Bill Text: CA AB65 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Amended.html

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BILL NUMBER: AB 65	AMENDED
	BILL TEXT

	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, Dickinson, Donnelly, Frazier, Gatto, Gordon, Gorell, Grove,
Hagman, Hall, Harkey, Holden, Jones, Levine, 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, 286, 288a, and 289 of the Penal
Code, relating to  crimes.   crimes, and
declaring the urgency thereof, to take effect immediately. 


	LEGISLATIVE COUNSEL'S DIGEST


   AB 65, as amended, 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, oral copulation against an individual's
will, and sexual penetration 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, sodomy,
oral copulation, and sexual penetration occur where the person
submits under the belief that the person committing the act is
someone 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. 
   Vote:  majority   2/3  . Appropriation:
no. Fiscal committee: yes. State-mandated local program: yes.


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 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 the age of
21 years 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 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.  Section 288a of the Penal Code is amended to read:
   288a.  (a) Oral copulation is the act of copulating the mouth of
one person with the sexual organ or anus of another person.
   (b) (1) Except as provided in Section 288, any person who
participates in an act of oral copulation with another person who is
under 18 years of age shall be punished by imprisonment in the state
prison, or in a county jail for a period of not more than one year.
   (2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.
   (c) (1) Any person who participates in an act of oral copulation
with another person who is under 14 years of age and more than 10
years younger than he or she shall be punished by imprisonment in the
state prison for three, six, or eight years.
   (2) (A) Any person who commits an act of oral copulation when the
act is accomplished against the 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 oral copulation upon a 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 8,
10, or 12 years.
   (C) Any person who commits an act of oral copulation upon a minor
who is 14 years of age or older, when the act is accomplished against
the 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 6,
8, or 10 years.
   (D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
   (3) Any person who commits an act of oral copulation where the act
is accomplished against the 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 by aiding and abetting that
other person, commits an act of oral copulation (1) 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 (2) 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, or (3) where the victim is at
the time incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act, shall be
punished by imprisonment in the state prison for five, seven, or
nine years. Notwithstanding the appointment of a conservator with
respect to the victim pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime described under
paragraph (3), that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving legal
consent.
   (2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is under
14 years of age, when the act is accomplished against the 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 oral copulation 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 8, 10, or 12 years.
   (4) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
   (e) Any person who participates in an act of oral copulation while
confined in any state prison, as defined in Section 4504 or in any
local detention facility as defined in Section 6031.4, shall be
punished by imprisonment in the state prison, or in a county jail for
a period of not more than one year.
   (f) Any person who commits an act of oral copulation, and the
victim is at the time unconscious of the nature of the act and this
is known to the person committing the act, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years. As used in this subdivision, "unconscious of the nature of
the act" means incapable of resisting because the victim meets one of
the following conditions:
   (1) 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 oral copulation served a
professional purpose when it served no professional purpose.
   (g) Except as provided in subdivision (h), any person who commits
an act of oral copulation, and the victim is at the time incapable,
because of a mental disorder or developmental or physical disability,
of giving legal consent, and this is known or reasonably should be
known to the person committing the act, shall be punished by
imprisonment in the state prison, for three, six, or eight years.
Notwithstanding the existence of a conservatorship pursuant to the
provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and Institutions Code),
the prosecuting attorney shall prove, as an element of the crime,
that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving consent.
   (h) Any person who commits an act of oral copulation, and the
victim is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act, and both the defendant and the victim are at the time
confined in a state hospital for the care and treatment of the
mentally disordered or in any other public or private facility for
the care and treatment of the mentally disordered approved by a
county mental health director, shall be punished by imprisonment in
the state prison, or in a county jail for a period of not more than
one year. Notwithstanding the existence of a conservatorship pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.
   (i) Any person who commits an act of oral copulation, where the
victim is prevented from resisting by any intoxicating or anesthetic
substance, or any controlled substance, and this condition was known,
or reasonably should have been known by the accused, shall be
punished by imprisonment in the state prison for a period of three,
six, or eight years.
   (j) Any person who commits an act of oral copulation, where the
victim submits under the belief that the person committing the act is
someone other than the accused, and this belief is induced by any
artifice, pretense, or concealment practiced by the accused, with
intent to induce the belief, shall be punished by imprisonment in the
state prison for a period of three, six, or eight years.
   (k) Any person who commits an act of oral copulation, 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 a period of 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 to inflict extreme
pain, serious bodily injury, or death.
   (m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the 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. 4.  Section 289 of the Penal Code is amended to read:
   289.  (a) (1) (A) Any person who commits an act of sexual
penetration when the act is accomplished against the 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 sexual penetration upon a
child 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 8, 10, or 12 years.
   (C) Any person who commits an act of sexual penetration upon a
minor who is 14 years of age or older, when the act is accomplished
against the 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 6, 8, or 10 years.
   (D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
   (2) Any person who commits an act of sexual penetration when the
act is accomplished against the 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.
   (b) Except as provided in subdivision (c), any person who commits
an act of sexual penetration, and the victim is at the time
incapable, because of a mental disorder or developmental or physical
disability, of giving legal consent, and this is known or reasonably
should be known to the person committing the act or causing the act
to be committed, shall be punished by imprisonment in the state
prison for three, six, or eight years. Notwithstanding the
appointment of a conservator with respect to the victim pursuant to
the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing
with Section 5000) of Division 5 of the Welfare and Institutions
Code), the prosecuting attorney shall prove, as an element of the
crime, that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving legal consent.
   (c) Any person who commits an act of sexual penetration, and the
victim is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act or causing the act to be committed and both the defendant and
the victim are at the time confined in a state hospital for the care
and treatment of the mentally disordered or in any other public or
private facility for the care and treatment of the mentally
disordered approved by a county mental health director, shall be
punished by imprisonment in the state prison, or in a county jail for
a period of not more than one year. Notwithstanding the existence of
a conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime, that a mental
disorder or developmental or physical disability rendered the alleged
victim incapable of giving legal consent.
   (d) Any person who commits an act of sexual penetration, and the
victim is at the time unconscious of the nature of the act and this
is known to the person committing the act or causing the act to be
committed, shall be punished by imprisonment in the state prison for
three, six, or eight years. As used in this subdivision, "unconscious
of the nature of the act" means incapable of resisting because the
victim meets one of the following conditions:

