Existing law makes it a misdemeanor to sexually assault certain animals for the purpose of gratifying the sexual desires of a person.

This bill would repeal that provision and would instead prohibit sexual contact, as defined, with any animal. The bill would make a violation of these provisions punishable as a misdemeanor. The bill would also authorize the seizure of an animal used in the violation of this offense.

Existing law makes it a misdemeanor for persons convicted of certain animal abuse crimes to own, possess, maintain, care for, reside with, or have custody of an animal for a specified period after conviction.

This bill would add animal sexual abuse to the list of offenses which result in that prohibition.

Existing law requires a veterinarian, if he or she has reasonable cause to believe an animal under his or her care has been a victim of animal abuse or cruelty, as specified, to promptly report it to the appropriate law enforcement authorities of the county, city, or city and county in which it occurred. Existing law makes a violation of these provisions a misdemeanor.

This bill would expand that reporting requirement to include when the veterinarian has reasonable cause to believe an animal has been a victim of sexual abuse or kept without proper care and attention, as specified.

By creating new crimes, 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 no reimbursement is required by this act for a specified reason.

Existing law makes it a misdemeanor to sexually assault certain animals for the purpose of gratifying the sexual desires of a person.

This bill would repeal that provision and would instead prohibit sexual contact, as defined, with any animal, as well as related conduct including the trafficking of an animal for purposes of engaging in or facilitating sexual contact with an animal. animal. The bill would make a violation of these provisions punishable as a misdemeanor or felony. misdemeanor. The bill would also authorize the seizure of an animal used in the violation of this offense.

Existing law makes it a misdemeanor for persons convicted of certain animal abuse crimes to own, possess, maintain, care for, reside with, or have custody of an animal for a specified period after conviction.

This bill would add animal sexual abuse to the list of offenses which result in that prohibition. This bill would also add working or volunteering with animals to the list of prohibited activities.

Existing law requires a veterinarian, if he or she has reasonable cause to believe an animal under his or her care has been a victim of animal abuse or cruelty, as specified, to promptly report it to the appropriate law enforcement authorities of the county, city, or city and county in which it occurred. Existing law makes a violation of these provisions a misdemeanor.

This bill would expand that reporting requirement to include when the veterinarian has reasonable cause to believe an animal has been a victim of sexual abuse or kept without proper care and attention, as specified.

By creating new crimes, 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 no reimbursement is required by this act for a specified reason.

Existing law makes it a misdemeanor to sexually assault certain animals for the purpose of gratifying the sexual desires of a person.

This bill would repeal that provision and would instead prohibit sexual contact, as defined, with any animal, as well as related conduct including the trafficking of an animal for purposes of engaging in or facilitating sexual contact with an animal, participating as an observer in sexual contact with an animal, or possessing visual recordings of sexual contact with an animal. The bill would make a violation of these provisions punishable as a misdemeanor or felony. The bill would also authorize the seizure of an animal used in the violation of this offense.

Existing law makes it a misdemeanor for persons convicted of certain animal abuse crimes to own, possess, maintain, care for, reside with, or have custody of an animal for a specified period after conviction.

This bill would add animal sexual abuse to the list of offenses which result in that prohibition. This bill would also add working or volunteering with animals to the list of prohibited activities.

By creating a new crime, new crimes, 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 no reimbursement is required by this act for a specified reason.

Existing law makes it a misdemeanor to sexually assault certain animals for the purpose of gratifying the sexual desires of a person.

This bill would repeal that provision and would instead prohibit sexual contact, as defined, with any animal, as well as related conduct including the trafficking of an animal for purposes of engaging in or facilitating sexual contact with an animal, participating as an observer in sexual contact with an animal, or possessing visual recordings of sexual contact with an animal. The bill would make a violation of these provisions punishable as a misdemeanor or felony. The bill would also authorize the seizure of an animal used in the violation of this offense.

Existing law makes it a misdemeanor for persons convicted of certain animal abuse crimes to own, possess, maintain, care for, reside with, or have custody of an animal for a specified period after conviction.

This bill would add animal sexual abuse to the list of offenses which result in that prohibition. This bill would also add working or volunteering with animals to the list of prohibited activities.

This bill would also make other conforming changes.

By creating a new crime, 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 no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 3040 (Nazarian) - Sexual abuse of animals

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 3040 would expand the crime of sexual contact, as defined, with an animal.

Fiscal Impact:

• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who are alleged to have had sexual contact with an animal and against veterinarians who fail to report the expanded instances of animal abuse and neglect. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the 2018 Budget Act appropriated $64 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)

• Counseling: Unknown, potentially-significant costs to county probation departments or mental health agencies to certified counseling programs that fit the criteria required by this bill and to supervise defendant-probationers’ progress and status of participation. (General Fund**/local funds)
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

*Trial Court Trust Fund

**Proposition 30 (2012) exempts the state from mandate reimbursement for realigned responsibilities for “Public Safety Services” including the managing of local jails and the provision of services for and supervision of minor and adult offenders. The constitutional amendment, however, 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 transferred by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the costs increase. If the local costs resulting from this measure are determined to be included within the scope of Proposition 30, the local agency would not be obligated to provide the level of service required by this bill above the level for which funding is provided by the state. The provisions of this bill may lead to the additional subvention of funds to obtain local compliance, resulting in cost pressure to the General Fund.

