AB 860: Sex crimes: professional services.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-06-02
Under existing law, a person is guilty of sexual battery, punishable by imprisonment in a county jail or in the state prison for 2, 3, or 4 years, if he or she touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, while the victim is unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose. Existing law makes the crime punishable by 2, 3, or 4 years in the state prison if committed against a minor by a person with a prior conviction for sexual battery.
This bill would expand the crime of sexual battery to apply to a person who performs professional services that entail having access to another persons body, who touches an intimate part of the that persons body while performing those services and the touching was against the persons will and for the purpose of sexual arousal, sexual gratification, or sexual abuse. The bill would make the crime punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000. By expanding the scope of a crime and increasing the punishment for a crime an existing crime, this bill would impose a state-mandated local program.
Existing law defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under any of several circumstances. Existing law also defines the crimes of sodomy, oral copulation, and sexual penetration.
This bill would expand the definitions of each of those crimes to include when any of those acts are performed against a victims will by a professional whose services entail having access to the victims body, if the conduct is performed by the professional while performing those services. By expanding the scope of these crimes, 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.
Under existing law, a person is guilty of sexual battery, punishable by imprisonment in a county jail or in the state prison for 2, 3, or 4 years, if he or she touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, while the victim is unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose.
This bill would expand the crime of sexual battery to apply to a person who performs professional services that entail having access to another persons body, who touches an intimate part of the that persons body while performing those services and the touching was against the persons will and for the purpose of sexual arousal, sexual gratification, or sexual abuse. The bill would make the crime punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000. By expanding the scope of a crime and increasing the punishment for a crime, this bill would impose a state-mandated local program.
Existing law defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under any of several circumstances. Existing law also defines the crimes of sodomy, oral copulation, and sexual penetration.
This bill would expand the definitions of each of those crimes to include when any of those acts are performed against a victims will by a professional whose services entail having access to the victims body, if the conduct is performed by the professional while performing those services. By expanding the scope of crimes, 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 defines hate crime as a criminal act committed, in whole or in part, because of actual or perceived characteristics of the victim, including, among other things, race, religion, disability, and sexual orientation. Under existing law, that definition applies unless an explicit provision of law or the context clearly requires a different meaning. Existing law provides punishments for hate crimes that range from misdemeanors with specified penalties to felonies with additional terms of one to 3 years in state prison, depending on the underlying criminal act and other circumstances. Existing law requires, with conditions, the Attorney General to direct local law enforcement agencies to report specified information relative to hate crimes to the Department of Justice. Existing law requires the department to annually submit a report to the Legislature that analyzes the results of information obtained from local law enforcement pursuant to these provisions. Local law enforcement entities are required by existing law to provide a brochure on hate crimes to victims of these crimes and to the public, and the Department of Fair Employment and Housing is required by existing law to revise those brochures as needed and to provide those brochures to local law enforcement agencies upon request.
This bill would add political affiliation to the list of actual or perceived characteristics necessary to determine whether a criminal act qualifies as a hate crime. By expanding the scope of an existing crime, this bill would impose a state-mandated local program. By expanding the information that local law enforcement agencies are required to report to the Department of Justice, this 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law defines hate crime as a criminal act committed, in whole or in part, because of actual or perceived characteristics of the victim, including, among other things, race, religion, disability, and sexual orientation. Under existing law, that definition applies unless an explicit provision of law or the context clearly requires a different meaning. Existing law provides punishments for hate crimes that range from misdemeanors with specified penalties to felonies with additional terms of one to 3 years in state prison, depending on the underlying criminal act and other circumstances. Existing law requires, with conditions, the Attorney General to direct local law enforcement agencies to report specified information relative to hate crimes to the Department of Justice. Existing law requires the department to annually submit a report to the Legislature that analyzes the results of information obtained from local law enforcement pursuant to these provisions. Local law enforcement entities are required by existing law to provide a brochure on hate crimes to victims of these crimes and to the public, and the Department of Fair Employment and Housing is required by existing law to revise those brochures as needed and to provide those brochures to local law enforcement agencies upon request.
This bill would add political affiliation to the list of actual or perceived characteristics necessary to determine whether a criminal act qualifies as a hate crime. By expanding the scope of an existing crime, this bill would impose a state-mandated local program. By expanding the information that local law enforcement agencies are required to report to the Department of Justice, this 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
(a)Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b)Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(c)(1)Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(2)Any person who performs professional services that entail having access to another persons body, who touches an intimate part of that person while performing those services, and the touching is against the will of the person touched and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.
(3)A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(d)Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(e)Any person who performs professional services that entail having access to another persons body, who touches an intimate part of that person while performing those services, and the touching is against the will of the person touched and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(f)
(e)(1)Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.
(2)As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.
(g)
(f)As used in subdivisions (a), (b), (c), (d), and (e), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.
(h)
(g)As used in this section, the following terms have the following meanings:
(1)Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
(2)Sexual battery does not include the crimes defined in Section 261 or 289.
(3)Seriously disabled means a person with severe physical or sensory disabilities.
(4)Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.
(5)Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.
(6)Minor means a person under 18 years of age.
(i)
(h)This section does not limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.
(j)
(i)In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.
(k)
(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
SEC. 2.Section 261 of the Penal Code is amended to read:261.(a)Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(1)Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(2)Where it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
(3)Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
(4)Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, unconscious of the nature of the act means incapable of resisting because the victim meets any one of the following conditions:
(A)Was unconscious or asleep.
(B)Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraud in fact.
(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(5)Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
(6)Where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, threatening to retaliate means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(7)Where the act is accomplished against the victims will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, public official means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(8)Where the act is accomplished against the victims will by a person while that person is performing professional services that entail having access to the victims body.
(b)As used in this section, duress means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
(c)As used in this section, menace means any threat, declaration, or act which shows an intention to inflict an injury upon another.
SEC. 3.Section 286 of the Penal Code is amended to read:286.(a)Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.
(b)(1)Except as provided in Section 288, any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year.
(2)Except as provided in Section 288, any person over 21 years of age who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony.
(c)(1)Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.
(2)(A)Any person who commits an act of sodomy when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
(B)Any person who commits an act of sodomy with another person who is under 14 years of age when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for 9, 11, or 13 years.
(C)Any person who commits an act of sodomy with another person who is a minor 14 years of age or older when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for 7, 9, or 11 years.
(D)This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(3)Any person who commits an act of sodomy where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
(d)(1)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person or where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for five, seven, or nine years.
(2)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy upon a victim who is under 14 years of age, when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years.
(3)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy upon a victim who is a minor 14 years of age or older, when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 7, 9, or 11 years.
(4)This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(e)Any person who participates in an act of sodomy with any person of any age while confined in any state prison, as defined in Section 4504, or in any local detention facility, as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for not more than one year.
(f)(1)Any person who commits an act of sodomy, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, unconscious of the nature of the act means incapable of resisting because the victim meets one of the following conditions:
(A)Was unconscious or asleep.
(B)Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraud in fact.
(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(2)A person who performs professional services that entail having access to the victims body, who commits an act of sodomy upon the victim while performing those services, and the act is against the victims will, shall be punished by imprisonment in the state prison for three, six, or eight years.
(g)Except as provided in subdivision (h), a person who commits an act of sodomy, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(h)Any person who commits an act of sodomy, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for not more than one year. Notwithstanding the existence of a conservatorship pursuant to the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(i)Any person who commits an act of sodomy, where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for three, six, or eight years.
(j)Any person who commits an act of sodomy, where the victim submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for three, six, or eight years.
(k)(1)Any person who commits an act of sodomy, where the act is accomplished against the victims will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for three, six, or eight years.
(2)As used in this subdivision, public official means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(l)As used in subdivisions (c) and (d), threatening to retaliate means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury, or death.
(m)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, however, shall 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. 4.Section 288a of the Penal Code is amended to read:288a.(a)Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person.
(b)(1)Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.
(2)Except as provided in Section 288, any person over 21 years of age who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony.
(c)(1)Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.
(2)(A)Any person who commits an act of oral copulation when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
(B)Any person who commits an act of oral copulation upon a person who is under 14 years of age, when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years.
(C)Any person who commits an act of oral copulation upon a minor who is 14 years of age or older, when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years.
