BILL ANALYSIS Ó AB 765 Page 1 Date of Hearing: April 5, 2011 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 765 (Achadjian) - As Amended: March 23, 2011 SUMMARY : Expands the definition of "rape by fraud" to include submission of the victim to sexual intercourse under the belief that the perpetrator is a "cohabitant", as specified. EXISTING LAW : 1)Defines "rape" as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, as specified. ÝPenal Code Section 261(a).] 2)States rape by fraud is committed when a person submits to sexual intercourse under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. ÝPenal Code Section 261(a)(5).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "Assembly Bill 765 would protect victims of rape by clarifying that a perpetrator who induces a victim into sexual activity by impersonating a cohabitant (live-in boyfriend or girlfriend) is guilty of felony rape. "Non-marital cohabitation is at an all-time high. In 2011, the U.S. Census Bureau reported that over 15 million partners live together in 7.5 million households. With those facts in mind, it is clear that the current laws governing rape prosecution are out of date by not recognizing the common practice of cohabitation. "Assembly Bill 765 would protect victims of rape by making it AB 765 Page 2 clear that a perpetrator who impersonates a victim's spouse or cohabitant in order to commit a sexual act is guilty of felony rape. Doing so would empower District Attorneys with the tools necessary to prosecute rape cases." 2)Background : According to the Santa Barbara District Attorney's Office (the sponsor of this bill), "A recent attempt by the Santa Barbara County District Attorney to prosecute a rape case clearly demonstrates the deficiency in existing law. The case involved a male suspect who entered a residence during the night and had intercourse with the female occupant. The victim believed that the suspect was her boyfriend with whom she shared the residence. Although she was awake during the encounter, the victim did not immediately realize that the person with whom she was engaged in an act of intercourse was not her boyfriend. When the victim realized that the man was not her boyfriend she resisted and the perpetrator fled. "Although the perpetrator was arrested, the District Attorney could not prosecute him for felony rape, simply due to the fact that the victim and her boyfriend of 10 years lived together but were not married. Had the couple been married, the crime could have been prosecuted as a felony rape. Due to the deficiency in existing statute, the District Attorney's only option was to prosecute the perpetrator for misdemeanor sexual battery and trespass, and the case was settled when the defendant pled guilty to the lesser charges." 3)Incomplete Categorization of Impersonated Person in Cases of Rape by Fraud : Under current law, rape by fraud can only be committed where the perpetrator holds himself or herself out to be the spouse of the victim. Because of this exclusive listing, there appears to be a discrepancy in current law with respect to the protection of a victim who chooses not to be married but nevertheless lives with a significant other. In other criminal contexts, such as felony domestic violence, a cohabitant is treated the same as a spouse for purposes of protecting the victim. ÝSee e.g., Penal Code Section 273.5.] This bill partially corrects this inconsistency by creating an expanded definition of rape by fraud to include a person with whom the victim is cohabiting. Arguably, there are other intimate relationships, such as a fiancé, or a person with AB 765 Page 3 whom the defendant currently has an intimate relationship but with whom the victim chooses not to cohabitate, which implicate the same policy concerns but which are not included. 4)Related Legislation : AB 545 (Perez) expands the categories of relationships that constitute felony domestic violence resulting in a traumatic condition to include former fiancés/fiancées, as well as current and former dating relationships. AB 545 is pending hearing by this Committee. REGISTERED SUPPORT / OPPOSITION : Support California Communities United Institute California District Attorneys Association Opposition None Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744