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 generally authorizes a court to dismiss an action or to strike or dismiss an enhancement in the furtherance of justice. Existing law requires a court to dismiss an enhancement if it is in the furtherance of justice to do so, and requires the court to consider certain circumstances and accord them great weight in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

This bill would make technical, nonsubstantive changes to those provisions.

Date of Hearing: January 18, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1039

Author:(Rodriguez) – As Amended Ver:January 3, 2024

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

SUMMARY:

This bill expands the definition of the type sexual touching that, when done by an employee or agent of a public entity detention or health facility with a consenting adult who is confined in the facility, qualifies as criminal sexual activity. The bill also increases the penalty for this type of criminal sexual touching from a misdemeanor to an alternative felony-misdemeanor.

Specifically, this bill:

1. Expands the definition of sexual touching that, when done by an employee or agent of a public entity detention or health facility with a consenting adult who is confined in the facility, qualifies as criminal sexual activity.
2. Increases the penalty for sexual touching, as described in 1) above, to an alternative felony-misdemeanor that is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year, or as a felony by imprisonment in a county jail for 16 months, two years, or three years, or by a fine of up to $10,000, or by both imprisonment and a fine.
3. Provides that if a person who is employed by a public entity detention or health facility is convicted of engaging in sexual activity with an incarcerated person, the employee shall not be eligible to be rehired or reinstated by any public entity detention or health facility.

FISCAL EFFECT:

1. Cost pressures (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to adjudicate violations of the offense expanded by this bill. A defendant charged with a misdemeanor or felony is entitled to no-cost legal representation and a jury trial. Actual court costs will depend on the number of violations, prosecutorial discretion, and the amount of court time needed to adjudicate each case. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The 2023-24 budget includes $105 million from the General Fund to backfill declining revenue to the Trial Court Trust Fund.
2. Non-reimbursable annual costs of an unknown but potentially significant amount to counties due to increased incarceration. This bill expands the definition of an existing offense, allows the offense to be charged as an alternative felony-misdemeanor, and prescribes longer jail terms for felony convictions than the jail terms available under existing law. Actual costs resulting from this bill will depend on the number of convictions and the sentences issued by courts. The average annual cost to incarcerate a defendant in county jail is approximately $29,000. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding after the 2011 Realignment Act.

COMMENTS:

1. Purpose. According to the author:

No person in a detention facility should fear sexual assault, especially from a superior. Inmates rely on officers for their daily needs, including food, clothing, and medication. Refusing sexual advances risks retaliation and deprivation of necessities. To better address the abuse of power by officers, this bill would allow for punishment as a felony, should the situation warrant it.

1. Background. Under existing law, it is a crime for any employee, officer, agent, staff, or volunteer of a detention facility, or any peace officer, to engage in sexual activity with an adult incarcerated in a detention facility. Even if the sexual activity at issue was putatively consensual, the law does not recognize the consent of the incarcerated person as a defense to these crimes because of the inherent power imbalance between an incarcerated person and an employee of the facility in which that person is detained. The penalties for this conduct depend on the type of sexual activity involved. Acts of sexual intercourse, sodomy, oral copulation, and sexual penetration can be punished as an alternative felony-misdemeanor (or “wobbler”), meaning that they can be prosecuted either as a misdemeanor or a felony. Under existing law, other specified acts of sexual touching can be punished as a misdemeanor.

This bill expands the definition of “sexual touching” to include additional conduct, allows the offense to be punished as an alternative felony-misdemeanor, and establishes that a person convicted of a felony sexual touching may be punished by a jail term of 16 months, two years, or three years. Because this bill expands criminal liability for conduct not specified in existing law, it may lead to additional prosecutions and convictions for this offense. Additionally, by increasing the maximum jail terms possible for this conduct, this bill may lead to longer jail terms for each conviction, adding to county incarceration costs. California county jails are increasingly overcrowded, particularly since the enactment of the Realignment Act in 2011. Jail overcrowding has resulted in court-mandated population caps and increased rates violence and death for incarcerated people, as well as significant state funding for additional jail construction.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: January 9, 2024

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Increases the penalty for specified sexual activity with a “consenting” detained person from a misdemeanor to an alternative felony-misdemeanor. Specifically, this bill:

1. Increases the penalty for “sexual touching” with a consenting adult who is confined in a detention facility from a misdemeanor to an alternative felony-misdemeanor. The offense is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year, or as a felony by a term of imprisonment in a county jail for 16 months, or 2 or 3 years, or by a fine of not more than ten thousand dollars $10,000, or by both.
   
2. Expands the definition of “sexual touching” to include rubbing or touching of anus, groin, or buttocks of another or touching these parts of oneself in the presence of another.
   
3. Provides that a person convicted of this offense, who is employed by, a public entity detention facility, or a public entity health facility, shall be terminated and shall not be eligible to be rehired or reinstated.
   