(D)This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(3)Any person who commits an act of oral copulation where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
(d)(1)Any person who, while voluntarily acting in concert with another person, either personally or by aiding and abetting that other person, commits an act of oral copulation (A) when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, or (B) where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, or (C) where the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison for five, seven, or nine years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime described under paragraph (3), that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(2)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is under 14 years of age, when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years.
(3)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is a minor 14 years of age or older, when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years.
(4)This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(e)Any person who participates in an act of oral copulation while confined in any state prison, as defined in Section 4504 or in any local detention facility as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.
(f)(1)Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, unconscious of the nature of the act means incapable of resisting because the victim meets one of the following conditions:
(A)Was unconscious or asleep.
(B)Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraud in fact.
(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraudulent representation that the oral copulation served a professional purpose when it served no professional purpose.
(2)A person who performs professional services that entail having access to the victims body, who commits an act of oral copulation upon the victim while performing those services, and the act is against the victims will, shall be punished by imprisonment in the state prison for three, six, or eight years.
(g)Except as provided in subdivision (h), any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison, for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(h)Any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(i)Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(j)Any person who commits an act of oral copulation, where the victim submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(k)(1)Any person who commits an act of oral copulation, where the act is accomplished against the victims will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(2)As used in this subdivision, public official means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(l)As used in subdivisions (c) and (d), threatening to retaliate means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(m)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. 5.Section 289 of the Penal Code is amended to read:289.(a)(1)(A)Any person who commits an act of sexual penetration when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
(B)Any person who commits an act of sexual penetration upon a child who is under 14 years of age, when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years.
(C)Any person who commits an act of sexual penetration upon a minor who is 14 years of age or older, when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years.
(D)This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(2)Any person who commits an act of sexual penetration when the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
(b)Except as provided in subdivision (c), any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(c)Any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(d)(1)Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, unconscious of the nature of the act means incapable of resisting because the victim meets one of the following conditions:
(A)Was unconscious or asleep.
(B)Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraud in fact.
(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(2)A person who performs professional services that entail having access to the victims body, who commits an act of sexual penetration upon the victim while performing those services, and the act is against the victims will, shall be punished by imprisonment in the state prison for three, six, or eight years.
(e)Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(f)Any person who commits an act of sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(g)(1)Any person who commits an act of sexual penetration when the act is accomplished against the victims will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(2)As used in this subdivision, public official means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(h)Except as provided in Section 288, any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished by imprisonment in the state prison or in a county jail for a period of not more than one year.
(i)Except as provided in Section 288, any person over 21 years of age who participates in an act of sexual penetration with another person who is under 16 years of age shall be guilty of a felony.
(j)Any person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.
(k)As used in this section:
(1)Sexual penetration is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendants or another persons genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.
(2)Foreign object, substance, instrument, or device shall include any part of the body, except a sexual organ.
(3)Unknown object shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body.
(l)As used in subdivision (a), threatening to retaliate means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury injury, or death.
(m)As used in this section, victim includes any person who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or another person and who otherwise qualifies as a victim under the requirements of this section.
SEC. 6.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)Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b)Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(c)Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(d)Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(e)Any person who performs professional services that entail having access to another persons body, who touches an intimate part of that person while performing those services, and the touching is against the will of the person touched and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(e)
(f)(1)Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.
(2)As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.
(f)
(g)As used in subdivisions (a), (b), (c), and (d), (d), and (e), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.
(g)
(h)As used in this section, the following terms have the following meanings:
(1)Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
(2)Sexual battery does not include the crimes defined in Section 261 or 289.
(3)Seriously disabled means a person with severe physical or sensory disabilities.
(4)Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.
(5)Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.
(6)Minor means a person under 18 years of age.
(h)
(i)This section shall not be construed to does not limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.
(i)
(j)In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.
(j)
(k)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
SEC. 2.Section 261 of the Penal Code is amended to read:261.(a)Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(1)Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(2)Where it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
(3)Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
(4)Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, unconscious of the nature of the act means incapable of resisting because the victim meets any one of the following conditions:
(A)Was unconscious or asleep.
(B)Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraud in fact.
(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(5)Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
(6)Where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, threatening to retaliate means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(7)Where the act is accomplished against the victims will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, public official means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(8)Where the act is accomplished against the victims will by a person while that person is performing professional services that entail having access to the victims body.
(b)As used in this section, duress means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
(c)As used in this section, menace means any threat, declaration, or act which shows an intention to inflict an injury upon another.
SEC. 3.Section 286 of the Penal Code is amended to read:286.(a)Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.
(b)(1)Except as provided in Section 288, any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year.
(2)Except as provided in Section 288, any person over 21 years of age who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony.
(c)(1)Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.
(2)(A)Any person who commits an act of sodomy when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
(B)Any person who commits an act of sodomy with another person who is under 14 years of age when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for 9, 11, or 13 years.
(C)Any person who commits an act of sodomy with another person who is a minor 14 years of age or older when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for 7, 9, or 11 years.
(D)This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(3)Any person who commits an act of sodomy where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
(d)(1)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person or where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for five, seven, or nine years.
(2)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy upon a victim who is under 14 years of age, when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years.
(3)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy upon a victim who is a minor 14 years of age or older, when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 7, 9, or 11 years.
(4)This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(e)Any person who participates in an act of sodomy with any person of any age while confined in any state prison, as defined in Section 4504, or in any local detention facility, as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for not more than one year.
(f)(1)Any person who commits an act of sodomy, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, unconscious of the nature of the act means incapable of resisting because the victim meets one of the following conditions:
(1)
(A)Was unconscious or asleep.
(2)
(B)Was not aware, knowing, perceiving, or cognizant that the act occurred.
(3)
(C)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraud in fact.
(4)
(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(2)A person who performs professional services that entail having access to the victims body, who commits an act of sodomy upon the victim while performing those services, and the act is against the victims will, shall be punished by imprisonment in the state prison for three, six, or eight years.
(g)Except as provided in subdivision (h), a person who commits an act of sodomy, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(h)Any person who commits an act of sodomy, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for not more than one year. Notwithstanding the existence of a conservatorship pursuant to the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(i)Any person who commits an act of sodomy, where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for three, six, or eight years.
(j)Any person who commits an act of sodomy, where the victim submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for three, six, or eight years.
(k)(1)Any person who commits an act of sodomy, where the act is accomplished against the victims will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for three, six, or eight years.
As
(2)As used in this subdivision, public official means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(l)As used in subdivisions (c) and (d), threatening to retaliate means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury, or death.
(m)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, however, shall 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. 4.Section 288a of the Penal Code is amended to read:288a.(a)Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person.
(b)(1)Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.
(2)Except as provided in Section 288, any person over 21 years of age who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony.
(c)(1)Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.
(2)(A)Any person who commits an act of oral copulation when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
(B)Any person who commits an act of oral copulation upon a person who is under 14 years of age, when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years.
(C)Any person who commits an act of oral copulation upon a minor who is 14 years of age or older, when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years.
(D)This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(3)Any person who commits an act of oral copulation where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
(d)(1)Any person who, while voluntarily acting in concert with another person, either personally or by aiding and abetting that other person, commits an act of oral copulation (A) when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, or (B) where the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, or (C) where the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison for five, seven, or nine years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime described under paragraph (3), that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(2)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is under 14 years of age, when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years.
(3)Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is a minor 14 years of age or older, when the act is accomplished against the victims will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years.
(4)This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(e)Any person who participates in an act of oral copulation while confined in any state prison, as defined in Section 4504 or in any local detention facility as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.
(f)(1)Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, unconscious of the nature of the act means incapable of resisting because the victim meets one of the following conditions:
(1)
(A)Was unconscious or asleep.
(2)
(B)Was not aware, knowing, perceiving, or cognizant that the act occurred.
(3)
(C)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraud in fact.
(4)
(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraudulent representation that the oral copulation served a professional purpose when it served no professional purpose.
(2)A person who performs professional services that entail having access to the victims body, who commits an act of oral copulation upon the victim while performing those services, and the act is against the victims will, shall be punished by imprisonment in the state prison for three, six, or eight years.
