Bill Text: CA AB65 | 2013-2014 | Regular Session | Chaptered
Bill Title: Crimes: sex crimes.
Spectrum: Bipartisan Bill
Status: (Passed) 2013-09-09 - Chaptered by Secretary of State - Chapter 259, Statutes of 2013. [AB65 Detail]
Download: California-2013-AB65-Chaptered.html
BILL NUMBER: AB 65 CHAPTERED
BILL TEXT
CHAPTER 259
FILED WITH SECRETARY OF STATE SEPTEMBER 9, 2013
APPROVED BY GOVERNOR SEPTEMBER 9, 2013
PASSED THE SENATE AUGUST 15, 2013
PASSED THE ASSEMBLY AUGUST 19, 2013
AMENDED IN SENATE JUNE 25, 2013
AMENDED IN SENATE MAY 8, 2013
AMENDED IN ASSEMBLY MARCH 20, 2013
AMENDED IN ASSEMBLY FEBRUARY 25, 2013
AMENDED IN ASSEMBLY FEBRUARY 20, 2013
AMENDED IN ASSEMBLY JANUARY 30, 2013
INTRODUCED BY Assembly Members Achadjian and Lowenthal
(Principal coauthors: Assembly Members Bradford, Garcia, Gomez,
Mitchell, and Williams)
(Principal coauthor: Senator Hill)
(Coauthors: Assembly Members Alejo, Ammiano, Atkins, Bigelow,
Bloom, Blumenfield, Brown, Buchanan, Ian Calderon, Chávez, Conway,
Dahle, Daly, Dickinson, Donnelly, Frazier, Gatto, Gordon, Gorell,
Grove, Hagman, Hall, Harkey, Holden, Jones, Levine, Logue, Linder,
Logue, Maienschein, Mansoor, Melendez, Morrell, Mullin, Nazarian,
Nestande, Olsen, Patterson, Perea, John A. Pérez, Quirk-Silva,
Rendon, Skinner, Stone, Ting, Wagner, Waldron, Weber, and Wilk)
(Coauthors: Senators Anderson, Berryhill, Block, Cannella,
Emmerson, Fuller, Gaines, Huff, Jackson, Knight, Lieu, Padilla,
Rubio, Walters, and Wyland)
JANUARY 7, 2013
An act to amend Sections 261 and 286 of the Penal Code, relating
to crimes, and declaring the urgency thereof, to take effect
immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 65, Achadjian. Crimes: sex crimes.
Existing law provides various circumstances that constitute rape,
including an act of sexual intercourse accomplished with a person who
is not the spouse of the perpetrator where the person submits under
the belief that the person committing the act is the victim's spouse,
and this belief is induced by artifice, pretense, or concealment
practiced by the accused, with the intent to induce the belief.
Existing law provides various circumstances that constitute sodomy
against an individual's will, including an act accomplished with an
individual who is not the spouse of the perpetrator where the
individual submits under the belief that the individual committing
the act is the victim's spouse, and this belief is induced by
artifice, pretense, or concealment practiced by the accused, with the
intent to induce the belief.
This bill would instead provide that these types of rape and
sodomy occur where the person submits under the belief that the
person committing the act is someone known to the victim other than
the accused.
By expanding the definition of a 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.
This bill would declare that it is to take effect immediately as
an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 261 of the Penal Code is amended to read:
261. (a) Rape is an act of sexual intercourse accomplished with a
person not the spouse of the perpetrator, under any of the following
circumstances:
(1) Where a person is incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act. Notwithstanding the existence of a conservatorship pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
consent.
(2) Where it is accomplished against a person's will by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another.
(3) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the
accused.
(4) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused. As used in this paragraph,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets any one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(D) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's
fraudulent representation that the sexual penetration served a
professional purpose when it served no professional purpose.
(5) Where a person submits under the belief that the person
committing the act is someone known to the victim other than the
accused, and this belief is induced by any artifice, pretense, or
concealment practiced by the accused, with intent to induce the
belief.
(6) Where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the
perpetrator will execute the threat. As used in this paragraph,
"threatening to retaliate" means a threat to kidnap or falsely
imprison, or to inflict extreme pain, serious bodily injury, or
death.
(7) Where the act is accomplished against the victim's will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, "public official" means a person employed by a
governmental agency who has the authority, as part of that position,
to incarcerate, arrest, or deport another. The perpetrator does not
actually have to be a public official.
(b) As used in this section, "duress" means a direct or implied
threat of force, violence, danger, or retribution sufficient to
coerce a reasonable person of ordinary susceptibilities to perform an
act which otherwise would not have been performed, or acquiesce in
an act to which one otherwise would not have submitted. The total
circumstances, including the age of the victim, and his or her
relationship to the defendant, are factors to consider in appraising
the existence of duress.
(c) As used in this section, "menace" means any threat,
declaration, or act which shows an intention to inflict an injury
upon another.