Background:

It a misdemeanor offense, punishable by incarceration of up to six months in county jail and/or a base fine of $1,000, to sexually assault certain animals for the purpose of gratifying the sexual desires of a person. It also is a misdemeanor offense, punishable by a base fine of between $500 and $2,000 and/or incarceration in county jail for between thirty days and one year, for a licensed veterinarian to, among other things, not report to the appropriate law enforcement authority when the veterinarian has reasonable cause to believe an animal under its care has been a victim of animal abuse or cruelty, as specified. Moreover, existing law makes it a misdemeanor for persons convicted of certain animal abuse crimes to own, possess, maintain, care for, reside with, or have custody of an animal for a specified period of time after the conviction.

Proposed Law:

This bill would:

• Punish as a misdemeanor every person who has sexual contact with an animal. This measure would provide that this crime does not apply to any of the following:
  • Lawful and accepted practice related to veterinary medicine performed by a licensed veterinarian or a certified veterinary technician under the guidance of a licensed veterinarian.
  • Any artificial insemination of animals for reproductive purposes.
  • Any accepted animal husbandry practices such as raising, breeding, or assisting with the birthing process of animals or any other practice that provides care for an animal.
  • Any generally accepted practices related to the judging of breed conformation.
• Require a person convicted of a violation of sexual contact with an animal to participate in counseling as directed by the court.
• Prohibit a person convicted of sexual contact with an animal from owning, possessing, maintaining, have custody of, reside with, or care for any animal within five years after the conviction.
• Provide for seizure and forfeiture of animals involved in the crime that is the subject of this bill.
• Require veterinarians to report, when they have reasonable cause to believe an animal has been a victim of sexual abuse or kept without proper care and attention, to the appropriate law enforcement authorities.

Related Legislation:

SB 1024 (Wilk, 2018) would require people sentenced to probation for specified offenses against animals to complete a responsible animal owner education course, as specified. SB 1024 is pending in the Assembly Committee on Appropriations.

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of a defendant, and the factors unique to each case. As the crimes expanded upon by this bill—that is, sexual contact with an animal; failure of a veterinarian to report an expanded-upon list of suspected animal abuse and cruelty; and possessing, caring for, etc. of an animal by a person convicted of sexual contact with an animal within five years—are punishable as a misdemeanor with the potential for incarceration (except for the latter offense), certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier and more complex court proceedings. Consequently, to the extent that the court adjudicates a dozen or more of these new crimes, on average, that otherwise would not have been filed or resulted in a criminal action but for the alleged violation of the expansion proposed by this bill, court costs of this bill would surpass the Suspense File threshold.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 3040 Hearing Date: June 19, 2018

Subject: Sexual Abuse of Animals

HISTORY

Source: Humane Society of the United States

Prior Legislation: None

Support: Animal Legal Defense Fund; California Animal Control Directors Association; California District Attorneys Association; National LINK Coalition; Sacramento County District Attorney; San Diego County District Attorney; San Diego Humane Society; Sheriff of El Dorado County; Social Compassion in Legislation; State Humane Association of California

Opposition: None

Assembly Floor Vote: 73 - 0

PURPOSE

The purpose of this bill is to prohibit sexual contact, as defined, with any animal. It also requires a person convicted of a violation of sexual contact with an animal to participate counseling as directed by the court and to provide for seizure and forfeiture of animals in involved in such violations.

Existing law states that any person who sexually assaults specified animals for the purpose of arousing or gratifying the sexual desire of the person is guilty of a misdemeanor. (Penal Code § 286.5)

Existing law specifies the actions of a person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal as a criminal offense. (Penal Code § 597.)

Existing law specifies when a person overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal, or causes or procures any animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, drink, shelter, or to be cruelly beaten, mutilated, or cruelly killed; and whoever, having the charge or custody of any animal, either as owner or otherwise, subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor as a criminal offense. (Penal Code § 597 (b).)

Existing law specifies the actions of a person who maliciously and intentionally maims, mutilates, or tortures any mammal, bird, reptile, amphibian, or fish, as specified as a criminal offense. (Penal Code § 597 (c).)

Existing law states that a violation of animal cruelty may be punished as a felony by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment, or alternatively, as a misdemeanor by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment. (Penal Code § 597 (d).)

Existing law specifies that upon the conviction of a person charged with a violation of this section by causing or permitting an act of cruelty, as specified, all animals lawfully seized and impounded with respect to the violation by a peace officer, officer of a humane society, or officer of a pound or animal regulation department of a public agency shall be adjudged by the court to be forfeited and shall thereupon be awarded to the impounding officer for proper disposition. A person convicted of a violation of this section by causing or permitting an act of cruelty, as specified, shall be liable to the impounding officer for all costs of impoundment from the time of seizure to the time of proper disposition. (Penal Code § 597 (g).)