(g)Except as provided in subdivision (h), any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison, for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(h)Any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(i)Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(j)Any person who commits an act of oral copulation, where the victim submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(k)(1)Any person who commits an act of oral copulation, where the act is accomplished against the victims will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
As
(2)As used in this subdivision, public official means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(l)As used in subdivisions (c) and (d), threatening to retaliate means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(m)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. 5.Section 289 of the Penal Code is amended to read:289.(a)(1)(A)Any person who commits an act of sexual penetration when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
(B)Any person who commits an act of sexual penetration upon a child who is under 14 years of age, when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years.
(C)Any person who commits an act of sexual penetration upon a minor who is 14 years of age or older, when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years.
(D)This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
(2)Any person who commits an act of sexual penetration when the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
(b)Except as provided in subdivision (c), any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(c)Any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(d)(1)Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, unconscious of the nature of the act means incapable of resisting because the victim meets one of the following conditions:
(1)
(A)Was unconscious or asleep.
(2)
(B)Was not aware, knowing, perceiving, or cognizant that the act occurred.
(3)
(C)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraud in fact.
(4)
(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(2)A person who performs professional services that entail having access to the victims body, who commits an act of sexual penetration upon the victim while performing those services, and the act is against the victims will, shall be punished by imprisonment in the state prison for three, six, or eight years.
(e)Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(f)Any person who commits an act of sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(g)(1)Any person who commits an act of sexual penetration when the act is accomplished against the victims will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
As
(2)As used in this subdivision, public official means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(h)Except as provided in Section 288, any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished by imprisonment in the state prison or in a county jail for a period of not more than one year.
(i)Except as provided in Section 288, any person over 21 years of age who participates in an act of sexual penetration with another person who is under 16 years of age shall be guilty of a felony.
(j)Any person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.
(k)As used in this section:
(1)Sexual penetration is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendants or another persons genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.
(2)Foreign object, substance, instrument, or device shall include any part of the body, except a sexual organ.
(3)Unknown object shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body.
(l)As used in subdivision (a), threatening to retaliate means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury or death.
(m)As used in this section, victim includes any person who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or another person and who otherwise qualifies as a victim under the requirements of this section.
SEC. 6.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 422.55 of the Penal Code is amended to read:422.55.For purposes of this title, and for purposes of all other state law unless an explicit provision of law or the context clearly requires a different meaning, the following shall apply:
(a)Hate crime means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:
(1)Disability.
(2)Gender.
(3)Nationality.
(4)Political affiliation.
(5)Race or ethnicity.
(6)Religion.
(7)Sexual orientation.
(8)Association with a person or group with one or more of these actual or perceived characteristics.
(b)Hate crime includes, but is not limited to, a violation of Section 422.6.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, 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.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
For purposes of this title, and for purposes of all other state law unless an explicit provision of law or the context clearly requires a different meaning, the following shall apply:
(a)Hate crime means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:
(1)Disability.
(2)Gender.
(3)Nationality.
(4)Political affiliation.
(4)
(5)Race or ethnicity.
(5)
(6)Religion.
(6)
(7)Sexual orientation.
(7)
(8)Association with a person or group with one or more of these actual or perceived characteristics.
(b)Hate crime includes, but is not limited to, a violation of Section 422.6.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, 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.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
|
Date
|
Status
|
|---|---|
| Apr 16, 2015 | Read second time. Ordered to consent calendar. |
| Aug 27, 2015 | In committee: Held under submission. |
| Jun 29, 2015 | In committee: Referred to APPR. suspense file. |
| Jun 16, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (June 16). Re-referred to Com. on APPR. |
| Jun 2, 2015 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on PUB. S. |
| May 7, 2015 | Referred to Com. on PUB. S. |
| Apr 23, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0.) |
| Apr 23, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0. Page 1109.) |
| Apr 23, 2015 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Feb 26, 2015 | Read first time. To print. |
| Apr 15, 2015 | From committee: Do pass. To Consent Calendar. (Ayes 16. Noes 0.) (April 15). |
| Apr 15, 2015 | From committee: Do pass. Ordered to Consent Calendar. (Ayes 16. Noes 0.) (April 15). |
| Apr 8, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (April 7). Re-referred to Com. on APPR. |
| Mar 26, 2015 | Re-referred to Com. on PUB. S. |
| Mar 25, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Mar 16, 2015 | Referred to Com. on PUB. S. |
| Feb 27, 2015 | From printer. May be heard in committee March 29. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Jun 29, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jun 16, 2015 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
|
| Apr 23, 2015 | AB 860 DALY Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| Apr 15, 2015 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 7, 2015 | Do pass 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
|
|---|---|---|
| California District Attorneys Association | * Support | Jun 16, 2015 |
| California Peace Officers Association | * Indeterminate | Apr 7, 2015 |
| California Police Chiefs Association | * Support | Jun 29, 2015 |
| Legal Services for Prisoners with Children | * Against | Apr 7, 2015 |
| Orange County District Attorneys Office | * Support | Jun 16, 2015 |
| San Diego County District Attorney's Office | * Support | Apr 7, 2015 |
AB 860 (Daly) Page 3 of 3
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 860 (Daly) - Sex crimes: professional services
|
|
Version: June 2, 2015 |
Policy Vote: PUB. S. 7 - 0 |
Urgency: No |
Mandate: Yes |
Hearing Date: June 29, 2015 |
Consultant: Jolie Onodera |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 860 would do the following:
Increase the penalty to an alternate felony-misdemeanor for the crime of sexual battery involving a person who performs professional services that entail having access to another person’s body, who touches an intimate part of that person while performing those services, and the touching is against the will of the person touched and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.
Expand the definitions of the crimes of rape, sodomy, oral copulation, and sexual penetration to include when any of those acts are performed against a victim’s will by a person while that person is performing professional services that entail having access to the victim’s body.
Fiscal Impact:
Future increase in state costs, potentially in excess of $200,000 (General Fund) per year for new commitments to state prison for felony convictions for sexual battery. The impact to state prison costs related to the changes to the definitions of other sex crimes is estimated to be minor.
Potential increase in non-reimbursable local incarceration costs (General Fund*) for additional cases charged under the wobbler vs. misdemeanor offense of sexual battery, resulting in extended jail terms.
*Proposition 30 (2012) provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for public safety services, as defined, are not subject to mandate reimbursement, however, apply to local agencies only to the extent the State provides annual funding for the cost increase. Legislation creating a new crime or changing the definition of an existing crime is exempt from this funding provision, however, legislation changing the penalty for a crime is not similarly exempted. To the extent it is determined that the provisions of this bill change the penalty for the crime of sexual battery under specified conditions, any net increase in costs to local agencies attributable to provisions of this legislation could potentially require annual funding from the State.
Background:
Existing law provides that a person is guilty of sexual battery if he or she touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, while the victim is unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose. Additionally, existing law provides that a person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. Under existing law, the aforementioned crimes are punishable as alternate felony-misdemeanors, punishable by imprisonment in a county jail for up to one year and by a fine of up to $2,000, or by imprisonment in state prison for two, three, or four years, and a fine of up to $10,000. (Penal Code (PC) § 243.4(c).)
In contrast, under existing law, any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding $2,000, or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. (PC § 243.4(e).)
As explained in the Senate Committee on Public Safety analysis of this bill:
In circumstances other than the provision of professional services, sexual battery includes the elements of a touching of an intimate body part of the victim that is against the will of the victim. The element that the touching be against the will of the victim is equivalent to the touching being without consent of the victim. The crime is an alternate felony-misdemeanor if the victim of the unwanted touching was “unlawfully restrained.” If the victim was not unlawfully restrained, the crime is a misdemeanor…This bill essentially treats the sexual exploiting of a patient or client’s vulnerability during an examination, treatment or massage as being equivalent to non-consensual sexual touching of a person who is unlawfully restrained.
Proposed Law:
This bill:
Expands the crime of sexual battery to apply to a person who performs professional services that entail having access to another person’s body, who touches an intimate part of that person while performing those services, and the touching is against the will of the person touched and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.
Expands the definitions of the crimes of rape, sodomy, oral copulation, and sexual penetration to include when any of those acts are performed against a victim’s will by a person while that person is performing professional services that entail having access to the victim’s body.
Related Legislation:
None applicable.
