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 AB 2078 Page 2 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).] AB 2078 Page 3 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, AB 2078 Page 4 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 AB 2078 Page 5 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 AB 2078 Page 6 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