Existing law requires that if a defendant is granted probation for a conviction animal cruelty, the court shall order the defendant to pay for, and successfully complete, counseling, as determined by the court, designed to evaluate and treat behavior or conduct disorders. If the court finds that the defendant is financially unable to pay for that counseling, the court may develop a sliding fee schedule based upon the defendant's ability to pay. The counseling shall be in addition to any other terms and conditions of probation, including any term of imprisonment and any fine. If the court does not order custody as a condition of probation for a conviction under this section, the court shall specify on the court record the reason or reasons for not ordering custody. This does not apply to cases involving police dogs or horses as described in Section 600. (Penal Code, § 597 (h).)

Existing law states that the court may also order, as a condition of probation, that the convicted person be prohibited from owning, possessing, caring for, or residing with, animals of any kind, and require the convicted person to immediately deliver all animals in his or her possession to a designated public entity for adoption or other lawful disposition or provide proof to the court that the person no longer has possession, care, or control of any animals. (Penal Code § 597.1 (l))

Existing law states that any person who has been convicted of a misdemeanor violation of animal cruelty, as specified, and who, within five years after the conviction, owns, possesses, maintains, has custody of, resides with, or cares for any animal is guilty of a crime, punishable by a fine of one thousand dollars ($1,000). (Penal Code § 597.9 (a).)

Existing law states that any person who has been convicted of a felony violation of animal cruelty, as specified, and who, within 10 years after the conviction, owns, possesses, maintains, has custody of, resides with, or cares for any animal is guilty of a public offense, punishable by a fine of one thousand dollars ($1,000). (Penal Code § 597.9 (a).)

Existing law allows a defendant to petition the court to reduce the duration of the mandatory ownership prohibition. Upon receipt of a petition from the defendant, the court shall set a hearing to be conducted within 30 days after the filing of the petition. At the hearing, the petitioner shall have the burden of establishing by a preponderance of the evidence all of the following: (Penal Code, § 597.9 (d)(1)(a)-(c).)

1. He or she does not present a danger to animals;
   
2. He or she has the ability to properly care for all animals in his or her possession; and
   
3. He or she has successfully completed all classes or counseling ordered by the court.
   

Existing law specifies that if the petitioner has met his or her burden, the court may reduce the mandatory ownership prohibition and may order that the defendant comply with reasonable and unannounced inspections by animal control agencies or law enforcement. (Penal Code § 597.9 (d)(2).)

Existing law whenever any licensee under this chapter has reasonable cause to believe an animal under its care has been a victim of animal abuse or cruelty, as specified, it shall be the duty of the licensee to promptly report it to the appropriate law enforcement authorities of the county, city, or city and county in which it occurred. (Business and Prof. Code § 4830.7)

Existing law states that any person, who violates or aids or abets in violating any of the provisions of this chapter, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than five hundred dollars, nor more than two thousand dollars, or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both the fine and imprisonment. (Business and Prof. Code, § 4831.)

This bill states that every person who has sexual contact with an animal is guilty of a misdemeanor.

This bill specifies that this section does not apply to any lawful and accepted practice related to veterinary medicine performed by a license veterinarian or a certified veterinary technician under the guidance of a licensed veterinarian, any artificial insemination of animals for reproductive purposes, any accepted animal husbandry practices such as raising, breeding or assisting with the birthing process of animals or any other practice that provides care for an animal, or is generally accepted practices related to the judging of breed conformation.

This bill defines the following terms for purposes of this bill:

1. “Animal” means “any nonhuman creature, whether alive or dead”; and
   
2. “Sexual contact” means “any act, committed for the purpose of sexual arousal or gratification, abuse, or financial gain, between a person and an animal involving contact between the sex organs or anus of one and the mouth, sex organs, or anus of the other, or, without a bona fide veterinary or animal husbandry purpose, the insertion, however slight, of any part of the body of a person or any object into the vaginal or anal opening of an animal, or the insertion of any part of the body of an animal into the vaginal or anal opening of a person.”
   

This bill specifies that if a defendant is granted probation for a conviction for sexual contact with an animal, the court shall order the defendant to pay for, and successfully complete, counseling, as determined by the court, designed to evaluate and treat behavior or conduct disorders.

This bill states that if the court finds that the defendant is financially unable to pay for that counseling, the court may develop a sliding fee schedule based upon the defendant’s ability to pay.

This bill provides that an indigent defendant may negotiate a deferred payment schedule, but shall pay a nominal fee if the defendant has the ability to pay the nominal fee. County mental health departments or Medi-Cal shall be responsible for the costs of counseling required by this section only for those persons who meet the medical necessity criteria for mental health managed care or the targeted population criteria.