EXISTING LAW:

1. Provides that any employee, officer, agent, staff, or volunteer of a detention facility, and any peace officer who engages in sexual activity with a consenting adult who is confined in a detention facility is guilty of a public offense. (Pen. Code, § 289.6, subd. (a)(2).)
2. Provides that any employee with a department, board, or authority under the Department of Corrections and Rehabilitation (CDCR) or a facility under contract with a department, board, or authority under CDCR, who, during the course of their employment directly provides treatment, care, control, or supervision of incarcerated persons, wards, or parolees, and who engages in sexual activity with a consenting adult who is an incarcerated person, ward, or parolee, is guilty of a public offense. (Pen. Code, § 289.6, subd. (a)(3).)
3. Provides that consent by a confined person or parolee to sexual activity proscribed by this offense is not a defense. (Pen. Code, § 289.6, subd. (e).)
4. Defines “sexual activity” for purposes of this offense as sexual intercourse, sodomy, oral copulation, sexual penetration, and the rubbing or touching of the breasts or sexual organs of another, or of oneself in the presence of and with knowledge of another, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or another. (Pen. Code, § 289.6, subds. (d)(1)-(5).)
   
5. States that a person who commits this offense by rubbing or touching of the breasts or sexual organs of another, or of oneself in the presence of and with knowledge of another, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or another, is guilty of a misdemeanor. (Pen. Code, § 289.6, subd. (g).)
   
6. States that a person who commits this offense by committing sexual intercourse, sodomy, oral copulation, sexual penetration, is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year, or of a felony punishable by imprisonment in the state prison, or by a fine of not more than $10,000, or by both. (Pen. Code, § 289.6, subd. (h).)
   
7. Provides that any person previously convicted of a violation of this offense shall, upon a subsequent violation, be guilty of a felony. (Pen. Code, § 289.6, subd. (i).)
   
8. Provides that anyone convicted of a felony violation of this offense who is employed by a department, board, or authority within CDCR shall be terminated and shall not be eligible to be hired or reinstated by a department, board, or authority within CDCR. (Pen. Code, § 289.6, subd. (j).)
   
9. Provides that every public officer who, under color of authority, without lawful necessity, assaults or beats any person is guilty of an alternative felony-misdemeanor. This offense is punishable as a misdemeanor by a $10,000 fine, by imprisonment in a county jail not exceeding one year, or by both, or as a felony by imprisonment by a term of imprisonment in a county jail for 16 months, or two or three years. (Pen. Code, § 149.)
10. States that 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 6 months, or by both. “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. (Pen. Code, § 243.4, subd. (e)(1).)
    
11. States that 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 is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. (Pen. Code, § 289.)
    
12. Provides that rape is an act of sexual intercourse against person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (Pen. Code, § 261, subd. (a)(2).)
    
13. Provides that rape is an act of sexual intercourse 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. (Pen. Code, § 261, subd. (a)(6).)
    
14. Provides that rape is an act of sexual intercourse 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. (Pen. Code, § 261, subd. (a)(7).)
    
15. Provides that rape is a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. (Pen. Code, § 264, subd. (a).)
    
16. Provides that any person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when their consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person’s free will, and does cause the victim to so act, is guilty of an alternative felony-misdemeanor, punishable by imprisonment in a county jail for not more than one year or in the state prison for 2, 3, or 4 years. (Pen. Code, § 266c.)
    

Establishes a statewide process to decertify officers who have been fired for serious misconduct, including but not limited to sexual assault. For purposes of this decertification, the propositioning for or commission of any sexual act while on duty is considered a sexual assault. (Pen. Code, § 832.7, subd. (b)(1)(B)(ii).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “No person in a detention facility should fear sexual assault, especially from a superior. Inmates rely on officers for their daily needs, including food, clothing, and medication. Refusing sexual advances risks retaliation and deprivation of necessities. To better address the abuse of power by officers, this bill would allow for punishment as a felony, should the situation warrant it.”
   
2. Prohibition on Staff Sexual Activity with Incarcerated Persons: The Legislature enacted Penal Code section 289.6 for the purpose of “prohibiting peace officers or employees of a law enforcement agency to engage in sexual activity with a prisoner housed in a detention facility.” (See People v. Bojorquez (2010) 183 Cal.App.4th 407, 426.) In this context, consent is not a legal defense to the offense due to the inherent power imbalance. (Pen. Code, § 289.6, subd. (e).) Thus, any employee who engages in sexual activity with a detained person is guilty, even if the detained person “consents.” “Sexual activity” includes sexual intercourse, sodomy, oral copulation, sexual penetration, and rubbing or touching of the breasts or sexual organs of another, or of oneself in the presence of and with knowledge of another, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or another (i.e., sexual touching). (Pen. Code, § 289.6, subd. (d)(1)-(5).)
   
   The penalties for this offense depend on the type of sexual activity conducted by the officer. The offense is an alternative felony-misdemeanor for acts of sexual intercourse, sodomy, oral copulation, and sexual penetration. (Pen. Code, § 286.9, subd. (h).) In contrast, if the acts involve sexual touching, the conduct is a misdemeanor, punishable by imprisonment in a county jail not exceeding 6 months. (Pen. Code, §§ 19, 286.9, subd. (g).) In addition, under existing law, an employee of CDCR who is convicted of a felony violation of this provision, must be terminated and cannot be rehired by CDCR. (Pen. Code, § 289.6, subd. (j).)
   