Staff Comments:
By expanding the circumstances under which a defendant would be in violation of the alternate felony-misdemeanor offense of sexual battery, this bill will potentially result in new commitments to state prison and an increase in annual General Fund costs. The magnitude of costs would be dependent on various factors including the charging decisions of prosecutors, the details of each case, and the prison term imposed on each defendant. While the number of defendants to be impacted is unknown, to the extent even two cases per year are impacted statewide, cumulative costs for new commitments to state prison could exceed $200,000 annually. This estimate is based on an in-state contract bed cost of $34,000 per year.
While data from the CDCR indicate that only 40 individuals per year have been committed to state prison on average over the past three years (2012-2014) for felony sexual battery, arrest and conviction data from the Department of Justice (DOJ) indicate nearly 1,000 arrests and 175 convictions per year for misdemeanor sexual battery (PC § 243.4(e)). While it is unknown how many additional individuals will be charged with a felony as provided under the provisions of this bill instead of the existing misdemeanor sexual battery offense, future costs could potentially be significant.
Similarly, local jails could potentially incur increases in costs for lengthier jail terms under the provisions of this measure. Commitments to county jail that otherwise would have been subject to a misdemeanor jail term of up to six months could instead be charged under the wobbler offense which is punishable by up to one year in jail.
Under 2011 Realignment Legislation, the state provided funding to the counties to place offenders in county jail for specified felonies that previously would have required a state prison sentence. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, however, legislation changing the penalty for a crime is not similarly exempted. To the extent it is determined that the provisions of this bill change the penalty for the specified crime of sexual battery under specified circumstances from a misdemeanor to a wobbler, any net increase in costs to local jails could potentially require annual funding from the State (General Fund).
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 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 early onto parole.
-- END --
AB 860 (Daly ) Page 12 of 12
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 860 Hearing Date: June 16, 2015
Author: |
Daly |
||
Version: |
June 2, 2015 |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
JM |
||
Subject: Sex Crimes: Professional Services
HISTORY
Source: Orange County District Attorney
Prior Legislation: AB 59 (Evans) -- Ch. 282. Stats. 2013
AB 65 (Achadjian) -- Ch. 259, Stats. 2013
SB 765 (Achadjian) – Held in Senate Public Safety, 2011
AB 2049 (Saldana) -- Amended to become a new bill, 2008
SB 1421 (Romero) – Ch. 302, Stats. 2002
Support: California District Attorneys Association; California Police Chiefs; Los Angeles County District Attorney; San Diego County District Attorney
Opposition: Legal Services for Prisoners with Children
Assembly Floor Vote: 78 - 0
PURPOSE
The purposes of this bill are 1) to provide that where a person is performing a professional service in which the person has access to the body of client or customer and the person touches an intimate part of the body of the client or customer, and the touching is against the will of the client or customer, the person is guilty of the alternate felony-misdemeanor of sexual battery; and 2) to provide that where a person who is performing a professional service under these circumstances engages in sexual intercourse, sodomy oral copulation, or sexual penetration against the will of the victim, the person is guilty of a felony.
Existing law:
Provides that rape or another specified sex crime is a sexual act accomplished under any of the following circumstances and is generally punished by a prison term three, six or eight years, unless a higher penalty is specified:
Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another:
Rape - Pen. Code § 261(a)(1) to (6)
Sodomy § 286, subd. (c)(2)(A)-(C) - sodomy the penalty is three, six or eight unless the victim is a minor. If the victim is under 14, the prison term is 9, 11 or 13 year. If the victim is 14 or older, the penalty is 7, 9 or 11 years in prison
Oral copulation - Penal Code § 288a (c)(2)(1)-(3). Prison term is 3, 6, or 8 years unless victim is a minor. If victim is under 14, the penalty is 8, 10 or 12 years. If victim is 14 or older, the penalty is 6, 8 or 10 years.
Sexual penetration - 289 (a) Three, six or eight year prison term, unless the victim is a minor. Where the victim is under the age of 14, the prison term is 8, 10 or 12 eyars. Where the victim is a minor who is at least 14 years of age, the prison term is 6, 8 or 10 years.
Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship, as specified, the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. (Pen. Code §§ 261, subd. (a)(1); 286, subd. (g); 288a, subd. (h); 289, subd. (b).)
Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. Pen. Code §§ 261, subd. (a)(3); 286, subd. (i); 288a, subd. (i); 289, subd. (e).
Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" is defined as a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. Pen. Code §§ 261, subd. (a)(1); 286, subd. (g); 288a, subd. (h); 289, subd. (b).)
Provides that where an act of sexual intercourse, sodomy, oral copulation or sexual penetration is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, the crime is a felony, punishable by a prison termof three, six or eight years. As used in this paragraph, "public official" is defined as a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (Pen. Code §§ 261, subd. (a)(7); 286, subd. (k), 288a, subd. (k), 289, subd. (g.))
States that a sex crime is committed where a person is at the time unconscious of the nature of the sex act, and this is known to the accused. “Unconscious of the nature of the act" is defined as incapable of resisting because the circumstances of the incident meet one of the following conditions:
The victim was unconscious or asleep.
The victim was not aware, knowing, perceiving, or cognizant that the act occurred.
The victim was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
The victim was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose, when it served no professional purpose.
The victim believed that the person committing the act was someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (Rape - Pen. Code §§ 261(a)(4)(A) to (D); Sodomy - 286, subd. (f); Oral Copulation - 288a, subd. (f); Sexual penetration - 289, subd. (d).)
Provides that any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and the touching is against the will of the person touched, and the touching is for the purpose of sexual arousal, gratification orl abuse, is guilty of sexual battery. This offense is punishable by imprisonment in a county jail of up to one year, a fine not exceeding $2,000, or both, or by imprisonment in the state prison for two, three, or four years; and by a fine not exceeding $10,000. This form of sexual battery includes an element that the perpetrator touch the victim’s bare skin. (Penal Code Section 243.4, subds. (a) and (f).)
Provides that where any person touches an intimate part of another person for the purpose of sexual arousal, gratification or abuse, and the touching is against the will of the person touched, the person is guilty of sexual battery. This offense is a misdemeanor, punishable by imprisonment in a county jail of up to six months, a fine not exceeding $2,000, or both. The maximum fine is $3,000 if the defendant employs the victim. For this form of sexual battery, tghe touching need not be on bare skin. (Penal Code Section 243.4, subd. (e)(1)-(2))
Provides that sexual battery includes the touching of an intimate body part where the perpetrator fraudulently claimed that it served a professional purpose. The crime is an alternate felony-misdemeanor, punishable by imprisonment in county jail for up to one year, a fine of up to $1,000, or both, or by imprisonment in state prison for two, three or four year and a fine of up to $10,000. (Pen. Code § 243.4, subd. (c).
This bill expands the definition of sexual battery to include the following circumstances: A professional who performs services that entail having access to another person's body touches an intimate part of a client's or patient's body for the purpose of sexual arousal and against the will of the client or patient. This form of sexual battery is an alternate felony-misdemeanor, punishable by imprisonment for up to one year, a fine of up to $1,000, or both, or by imprisonment in state prison for two, three or four years and a fine of up to $10,000.
This bill expands the definition of rape, illegal sodomy, oral copulation and sexual penetration to include the following circumstances: A professional who performs services that entail having access to another person's body engages in sexual intercourse, sodomy, oral copulation or sexual penetration for the purpose of sexual arousal and “against the will” of the client or patient. Rape, sodomy, oral copulation or sexual penetration in this form is a felony, punishable by a prison term of three, six or eight years and a fine of up to $10,000.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight 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 February of this 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). 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:
Providers of professional treatment services, who sexually assault their clients during the course of a treatment session, are typically charged with felony sex crimes. However, under certain circumstances, California law only allows particular offenders to be charged with misdemeanor sexual battery. As a consequence, some individuals who have clearly crossed the line and committed sexual assaults can only be charged with less serious crimes.
AB 860 adds provisions that will correct this oversight and classify the actions of these professional service providers as felonies. Sexual Assault is a serious crime, and perpetrators who use positions of trust to assault their clients should be prosecuted to the fullest extent of the law.