This bill specifies that the counseling shall be in addition to any other terms and conditions of probation, including any term of imprisonment and any fine.

This bill states that the counseling is a mandatory additional term of probation and is not to be utilized as an alternative in lieu of imprisonment in a county jail when that sentence is otherwise appropriate.

This bill specifies that any authorized officer investigating a violation of sexual contact with an animal may seize an animal that has been used in the commission of an offense to protect the health or safety of the animal or the health or safety of others, and to obtain evidence of the offense.

This bill requires any animal seized be promptly taken to a shelter facility or veterinary clinic to be examined by a veterinarian for evidence of sexual contact. The animal shall be maintained at such a facility until disposition by the court or until a decision has been made to not file a complaint.

This bill applies specified animal seizure and animal forfeiture provisions from existing law to the provisions of this bill.

This bill states that upon the conviction for sexual contact with an animal, all animals lawfully seized and impounded with respect to the violation shall be forfeited and transferred to the impounding officer or appropriate public entity for proper adoption or other disposition.

This bill specifies that a person convicted of a violation of sexual contact with an animal be personally liable to the seizing agency for all costs of impoundment from the time of seizure to the time of proper disposition.

This bill expands the requirement that a veterinarian must report animal abuse to include reporting suspected sexual abuse of an animal.

COMMENTS

1. Need for the Bill

According to the author:

Protecting animals, including our pets, from sexual abuse should be an important goal in California and across the nation. Currently California law is vague and only prohibits the sexual assault of an animal without clearly defining sexual assault. This has created a major loophole in the law that has caused local authorities difficulty in achieving convictions. In addition, similar to human trafficking victims, animals are trafficked, sold, and traded for sex. Whether it is because of the special bond between pets and humans, or because there is a need to protect those who can’t speak for themselves, animal sexual abuse laws are essential to keeping our public safe.

Preventing sexual abuse of animals is more than protecting our pets. There is a strong link between people who sexually abuse animals and those who commit other sexual abuse crimes. Animal sexual abuse is the strongest predictor of increased risk for committing child sexual abuse. In a study of over 44,000 adult male sex offenders, researchers concluded that animal sexual abuse is the number one risk factor. Studies have found high rates of sexual assault of animals in the backgrounds of serial sexual homicide perpetrators. This is one reason why bestiality and other forms of animal cruelty are now tracked by the FBI as a Group An offense in the National Incident Based Reporting System, the same category as rape and murder.

For these reasons, sexual abuse of our furry or feathered friends should be clearly prohibited by California law. This bill addresses this by prohibiting engaging in sexual contact with animals with any part of the body or an object. Additionally, AB 3040 prohibits the sexual abuse of animals for financial gain in order to stop those individuals who would sell or rent an animal for the purposes of sexual abuse. Finally, AB 3040 requires that if a person were convicted, the courts are to order the convicted person to refrain from contact with animals, surrender any animals in their possession, and obtain a psychological assessment. Passage of this bill will signal that California will not tolerate those who engage in such egregious acts.

In addition, please see the attached document with compiled statistics and studies regarding animal sex abuse.

2. Animal Sexual Abuse

California created a statute to criminalize animal sexual assault in 1975. That prohibition is codified in Penal Code section 286.5 which makes it a crime for “any person who sexually assaults specified animals for the purpose of arousing or gratifying the sexual desire of the person.” That law has not been amended since it was enacted in 1975.

Supporters assert that the current provision does not clearly define what constitutes sexual assault nor does it cover activities related to sexual assault.

This bill would specify what constitutes unlawful conduct by defining “sexual contact” as “any act, committed for the purpose of sexual arousal or gratification, abuse, or financial gain, between a person and an animal involving contact between the sex organs or anus of one and the mouth, sex organs, or anus of the other, or, without a bona fide veterinary or animal husbandry purpose, the insertion, however slight, of any part of the body of a person or any object into the vaginal or anal opening of an animal, or the insertion of any part of the body of an animal into the vaginal or anal opening of a person.”

In addition to providing clarifying language, this bill would conform the crime of sexual contact with an animal with the manner in which animal abuse is generally treated under California law. This bill would also specify that upon conviction for animal sexual abuse, any animal seized in connection with the case is forfeited. An individual convicted under the provisions of this bill would be prohibited from owning an animal for a period of five years. Additionally, this bill would require that a person convicted of sexual contact with an animal participate in counseling as directed by the court.

3. Requirement that Veterinarians Report Animal Sexual Abuse

Current law requires a veterinarian to report suspected animal abuse to law enforcement.

Whenever any licensee under this chapter has reasonable cause to believe an animal under its care has been a victim of animal abuse or cruelty, as specified, it shall be the duty of the licensee to promptly report it to the appropriate law enforcement authorities of the county, city, or city and county in which it occurred. (Business and Prof. Code, § 4830.7.)

This bill would impose the same requirement if the veterinarian suspects unlawful sexual contact of an animal. A failure to report animal abuse under current is a crime punishable as a misdemeanor.