   This bill would expand the crime by changing the definition of sexual touching to also include the touching of the anus, groin, or buttocks. This bill would also increase penalties for staff who participate in sexual touching with a detained person. Specifically, this bill would increase the penalty for sexual touching, from a misdemeanor to an alternative felony-misdemeanor. Sexual touching could be punishable as a misdemeanor by imprisonment in a county jail not exceeding one year, or as a felony by a term of imprisonment in a county jail for 16 months, or 2 or 3 years, or by a fine of up to $10,000 or by both. This bill also provides that a person convicted of this offense, who is employed by CDCR, a public entity detention facility, or a public entity health facility, shall be terminated and shall not be eligible to be rehired or reinstated, without regard as to whether the conviction is a felony or a misdemeanor.

Notably, this bill applies to all employees, officers, agents, contractors, staff and volunteers of the detention facility that engage in sexual activity with the confined adult. As an example, a maintenance worker, or rehabilitative program provider, could be convicted of a felony under this bill.

1. Impetus for this Bill: Recently an Orange County Sheriff’s Deputy was “accused of establishing an inappropriate relationship with two female inmates incarcerated at the Theo Lacy Facility, including sexually assaulting the incarcerated women on multiple occasions by touching them over their jail uniforms and showing them pornographic videos of himself while they were in their housing locations.” (Orange County District Attorney, Orange County Sheriff’s Deputy Charged with Sexually Assaulting Female Inmates, Showing Pornographic Videos of Himself (Jan. 4, 2023) <https://orangecountyda.org/press/orange-county-sheriffs-deputy-charged-with-sexually-assaulting-female-inmates-showing-pornographic-videos-of-himself/> [as of April 7, 2023].) Based on the misdemeanor charges brought by the Orange County District Attorney, the deputy “faces a maximum sentence of 18 months in the Orange County Jail if convicted on all counts.” (Ibid.) The Orange County District Attorney “is seeking a change to state law to allow prosecutors to charge the behavior as a felony or a misdemeanor.” (Ibid.)
2. Increased Penalties Do Not Deter Crime: This bill would increase penalties for officers and corrections staff who participate in sexual touching with a detained person. Longer sentences are counterproductive for public safety and contribute to the dynamic of diminishing returns as the incarcerated population expands. (Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87 UMKC L. Rev., 1 (Nov. 5, 2018).) Increasingly punitive sentences add little to the deterrent effect of the criminal justice system; and mass incarceration diverts resources from program and policy initiatives that hold the potential for greater impact on public safety. (Ibid.)
   

Research shows that increasing the severity of the punishment does little to deter the crime. According to the National Institute of Justice, laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are ineffective partly because criminals know little about the sanctions for specific crimes. More severe punishments do not “chasten” individuals convicted of crimes, and prisons may exacerbate recidivism. Studies show that for most individuals convicted of a crime, short to moderate prison sentences may be a deterrent but longer prison terms produce only a limited deterrent effect. In addition, the crime prevention benefit falls far short of the social and economic costs. (National Institute of Justice, Five Things about Deterrence <https://www.ojp.gov/pdffiles1/nij/247350.pdf> [as of Feb. 15, 2023].) These findings are consistent with other research from national institutions of renown. (See Travis, The Growth of Incarceration in the United States: Exploring Causes and Consequences, National Research Council of the National Academies of Sciences, Engineering, and Medicine (April 2014) at pp. 130 -150 <https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1026&context=jj_pubs>.) “Policymakers and judges should be cognizant of the evidence to support any particular goal of sentencing. If the length of a prison term has little deterrent value, it may be time to forego the rationale of ‘sending a message.’ ” (Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87 UMKC L. Rev., 1 (Nov. 5, 2018).)

1. Other Options for Prosecuting Staff Sexual Abuse: Advocates of this bill content that existing law allows law enforcement officers to “use their positions of power to sexually abuse inmates with minimal potential punishment.” To the extent that this bill is aimed at increasing penalties for staff sexual abuse of incarcerated persons, there are several options currently available to prosecutors under existing law.
   
   Every public officer who, under color of authority, without lawful necessity, assaults or beats any person is guilty of an alternative felony-misdemeanor. (Pen. Code, § 149.) This offense is punishable as a misdemeanor by a $10,000 fine, by imprisonment in a county jail not exceeding one year, or by both, or as a felony by imprisonment by a term of imprisonment in a county jail for 16 months, or 2 or 3 years. (Ibid.) For this offense, an officer is guilty if they touch an incarcerated person in a harmful or offensive manner. “The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.” (CALCRIM No. 908.) Thus, an officer who sexually assaults an incarcerated person by touching them could be punished under this statute. (See e.g., People v. Alford (1991) 235 Cal.App.3d 799, 804-805 [officer convicted of sexually assaulting an arrestee was properly convicted of both sexual battery and assault under color of authority].)
   
