purposes of this section, the following definitions shall apply:
(1)Adult means a person who is at least 18 years of age.
(2)Minor means a person who is under 18 years of age.
(b)Notwithstanding Section 3515, in any civil action involving sexual intercourse between battery, as defined in Section 1708.5, by an adult and of a minor, it shall not be a defense that that, nor mitigate damages if, the minor consented to the sexual intercourse. battery if the adult is in a position of trust, authority, or supervision, or acts as a caretaker, in relation to the minor.
(a)For the purposes of this section, the following definitions shall apply:
(1)Adult means a person who is at least 18 years of age.
(2)Minor means a person who is under 18 years of age.
(b)Notwithstanding Section 3515, in any civil action involving sexual intercourse between an adult and a minor, it shall not be a defense that the minor consented to the sexual intercourse.
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Date
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Status
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| Dec 1, 2014 | Read first time. To print. |
| Dec 2, 2014 | From printer. May be heard in committee January 1. |
| Jan 16, 2015 | Referred to Com. on JUD. |
| Mar 10, 2015 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Mar 26, 2015 | From committee: Amend, and do pass as amended. (Ayes 10. Noes 0.) (March 24). |
| Apr 6, 2015 | Read second time and amended. Ordered returned to second reading. |
| Apr 7, 2015 | Read second time. Ordered to third reading. |
| Apr 9, 2015 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Apr 9, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0. Page 853.) |
| Apr 9, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0.) |
| May 7, 2015 | Referred to Com. on JUD. |
| May 23, 2016 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
| May 24, 2016 | Re-referred to Com. on RLS. |
| May 24, 2016 | Withdrawn from committee. |
| Jun 9, 2016 | Re-referred to Com. on HUMAN S. |
| Aug 4, 2016 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on HUMAN S. |
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Date
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Description
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Location
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Votes
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| Apr 9, 2015 | AB 29 CAMPOS Assembly Third Reading | Assembly Floor |
Passed |
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| Mar 24, 2015 | Do pass as amended. | Assembly Standing Committee on Judiciary |
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.
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Organization
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Position
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Date
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| California Communities United Institute | ** Support | Apr 9, 2015 |
AB 29
Page 3
ASSEMBLY THIRD READING
AB 29
(Campos)
As Amended April 6, 2015
Majority vote
Committee |
Votes |
Ayes |
Noes |
Judiciary |
10-0 |
Mark Stone, Wagner, Alejo, Chau, Chiu, Cristina Garcia, Gallagher, Holden, Maienschein, O'Donnell |
|
SUMMARY: Prohibits a consent defense in certain civil actions involving sexual intercourse. Specifically, this bill provides that consent shall not be a defense, nor shall it mitigate damages, in a civil action involving sexual battery, as defined, by an adult of a minor, if the adult was in a position of trust, authority, supervision, or acted as a caretaker in relation to the minor when the battery occurred.
EXISTING LAW:
Creates a duty for every person to abstain from injuring another person or the property of another, or from infringing the rights of another person.
Provides a cause of action for sexual battery, as defined, and allows the plaintiff in such a case to seek general, special and punitive damages and equitable relief including injunctive relief and costs.
Provides that a defendant may raise consent as an affirmative defense to civil liability.
Makes it a crime for a person to have sexual intercourse with a minor under 18 years of age who is not the spouse of the person. A minor is deemed incapable of affording consent to a criminal sexual act. (See also People v. Brown (1973) 35 Cal.App.3d 317, 326.)
FISCAL EFFECT: None
COMMENTS: This bill arises out of a disturbing case last year in which a court found against a 14-year old Los Angeles Unified School District (LAUSD) student who had sued the district for negligence after her 28-year old teacher sexually assaulted her. According to news reports, the teacher was sentenced to three years in prison, but in the later civil case against the school district a jury found for the district, in part, because the 14-year old had allegedly consented to sexual activities with her teacher. While criminal law is clear that minors cannot consent to sexual acts, the civil law is less than clear about when and how a defense on consent may be raised. This bill makes clear that consent may not be raised as a defense in an action involving the sexual battery of a minor by an adult in a position of authority over the minor, nor can consent be used to mitigate damages.