4. Argument in Support

According to the California Animal Control Directors Association and State Humane Association of California:

Currently the law only prohibits sexual assault with an animal, but other acts related to sexual assault. This is a major loophole in the law that caused local authorities difficulty in achieving convictions. California’s animal cruelty law only applies in cases where there is provable physical injury to the animal. Many acts of animal sexual abuse are filmed and discovered well after the incident occurs, so the requisite demonstrable harm to the animal or medical evidence to substantiate physical injury cannot be recovered. Finally, like children and women, animals are trafficked, sold, and traded for sex.

-- END –

Date of Hearing: May 2, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 3040

Author:(Nazarian) – As Amended Ver:April 19, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill prohibits sexual contact, as defined, with any animal. This bill requires a person convicted of a violation for sexual contact with an animal to participate in counseling as directed by the court and provides for seizure and forfeiture of animals involved in such violations.

FISCAL EFFECT:

Minor costs to counties to provide mental health counseling required by the courts if an offender is unable to pay for the required counseling. Because cases of animal sexual contact are rare this is unlikely to reach the threshold of being a reimbursable state mandate.

COMMENTS:

Purpose. According to the author:

Protecting animals, including our pets, from sexual abuse should be an important goal in California and across the nation. Currently the law only prohibits sexual assault with an animal, but not other acts related to sexual assault—a major loophole in the law that has caused local authorities difficulty in achieving convictions. In addition, California’s animal cruelty law only applies in cases where there is provable physical injury to the animal. Many acts of animal sexual abuse are filmed and discovered well after the incident occurs, so the requisite demonstrable harm to the animal or medical evidence to substantiate physical injury cannot be recovered. Finally, similar to children and women, animals are trafficked, sold, and traded for sex. Whether it is because of the special bond between pets and humans, or because there is a need to protect those who can’t speak for themselves, animal sexual abuse laws are a very important part of keeping our public safe.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 3040

Author:(Nazarian) – As Amended Ver:April 10, 2018

As Proposed to be Amended in Committee

SUMMARY:

Prohibits sexual contact, as defined, with any animal. Requires a person convicted of a violation of sexual contact with an animal to participate counseling as directed by the court. Provides for seizure and forfeiture of animals in involved in such violations. Specifically, this bill:

1. States that every person who has sexual contact with an animal is guilty of a misdemeanor.
   
2. Defines the following terms for purposes of this bill:
   
   1. “Animal” means “any nonhuman creature, whether alive or dead”; and
      
   2. “Sexual contact” means “any act, committed for the purpose of sexual arousal or gratification, abuse, or financial gain, between a person and an animal involving contact between the sex organs or anus of one and the mouth, sex organs, or anus of the other, or, without a bona fide veterinary or animal husbandry purpose, the insertion, however slight, of any part of the body of a person or any object into the vaginal or anal opening of an animal, or the insertion of any part of the body of an animal into the vaginal or anal opening of a person.”
      
3. Specifies that if a defendant is granted probation for a conviction for sexual contact with an animal, the court shall order the defendant to pay for, and successfully complete, counseling, as determined by the court, designed to evaluate and treat behavior or conduct disorders.
   
4. States that if the court finds that the defendant is financially unable to pay for that counseling, the court may develop a sliding fee schedule based upon the defendant’s ability to pay.
   
5. Provides that an indigent defendant may negotiate a deferred payment schedule, but shall pay a nominal fee if the defendant has the ability to pay the nominal fee. County mental health departments or Medi-Cal shall be responsible for the costs of counseling required by this section only for those persons who meet the medical necessity criteria for mental health managed care or the targeted population criteria.
   
6. Specifies that the counseling shall be in addition to any other terms and conditions of probation, including any term of imprisonment and any fine.
   
7. States that the counseling is a mandatory additional term of probation and is not to be utilized as an alternative in lieu of imprisonment or county jail when that sentence is otherwise appropriate.
   
8. Specifies that any authorized officer investigating a violation of sexual contact with an animal may seize an animal that has been used in the commission of an offense to protect the health or safety of the animal or the health or safety of others, and to obtain evidence of the offense.
   
9. Requires any animal seized be promptly taken to a shelter facility or veterinary clinic to be examined by a veterinarian for evidence of sexual contact. The animal shall be maintained at such a facility until disposition by the court or until a decision has been made to not file a complaint.
   
10. Applies specified animal seizure and animal forfeiture provisions from existing law to the provisions of this bill.
11. States that upon the conviction for sexual contact with an animal, all animals lawfully seized and impounded with respect to the violation shall be forfeited and transferred to the impounding officer or appropriate public entity for proper adoption or other disposition.
    
12. Specifies that a person convicted of a violation of sexual contact with an animal be personally liable to the seizing agency for all costs of impoundment from the time of seizure to the time of proper disposition.
    