   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 is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. (Pen. Code, §§ 289; § 261, subd. (a)(2), 264, subd. (a).) Rape can also be accomplished 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 and by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim. (Pen. Code, § 261, subd. (a)(6) -(7).) Also, any person who induces another person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when their consent is procured by a pretense made with the intent to create fear, is guilty of an alternative felony-misdemeanor, punishable by imprisonment in a county jail for not more than one year or in the state prison for 2, 3, or 4 years. (Pen. Code, § 266c.)
   
   Additionally, a 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 6 months, or by both. (Pen. Code, § 243.4, subd. (e)(1).)

Further, if an officer commits sexual intercourse, sodomy, oral copulation, and sexual penetration, whether or not the incarcerated person consents, the officer can be charged with a felony, punishable by imprisonment in a state prison, or by a fine of up to $10,000 or by both. (Pen. Code, § 289.6, subd. (h).) The officer can also be charged with misdemeanor for this offense, punishable by imprisonment in a county jail not exceeding one year. (Pen. Code, § 289.6, subd. (h).)

Finally, SB 2 (Bradford), Chapter 409, Statutes of 2021 established a statewide process to automatically decertify officers who have been fired for serious misconduct including sexual assault. For the purposes of officer decertification, the propositioning for or commission of “any sexual act” while on duty is considered a sexual assault. (Pen. Code, § 832.7.) For example, as noted above, a person who is a peace officer and is convicted of committing this offense is subject to termination. They would also be subject to possible decertification.

1. Regulations on Staff Sexual Misconduct: Title 15 Regulations strictly prohibit sexual behavior by a departmental employee, volunteer, agent or individual working on behalf of CDCR, which involves, or is directed toward, an incarcerated person or parolee. (15 Cal. Code Regs., § 3401.5.) The Regulations specify that the legal concept of “consent” does not exist between departmental staff and incarcerated persons or parolees; any sexual behavior between them constitutes sexual misconduct and “shall subject the employee to disciplinary action and/or to prosecution under the law.” (15 Cal. Code Regs., § 3401.5.) Title 15 regulations further specify that a grievance brought by an incarcerated person at CDCR containing allegations of staff-on-inmate sexual misconduct or sexual harassment shall be immediately reviewed and a response must be provided within 48 hours. The incarcerated person shall not be required to attempt to resolve the incident with staff and there is no time limit for allegations of staff sexual misconduct. (15 Cal. Code Regs., § 3084.)
   
   Any CDCR employee who observes, or who receives information from any source concerning staff sexual misconduct, is required to immediately report the information or incident directly to the hiring authority, unit supervisor, or highest-ranking official on duty. (15 Cal. Code Regs., § 3401.5.) Failure to accurately and promptly report any incident, information or facts which would lead a reasonable person to believe sexual misconduct has occurred may subject the employee who failed to report it to disciplinary action. (Ibid.) All allegations of staff sexual misconduct are required to be subject to investigation, which may lead to disciplinary action or criminal prosecution. (Ibid.)
   
   CDCR’s regulations additionally provide that alleged victims who report criminal staff sexual misconduct shall be advised that their identity may be kept confidential, upon their request. (15 Cal. Code Regs., § 3401.5.) The regulations state, “retaliatory measures against employees who report incidents of staff sexual misconduct shall not be tolerated and shall result in disciplinary action and/or criminal prosecution.” Such retaliatory measures include, but are not limited to, unwarranted denials of promotions, merit salary increases, training opportunities, or requested transfers; involuntary transfer to another location/position as a means of punishment; or unsubstantiated poor performance reports. (Ibid.) Likewise, retaliatory measures against incarcerated persons and parolees who report incidents of staff sexual misconduct “shall not be tolerated and shall result in disciplinary action and/or criminal prosecution.” (Ibid.) Such retaliatory measures include, but are not limited to, coercion, threats of punishment, or any other activities intended to discourage or prevent an inmate/parolee from reporting sexual misconduct. (Ibid.)
   
   CDCR is also required to consider multiple protection measures to protect incarcerated victims who report staff sexual misconduct or cooperate with staff sexual misconduct investigations including, but not limited to, housing changes or transfers, removal of alleged staff from contact with victims, and emotional support services for incarcerated persons or staff who fear retaliation for reporting staff sexual misconduct or sexual harassment or for cooperating with investigations. (15 Cal. Code Regs., § 3401.5.)
   
   Facility administrators at local detention facilities are required to develop and publish a manual of policy and procedures, made available to all employees that address emergency procedures, including “zero tolerance in the prevention of sexual abuse and sexual harassment.” (15 Cal. Code Regs., § 1029, subd. (a)(7).) Further, each facility administrator shall, at least annually, review, evaluate, and make a record of security measures. The review and evaluation shall include internal and external security measures of the facility including security measures specific to prevention of sexual abuse and sexual harassment. (15 Cal. Code Regs., § 1029, subd. (a)(6).) Facilities are required to provide for, multiple internal ways for incarcerated people to privately report sexual abuse and sexual harassment, retaliation by other incarcerated persons or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to such incidents. (15 Cal. Code Regs., § 1029, subd. (e)(1).) Facilities are also required to provide a method for uninvolved incarcerated persons, family, community members, and other interested third parties to report sexual abuse or sexual harassment, which shall be publicly posted at the facility. (15 Cal. Code Regs., § 1029, subd. (e)(2).)
   