2. Contrast Between Sexual Battery Where the Victim is Unlawfully Restrained and Sexual Battery by Fraud
In circumstances other than the provision of professional services, sexual battery includes the elements of a touching of an intimate body part of the victim that is against the will of the victim. The element that the touching be against the will of the victim is equivalent to the touching being without consent of the victim. The crime is an alternate felony-misdemeanor if the victim of the unwanted touching was “unlawfully restrained.” If the victim was not unlawfully restrained, the crime is a misdemeanor.
It appears that in cases where a person providing a professional service touches an intimate part of a client’s or patient’s body without consent, prosecutors have not generally charged the services provider with a sexual battery of a person who is unlawfully restrained. Despite the fact that an unclothed person receiving a massage or medical examination is in a sense under the control of the service provider, prosecutors apparently believe that they could not prove that the victim was unlawfully restrained. Prosecutors charge these defendants with a form of sexual battery by fraud, under the theory that the service provider used some sort of deception or ruse to touch the victim for sexual gratification, not a legitimate professional purpose.
Unlawful restraint is not limited to the application of physical force. Psychological pressure or an assertion of authority can suffice. A decision of the Court of Appeal has described unlawful restraint as follows:
A person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person's liberty, and such restriction is against the person's will; a restraint is not unlawful if it is accomplished by lawful authority and for a lawful purpose, as long as the restraint continues to be for a lawful purpose. The "unlawful restraint required for violation of section 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act." (People v. Arnold (1992) 6 Cal.App.4th 19, 28, citing and quoting People v. Pahl (1991) 226 Cal.App.3d 1651, 1661.)
This bill essentially treats the sexual exploiting of a patient or client’s vulnerability during an examination, treatment or massage as being equivalent to non-consensual sexual touching of a person who is unlawfully restrained. The bill presents the issue of whether these two situations be punished in an equivalent manner:
Sexual Battery in Professional Services, other than by Fraud
A person (a) is receiving a professional service;
The professional service provider has access to the person’s body, such as during a medical examination or massage;
The service provider touches an intimate part of the person’s body; and
The touching was against the will of the person (without consent).
Sexual Battery of an Unlawfully Restrained Person
A person is being unlawfully restrained - stuck in against a wall in a crowded subway car, ordered to remain in her car by a person with apparent authority, severely intoxicated;
The perpetrator touches an intimate part of the person’s body;
The touching was against the will of the person/victim.
It can be argued that where a person is in the care of a professional service provider, and the service provider has relatively easy and open access to intimate parts of the person’s body, the person is in a vulnerable position equivalent to being unlawfully restrained. A person receiving a massage or a gynecological examination would have to get up from table, put on clothes and leave if they want to get away from the service provider. However, not all forms of professional services place clients or patients in equivalent vulnerable positions. A person who is unclothed in a closed massage room is in a more vulnerable position than a person in a dentist chair in a relatively open plan dental office with numerous other patients in and dentists in close proximity.
SHOULD THE NON-CONSENSUAL TOUCHING OF A PATIENT OR CLIENT DURING THE PROVIDING OF PROFESSIONAL SERVICES BE TREATED AS EQUIVALENT TO NON-CONSENSUAL TOUCHING OF AN UNLAWFULLY RESTRAINED PERSON?
3. Existing Law on Fraudulently Obtaining Consent for Sexual Conduct
Appellate courts have distinguished between "fraud in fact" and "fraud in inducement." Fraud in fact occurs where the defendant essentially lies about the actual character of the sex act. For example, in a 1987 case a gynecologist told two patients that he was examining them manually or with a medical device for diagnostic purposes. In each case, the patient was on the examining table, feet in stirrups and covered by a drape. She could not see what the doctor was doing. The doctor, after apparently performing a partial exam using a speculum, placed his penis in the patient's vagina. Only after the penetration had occurred did each victim understand what had happened. The appellate court found that the defendant had used fraud in fact to accomplish the intercourse and that each victim had been unconscious of the nature of the act. (People v. Ogunmola (1987) 193 Cal.App 3rd 274, 279.)
In People v. Minkowski (1962) 202 Cal.App.2d 832 the defendant was a doctor who treated the two young victims (16 and 19 years old) for menstrual cramps. He directed each patient to turn away from him and bend over at the waist. He then placed a cold metal instrument in her vagina, but then inserted something that was not cold. In fact, the doctor had inserted his penis into their vaginas. This occurred on numerous occasions. The defendant was convicted of numerous counts of rape. The convictions were proper because each patient could not have consented to the Minkowski's insertion of his penis into her vagina because she was not conscious of the nature of the defendant's acts.
In many, if not most, circumstances, fraud in the inducement is not a crime. Essentially, fraud in the inducement occurs where one person lies to the other about why he or she should engage in a sex act. Nevertheless, the person who is persuaded to engage in the act knows that he or she is engaging in a sex act. For example, in one published case, a woman had intercourse with a man because she lost in a game of chance. The game was fixed, but no crime was committed because she was fully aware of the character of the sex acts and thus her consent was legally valid. (People v. Harris (1979) 93 Cal. App. 3rd 103, 114.)
There are a number of statutory exceptions to the rule that fraud in the inducement cannot support a criminal conviction. One exception is the crime defined in Penal Code section 266c, where the fraud in the inducement caused the victim to agree to engage in a sex act with the defendant because the defendant falsely induced her to be afraid. Penal Code section 266c was enacted in response to the reversal of the defendant's conviction in Boro v. Superior Court (1985) 163 Cal.App.3d 1224, 1226. In Boro, the defendant -- a purported doctor -- convinced a patient that she must engage in sexual intercourse with a "donor" who had been previously injected with a special serum. Contrary to the defendant's assertion, the patient's life was not in danger and the so-called donor was the defendant. Boro's conviction for rape was overturned on appeal because the woman's consent was obtained through fraudulent inducement, which did not nullify (“vitiate”) consent. In response to the decision in Boro, the Legislature amended the law, as described above, effective in 1986.
In 2002, SB 1421 (Romero) 1 amended various sex crime statutes to cover cases where a physician or other professional obtained consent for intercourse or another sexual act through persuading the victim that the intercourse or other act served a professional purpose, although it did no such thing. (See, Pen. Code §§ 261, subd. (a)(4)(D); 289 (d)(4), and other sex crime statutes.) These new crimes did not require proof that the defendant obtained consent by fear. In the incident that prompted introduction of SB 1421 of 2002, an X-ray technician digitally penetrated patients during the course of obtaining X-ray images. The technician informed the women that the digital penetrations were necessary for the procedure, although the facts of the case are not discussed in any analysis of the bill.
In 2013, new forms of sex crimes by fraud were enacted by SB 59 (Evans) and AB 65 (Achadjian), Chapters 282 and 259 respectively. The two bills covered circumstances where the victim consented to engage in sexual acts with the defendant because the victim incorrectly believed the other person to be someone known to him or her. In these cases, the prosecution must prove that the defendant induced the victim's mistaken belief or "by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief."
In one case addressed by the 2013 legislation, a woman was asleep in her apartment bedroom when a man she believed was her live-in boyfriend began having sex with her. In fact, the defendant had entered the apartment through a window and the victim's boyfriend was in the living room. In another case - Morales - a woman had been to a party with some others. She went to bed when she got home. Her boyfriend left, but her brother's friend came into her room and engaged in intercourse with her until she realized that the defendant was not her boyfriend. Prior to enactment of SB 59 and AB 65, the crime of fraudulently obtained consent for a sex act through impersonation only applied to cases where the victim was induced to believe the perpetrator was her spouse.
4. People v. Stuedemann (2007) 156 Cal.App.4th 1 and People v. Robinson (2014) 227 Cal. App.4th 387
This bill appears, in large part, to address the reversal of convictions and attendant issues in People v. Stuedemann (2007) 156 Cal.App. 4th 1, and People v. Robinson2 (2014) 227 Cal. App.4th 387.
Stuedemann
In Stuedemann, the defendant, a massage therapist, was charged with sexual penetration of an unconscious person and oral copulation of an unconscious person. In particular, the prosecutor alleged that the victim was "unconscious of the nature of the act" due to the perpetrator's fraud in fact. (Pen. Code §§288a, subd. (f)(3) and 289, subd. (d)(3).)