       (1) 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.
   (e) Any person who commits an act of sexual penetration when the
victim is prevented from resisting by any intoxicating or anesthetic
substance, or any controlled substance, and this condition was known,
or reasonably should have been known by the accused, shall be
punished by imprisonment in the state prison for a period of three,
six, or eight years.
   (f) Any person who commits an act of sexual penetration when the
victim submits under the belief that the person committing the act or
causing the act to be committed is someone other than the accused,
and this belief is induced by any artifice, pretense, or concealment
practiced by the accused, with intent to induce the belief, shall be
punished by imprisonment in the state prison for a period of three,
six, or eight years.
   (g) Any person who commits an act of sexual penetration when 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 a period of 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.
   (h) Except as provided in Section 288, any person who participates
in an act of sexual penetration with another person who is under 18
years of age shall be punished by imprisonment in the state prison or
in the county jail for a period of not more than one year.
   (i) Except as provided in Section 288, any person over the age of
21 years who participates in an act of sexual penetration with
another person who is under 16 years of age shall be guilty of a
felony.
   (j) Any person who participates in an act of sexual penetration
with another person who is under 14 years of age and who is more than
10 years younger than he or she shall be punished by imprisonment in
the state prison for three, six, or eight years.
   (k) As used in this section:
   (1) "Sexual penetration" is the act of causing the penetration,
however slight, of the genital or anal opening of any person or
causing another person to so penetrate the defendant's or another
person's genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument,
or device, or by any unknown object.
   (2) "Foreign object, substance, instrument, or device" shall
include any part of the body, except a sexual organ.
   (3) "Unknown object" shall include any foreign object, substance,
instrument, or device, or any part of the body, including a penis,
when it is not known whether penetration was by a penis or by a
foreign object, substance, instrument, or device, or by any other
part of the body.
   (l) As used in subdivision (a), "threatening to retaliate" means a
threat to kidnap or falsely imprison, or inflict extreme pain,
serious bodily injury or death.
   (m) As used in this section, "victim" includes any person who the
defendant causes to penetrate the genital or anal opening of the
defendant or another person or whose genital or anal opening is
caused to be penetrated by the defendant or another person and who
otherwise qualifies as a victim under the requirements of this
section.
  SEC. 5.  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. 6.    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 by those
who impersonate others, at the earliest possible time, it is
necessary that this act take effect immediately.