2. Argument in Support: According to the California District Attorneys Association (CDAA), “Under existing law, it is a misdemeanor for an employee or officer of a CDCR or public detention facility to engage in certain sexual activity with a consenting adult who is confined therein. Sexual activity between a custodial officer and an inmate is always non-consensual. There is an inherent power imbalance that prevents inmates from exercising free will. Inmates rely on officers for their daily needs, including food, clothing, and medication. Refusing sexual advances risks retaliation and deprivation of necessities. This creates an opportunity for law enforcement officers to use their positions of power to sexually abuse inmates with minimal potential punishment. For example, in January 2023, an Orange County Sheriff’s Deputy faced only misdemeanor charges for sexually assaulting two female inmates over a period of eight months.”
   
3. Argument in Opposition: According to the California Public Defenders Association (CPDA), “While it is good public policy to discourage consensual sexual contact between employees and patients or inmates in these facilities; making sexual contact between consenting adults a felony is draconian. This bill would subject an employee who has minor sexual contact e.g. rubbing someone’s buttocks, with a consenting patient or inmate to a potential prison term. This bill would elevate the penalty for such consensual sexual conduct to be comparable to the penalty for the same nonconsensual sexual contact in the general population.
   
   “Longer potential prison sentences will not make state mental facilities or prisons safer for patients or inmates. Better training and oversight of employees would be more useful in addressing the problem. A potential prison sentence for such behavior would just contribute to the ongoing mass incarceration problem in California and divert limited resources from true public goods such as mental health, housing and education. Wasting taxpayers’ precious funds to incarcerate people who engaged in consensual sexual conduct when the state is facing a $68 billion deficit is shortsighted.”
   
4. Prior Legislation:
   
   1. SB 2 (Bradford), Chapter 409, Statutes of 2021, established a statewide process to decertify officers who have been fired for serious misconduct such as, but not limited to, sexual assault.
      
   2. AB 2078 (Nielsen), Chapter 123, Statutes of 2012, clarified that peace officers are prohibited from engaging in consensual sex with a person in a detention facility or being transported after arrest to a detention facility.
      
   3. SB 377 (Polanco), Chapter 806, Statutes of 1999, increased the penalty for a detention facility employee convicted of engaging in sexual intercourse with a consenting adult confined in the facility, from a misdemeanor to an alternative felony-misdemeanor.
      
   4. AB 685 (Wayne), Chapter 209, Statutes of 1997, added to the definition of “detention facility,” for purposes of the statute, a health facility in which the victim has been detained involuntarily.
      
   5. AB 1568 (Solis), Chapter 499, Statutes of 1994, created the crime of consensual sexual activity with a confined adult.

REGISTERED SUPPORT / OPPOSITION:

Support

County of Orange, Through its Office of The District Attorney/public Administrator (Sponsor)

California District Attorneys Association

Opposition

ACLU California Action

California Public Defenders Association (CPDA)

Analysis Prepared by:

Date of Hearing: April 18, 2023

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Increases the penalty for specified consensual sexual activity with a confined adult from a misdemeanor to an alternative felony-misdemeanor. Specifically, this bill:

1. Increases the penalty for “sexual touching” from a misdemeanor to an alternative felony-misdemeanor, punishable by imprisonment in a county jail not exceeding one year, or in the state prison, or by a fine of not more than ten thousand dollars $10,000, or by both.
   
2. Expands the definition of “sexual touching” to include rubbing or touching of breasts, sexual organs, anus, groin, or buttocks of another or touching these parts of oneself in the presence of another.
   

EXISTING LAW:

1. Provides that any employee, officer, agent, staff, or volunteer of a detention facility, and any peace officer who engages in sexual activity with a consenting adult who is confined in a detention facility is guilty of a public offense. (Pen. Code, § 289.6, subd. (a)(2).)
2. Provides that any employee with a department, board, or authority under the Department of Corrections and Rehabilitation (CDCR) or a facility under contract with a department, board, or authority under CDCR, who, during the course of their employment directly provides treatment, care, control, or supervision of incarcerated persons, wards, or parolees, and who engages in sexual activity with a consenting adult who is an incarcerated person, ward, or parolee, is guilty of a public offense. (Pen. Code, § 289.6, subd. (a)(3).)
3. Provides that consent by a confined person or parolee to sexual activity proscribed by this offense is not a defense. (Pen. Code, § 289.6, subd. (e).)
4. Defines “sexual activity” for purposes of this offense as sexual intercourse, sodomy, oral copulation, sexual penetration, and the rubbing or touching of the breasts or sexual organs of another, or of oneself in the presence of and with knowledge of another, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or another. (Pen. Code, § 289.6, subds. (d)(1)-(5).)
   
5. States that a person who commits this offense by rubbing or touching of the breasts or sexual organs of another, or of oneself in the presence of and with knowledge of another, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or another, is guilty of a misdemeanor. (Pen. Code, § 289.6, subd. (g).)
   