Defendant Stuedemann met victim Griselda while he was giving sample massages at a swap meet. Griselda made an appointment for a full massage at defendant's business. The scheduled one-hour massage had gone on for two hours before the conduct forming the basis for the charges occurred. The court in Stuedemann described the facts:
The massage began with Stuedemann instructing Griselda to lie face down on a table. He covered her with a sheet and began massaging her back. At one point, Stuedemann moved her panties to one side to massage her buttocks. When he was finished massaging her back, he instructed Griselda to lie on her back and, when she was face up, he put a mask over her eyes [ostensibly as part of aromatherapy]. While Griselda was on her back, Stuedemann initially kept the sheet in place to cover her while he massaged her. However, as the massage progressed, Stuedemann lowered the sheet and, without saying anything, massaged her breasts and nipples. She said nothing to him about it. He then lowered the sheet further and began massaging her abdomen. He pulled down her panties and twice inserted his finger into her vagina. He then orally copulated her, at which point Griselda sat up quickly and told him to stop. Stuedemann stopped, said "I'm sorry," and left the room. He did not tell her that he was going to digitally penetrate or orally copulate her. (Id., at pp. 4-5.)
The court rejected the fraud in fact theory and stated: "There is no evidence Griselda consented or cooperated (was 'incapable of resisting') because of her ignorance of the true nature of the acts performed by Stuedemann. To the contrary, she did not permit Stuedemann to orally copulate or digitally penetrate her believing the copulation or penetration was something other than a sexual copulation or penetration; instead, she immediately recognized the acts for what they were and expressed her non-consent." (Id., at p. 8.)
The court distinguished the Ogunmola case in which a doctor raped patients who initially believed he was performing a clinical examination, but actually inserted his penis into each victim’s vagina:
Unlike Ogunmola
… there was no evidence Griselda consented to anything resembling
the [sexual] acts undertaken by Stuedemann. Although Griselda
consented to a massage, the result of which made her vulnerable to
Stuedemann's [sexual] acts… the evidence showed she was fully aware
of the nature of Stuedemann's [sexual] acts … and was capable of
(and did) express her non-consent and resistance to the conduct. …
Stuedemann's 'conduct, reprehensible though it was, did not
[constitute criminal oral copulation and sexual penetration] because
Griselda was not unconscious due to Stuedemann's fraud in fact, the
only theory asserted by the prosecution. If there is a statutory
oversight in this area of the penal law, the Legislature may address
it [citation]. (Id.,
at p. 14.)
Robinson
In Robinson, Lee Hoang Robinson induced two girls - sisters Dianna and Christine - to come to his beauty salon after business hours for free facials. Two other charged incidents involved adult women. In one, Robinson promised to pay 37-year-old Trang T. $40 if she modeled for him while he demonstrated a facial for students. In the other, heoffered a free facial to Odette M.
After Dianna and Christine came to Robinson’s spa, they took off their tops and bras, but left their pants on, and put on robes. Robinson applied a heavy cream on their faces as the girls lay on massage tables in the same room. Robinson then told them he would give them a “European massage,” but did not explain what that was. In succession, he massaged each girl’s arms and breasts and then unbuttoned her pants. Dianna became frightened, but said nothing to Robinson as he lowered her pants several inches, slipped his hand beneath her underwear and rubbed her vaginal area. Christine put her hands on the button of her pants when Robinson tried to unbutton them. She relented when Robinson told her this was simply part of a European massage and that he did “this all the time for other girls.” He lowered Christine’s pants to mid-thigh, folded back her underwear and rubbed her thighs near her vagina. When Robinson attempted to place his finger in her vagina, Christine pushed his hand away and pulled up her underwear. Robinson then massaged Christine’s arms, stomach and breasts. (People v. Robinson, supra, 227 Cal.App.4th 387, 390-392.)
Soon after Trang came to Robinson’s salon, they were left alone. He told her that the students had not yet arrived, but he was going to start the facial. Robinson put some lotion on Trang’s face, but quickly began massaging her arms, legs and feet with oil. Trang objected to the massage, but Robinson opened her robe and placed his hands on her breasts. When Trang objected again, Robinson told he to relax because it was standard procedure. He then began rubbing her breasts and tried to put his hands beneath her underwear. When she objected, Robinson turned her over on her stomach and massaged her back and buttocks. She said nothing because she did not want him to become angry. Robinson then reached between her legs, touched her clitoris and digitally penetrated her vagina. When Trang told Robinson that she had to leave, Robinson began wiping her with a towel, and then digitally penetrated her with his hand and finger. She then grabbed her clothes and ran to the police. (Id., at pp. 392-393.)
An incident involving 24-year-old Odette was very similar to the incident involving Trang T. After putting some cream on Odette’s face, Robinson rubbed or squeezed her stomach, vaginal area and breasts. She protested each action. Robinson then wiped a towel over her body as she told him to stop. He left the room after telling her to leave the cream on for 10 minutes. She did so because she was afraid. When she left the salon a few minutes later she angrily confronted Robinson in the parking lot. She reported the incident to the police a week thereafter. (Id., at pp. 393-394.)
The court in Robinson upheld the convictions as to Dianna and Christine for sexual battery by fraud, as based on an inducement that the sexual touching was for a professional purpose. The court found that the girls had relied on Robinson’s assurances that his acts were a legitimate and normal part of a “European massage.” The fact that neither girl objected until Robinson put his finger in Christine’s vagina showed that they believed Robinson’s conduct was legitimate. Thus, the girls were unaware that the touching did not serve a professional purpose.
The court reversed the sexual battery and digital penetration convictions as to Odette and Trang, however. The objections voiced by Trang and Odette clearly showed that they did not believe that Robinson’s rubbing of their breast and vaginal areas, and the digital penetrations of Trang, served any legitimate professional purpose.
The reversal of the sexual battery by fraud as to victims Trang and Odette does not mean that Robinson could not have been convicted of sexual battery and sexual penetration by force had he been charged with those offenses. He was only charged with crimes committed by fraud. Once the trial began, jeopardy attached and he could not be charged with other crimes in these incidents.
However, had Robinson been charged with and convicted of sex crimes committed by force, those convictions would almost certainly have been upheld on appeal. Both victims told Robinson to stop his sexual touching. Yet, he persisted. That certainly appears to establish that the acts were accomplished without the consent - and against the will - of the victims. There was clearly sufficient evidence to support convictions, as convictions will be upheld against a claim of insufficient evidence only if no reasonable jury could have convicted the defendant upon the evidence at trial.
5. Prosecutions in Cases Similar to Stuedemann and Robinson if This Bill is Enacted
It is likely that many cases prosecuted under this bill would turn on the interpretation by the jury of ambiguous conduct by the parties during a professional service appointment, or an ostensible professional appointment. In such cases, the defendant would have touched the alleged victim's body and then went on to engage in some sort of sexual touching or conduct. The essential issue will be whether or not the defendant reasonably believed that the alleged victim was receptive to his conduct and thus consented. (People v. Mayberry (1975) 15 Cal.3d 143, 153-158; CALCRIM. 1000.) In a case where the defendant sought consent and the victim refused, a sex act would be prosecuted as forced rape or another sex crime. As a practical matter, many cases will likely turn on whether jurors would find that a person in the place of the alleged victim would not expect the service provider to act as did the defendant. If so, jurors will likely convict. If the jurors find that the defendants acts would have been expected, jurors are likely to acquit.
In Stuedemann, the victim did not express an objection when the defendant twice digitally penetrated her vagina. Rather, she did not object until the defendant orally copulated her. Had she objected upon the first vaginal penetration, the second penetration and the oral copulation would very likely have produced convictions for forced sexual penetration and forced oral copulation. The same can be said about the Robinson incidents involving Dianna and Christine. A different jury could well have found that the touching was not against their wills - essentially finding that they consented through their conduct.
6. Issue of Whether or not the Rape Provisions in this Bill Would Apply to Non-Professionals Who Offer a Professional Service or Purport to Offer a Professional Service
The sex crime provisions of this bill are defined in terms of the defendant performing professional services that entail having access to another person's body. The bill does not define a professional service. That raises the following question: Must the service be a legitimate or recognized professional service, or is a purported, but fraudulent, professional service covered by the bill? This issue could determine the outcome in many cases. For example, it appears that the defendant in Stuedemann truly was a massage therapist. He sexually touched and orally copulated the victim during what was otherwise a legitimate or standard massage. In contrast, it appears that the defendant in Robinson employed a ruse in claiming to perform a European massage, when he was actually just touching and digitally penetrating the victims for sexual gratification.
