BILL NUMBER: AB 765	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 5, 2011
	AMENDED IN ASSEMBLY  MARCH 23, 2011

INTRODUCED BY   Assembly Member Achadjian
    (   Coauthors:   Assembly Members 
 Jeffries,  Portantino,   and Williams 
 ) 
    (   Coauthor:   Senator   Harman
  ) 

                        FEBRUARY 17, 2011

   An act to amend Section 261 of the Penal Code, relating to crimes.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 765, as amended, Achadjian. Crimes: rape.
   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.
   This bill would  instead   additionally 
provide that this type of rape occurs where the person submits under
the belief that the person committing the act is the victim's
 spouse or  cohabitant, as provided.
   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.
   Vote: majority. 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 the victim's spouse or cohabitant, 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.  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.