6. States that a person who commits this offense by committing sexual intercourse, sodomy, oral copulation, sexual penetration, is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year, or of a felony punishable by imprisonment in the state prison, or by a fine of not more than $10,000, or by both. (Pen. Code, § 289.6, subd. (h).)
   
7. Provides that any person previously convicted of a violation of this offense shall, upon a subsequent violation, be guilty of a felony. (Pen. Code, § 289.6, subd. (i).)
   
8. Provides that anyone convicted of a felony violation of this offense who is employed by a department, board, or authority within CDCR shall be terminated and shall not be eligible to be hired or reinstated by a department, board, or authority within CDCR. (Pen. Code, § 289.6, subd. (j).)
9. States that 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 6 months, or by both. “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. (Pen. Code, § 243.4, subd. (e)(1).)
   
10. States that 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 is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. (Pen. Code, § 289.)
    
11. Provides that rape is an act of sexual intercourse against person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (Pen. Code, § 261, subd. (a)(2).)
    
12. Provides that rape is an act of sexual intercourse 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. (Pen. Code, § 261, subd. (a)(6).)
    
13. Provides that rape is an act of sexual intercourse 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. (Pen. Code, § 261, subd. (a)(7).)
    
14. Provides that rape is a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. (Pen. Code, § 264, subd. (a).)
    
15. Provides that any person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when their consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person’s free will, and does cause the victim to so act, is a alternative felony-misdemeanor, punishable by imprisonment in a county jail for not more than one year or in the state prison for 2, 3, or 4 years. (Pen. Code, § 266c.)
    

Establishes a statewide process to decertify officers who have been fired for serious misconduct, including but not limited to sexual assault. For purposes of this decertification, the propositioning for or commission of any sexual act while on duty is considered a sexual assault. (Pen. Code, § 832.7, subd. (b)(1)(B)(ii).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “No person in a detention facility should fear sexual assault, especially from a superior. Inmates rely on officers for their daily needs, including food, clothing, and medication. Refusing sexual advances risks retaliation and deprivation of necessities. To better address the abuse of power by officers, this bill would allow for punishment as a felony, should the situation warrant it.”
   
2. Prohibition on Staff Sexual Activity with Incarcerated Persons: The Legislature enacted Penal Code section 289.6 for the purpose of “prohibiting peace officers or employees of a law enforcement agency to engage in sexual activity with a prisoner housed in a detention facility.” (See People v. Bojorquez (2010) 183 Cal.App.4th 407, 426.) Consent is not a defense to the offense. (Pen. Code, § 289.6, subd. (e).) “Sexual activity” includes sexual intercourse, sodomy, oral copulation, sexual penetration, and rubbing or touching of the breasts or sexual organs of another, or of oneself in the presence of and with knowledge of another, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or another (i.e., sexual touching). (Pen. Code, § 289.6, subd. (d)(1)-(5).)
   
   The penalties for this offense depend on the type of sexual activity conducted by the officer. The offense is an alternative felony-misdemeanor for acts of sexual intercourse, sodomy, oral copulation, and sexual penetration. (Pen. Code, § 286.9, subd. (h).) The offense is a misdemeanor for acts of sexual touching. (Pen. Code, § 286.9, subd. (g).)
   
   This bill would expand the crime by change the definition of sexual touching to also include the touching of the anus, groin, or buttocks. This bill would also increase penalties for peace officers and corrections staff who participate in consensual sexual touching with an incarcerated person. Specifically, this bill would increase the penalty for sexual touching, from a misdemeanor to an alternative felony-misdemeanor, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in a state prison, or by a fine of up to $10,000 or by both.
   
   Notably, such conduct, if non-consensual (in both, custodial and non-custodial settings), is considered sexual battery, which is punishable as a misdemeanor by imprisonment in a county jail for up to six months and/or a fine not exceeding $2,000. (Pen. Code, § 2434, subd. (e)(1).) Therefore, this bill would make the penalty for consensual sexual touching more severe than the penalty for non-consensual sexual battery.
   
3. Impetus for this Bill: Recently an Orange County Sheriff’s Deputy was “accused of establishing an inappropriate relationship with two female inmates incarcerated at the Theo Lacy Facility, including sexually assaulting the incarcerated women on multiple occasions by touching them over their jail uniforms and showing them pornographic videos of himself while they were in their housing locations.” (Orange County District Attorney, Orange County Sheriff’s Deputy Charged with Sexually Assaulting Female Inmates, Showing Pornographic Videos of Himself (Jan. 4, 2023) <https://orangecountyda.org/press/orange-county-sheriffs-deputy-charged-with-sexually-assaulting-female-inmates-showing-pornographic-videos-of-himself/> [as of April 7, 2023].) Based on the misdemeanor charges brought by the Orange County District Attorney, the deputy “faces a maximum sentence of 18 months in the Orange County Jail if convicted on all counts.” (Ibid.) The Orange County District Attorney “is seeking a change to state law to allow prosecutors to charge the behavior as a felony or a misdemeanor.” (Ibid.)
   
