BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2078
                                                                  Page  1

          Date of Hearing:  March 27, 2012
          Counsel:       Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    AB 2078 (Nielsen) - As Amended: March 21, 2012
           
           
           SUMMARY  :  Includes peace officers in the category of people 
          subject to criminal penalties for engaging in consensual sexual 
          activity with confined persons, and adds a clarification to the 
          definition of a "detention facility" for purposes of the crime.  
          Specifically,  this bill  :

          1)Adds peace officers to the list of individuals who are 
            prohibited from engaging in consenting sexual activity with a 
            confined person.

          2)Specifies that a detention facility includes a vehicle 
            "transporting a person after he or she has been arrested but 
            has not been booked."

          3)Makes technical, non-substantive changes.

           EXISTING LAW  :

          1)Prohibits sexual activity between a consenting adult confined 
            in a detention facility and an employee, officer, agent or 
            volunteer of the detention facility, except for authorized 
            conjugal visits.  ÝPenal Code Section 289.6(a)(2) and (f).]

          2)Defines a detention facility as:

             a)   A prison, jail, camp, or other correctional facility 
               used for the confinement of adults or both adults and 
               minors;

             b)   A building or facility used for the confinement of 
               adults or adults and minors pursuant to a contract with a 
               public entity;

             c)   A room that is used for holding persons for interviews, 
               interrogations, or investigations and that is separate from 








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               a jail or located in the administrative area of a law 
               enforcement facility;

             d)   A vehicle used to transport confined persons during 
               their period of confinement; and 

             e)   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.  ÝPenal Code Section 
               289.6(c).]  

          3)Provides that any person who commits an act of sexual 
            intercourse 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 
            where the victim has a reasonable belief that the perpetrator 
            is a public official, is guilty of rape.  ÝPenal Code Section 
            261(a)(7).] 

          4)Provides that any person who commits an act of sodomy 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.  ÝPenal Code Section 
            286(k).]

          5)Provides that any person who commits an act of oral copulation 
            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.  
            ÝPenal Code Section 288a(k).]

          6)Provides that 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.  
            ÝPenal Code Section 289(g).]








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          7)Defines a "public official" for purposes of the rape, sodomy, 
            oral copulation, and sexual penetration statutes as "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."  ÝPenal Code Sections 261(a)(7), 286(k),  288a(k), 
            and 289(g).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :

           1)Author's Statement  :  According to the author," AB 2078 is in 
            direct response to a despicable act that occurred last year in 
            Northern California and the failure to provide justice for the 
            victim.

          "Current law states that it is illegal for an "employee or 
            officer of a custodial facility" to engage in consensual sex 
            with a detainee.  The section of the Penal Code that deals 
            with unlawful acts with a confined individual (289.6), states 
            that a detention facility is also a vehicle that is being used 
            to transport someone who is confined.

          "In the summer of 2010, an Anderson police officer was 
            transporting a female subject to the jail, located in Redding. 
             The female had been arrested for driving under the influence 
            of alcohol.  On the way from the Anderson Police Department, 
            where she was arrested but not booked, to the Shasta County 
            Jail, the officer pulled over and raped the female victim.  
            The victim immediately reported the crime once she was booked 
            in the Shasta County jail.  The Redding Police Department 
            conducted the investigation and filed a complaint with the 
            Shasta County District Attorney's Office.

          "The previous District Attorney, in 2010, felt that the act was 
            not consensual and charged the Anderson Police Officer with 
            rape under PC 261 and PC 289.6, as the victim was in custody 
            at the time.

          "The current District Attorney, who prosecuted the case in the 
            fall of 2011, claimed there was a "loophole" in PC 289.6.  He 
            claims there is no specific section in PC 289.6 that prohibits 
            consensual sex between an officer and someone in custody, 








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            unless they have been specifically contained in a detention 
            facility.  As a result of the interpretation or loophole, the 
            District Attorney was unwilling to prosecute the case as rape, 
            and the Anderson Police Office escaped with a plea deal that 
            resulted in a 1-year maximum jail sentence. 

