BILL NUMBER: AB 2078 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 21, 2012
INTRODUCED BY Assembly Member Nielsen
(Coauthor: Senator La Malfa)
FEBRUARY 23, 2012
An act to amend Section 289.6 of the Penal Code, relating to
crimes.
LEGISLATIVE COUNSEL'S DIGEST
AB 2078, as amended, Nielsen. Sexual activity with detained
persons.
Existing law makes it a misdemeanor for
crime for certain persons, including an employee or officer of
a public entity detention facility, or an employee, officer, or agent
of a private person or entity that provides a detention facility or
staff for a detention facility, or a person or agent of a public or
private entity detention facility, to engage in sexual activity with
a consenting adult who is confined in a detention facility. For
purposes of those provisions, "detention facility" includes a vehicle
used to transport a person during a person's period of confinement.
This bill would make those provisions applicable to peace
officers, and would specify that transport of a person during
confinement also includes transporting a person after he or she has
been arrested but has not been booked. By expanding the scope of a
crime, the 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 289.6 of the Penal Code is amended to read:
289.6. (a) (1) An employee or officer of a public entity health
facility, or an employee, officer, or agent of a private person or
entity that provides a health facility or staff for a health facility
under contract with a public entity, who engages in sexual activity
with a consenting adult who is confined in a health facility is
guilty of a public offense. As used in this paragraph, "health
facility" means a health facility as defined in subdivisions (b),
(e), (g), (h), and (j) of , and subparagraph (C) of
paragraph (2) of subdivision (i) of , Section 1250 of the
Health and Safety Code, in which the victim has been confined
involuntarily.
(2) An employee or officer of a public entity detention facility,
or an employee, officer, or agent of a private
person or entity that provides a detention facility or staff for a
detention facility, or a person or
agent of a public or private entity under contract with a detention
facility, or a volunteer of a private or public
entity detention facility, or a peace officer who engages
in sexual activity with a consenting adult who is confined in a
detention facility , is guilty of a public
offense.
(3) An employee with a department, board, or authority under the
Youth and Adult Correctional Agency
California Department of Corrections and Rehabilitation or a
facility under contract with a department, board, or authority under
the Youth and Adult Correctional Agency
California Department of Corrections and Rehabilitation , who,
during the course of his or her employment directly provides
treatment, care, control, or supervision of inmates, wards, or
parolees, and who engages in sexual activity with a consenting adult
who is an inmate, ward, or parolee, is guilty of a public offense.
(b) As used in this section, the term "public entity" means the
state, federal government, a city, a county, a city and county, a
joint county jail district, or any entity created as a result of a
joint powers agreement between two or more public entities.
(c) As used in this section, the term "detention facility" means:
(1) A prison, jail, camp, or other correctional facility used for
the confinement of adults or both adults and minors.
(2) A building or facility used for the confinement of adults or
adults and minors pursuant to a contract with a public entity.
(3) A room that is used for holding persons for interviews,
interrogations, or investigations and that is separate from a jail or
located in the administrative area of a law enforcement facility.
(4) A vehicle used to transport confined persons during their
period of confinement, including transporting a person after he or
she has been arrested but has not been booked.
(5) A court holding facility located within or adjacent to a court
building that is used for the confinement of persons for the purpose
of court appearances.
(d) As used in this section, "sexual activity" means:
(1) Sexual intercourse.
(2) Sodomy, as defined in subdivision (a) of Section 286.
(3) Oral copulation, as defined in subdivision (a) of Section
288a.
(4) Sexual penetration, as defined in subdivision (k) of Section
289.
(5) The rubbing or touching of the breasts or sexual organs of
another, or of oneself in the presence of and with knowledge of
another, with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of oneself or another.
(e) Consent by a confined person or parolee to sexual activity
proscribed by this section is not a defense to a criminal prosecution
for violation of this section.
(f) This section does not apply to sexual activity between
consenting adults that occurs during an overnight conjugal visit that
takes place pursuant to a court order or with the written approval
of an authorized representative of the public entity that operates or
contracts for the operation of the detention facility where the
conjugal visit takes place, to physical contact or penetration made
pursuant to a lawful search, or bona fide medical examinations or
treatments, including clinical treatments.
(g) Any violation of paragraph (1) of subdivision (a), or a
violation of paragraph (2) or (3) of subdivision (a) as described in
paragraph (5) of subdivision (d), is a misdemeanor.
(h) Any violation of paragraph (2) or (3) of subdivision (a), as
described in paragraph (1), (2), (3), or (4) of subdivision (d),
shall be punished by imprisonment in a county jail not exceeding one
year, or in the state prison, or by a fine of not more than ten
thousand dollars ($10,000) or by both that fine and imprisonment.
(i) Any person previously convicted of a violation of this section
shall, upon a subsequent violation, be guilty of a felony.
(j) Anyone who is convicted of a felony violation of this section
who is employed by a department, board, or authority within the Youth
and Adult Correctional Agency shall be terminated in accordance with
the State Civil Service Act (Part 2 (commencing with Section 18500)
of Division 5 of Title 2 of the Government Code). Anyone who has been
convicted of a felony violation of this section shall not be
eligible to be hired or reinstated by a department, board, or
authority within the Youth and Adult Correctional Agency.
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.
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