The court in Robinson held that the defendant need not be qualified or certified to perform the service he or she offer, just that the defendant claimed his actions served a “professional purpose,” as stated in the governing statute. 3 The Robinson, court would affirm a conviction for sexual acts committed during counterfeit services, if the victim believed the defendant’s claims. The court found that “even though he was not a medical professional, the jury could reasonably conclude he had a purported ‘professional purpose’ for his actions.” The court further explained: [T]he precise nature of the perpetrator’s employment is less important… that the appearance of authority and of a legitimate purpose that allows the perpetrator to [sexually exploit]the victim without the victim’s understanding of the true nature of the act. (People v. Robinson, supra, 227 Cal.App.4th at pp. 394-395; quoting and citing People v. Bautista (2008) 163 CalApp.4th 762, citations and internal quote marks omitted.)
WITHIN THE MEANING OF THIS BILL, WHAT IS A PROFESSIONAL SERVICE?
IF THE DEFENDANT CLAIMS TO OFFER A PROFESSIONAL SERVICE, BUT THE SERVICE IS NOT LEGITIMATE OR RECOGNIZED, COULD THE DEFENDANT BE CONVICTED UNDER THIS BILL?
SHOULD THE BILL BE AMENDED TO SPECIFY THAT THE PROFESSIONAL SERVICE NEED NOT BE LEGITIMATE OR RECOGNIZED, BUT THAT THE VICTIM MUST REASONABLY RELY ON THE DEFENDANT’S ASSERTION THAT HE OR SHE IS PERFORMING A TRUE PROFESSIONAL SERVICE?
-- END –
1 SB 1421 (Romero) Ch. 392, Stats. 2002
2 Robinson has been accepted for review by the California Supreme Court on an issue that is only marginally relevant to this bill. Robinson cannot be cited as authority for the opinions and findings expressed in the case, although those opinions and findings may be correct. Robinson is described in this analysis to illustrate the issues presented by the bill, not as a statement or reflection of existing law.
3 Robinson claimed on appeal that the Dianna and Christine could not have reasonably believed that Robinson was actually performing a true professional service.
AB 860
Page 2
Date of Hearing: April 15, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB 860
(Daly) – As Amended March 25, 2015
Policy Committee: |
Public Safety |
Vote: |
7 - 0 |
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Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill.
Expands the crime of sexual battery rape, sodomy, forced oral copulation, sodomy, and sexual penetration to include non-consensual sexual contact by a person who performs professional services that entail having access to another person’s body, who touches an intimate part of a person’s body while performing those services, and the touching was against the person’s will, and for the purpose of sexual arousal, sexual gratification, or sexual abuse.
Punishes this crime by imprisonment in state prison for two, three, or four years, and by a fine not exceeding $10,000.
FISCAL EFFECT:
Minor, if any, new costs for state incarceration as this bill does not increase penalties or change the burden of proof. The specified offense must still be committed against the will of the victim.
COMMENTS:
Purpose. According to the author, "Sexual Assault is a serious crime, and perpetrators who use positions of trust to assault their clients should be prosecuted to the fullest extent of the law. AB 860 will ensure that these violators are charged with felony sex crimes."
Argument in Support: According to The Orange County District Attorney, "The Orange County District Attorney’s Office is pleased to support AB 860, which would close a loophole in the law to address sexual predators who provide professional services (such as doctors, chiropractors, massage therapists and others in positions of trust/power) and prey on vulnerable victims.
"Currently, there is no provision in the law to address a sexual assault committed without a victims’ consent in the context of professional services, other than misdemeanor sexual battery. AB 860 addresses this gap in the law by providing that a sexual assault committed against these vulnerable victims will be punished similarly to offenses where their consent was obtained fraudulently."
Prior Legislation: AB 2049 (Saldana), of the 2007-2008 Legislative Session, was identical to this bill. AB 2049 was never heard in Senate Public Safety.
Analysis Prepared by: Pedro R. Reyes / APPR. / (916) 319-2081
AB 860
Page 7
Date of Hearing: April 7, 2015
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB 860
(Daly) – As Amended March 25, 2015
SUMMARY:
Expands the definitions of sexual battery, rape, sodomy, forced oral copulation, sodomy, and sexual penetration to include non-consensual sexual contact by a person who has been engaged for a professional purpose. Specifically, this bill:
Expands the crime of sexual battery to apply to a person who performs professional services that entail having access to another person’s body, who touches an intimate part of the that person’s body while performing those services and the touching was against the person’s will and for the purpose of sexual arousal, sexual gratification, or sexual abuse. Punishes this crime by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding $10,000.
Expands the definitions of rape, sodomy, oral copulation, and sexual penetration to include when any of those acts are performed against a victim’s will by a professional whose services entail having access to the victim’s body, if the conduct is performed by the professional while performing those services. By expanding the scope of crimes, this bill would impose a state-mandated local program.
EXISTING LAW:
States any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this law is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000; by imprisonment in the state prison for two, three, or four years; and by a fine not exceeding $10,000. (Pen. Code, § 243.4, subd. (a))
Provides rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship, as specified, the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.
Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" is defined as a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" is defined as a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (Pen. Code, § 261(a)(1) to (7).)
States where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" is defined as incapable of resisting because the victim meets one of the following conditions:
Was unconscious or asleep.
Was not aware, knowing, perceiving, or cognizant that the act occurred.
Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (Pen. Code, § 261, subds. (a)(4)(A) to (D).)
States any person who commits an act of sodomy when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (Pen. Code, § 286, subd. (c)(2).)
Requires that any person who commits an act of oral copulation when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (Pen. Code, § 288a, subd. (c)(2).)
States any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (Pen. Code, § 289, subd. (a)(1).)
FISCAL EFFECT:
Unknown
COMMENTS:
Author's Statement: According to the author, "Sexual Assault is a serious crime, and perpetrators who use positions of trust to assault their clients should be prosecuted to the fullest extent of the law. AB 860 will ensure that these violators are charged with felony sex crimes."
Background: According to the background provided by the author, under current law, providers of specified professional services who sexually assault their clients can be charged with a felony sex crime if any of the following conditions occur:
Fraud in fact (e.g., informing a client that they will be examined by a medical instrument causing penetration, obtaining their consent, and then performing the “examination” using their own body part)
Fraud by inducement (e.g., informing a client that sexual penetration served a professional purpose when it did not)
Or if the victim was unaware, unconscious, restrained, or unable to perceive the essential characteristics of the sexual act.
-However-
A perpetrator of these types of crimes can only be tried for misdemeanor sexual battery if all of the following occur:
During a session, there is touching which is clearly not related to the professional service, which the victim cannot reasonably believe was said service; and
The victim was conscious of the nature of the act in terms of its sexual nature; and
The victim did not consent to the act under fraudulent means (fraud in fact or inducement).
For example: An individual receives facial treatments, and the service provider begins to massage other parts of his or her body sexually without asking the victim for consent (or misleading the victim by claiming that the act was part of that service). If the provider then stops when the victim objects, the provider could only be charged, under current law, with misdemeanor sexual battery.
Because these acts are not committed while the person is impaired or unconscious of the actions of the provider, they can object to it and are able to perceive the essential characteristics of the sex act. Their consent is not considered to have been obtained by fraudulent misrepresentation during the course of the treatment. In this instance, the rape by fraud in fact or inducement statutes do not apply.
As a consequence, some individuals who have committed a felonious sexual assault can only be charged with less serious crimes.