EXISTING LAW:

1. States that any person who sexually assaults specified animals for the purpose of arousing or gratifying the sexual desire of the person is guilty of a misdemeanor. (Pen. Code, § 286.5.)
   
2. Specifies the actions of a person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal as a criminal offense. (Pen. Code, § 597.)
   
3. Specifies when a person overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal, or causes or procures any animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, drink, shelter, or to be cruelly beaten, mutilated, or cruelly killed; and whoever, having the charge or custody of any animal, either as owner or otherwise, subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor as a criminal offense. (Pen. Code, § 597, subd. (b).)
4. Specifies the actions of a person who maliciously and intentionally maims, mutilates, or tortures any mammal, bird, reptile, amphibian, or fish, as specified as a criminal offense. (Pen. Code, § 597, subd. (c).)
   
5. States that a violation of animal cruelty may be punished as a felony by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment, or alternatively, as a misdemeanor by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment. (Pen. Code, § 597, subd. (d).)
6. Specifies that upon the conviction of a person charged with a violation of this section by causing or permitting an act of cruelty, as specified, all animals lawfully seized and impounded with respect to the violation by a peace officer, officer of a humane society, or officer of a pound or animal regulation department of a public agency shall be adjudged by the court to be forfeited and shall thereupon be awarded to the impounding officer for proper disposition. A person convicted of a violation of this section by causing or permitting an act of cruelty, as specified, shall be liable to the impounding officer for all costs of impoundment from the time of seizure to the time of proper disposition. (Pen. Code, § 597, subd. (g).)
7. Requires that if a defendant is granted probation for a conviction animal cruelty, the court shall order the defendant to pay for, and successfully complete, counseling, as determined by the court, designed to evaluate and treat behavior or conduct disorders. If the court finds that the defendant is financially unable to pay for that counseling, the court may develop a sliding fee schedule based upon the defendant's ability to pay. The counseling shall be in addition to any other terms and conditions of probation, including any term of imprisonment and any fine. If the court does not order custody as a condition of probation for a conviction under this section, the court shall specify on the court record the reason or reasons for not ordering custody. This does not apply to cases involving police dogs or horses as described in Section 600. (Pen. Code, § 597, subd. (h).)
   
8. States that the court may also order, as a condition of probation, that the convicted person be prohibited from owning, possessing, caring for, or residing with, animals of any kind, and require the convicted person to immediately deliver all animals in his or her possession to a designated public entity for adoption or other lawful disposition or provide proof to the court that the person no longer has possession, care, or control of any animals. (Pen. Code, § 597.1, subd. (l)
   
9.  States that any person who has been convicted of a misdemeanor violation of animal cruelty, as specified, and who, within five years after the conviction, owns, possesses, maintains, has custody of, resides with, or cares for any animal is guilty of a crime, punishable by a fine of one thousand dollars ($1,000). (Pen. Code, § 597.9, subd. (a).)
   
10. States that any person who has been convicted of a felony violation of animal cruelty, as specified, and who, within 10 years after the conviction, owns, possesses, maintains, has custody of, resides with, or cares for any animal is guilty of a public offense, punishable by a fine of one thousand dollars ($1,000). (Pen. Code, § 597.9, subd. (a).)
11. Allows a defendant to petition the court to reduce the duration of the mandatory ownership prohibition. Upon receipt of a petition from the defendant, the court shall set a hearing to be conducted within 30 days after the filing of the petition. At the hearing, the petitioner shall have the burden of establishing by a preponderance of the evidence all of the following: (Pen. Code, § 597.9, subd. (d)(1)(a)-(c).)
    
    1. He or she does not present a danger to animals;
       
    2. He or she has the ability to properly care for all animals in his or her possession; and
       
    3. He or she has successfully completed all classes or counseling ordered by the court.
       
12. Specifies that if the petitioner has met his or her burden, the court may reduce the mandatory ownership prohibition and may order that the defendant comply with reasonable and unannounced inspections by animal control agencies or law enforcement. (Pen. Code, § 597.9, subd. (d)(2).)
    
13. Whenever any licensee under this chapter has reasonable cause to believe an animal under its care has been a victim of animal abuse or cruelty, as specified, it shall be the duty of the licensee to promptly report it to the appropriate law enforcement authorities of the county, city, or city and county in which it occurred. (Business and Prof. Code, § 4830.7.)
    
14. States that any person, who violates or aids or abets in violating any of the provisions of this chapter, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than five hundred dollars, nor more than two thousand dollars, or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both the fine and imprisonment. (Business and Prof. Code, § 4831.)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Protecting animals, including our pets, from sexual abuse should be an important goal in California and across the nation. Currently the law only prohibits sexual assault with an animal, but not other acts related to sexual assault—a major loophole in the law that has caused local authorities difficulty in achieving convictions. In addition, California’s animal cruelty law only applies in cases where there is provable physical injury to the animal. Many acts of animal sexual abuse are filmed and discovered well after the incident occurs, so the requisite demonstrable harm to the animal or medical evidence to substantiate physical injury cannot be recovered. Finally, similar to children and women, animals are trafficked, sold, and traded for sex. Whether it is because of the special bond between pets and humans, or because there is a need to protect those who can’t speak for themselves, animal sexual abuse laws are a very important part of keeping our public safe.
   