SEC. 2. Section 286 of the Penal Code is amended to read:
286. (a) Sodomy is sexual conduct consisting of contact between
the penis of one person and the anus of another person. Any sexual
penetration, however slight, is sufficient to complete the crime of
sodomy.
(b) (1) Except as provided in Section 288, any person who
participates in an act of sodomy with another person who is under 18
years of age shall be punished by imprisonment in the state prison,
or in a county jail for not more than one year.
(2) Except as provided in Section 288, any person over 21 years of
age who participates in an act of sodomy with another person who is
under 16 years of age shall be guilty of a felony.
(c) (1) Any person who participates in an act of sodomy with
another person who is under 14 years of age and more than 10 years
younger than he or she shall be punished by imprisonment in the state
prison for three, six, or eight years.
(2) (A) Any person who commits an act of sodomy when the act is
accomplished against the victim's will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person shall be punished by imprisonment in the
state prison for three, six, or eight years.
(B) Any person who commits an act of sodomy with another person
who is under 14 years of age when the act is accomplished against the
victim's will by means of force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person shall be punished by imprisonment in the state prison for 9,
11, or 13 years.
(C) Any person who commits an act of sodomy with another person
who is a minor 14 years of age or older when the act is accomplished
against the victim's will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim
or another person shall be punished by imprisonment in the state
prison for 7, 9, or 11 years.
(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(3) Any person who commits an act of sodomy where the act is
accomplished against the 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,
shall be punished by imprisonment in the state prison for three, six,
or eight years.
(d) (1) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy when the act is accomplished against
the victim's will by means of force or fear of immediate and
unlawful bodily injury on the victim or another person or where the
act is accomplished against the 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, shall be punished by imprisonment in the state prison for
five, seven, or nine years.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is under 14 years
of age, when the act is accomplished against the victim's will by
means of force or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in the
state prison for 10, 12, or 14 years.
(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is a minor 14
years of age or older, when the act is accomplished against the
victim's will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished by
imprisonment in the state prison for 7, 9, or 11 years.
(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(e) Any person who participates in an act of sodomy with any
person of any age while confined in any state prison, as defined in
Section 4504, or in any local detention facility, as defined in
Section 6031.4, shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.
(f) Any person who commits an act of sodomy, and the victim is at
the time unconscious of the nature of the act and this is known to
the person committing the act, shall be punished by imprisonment in
the state prison for three, six, or eight years. As used in this
subdivision, "unconscious of the nature of the act" means incapable
of resisting because the victim meets one of the following
conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's
fraudulent representation that the sexual penetration served a
professional purpose when it served no professional purpose.
(g) Except as provided in subdivision (h), a person who commits an
act of sodomy, and the victim is at the time incapable, because of a
mental disorder or developmental or physical disability, of giving
legal consent, and this is known or reasonably should be known to the
person committing the act, shall be punished by imprisonment in the
state prison for three, six, or eight years. Notwithstanding the
existence of a conservatorship pursuant to the Lanterman-Petris-Short
Act (Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code), the prosecuting attorney shall prove,
as an element of the crime, that a mental disorder or developmental
or physical disability rendered the alleged victim incapable of
giving consent.
(h) Any person who commits an act of sodomy, and the victim is at
the time incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act, and both
the defendant and the victim are at the time confined in a state
hospital for the care and treatment of the mentally disordered or in
any other public or private facility for the care and treatment of
the mentally disordered approved by a county mental health director,
shall be punished by imprisonment in the state prison, or in a county
jail for not more than one year. Notwithstanding the existence of a
conservatorship pursuant to the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.
(i) Any person who commits an act of sodomy, where the victim is
prevented from resisting by an intoxicating or anesthetic substance,
or any controlled substance, and this condition was known, or
reasonably should have been known by the accused, shall be punished
by imprisonment in the state prison for three, six, or eight years.
(j) Any person who commits an act of sodomy, where the victim
submits under the belief that the person committing the act is
someone known to the victim other than the accused, and this belief
is induced by any artifice, pretense, or concealment practiced by the
accused, with intent to induce the belief, shall be punished by
imprisonment in the state prison for three, six, or eight years.
(k) Any person who commits an act of sodomy, where the act is
accomplished against the victim's will by threatening to use the
authority of a public official to incarcerate, arrest, or deport the
victim or another, and the victim has a reasonable belief that the
perpetrator is a public official, shall be punished by imprisonment
in the state prison for three, six, or eight years.
As used in this subdivision, "public official" means a person
employed by a governmental agency who has the authority, as part of
that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.
(l) As used in subdivisions (c) and (d), "threatening to retaliate"
means a threat to kidnap or falsely imprison, or inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court, however,
shall take into consideration the defendant's ability to pay, and no
defendant shall be denied probation because of his or her inability
to pay the fine permitted under this subdivision.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 4. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to protect the public from the danger of rape and sodomy
by those who impersonate others, at the earliest possible time, it is
necessary that this act take effect immediately.