4. Increased Penalties Do Not Deter Crime: This bill would increase penalties for officers and corrections staff who participate in consensual sexual activity with an incarcerated person. Unduly long sentences are counterproductive for public safety and contribute to the dynamic of diminishing returns as the incarcerated population expands. (Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87 UMKC L. Rev., 1 (Nov. 5, 2018).) Increasingly punitive sentences add little to the deterrent effect of the criminal justice system; and mass incarceration diverts resources from program and policy initiatives that hold the potential for greater impact on public safety. (Ibid.)
   

Research shows that increasing the severity of the punishment does little to deter the crime. According to the National Institute of Justice, laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are ineffective partly because criminals know little about the sanctions for specific crimes. More severe punishments do not “chasten” individuals convicted of crimes, and prisons may exacerbate recidivism. Studies show that for most individuals convicted of a crime, short to moderate prison sentences may be a deterrent but longer prison terms produce only a limited deterrent effect. In addition, the crime prevention benefit falls far short of the social and economic costs. (National Institute of Justice, Five Things about Deterrence <https://www.ojp.gov/pdffiles1/nij/247350.pdf> [as of Feb. 15, 2023].) These findings are consistent with other research from national institutions of renown. (See Travis, The Growth of Incarceration in the United States: Exploring Causes and Consequences, National Research Council of the National Academies of Sciences, Engineering, and Medicine (April 2014) at pp. 130 -150 <https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1026&context=jj_pubs> [as of March 27, 2023].) “Policymakers and judges should be cognizant of the evidence to support any particular goal of sentencing. If the length of a prison term has little deterrent value, it may be time to forego the rationale of ‘sending a message.’ ” (Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87 UMKC L. Rev., 1 (Nov. 5, 2018).)

1. Other Options for Prosecuting Staff Sexual Abuse: To the extent that this bill is aimed at increasing penalties for staff sexual abuse of incarcerated persons, there are several options currently available to prosecutors under existing law.
   
   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 is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. (Pen. Code, § 289.)
   
   Any person who commits an act of sexual intercourse against person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury is guilty of rape, a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. (Pen. Code, §§ 261, subd. (a)(2), 264, subd. (a).) Rape can also be accomplished 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 and by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim. (Pen. Code, § 261, subd. (a)(6) -(7).) Also, any person who induces another person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when their consent is procured by a pretense made with the intent to create fear, is guilty of an alternative felony-misdemeanor, punishable by imprisonment in a county jail for not more than one year or in the state prison for 2, 3, or 4 years. (Pen. Code, § 266c.)
   
   Additionally, a 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 6 months, or by both. (Pen. Code, § 243.4, subd. (e)(1).)

Further, if an officer commits sexual intercourse, sodomy, oral copulation, and sexual penetration, whether or not the incarcerated person consents, the officer can be charged with a felony, punishable by imprisonment in a state prison, or by a fine of up to $10,000 or by both. The officer can also be charged with misdemeanor for this offense, punishable by imprisonment in a county jail not exceeding one year. (Pen. Code, § 289.6, subd. (h).)

Finally, SB 2 (Bradford), Chapter 409, Statutes of 2021 established a statewide process to automatically decertify officers who have been fired for serious misconduct including sexual assault. For the purposes of officer decertification, the propositioning for or commission of “any sexual act” while on duty is considered a sexual assault. (Pen. Code, § 832.7.)

1. Regulations on Staff Sexual Misconduct: Title 15 Regulations strictly prohibit sexual behavior by a departmental employee, volunteer, agent or individual working on behalf of CDCR, which involves or is directed toward an incarcerated person or parolee. (15 Cal. Code Regs., § 3401.5.) The Regulations specify that the legal concept of “consent” does not exist between departmental staff and incarcerated persons or parolees; any sexual behavior between them constitutes sexual misconduct and “shall subject the employee to disciplinary action and/or to prosecution under the law.” (15 Cal. Code Regs., § 3401.5.) Title 15 regulations further specify that a grievance brought by an incarcerated person at CDCR containing allegations of staff-on-inmate sexual misconduct or sexual harassment shall be immediately reviewed and a response must be provided within 48 hours. The incarcerated person shall not be required to attempt to resolve the incident with staff and there is no time limit for allegations of staff sexual misconduct. (15 Cal. Code Regs., § 3084.)
   
   Any CDCR employee who observes, or who receives information from any source concerning staff sexual misconduct, is required to immediately report the information or incident directly to the hiring authority, unit supervisor, or highest-ranking official on duty. (15 Cal. Code Regs., § 3401.5.) Failure to accurately and promptly report any incident, information or facts which would lead a reasonable person to believe sexual misconduct has occurred may subject the employee who failed to report it to disciplinary action. (Ibid.) All allegations of staff sexual misconduct are required to be subject to investigation, which may lead to disciplinary action or criminal prosecution. (Ibid.)
   