   “Preventing sexual abuse of animals is more than protecting our pets. There is a strong link between people who sexually abuse animals and those who commit other sexual abuse crimes. Animal sexual abuse is the single strongest predictor of increased risk for committing child sexual abuse. In a study of over 44,000 adult male sex offenders, researchers concluded that animal sexual abuse is the number one risk factor. Studies have found high rates of sexual assault of animals in the backgrounds of serial sexual homicide perpetrators. This is one reason why bestiality and other forms of animal cruelty are now tracked by the FBI as a Group A offense in the National Incident Based Reporting System, the same category as rape and murder.
   
   “For these reasons, sexual abuse of our furry (or feathered) friends should carry a very strong penalty. This bill addresses this by increasing the opportunity from just a misdemeanor to a possible felony after conviction. AB 3040 prohibits engaging in sexual contact with animals with any part of the body or an object and prohibiting promoting, trafficking, advertising, or soliciting animals for sex. Additionally, AB 3040 requires that if a person were convicted, the courts are to order the convicted person to refrain from contact with animals, surrender any animals in their possession, and obtain a psychological assessment. Passage of this bill will signal that California will not tolerate those who sexually abuse animals.”
   
2. Animal Sexual Abuse: California created a statute to criminalize animal sexual assault in 1975. That prohibition is codified in Penal Code section 286.5 which makes it a crime for “any person who sexually assaults specified animals for the purpose of arousing or gratifying the sexual desire of the person. “ That law has not been amended since it was enacted in 1975.
   
   The phrase “sexual assault” is not a phrase which is generally used in California law to describe and delineate criminal conduct. As such, the use of the phrase “sexual assault” in the existing statute does not provide effective guidance in terms of the type of conduct which is prohibited.
   
   This bill would specify what constitutes unlawful conduct by defining “sexual contact” as “any act, committed for the purpose of sexual arousal or gratification, abuse, or financial gain, between a person and an animal involving contact between the sex organs or anus of one and the mouth, sex organs, or anus of the other, or, without a bona fide veterinary or animal husbandry purpose, the insertion, however slight, of any part of the body of a person or any object into the vaginal or anal opening of an animal, or the insertion of any part of the body of an animal into the vaginal or anal opening of a person.”
   
   In addition to providing clarifying language, this bill would conform the crime of sexual contact with an animal with the manner in which animal abuse is generally treated under California law. This bill would also specify that upon conviction for animal sexual abuse, any animal seized in connection with the case is forfeited. An individual convicted under the provisions of this bill would be prohibited from owning an animal for a period of five years. Additionally, this bill would require that a person convicted of sexual contact with an animal participate in counseling as directed by the court.
   
3. Animal Abuse Statute Already Covers Conduct that Results in Suffering or Abuse:
   Animal abuse is prohibited in Penal Code section 597. The following conduct is illegal and is included within section 597:
   

Every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal, or causes or procures any animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, drink, shelter, or to be cruelly beaten, mutilated, or cruelly killed; and whoever, having the charge or custody of any animal, either as owner or otherwise, subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor, is, for each offense, guilty of a crime. (Pen. Code, § 597, subd. (b).)

The conduct described above can be charged at a felony or misdemeanor level. If sexual contact with an animal result in in suffering, inflicts unnecessary cruelty on the animal, or in any manner abuses the animal, such conduct can be charged as a felony under the more general animal abuse statute.

1. Requirement that Veterinarians Report Animal Sexual Abuse: Current law requires a veterinarian to report suspected animal abuse to law enforcement.
   
   Whenever any licensee under this chapter has reasonable cause to believe an animal under its care has been a victim of animal abuse or cruelty, as specified, it shall be the duty of the licensee to promptly report it to the appropriate law enforcement authorities of the county, city, or city and county in which it occurred. (Business and Prof. Code, § 4830.7.)
   
   This bill would impose the same requirement if the veterinarian suspects unlawful sexual contact of an animal. A failure to report animal abuse under current is a crime punishable as a misdemeanor. It is not clear that exposing a veterinarian to criminal penalties for failing to report suspected unlawful sexual contact with an animal is a feasible or appropriate requirement from a policy standpoint.
   
   For general instances of animal abuse, the veterinarian will see physical signs of abuse. Physical injuries to the animal can be indicative of physical abuse. A malnourished animal can be indicative of neglect. To the extent that a veterinarian, identifies signs that an animal has had sexual contact, it is not obvious how a veterinarian would determine if the sexual contact was between a human and an animal, or if it was sexual contact between animals. Is this bill imposing a requirement on veterinarians that is difficult for a veterinarian to comply with and then threatening the veterinarian with criminal liability for failing to comply with a difficult requirement?
   