Penalties Provided in Existing Law: This bill provides any massage therapist, physical therapist, holistic healer, chiropractor, or other professional service provider who touches an intimate part of another's body against his or her will for sexual gratification while in the practice of the profession is guilty of one of the enumerated sex crimes. Lack of consent is the foundation of most prosecutions for sexual assault and may be proven many ways. The victim objects to the conduct and the defendant disregards the objection by force, duress, threat of force, or threat of future retaliation. (See Pen. Code §§ 261(a)(2), 286(c)(2), and 288a(c)(2).) The penalty for most forcible sex offenses is three, six or eight years in state prison. However, there are instances in which the defendant may be guilty of a sex offense even where the victim did not specifically object. Lack of consent is implied if the victim is not able to object because he or she is unconscious, unaware the act occurred, or was not aware of the essential characteristics of the act because of fraud. (See Pen. Code §§ 261(a)(4) and 288a(f)(1) to (4).) This includes a perpetrator who fraudulently claims the act is necessary for some professional purpose or otherwise convinces the victim to consent to one act but then does another. The courts have distinguished between "fraud in fact" and "fraud in inducement." Fraud in fact "appears to be limited to those narrow situations in which the victim consented to the defendant's act, but because the victim believed the essential characteristics of the act consented to were different from the characteristics of the act the defendant actually committed, the victim was incapable of resisting the act actually committed because the victim was ignorant of the true nature of the act permitted. In contrast, when the victim consents to the defendant's act with the full knowledge of the essential characteristics of the act, a conviction was induced the unconscious-due-to-fraud-in-fact concept cannot stand even though the victim was induced to consent by fraudulent representations as to the benefits resulting from the act." (People v. Stuedemann (2007) 156 Cal.App. 4th 1, 7; People v. Cook (1964) 228 Cal.App. 2nd 716, 718; People v. Harris (hereinafter Harris) (1979) 93 Cal. App. 3rd 103, 114.) In People v. Harris, the defendant's conviction for rape was overturned under a "fraud in fact" theory. In that case, the victim agreed to sexual intercourse with the defendant if she lost a bet, but was unaware the bet was rigged to ensure she lost. (Harris at 111).
In affirming the rape conviction of a physician, the California Appellate Court stated, "It is settled that a victim need not be totally and physically unconscious in order for the statute defining rape as an act of sexual intercourse accomplished with a person who is at the time 'unconscious of the nature of the act' to apply (citation omitted). In this context, unconsciousness is related to the issue of consent, which, in prosecution under Penal Code Section 261 (rape) is 'defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction." (Penal Code Section 261.6). (People v. Ogunmola (hereinafter Ogunmola) (1987) 193 Cal.App 3rd 274, 279; see also People v. Minkowski (1962) 204 Cal.App. 2nd 832.) In Ogunmola, the defendant was a gynecologist who raped patients while performing examinations. Neither of the two victims knew the defendant was engaged in the criminal conduct until he committed the act of penetration. Neither victim objected at the time of the examination. The Appellate Court held:
"Similarly, in the present case, the trier of fact could reasonably conclude from the testimony of the victim gynecological patients, who reposed great trust in their physician in placing themselves in positions of great vulnerability from which they could not readily perceive his conduct toward them, that neither was aware of the nature of the act, i.e., neither consciously perceived or recognized that defendant was not engaged in an examination, but rather in an act of sexual intercourse, until he had accomplished sexual penetration, and the crime had occurred. Each of the victims, who had consented to a pathological examination, with its concomitant manual and instrumental intrusions, was 'unconscious of the nature of the act' of sexual intercourse committed upon her by defendant, until the same was accomplished, and cannot be said to have consented thereto. Defendant's conduct on each occasion was clearly within the scope of Penal Code Section 261(a)(4) (rape of an unconscious person), and constituted rape." (Ogunmola at 280, 281.) The Ogunmola case likely proceeded under a theory that the victims were not aware or cognizant of the act when it occurred and does not seem to deal with fraud in fact. (Penal Code Section 261(a)(4)(B).)
Penal Code Section 263 states, "The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however, slight, is sufficient to complete the crime". It is unclear how this bill will provide more protection to the victims because it requires the specified sex offense be committed against the will of the victim. In instances where the victim objects or there is no opportunity for consent because he or she is "unconscious", as specified, the offender is guilty of the substantive offense (rape, sodomy, oral copulation, rape with a foreign object or sexual battery).
People v. Stuedemann: The sponsor points to People v. Stuedemann (hereinafter Stuedemann) (2007) 156 Cal.App. 4th 1 as evidence of infirmity in the law that must be remedied. In Stuedemann, the People charged the defendant, a massage therapist, with sexual penetration of an unconscious person and oral copulation of an unconscious person, as specified. Penal Code Section 288a(f)(3) is oral copulation of a person who is "unconscious of the nature of the act" because the victim was not aware of the essential characteristics of the act due to the perpetrator's fraud in fact. Penal Code Section 289(d)(3) is sexual penetration under the same circumstances. The defendant was convicted of both charges at trial and appealed. The theory presented by the People was that the defendant was guilty oral copulation and sexual penetration because the victim was unconscious of the essential characteristics of the act due to the defendant's fraud in fact. (Stuedemann at 6.) Therefore, the appellate court reviewed the case pursuant to a fraud in fact claim. However, the court was not persuaded by the fraud in fact theory and stated, "Applying this framework here [defining fraud in fact], the evidence does not support a conviction under the unconsciousness provisions of oral copulation and sexual penetration. There is no evidence Griselda [the victim] consented or cooperated (was 'incapable of resisting') because of her ignorance of the true nature of the acts performed by Stuedemann. To the contrary, she did not permit Stuedemann to orally copulate or digitally penetrate her believing the copulation or penetration was something other than a sexual copulation or penetration; instead, she immediately recognized the acts for what they were and expressed her non-consent." (Stuedemann at 11.)
The court distinguished the Ogunmola case explained above because the victim in this case was not consenting to a full on medical examination where penetration for some legitimate purpose might occur. The court concluded, "Unlike Ogunmola and its predecessors, there was no evidence Griselda consented to anything resembling the acts undertaken by Stuedemann. Although Griselda consented to a massage, the result of which made her vulnerable to Stuedemann's acts that overstepped the boundaries of her consent, the evidence showed she was fully aware of the nature of Stuedemann's acts when those acts transgressed the boundaries and was capable of (and did) express her non-consent and resistance to the conduct. We conclude that Stuedemann's 'conduct, reprehensible though it was', did not violate [sections on oral copulation and sexual penetration] because Griselda was not unconscious due to Stuedemann's fraud in fact, the only theory asserted by the prosecution.] If there is a statutory oversight in this area of the penal law, the Legislature may address it (citation omitted)." (Stuedemann at 14.)
Additionally, the court offers under existing law to re-sentence the defendant for battery, as specified; however, the parties reject the court's invitation. It is unclear if charging the defendant under a different statute - one not based on fraud - would have resulted in a different outcome. Although, as the court points out, this case is somewhat troubling, there are factual issues of consent. The only remedy is to craft a statute that would remove the consent element where the victim is in a state of undress or is otherwise in a semi-vulnerable position. However, this may inadvertently punish consensual conduct or fail to protect persons who are fully clothed or not necessarily in a semi-vulnerable position. As noted above, this bill's language still requires the action be committed against the person's will. If that were the case in Stuedemann if the defendant had disregarded the victim's objections, the defendant would be guilty of oral copulation and sexual penetration and no discussion of consent would have been necessary.
Argument in Support: According to The Orange County District Attorney, "The Orange County District Attorney’s Office is pleased to support AB 860, which would close a loophole in the law to address sexual predators who provide professional services (such as doctors, chiropractors, massage therapists and others in positions of trust/power) and prey on vulnerable victims.
"Currently, there is no provision in the law to address a sexual assault committed without a victims’ consent in the context of professional services, other than misdemeanor sexual battery. AB 860 addresses this gap in the law by providing that a sexual assault committed against these vulnerable victims will be punished similarly to offenses where their consent was obtained fraudulently.
"My office strongly supports this legislation that will protect the public from sexual predators. Thank you for your leadership on this important issue."
Prior Legislation: AB 2049 (Saldana), of the 2007-2008 Legislative Session, was identical to this bill. AB 2049 was never heard in Senate Public Safety.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys' Association
Orange County District Attorney's Office
Opposition
None
Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744
Discussed in Hearing
1MIN
Senate Standing Committee on Appropriations
7MIN
Senate Standing Committee on Public Safety
9MIN
Assembly Standing Committee on Public Safety
Bill Author
Bill Co-Author(s):