Background on the Differences Between Criminal and Civil Sexual Offenses in California: Under California criminal law, it is unlawful to have sexual intercourse with a minor under the 18 years of age unless the partners are married (previously this provision was known as statutory rape). Accordingly, in a criminal case involving unlawful sexual intercourse with a minor, the minor is deemed incapable of consenting to sexual intercourse – regardless of whether the minor may have afforded genuine or valid consent. However, district attorneys have discretion about what cases to prosecute, and it is unlikely that two 17-year olds or an 18-year old in a relationship with a 17-year old would be prosecuted for sexual intercourse. Additionally, the punishment differs based on the age differential between the parties – the greater the age differential, the bigger the potential punishment.
In 1990, the Legislature enacted SB 2336 (Roberti), Chapter 1531, Statutes of 1990, to create a civil action for injuries resulting from a sexual battery. The statute was intended to provide victims of criminal sexual offenses the ability to pursue a separate civil remedy in civil court. In fact, SB 2336 was intended to “respond[] to the inability of the criminal justice system to adequately address the victims of rape or other sexual crimes.” Accordingly, SB 2336 affords a victim “redress for a sexual injury in the civil process where the standard of proof is lower and you do not need a unanimous jury.”
Under civil law principles, consent has always been an available defense. While civil law creates an obligation for every person to abstain from injuring another person, a defendant in a civil action can raise, as a defense, that the injured person consented to the injury. Thus, when the Legislature created a new civil action for sexual battery, the civil law principles of defenses attached to the new civil action, absent legislative directive to the contrary. Accordingly, a consent defense is possible in a civil action for sexual battery.
Courts in California have not adopted a singular treatment to the issue of consent by minors in civil actions for sexual battery. Some courts have found that the minor’s consent is relevant in considering civil liability. (See Cynthia M. v. Rodney E. (1991) 228 Cal.App.3d 1040, 1044 (case involved two minors)). Other courts have prohibited a defendant from raising a consent defense. (See In re Kennedy (2009) WL 256511 (a bankruptcy court found that consent could not be raised as a defense to a civil action based on the criminal sexual intercourse with a minor statute, but might be possible for an action based on the Civil Code).)
Some States Allow a Consent Defense to a Civil Sexual Assault Case Involving a Minor, While Others Do Not: A review of other state laws did not find any state that has adopted a statute prohibiting a consent defense in a civil action involving sexual battery. Instead, state courts have generally adopted two different approaches. Some state courts, relying on the existing criminal statutory rape framework, prohibit the consent defense. (See, e.g., C.C.H. v. Philadelphia Phillies (2008) 596 Pa. 23, 40 (court determined that evidence of the minor's consent to sexual contact, like in criminal proceedings, was not an available defense in determining civil liability); Wilson v. Tobiassen (1989) 97 Or. App. 527, 534 ("[I]f conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the consent of members of that class to the conduct is not effective to bar a tort action. Accordingly, we hold that a person's incapacity to consent . . . extends to civil cases.") Other courts, relying on the principal that the civil and criminal laws are uniquely different, allow the consent defense. (See, e.g., Tate v. Board of Education of Prince George's County (2004) 155 Md. App. 536, 554 (holding that a minor's consent to sexual battery is relevant for purposes of determining civil liability); LK v. Reed (1994) 631 So.2d 604, 608 (holding that age alone cannot fully invalidate a consent defense, rather it should be considered as part of comparative fault analysis)).
This Bill Eliminates the Defense of Consent When There is a Power Differential Between a Minor and An Adult: The bill specifically prohibits a consent defense in a civil action involving sexual battery between a minor and an adult who was in a position of trust, authority, supervision, or who acted as a caretaker in relation to the minor. The bill also prevents consent from being used to mitigate damages in such a case. Thus, if this bill had been law, LAUSD would not have been able to raise the 14-year-old girl's alleged consent as a defense or to mitigate its damages. It might, however, still be able to argue that the girl's willingness to hide the criminal acts made it harder for LAUSD to learn of the sexual assault and to protect the girl from harm.
Regardless of This Legislation, Minors in California Can Still Consent To Various Treatments and Services: California law explicitly provides that minors may consent to various medical and mental health services, including, among other things, contraceptive use; medical treatment related to a pregnancy or sexually transmitted disease; abortion; sexual assault treatment services; and outpatient mental health services, including drug and alcohol abuse treatment. This bill does not in any way limit or change those existing minor consent provisions.
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0000088
AB 29
Page 4
Date of Hearing: March 24, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 29
(Campos) – As Introduced December 1, 2014
As Proposed to be Amended
SUBJECT: Civil action for sexual BATTERY: Consent defense
KEY ISSUE: IN ORDER TO BETTER PROTECT CHILD VICTIMS OF SEXUAL ASSAULT, SHOULD CONSENT NOT BE AVAILABLE, EITHER AS A DEFENSE OR TO MITIGATE DAMAGES, IN A CIVIL ACTION INVOLVING SEXUAL BATTERY BETWEEN A MINOR AND AN ADULT WHO IS IN A POSITION OF AUTHORITY OVER THE MINOR?
SYNOPSIS
As proposed to be amended, this bill eliminates the defense of consent in an action involving the sexual battery of a minor by an adult in a position of authority in relation to the minor, and prevents consent from being used to mitigate damages. This bill arises out of a disturbing case last year in which a court found against a 14-year-old Los Angeles Unified School District student who sued the district for negligence after her 28-year old teacher sexually assaulted her. According to news reports, the teacher was sentenced to three years in prison, but, in the later civil case against the school district, a jury found for the district, in part, because the 14-year old had allegedly consented to the sexual acts with her teacher. While criminal law is clear that minors cannot consent to sexual acts, the civil law is less than clear about when and how the defense of consent may be raised. This bill makes clear that consent may not be raised as a defense in an action involving the sexual battery of a minor by an adult in a position of authority over the minor, nor can consent be used to mitigate damages. This bill is supported by California Communities United Institute and several individuals. It has no known opposition.
SUMMARY: Prohibits a consent defense in certain civil actions involving sexual intercourse. Specifically, this bill provides that consent shall not be a defense, nor shall it mitigate damages, in a civil action involving sexual battery, as defined, between an adult and a minor, if the adult was in a position of trust, authority, supervision, or acted as a caretaker in relation to the minor when the battery occurred.
EXISTING LAW:
Creates a duty for every person to abstain from injuring another person or the property of another, or from infringing the rights of another person. (Civil Code Section 1708. All further statutory references are to that code unless otherwise stated.)
Provides a cause of action for sexual battery, as defined, and allows the plaintiff in such a case to seek general, special and punitive damages and equitable relief including injunctive relief and costs. (Section 1708.5.)
Provides that a defendant may raise consent as an affirmative defense to civil liability. (Section 3515.)
Makes it a crime for a person to have sexual intercourse with a minor under 18 years of age who is not the spouse of the person. A minor is deemed incapable of affording consent to a criminal sexual act. (Penal Code 261.5; see also People v. Brown (1973) 35 Cal.App.3d 317, 326.)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: This bill arises out of a disturbing case last year in which a court found against a 14-year-old Los Angeles Unified School District student who had sued the district for negligence after her 28-year old teacher sexually assaulted her. According to news reports, the teacher was sentenced to three years in prison, but in the later civil case against the school district a jury found for the district, in part, because the 14-year old had allegedly consented to sexual activities with her teacher. While criminal law is clear that minors cannot consent to sexual acts, the civil law is less than clear about when and how a defense on consent may be raised. This bill makes clear that consent may not be raised as a defense in an action involving the sexual battery of a minor by an adult in a position of authority over the minor, nor can consent be used to mitigate damages.
In support, the author writes that that the bill "closes an unintended consequence and interpretation that leads to the loophole on the Civil Code side; so defendants cannot argue that a child consented to sex to anyone in a position of authority in cases where the victim’s family is seeking compensation for emotional damages."
Background on the Differences Between Criminal and Civil Sexual Offenses in California: Under California criminal law, it is unlawful to have sexual intercourse with a minor under the 18 years of age unless the partners are married (previously this provision was known as statutory rape). Accordingly, in a criminal case involving unlawful sexual intercourse with a minor, the minor is deemed incapable of consenting to sexual intercourse – regardless of whether the minor may have afforded genuine or valid consent. However, district attorneys have discretion about what cases to prosecute, and it is unlikely that two 17-year-olds or an 18 year-old in a relationship with a 17 year-old would be prosecuted for sexual intercourse. Additionally, the punishment differs based on the age differential between the parties -- the greater the age differential, the bigger the potential punishment.