   Any suspected sexual contact that resulted in physical injury to the animal would be covered by existing law would trigger a duty to report. Adding sexual contact to the reporting requirement might only serve to muddy the waters regarding reporting, while creating criminal liability for criteria that would be hard for the veterinarian to determine.
   
2. Amendments Proposed to be Taken in Committee: The proposed amendments:
   
   1. Maintain the punishment for unlawful sexual contact with an animal as a misdemeanor.
      
   2. Narrow the language of the bill regarding prohibited conduct.
      
   3. Delete language which is already reflected in current law.
      
   4. Make technical and conforming changes.
      
3. Argument in Support: According to the California Animal Control Directors Association and State Humane Association of California, “Currently the law only prohibits sexual assault with an animal, but not other acts related to sexual assault. This is a major loophole in the law that has caused local authorities difficulty in achieving convictions. California’s animal cruelty law only applies in cases where there is provable physical injury to the animal. Many acts of animal sexual abuse are filmed and discovered well after the incident occurs, so the requisite demonstrable harm to the animal or medical evidence to substantiate physical injury cannot be recovered. Finally, like children and women, animals are trafficked, sold, and traded for sex.
   
   “Sadly, animal sexual abuse is the strongest predictor of increased risk for committing child sexual abuse. In a study of over 44,000 adult male sex offenders, researchers concluded that animal sexual abuse is the primary risk factor. Some studies have found high rates of sexual assault of animals in the backgrounds of serial sexual homicide perpetrators.
   
   “AB 3040 addresses these issues by prohibiting engaging in sexual contact with animals with any part of the body or an object and prohibiting promoting, trafficking, advertising, or soliciting animals for sex. This bill would give prosecutors the discretion to pursue either a misdemeanor or a felony based on the actions of the defendant. Additionally, this bill would require the courts to order the convicted person to refrain from contact with animals, surrender any animals in their possession, and obtain a psychological assessment. Passage of this bill would signal that California will not tolerate those who sexually abuse animals.”
   
4. Argument in Opposition: According to the American Civil Liberties Union of California, “AB 3040 seeks to create a new offense for sexual contact between a human and an animal. The bill would also make it a crime to advertise, offer, sell, transfer, purchase, or otherwise obtain an animal with the intent that the animal be used for sexual contact; to organize, promote, or knowingly participate as an observer in an act involving sexual contact with an animal; to coerce, cause, aid or abet another person to engage in sexual contact with an animal; or to knowingly permit sexual contact with an animal to be conducted on any premises under a person’s control. This new offense could be punished as a felony with as much as three years of incarceration.
   
   “Existing law already makes it a misdemeanor to sexually assault an animal. (Pen. Code section 286.5.) If there is injury to the animal, then the crime may be charged as felony animal abuse pursuant to Penal Code section 597. Conduct that amounts to “torturing” or ‘tormenting’ the animal may also be prosecuted as a felony under Penal Code section 597. Moreover, Penal Code section 597(b) makes is a felony offense if a person ‘causes or procures any animal to be tortured [or] tormented’ or, for a person ‘having the charge or custody of any animal, either as owner or otherwise,’ to subject the animal ‘to needless suffering,’ or to inflict “unnecessary cruelty upon the animal.” Finally, Penal Code section 597(b) ends with the broad provision that it is a felony if the person “in any manner abuses any animal.” Together, these provisions sufficiently punish the conduct targeted by AB 3040.”
5. Related Legislation: AB 2774 (Limon), would authorized a municipal animal shelter to ask a person that is seeking to adopt in animal if they are prohibited from owning an animal. AB 2774 is set for hearing in the Assembly Public Safety Committee on April 17, 2018.
6. Prior Legislation:
   
   1. AB 628 (Chen), of the 2017-2018 Legislative Session, would have clarified procedures for notification of animal owners regarding hearings and payment of costs when an animal is seized or impounded. AB 628 was never heard in the Assembly Public Safety Committee.
      
   2. AB 2278 (Levine), of the 2015-2015 Legislative Session, would have clarified procedures for notification of animal owners regarding hearings and payment of costs when an animal is seized or impounded. AB 2278 was held in the Senate Appropriations Committee.
      
   3. AB 794 (Linder), Chapter 201, Statues of 2015, expanded criminal acts against law enforcement animals to include offenses against animals used by volunteers acting under the direct supervision of a peace officer.
      
   4. SB 1500 (Lieu), Chapter 598, Statutes of 2012, allows pre-conviction forfeiture of an individual’s seized animals in animal abuse and neglect cases.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Animal Control Directors Association and State Humane Association of California (sponsor)
Animal Legal Defense Fund
California District Attorneys Association

California State Sheriffs’ Association
El Dorado County Sheriff, John D’Agostini
National Link Coalition
The Humane Society of the United States

Sacramento County District Attorney, Anne Marie Schubert
San Diego County District Attorney’s Office

Opposition

American Civil Liberties Union of California

California Public Defenders Association

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744