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            are out of date by not recognizing the common practice of 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
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            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
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            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