   CDCR’s regulations additionally provide that alleged victims who report criminal staff sexual misconduct shall be advised that their identity may be kept confidential, upon their request. (15 Cal. Code Regs., § 3401.5.) The regulations state that “retaliatory measures against employees who report incidents of staff sexual misconduct shall not be tolerated and shall result in disciplinary action and/or criminal prosecution.” Such retaliatory measures include, but are not limited to, unwarranted denials of promotions, merit salary increases, training opportunities, or requested transfers; involuntary transfer to another location/position as a means of punishment; or unsubstantiated poor performance reports. (Ibid.) Likewise, retaliatory measures against incarcerated persons and parolees who report incidents of staff sexual misconduct “shall not be tolerated and shall result in disciplinary action and/or criminal prosecution.” (Ibid.) Such retaliatory measures include, but are not limited to, coercion, threats of punishment, or any other activities intended to discourage or prevent an inmate/parolee from reporting sexual misconduct. (Ibid.)
   
   CDCR is also required to consider multiple protection measures to protect incarcerated victims who report staff sexual misconduct or cooperate with staff sexual misconduct investigations including but not limited to housing changes or transfers, removal of alleged staff from contact with victims, and emotional support services for incarcerated persons or staff who fear retaliation for reporting staff sexual misconduct or sexual harassment or for cooperating with investigations. (15 Cal. Code Regs., § 3401.5.)
   
   Facility administrators at local detention facilities are required to develop and publish a manual of policy and procedures, made available to all employees that address emergency procedures, including “zero tolerance in the prevention of sexual abuse and sexual harassment.” (15 Cal. Code Regs., § 1029, subd. (a)(7).) Further, each facility administrator shall, at least annually, review, evaluate, and make a record of security measures. The review and evaluation shall include internal and external security measures of the facility including security measures specific to prevention of sexual abuse and sexual harassment. (15 Cal. Code Regs., § 1029, subd. (a)(6).) Facilities are required to provide for, multiple internal ways for incarcerated people to privately report sexual abuse and sexual harassment, retaliation by other incarcerated persons or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to such incidents. (15 Cal. Code Regs., § 1029, subd. (e)(1).) Facilities are also required to provide a method for uninvolved incarcerated persons, family, community members, and other interested third parties to report sexual abuse or sexual harassment, which shall be publicly posted at the facility. (15 Cal. Code Regs., § 1029, subd. (e)(2).)
   
2. Argument in Support: According to the California District Attorneys Association (CDAA), “Under existing law, it is a misdemeanor for an employee or officer of a CDCR or public detention facility to engage in certain sexual activity with a consenting adult who is confined therein. Sexual activity between a custodial officer and an inmate is always non-consensual. There is an inherent power imbalance that prevents inmates from exercising free will. Inmates rely on officers for their daily needs, including food, clothing, and medication. Refusing sexual advances risks retaliation and deprivation of necessities. This creates an opportunity for law enforcement officers to use their positions of power to sexually abuse inmates with minimal potential punishment. For example, in January 2023, an Orange County Sheriff’s Deputy faced only misdemeanor charges for sexually assaulting two female inmates over a period of eight months.”
   
3. Argument in Opposition: According to the California Public Defenders Association (CPDA), “While it is good public policy to discourage consensual sexual contact between employees and patients or inmates in these facilities; making sexual contact between consenting adults a felony is draconian. This bill would subject an employee who has minor sexual contact e.g. rubbing someone’s buttocks, with a consenting patient or inmate to a potential prison term. This bill would elevate the penalty for such consensual sexual conduct to be comparable to the penalty for the same nonconsensual sexual contact in the general population.
   
   “Longer potential prison sentences will not make state mental facilities or prisons safer for patients or inmates. Better training and oversight of employees would be more useful in addressing the problem. A potential prison sentence for such behavior would just contribute to the ongoing mass incarceration problem in California and divert limited resources from true public goods such as mental health, housing and education. Wasting taxpayers’ precious funds to incarcerate people who engaged in consensual sexual conduct when the state is facing a $22 billion deficit is shortsighted.”
   
4. Prior Legislation:
   
   1. SB 2 (Bradford), Chapter 409, Statutes of 2021 established a statewide process to decertify officers who have been fired for serious misconduct such as, but not limited to, sexual assault.
      
   2. AB 2078 (Nielsen), Chapter 123, Statutes of 2012, clarified that peace officers are prohibited from engaging in consensual sex with a person in a detention facility or being transported after arrest to a detention facility.
      
   3. SB 377 (Polanco), Chapter 806, Statutes of 1999, increased the penalty for a detention facility employee convicted of engaging in sexual activity with a consenting adult confined in the facility, from a misdemeanor to an alternative felony-misdemeanor.
      
   4. AB 685 (Wayne), Chapter 209, Statutes of 1997, added to the definition of “detention facility,” for purposes of the statute, a health facility in which the victim has been detained involuntarily.
      
   5. AB 1568 (Solis), Chapter 499, Statutes of 1994, created the crime of consensual sexual activity with a confined adult.

REGISTERED SUPPORT / OPPOSITION:

Support

Orange County District Attorney (Sponsor)

California District Attorneys Association

Opposition

California Public Defenders Association (CPDA)

Analysis Prepared by: