Amended in Assembly February 25, 2013

Amended in Assembly February 20, 2013

Amended in Assembly January 30, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 65


Introduced by Assembly Members Achadjian and Lowenthal

(Principal coauthors: Assembly Members Bradford, Garcia, Gomez, Mitchell, and Williams)

(Principal coauthor: Senator Hill)

(Coauthors: Assembly Members Alejo, Ammiano, Atkins, Bigelow, Bloom, Blumenfield, Brown, Buchanan, Ian Calderon, Chávez, Conway, Dahle, Dickinson, Donnelly, Frazier, Gatto, Gordon, Gorell, Grove, Hagman, Hall, Harkey, Holden, Jones, Levine, Logue, Maienschein, Mansoor, Melendez, Morrell, Mullin, Nazarian, Nestande, Olsen, Patterson, Perea, John A. Pérez, Quirk-Silva, Rendon, Skinner, Stone, Ting, Wagner, Waldron, Weber, and Wilk)

(Coauthors: Senators Anderson, Berryhill, Block, Cannella, Emmerson, Fuller, Gaines, Huff, Jackson, Knight, Lieu, Padilla, Rubio, Walters, and Wyland)

January 7, 2013


An act to amendbegin delete Section 261end deletebegin insert Sections 261, 286, 288a, and 289end insert of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

AB 65, as amended, Achadjian. Crimes:begin delete rape.end deletebegin insert sex crimes.end insert

Existing law provides various circumstances that constitute rape, including an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator where the person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with the intent to induce the belief.begin insert Existing law provides various circumstances that constitute sodomy against an individual’s will, oral copulation against an individual’s will, and sexual penetration against an individual’s will, including an act accomplished with an individual who is not the spouse of the perpetrator where the individual submits under the belief that the individual committing the act is the victim’s spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with the intent to induce the belief.end insert

This bill would instead provide thatbegin delete this typeend deletebegin insert these typesend insert ofbegin delete rape occursend deletebegin insert rape, sodomy, oral copulation, and sexual penetration occurend insert where the person submits under the belief that the person committing the act is someone other than the accused.

By expanding the definition of a crime, this 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:

P2    1

SECTION 1.  

Section 261 of the Penal Code is amended to
2read:

3

261.  

(a) Rape is an act of sexual intercourse accomplished
4with a person not the spouse of the perpetrator, under any of the
5following circumstances:

6(1) Where a person is incapable, because of a mental disorder
7or developmental or physical disability, of giving legal consent,
8and this is known or reasonably should be known to the person
9committing the act. Notwithstanding the existence of a
10conservatorship pursuant to the provisions of the
11Lanterman-Petris-Short Act (Part 1 (commencing with Section
125000) of Division 5 of the Welfare and Institutions Code), the
P3    1prosecuting attorney shall prove, as an element of the crime, that
2a mental disorder or developmental or physical disability rendered
3the alleged victim incapable of giving consent.

4(2) Where it is accomplished against a person’s will by means
5of force, violence, duress, menace, or fear of immediate and
6unlawful bodily injury on the person or another.

7(3) Where a person is prevented from resisting by any
8intoxicating or anesthetic substance, or any controlled substance,
9and this condition was known, or reasonably should have been
10known by the accused.

11(4) Where a person is at the time unconscious of the nature of
12the act, and this is known to the accused. As used in this paragraph,
13“unconscious of the nature of the act” means incapable of resisting
14because the victim meets any one of the following conditions:

15(A) Was unconscious or asleep.

16(B) Was not aware, knowing, perceiving, or cognizant that the
17act occurred.

18(C) Was not aware, knowing, perceiving, or cognizant of the
19essential characteristics of the act due to the perpetrator’s fraud in
20fact.

21(D) Was not aware, knowing, perceiving, or cognizant of the
22essential characteristics of the act due to the perpetrator’s fraudulent
23representation that the sexual penetration served a professional
24purpose when it served no professional purpose.

25(5) Where a person submits under the belief that the person
26committing the act is someone other than the accused, and this
27belief is induced by any artifice, pretense, or concealment practiced
28by the accused, with intent to induce the belief.

29(6) Where the act is accomplished against the victim’s will by
30threatening to retaliate in the future against the victim or any other
31person, and there is a reasonable possibility that the perpetrator
32will execute the threat. As used in this paragraph, “threatening to
33retaliate” means a threat to kidnap or falsely imprison, or to inflict
34extreme pain, serious bodily injury, or death.

35(7) Where the act is accomplished against the victim’s will by
36threatening to use the authority of a public official to incarcerate,
37arrest, or deport the victim or another, and the victim has a
38reasonable belief that the perpetrator is a public official. As used
39 in this paragraph, “public official” means a person employed by
40a governmental agency who has the authority, as part of that
P4    1position, to incarcerate, arrest, or deport another. The perpetrator
2does not actually have to be a public official.

3(b) As used in this section, “duress” means a direct or implied
4threat of force, violence, danger, or retribution sufficient to coerce
5a reasonable person of ordinary susceptibilities to perform an act
6which otherwise would not have been performed, or acquiesce in
7an act to which one otherwise would not have submitted. The total
8circumstances, including the age of the victim, and his or her
9relationship to the defendant, are factors to consider in appraising
10the existence of duress.

11(c) As used in this section, “menace” means any threat,
12declaration, or act which shows an intention to inflict an injury
13upon another.

14begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 286 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

15

286.  

(a) Sodomy is sexual conduct consisting of contact
16between the penis of one person and the anus of another person.
17Any sexual penetration, however slight, is sufficient to complete
18the crime of sodomy.

19(b) (1) Except as provided in Section 288, any person who
20participates in an act of sodomy with another person who is under
2118 years of age shall be punished by imprisonment in the state
22prison, or in a county jail for not more than one year.

23(2) Except as provided in Section 288, any person over the age
24of 21 years who participates in an act of sodomy with another
25person who is under 16 years of age shall be guilty of a felony.

26(c) (1) Any person who participates in an act of sodomy with
27another person who is under 14 years of age and more than 10
28years younger than he or she shall be punished by imprisonment
29in the state prison for three, six, or eight years.

30(2) (A) Any person who commits an act of sodomy when the
31act is accomplished against the victim’s will by means of force,
32violence, duress, menace, or fear of immediate and unlawful bodily
33injury on the victim or another person shall be punished by
34imprisonment in the state prison for three, six, or eight years.

35(B) Any person who commits an act of sodomy with another
36person who is under 14 years of age when the act is accomplished
37against the victim’s will by means of force, violence, duress,
38menace, or fear of immediate and unlawful bodily injury on the
39victim or another person shall be punished by imprisonment in the
40state prison for 9, 11, or 13 years.

P5    1(C) Any person who commits an act of sodomy with another
2person who is a minor 14 years of age or older when the act is
3accomplished against the victim’s will by means of force, violence,
4duress, menace, or fear of immediate and unlawful bodily injury
5on the victim or another person shall be punished by imprisonment
6in the state prison for 7, 9, or 11 years.

7(D) This paragraph does not preclude prosecution under Section
8269, Section 288.7, or any other provision of law.

9(3) Any person who commits an act of sodomy where the act
10is accomplished against the victim’s will by threatening to retaliate
11in the future against the victim or any other person, and there is a
12reasonable possibility that the perpetrator will execute the threat,
13shall be punished by imprisonment in the state prison for three,
14six, or eight years.

15(d) (1) Any person who, while voluntarily acting in concert
16with another person, either personally or aiding and abetting that
17other person, commits an act of sodomy when the act is
18accomplished against the victim’s will by means of force or fear
19of immediate and unlawful bodily injury on the victim or another
20person or where the act is accomplished against the victim’s will
21by threatening to retaliate in the future against the victim or any
22other person, and there is a reasonable possibility that the
23perpetrator will execute the threat, shall be punished by
24imprisonment in the state prison for five, seven, or nine years.

25(2) Any person who, while voluntarily acting in concert with
26another person, either personally or aiding and abetting that other
27person, commits an act of sodomy upon a victim who is under 14
28years of age, when the act is accomplished against the victim’s
29will by means of force or fear of immediate and unlawful bodily
30injury on the victim or another person, shall be punished by
31imprisonment in the state prison for 10, 12, or 14 years.

32(3) Any person who, while voluntarily acting in concert with
33another person, either personally or aiding and abetting that other
34person, commits an act of sodomy upon a victim who is a minor
3514 years of age or older, when the act is accomplished against the
36victim’s will by means of force or fear of immediate and unlawful
37bodily injury on the victim or another person, shall be punished
38by imprisonment in the state prison for 7, 9, or 11 years.

39(4) This subdivision does not preclude prosecution under Section
40269, Section 288.7, or any other provision of law.

P6    1(e) Any person who participates in an act of sodomy with any
2person of any age while confined in any state prison, as defined
3in Section 4504, or in any local detention facility, as defined in
4Section 6031.4, shall be punished by imprisonment in the state
5prison, or in a county jail for not more than one year.

6(f) Any person who commits an act of sodomy, and the victim
7is at the time unconscious of the nature of the act and this is known
8to the person committing the act, shall be punished by
9imprisonment in the state prison for three, six, or eight years. As
10used in this subdivision, “unconscious of the nature of the act”
11means incapable of resisting because the victim meets one of the
12following conditions:

13(1) Was unconscious or asleep.

14(2) Was not aware, knowing, perceiving, or cognizant that the
15act occurred.

16(3) Was not aware, knowing, perceiving, or cognizant of the
17essential characteristics of the act due to the perpetrator’s fraud in
18fact.

19(4) Was not aware, knowing, perceiving, or cognizant of the
20essential characteristics of the act due to the perpetrator’s fraudulent
21representation that the sexual penetration served a professional
22purpose when it served no professional purpose.