In 1990, the Legislature enacted SB 2336 ((Roberti), Chap. 1531, Stats. 1990) to create a civil action for injuries resulting from a sexual battery. The statute was intended to provide victims of criminal sexual offenses the ability to pursue a separate civil remedy in civil court. In fact, SB 2336 was intended to “respond[] to the inability of the criminal justice system to adequately address the victims of rape or other sexual crimes.” Accordingly, SB 2336 affords a victim “redress for a sexual injury in the civil process where the standard of proof is lower and you do not need a unanimous jury.”
Under civil law principles, consent has always been an available defense. While civil law creates an obligation for every person to abstain from injuring another person, a defendant in a civil action can raise, as a defense, that the injured person consented to the injury. Thus, when the Legislature created a new civil action for sexual battery, the civil law principles of defenses attached to the new civil action, absent legislative directive to the contrary. Accordingly, a consent defense is possible in a civil action for sexual battery.
Courts in California have not adopted a singular treatment to the issue of consent by minors in civil actions for sexual battery. Some courts have found that the minor’s consent is relevant in considering civil liability. (See Cynthia M. v. Rodney E. (1991) 228 Cal.App.3d 1040, 1044 (case involved two minors).) Other courts have prohibited a defendant from raising a consent defense. (See In re Kennedy (2009) WL 256511 (a bankruptcy court found that consent could not be raised as a defense to a civil action based on the criminal sexual intercourse with a minor statute, but might be possible for an action based on the Civil Code).)
Some States Allow a Consent Defense to a Civil Sexual Assault Case Involving a Minor, While Others Do Not: The Committee's review of other state laws did not find any state that has adopted a statute prohibiting a consent defense in a civil action involving sexual battery. Instead, state courts have generally adopted two different approaches. Some state courts, relying on the existing criminal statutory rape framework, prohibit the consent defense. (See, e.g., C.C.H. v. Philadelphia Phillies (2008) 596 Pa. 23, 40 (court determined that evidence of the minor's consent to sexual contact, like in criminal proceedings, was not an available defense in determining civil liability); Wilson v. Tobiassen (1989) 97 Or. App. 527, 534 ("[I]f conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the consent of members of that class to the conduct is not effective to bar a tort action. Accordingly, we hold that a person's incapacity to consent . . . extends to civil cases.") Other courts, relying on the principal that the civil and criminal laws are uniquely different, allow the consent defense. (See, e.g., Tate v. Board of Education of Prince George's County (2004) 155 Md. App. 536, 554 (holding that a minor's consent to sexual battery is relevant for purposes of determining civil liability); LK v. Reed (1994) 631 So.2d 604, 608 (holding that age alone cannot fully invalidate a consent defense, rather it should be considered as part of comparative fault analysis).)
This Bill Eliminates the Defense of Consent When There is a Power Differential Between a Minor and an Adult: AB 29 specifically prohibits a consent defense in a civil action involving sexual battery between a minor and adult who was in a position of trust, authority, supervision, or who acted as a caretaker in relation to the minor. The bill also prevents consent from being used to mitigate damages in such a case. Thus, if this bill had been law, Los Angeles Unified School District would not have been able to raise the 14-year-old girl's alleged consent as a defense or to mitigate its damages. It might, however, still be able to argue that the girl's willingness to hide the criminal acts made it harder for the District to learn of the sexual assault and to protect the girl from harm.
Regardless of This Legislation, Minors in California Can Still Consent to Various Treatments and Services: California law explicitly provides that minors may consent to various medical and mental health services, including, among other things, contraceptive use; medical treatment related to a pregnancy or sexually transmitted disease; abortion; sexual assault treatment services; and outpatient mental health services, including drug and alcohol abuse treatment. This bill does not in any way limit or change those existing minor consent provisions.
Related Pending Legislation: SB 14 (Lara) would, in any sexual battery civil action involving a minor and an adult who is in a position of authority, as defined, prohibit evidence of the minor’s sexual conduct with the defendant adult from being admissible to prove consent by the plaintiff or the absence of injury to the plaintiff. This bill is awaiting hearing in the Senate.
REGISTERED SUPPORT / OPPOSITION:
Support
California Communities United Institute
Six individuals
Opposition
None on file
Analysis Prepared by: Leora Gershenzon and Eric Dang / JUD. / (916) 319-2334
Bill Author
