Bill Text: CA SB59 | 2013-2014 | Regular Session | Chaptered
Bill Title: Crimes: sex crimes.
Spectrum: Moderate Partisan Bill (Democrat 23-4)
Status: (Passed) 2013-09-09 - Chaptered by Secretary of State. Chapter 282, Statutes of 2013. [SB59 Detail]
Download: California-2013-SB59-Chaptered.html
BILL NUMBER: SB 59 CHAPTERED
BILL TEXT
CHAPTER 282
FILED WITH SECRETARY OF STATE SEPTEMBER 9, 2013
APPROVED BY GOVERNOR SEPTEMBER 9, 2013
PASSED THE SENATE AUGUST 26, 2013
PASSED THE ASSEMBLY AUGUST 22, 2013
AMENDED IN ASSEMBLY JULY 3, 2013
AMENDED IN ASSEMBLY JUNE 12, 2013
AMENDED IN SENATE APRIL 16, 2013
AMENDED IN SENATE FEBRUARY 14, 2013
INTRODUCED BY Senator Evans
(Principal coauthors: Senators Hill and Steinberg)
(Coauthors: Senators Beall, Block, Cannella, Corbett, De León,
DeSaulnier, Fuller, Gaines, Galgiani, Hancock, Jackson, Lara, Leno,
Liu, Nielsen, Padilla, Pavley, and Wolk)
(Coauthors: Assembly Members Brown, Garcia, Maienschein, V. Manuel
Pérez, Quirk-Silva, and Ting)
JANUARY 7, 2013
An act to amend Sections 288a and 289 of the Penal Code, relating
to crimes, and declaring the urgency thereof, to take effect
immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 59, Evans. Crimes: sex crimes.
Existing law provides various circumstances that constitute 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 oral
copulation and sexual penetration occur where the individual submits
under the belief that the individual 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 288a of the Penal Code is amended to read:
288a. (a) Oral copulation is the act of copulating the mouth of
one person with the sexual organ or anus of another person.
(b) (1) Except as provided in Section 288, any person who
participates in an act of oral copulation with another person who is
under 18 years of age shall be punished by imprisonment in the state
prison, or in a county jail for a period of not more than one year.
(2) Except as provided in Section 288, any person over 21 years of
age who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.
(c) (1) Any person who participates in an act of oral copulation
with another person who is under 14 years of age and more than 10
years younger than he or she shall be punished by imprisonment in the
state prison for three, six, or eight years.
(2) (A) Any person who commits an act of oral copulation when the
act is accomplished against the 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 (A) 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 (B) 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 (C) where the victim is at
the time incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act, shall be
punished by imprisonment in the state prison for five, seven, or
nine years. Notwithstanding the appointment of a conservator with
respect to the victim pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime described under
paragraph (3), that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving legal
consent.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is under
14 years of age, when the act is accomplished against the 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 known to the victim other than the accused, and this belief
is induced by any artifice, pretense, or concealment practiced by the
accused, with intent to induce the belief, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years.
(k) 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. 2. 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 known to the victim other
than the accused, and this belief is induced by any artifice,
pretense, or concealment practiced by the accused, with intent to
induce the belief, shall be punished by imprisonment in the state
prison for a period of three, six, or eight years.
(g) 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 a county jail for a period of not more than one year.
(i) Except as provided in Section 288, any person over 21 years of
age who participates in an act of sexual penetration with another
person who is under 16 years of age shall be guilty of a felony.
(j) Any person who participates in an act of sexual penetration
with another person who is under 14 years of age and who is more than
10 years younger than he or she shall be punished by imprisonment in
the state prison for three, six, or eight years.
(k) As used in this section:
(1) "Sexual penetration" is the act of causing the penetration,
however slight, of the genital or anal opening of any person or
causing another person to so penetrate the 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. 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 safety by minimizing the threat
posed by sexual predators at the earliest possible time, it is
necessary that this act take effect immediately.