          "This is a travesty of justice.  I have introduced AB 2078 to 
            ensure that this sort of crime will be prosecuted to the full 
            extent in the future.  AB 2078 would make it crystal clear 
            that confinement includes "transporting anyone after he or she 
            has been arrested but not yet booked."

           2)Is It Necessary to Clarify What Kind of Vehicle Qualifies as a 
            Detention Facility  ?  For purposes of the statute, a detention 
            facility is defined as:  a prison, jail, camp, or other 
            correctional facility used for the confinement of adults or 
            both adults and minors; a building or facility used for the 
            confinement of adults or adults and minors pursuant to a 
            contract with a public entity; 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; a vehicle used to 
            transport confined persons during their period of confinement; 
            or 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.  (Emphasis added.)

            In People v. Bojorquez (2010) 183 Cal.App.4th 407, the 
            appellate court considered whether a county animal shelter 
            qualified as a detention facility where women participating in 
            a work-release program were volunteering there in lieu of 
            their jail confinement.  In order to answer this question, the 
            court had to decide whether the women were "confined" within 
            the meaning of the statute.  The statute does not define the 
            term "confinement," and the court noted that confinement can 
            be reasonably interpreted to mean either actual imprisonment 
            or a circumstance short of imprisonment involving restriction 
            or liberty or movement.  (Id. at p. 418.)  Since the term is 
            subject to two reasonable interpretations, the court looked to 
            the legislative intent and history of the statute.  The 
            legislative purpose was to deter the sexual abuse of persons 
            in custody by their custodians.  There were several amendments 
            which expanded the protections of the statute.  The court 
            decided that "Ýt]he rather extensive legislative history of 
            section 289.6 supports a construction of 'confinement' that 








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            comports with the more expansive definition proposed by the 
            Attorney General, rather than the narrower definition urged by 
            defendant."  (Id. at p. 419.)  "ÝW]e cannot conclude the 
            Legislature intended the protections of section 289.6, 
            subdivision (a)(2), to apply only to inmates held in detention 
            facilities with iron bars, armed guards and '24/7' lockup 
            procedures."  (Id. at p. 421.)  The court interpreted 
            "confinement" broadly to include the community work release 
            program.  And so, the court held that the animal shelter used 
            in conjunction with the work-release program qualified as a 
            detention facility used for the confinement of adults.  (Id. 
            at p. 416.)  

            Applying the rationale in Bojorquez, supra, 183 Cal.App.4th 
            407, the proposed clarification of the type of vehicle that is 
            included within the definition of a detention facility seems 
            unnecessary.  A police car transporting an arrestee for 
            booking is "a vehicle used to transport a confined person 
            during their period of confinement" since an arrested person 
            sitting in a patrol is "confined" in that his or her liberty 
            is restrained and movement is restricted.

           3)Argument in Support  :  According to the  California State 
            Sheriffs' Association  , "Current law states that it is illegal 
            for a peace officer to engage in any sexual activity with 
            someone who is in their custody.  Current law also states that 
            confinement also includes a vehicle to transport someone who 
            is handcuffed.  However, the law is currently vague on the 
            issue of transporting a confined individual who has been 
            'arrested' but has not been processed or 'booked.'

          "This reasonable legislation protects law enforcement personnel 
            as well as those in their custody."  
           
           4)Prior Legislation  :  

             a)   SB 377 (Polanco), Chapter 806, Statutes of 1999, 
               extended the reach of the statute by adding volunteers and 
               contractors in detention facilities to those subject to 
               criminal penalties for engaging in sexual activity with 
               confined persons, and added parolees to those protected by 
               the statute.

             b)   AB 685 (Wayne), Chapter 209, Statutes of 1997, added to 
               the definition of "detention facility," for purposes of the 








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               statute, a health facility in which the victim has been 
               detained involuntarily.

             c)   AB 1568 (Solis), Chapter 499, Statutes of 1994, created 
               the crime of consensual sexual activity with a confined 
               adult.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California District Attorneys Association
          California Probation, Parole and Correctional Association
          California State Sheriffs' Association

           Opposition 
           
          None
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744