23(g) Except as provided in subdivision (h), a person who commits
24an act of sodomy, and the victim is at the time incapable, because
25of a mental disorder or developmental or physical disability, of
26giving legal consent, and this is known or reasonably should be
27known to the person committing the act, shall be punished by
28imprisonment in the state prison for three, six, or eight years.
29Notwithstanding the existence of a conservatorship pursuant to
30the Lanterman-Petris-Short Act (Part 1 (commencing with Section
315000) of Division 5 of the Welfare and Institutions Code), the
32prosecuting attorney shall prove, as an element of the crime, that
33a mental disorder or developmental or physical disability rendered
34the alleged victim incapable of giving consent.

35(h) Any person who commits an act of sodomy, and the victim
36is at the time incapable, because of a mental disorder or
37developmental or physical disability, of giving legal consent, and
38this is known or reasonably should be known to the person
39committing the act, and both the defendant and the victim are at
40the time confined in a state hospital for the care and treatment of
P7    1the mentally disordered or in any other public or private facility
2for the care and treatment of the mentally disordered approved by
3a county mental health director, shall be punished by imprisonment
4in the state prison, or in a county jail for not more than one year.
5Notwithstanding the existence of a conservatorship pursuant to
6the Lanterman-Petris-Short Act (Part 1 (commencing with Section
75000) of Division 5 of the Welfare and Institutions Code), the
8prosecuting attorney shall prove, as an element of the crime, that
9a mental disorder or developmental or physical disability rendered
10the alleged victim incapable of giving legal consent.

11(i) Any person who commits an act of sodomy, where the victim
12is prevented from resisting by an intoxicating or anesthetic
13substance, or any controlled substance, and this condition was
14known, or reasonably should have been known by the accused,
15shall be punished by imprisonment in the state prison for three,
16six, or eight years.

17(j) Any person who commits an act of sodomy, where the victim
18submits under the belief that the person committing the act isbegin delete the
19victim’s spouse,end delete
begin insert someone other than the accused,end insert and this belief
20is induced by any artifice, pretense, or concealment practiced by
21the accused, with intent to induce the belief, shall be punished by
22imprisonment in the state prison for three, six, or eight years.

23(k) Any person who commits an act of sodomy, where the act
24is accomplished against the victim’s will by threatening to use the
25authority of a public official to incarcerate, arrest, or deport the
26victim or another, and the victim has a reasonable belief that the
27perpetrator is a public official, shall be punished by imprisonment
28in the state prison for three, six, or eight years.

29As used in this subdivision, “public official” means a person
30employed by a governmental agency who has the authority, as part
31of that position, to incarcerate, arrest, or deport another. The
32perpetrator does not actually have to be a public official.

33(l) As used in subdivisions (c) and (d), “threatening to retaliate”
34means a threat to kidnap or falsely imprison, or inflict extreme
35pain, serious bodily injury, or death.

36(m) In addition to any punishment imposed under this section,
37the judge may assess a fine not to exceed seventy dollars ($70)
38against any person who violates this section, with the proceeds of
39this fine to be used in accordance with Section 1463.23. The court,
40however, shall take into consideration the defendant’s ability to
P8    1pay, and no defendant shall be denied probation because of his or
2her inability to pay the fine permitted under this subdivision.

3begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 288a of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

4

288a.  

(a) Oral copulation is the act of copulating the mouth
5of one person with the sexual organ or anus of another person.

6(b) (1) Except as provided in Section 288, any person who
7participates in an act of oral copulation with another person who
8is under 18 years of age shall be punished by imprisonment in the
9state prison, or in a county jail for a period of not more than one
10year.

11(2) Except as provided in Section 288, any person over the age
12of 21 years who participates in an act of oral copulation with
13another person who is under 16 years of age is guilty of a felony.

14(c) (1) Any person who participates in an act of oral copulation
15with another person who is under 14 years of age and more than
1610 years younger than he or she shall be punished by imprisonment
17in the state prison for three, six, or eight years.

18(2) (A) Any person who commits an act of oral copulation when
19the act is accomplished against the victim’s will by means of force,
20violence, duress, menace, or fear of immediate and unlawful bodily
21injury on the victim or another person shall be punished by
22imprisonment in the state prison for three, six, or eight years.

23(B) Any person who commits an act of oral copulation upon a
24person who is under 14 years of age, when the act is accomplished
25against the victim’s will by means of force, violence, duress,
26menace, or fear of immediate and unlawful bodily injury on the
27victim or another person, shall be punished by imprisonment in
28the state prison for 8, 10, or 12 years.

29(C) Any person who commits an act of oral copulation upon a
30minor who is 14 years of age or older, when the act is accomplished
31against the victim’s will by means of force, violence, duress,
32menace, or fear of immediate and unlawful bodily injury on the
33victim or another person, shall be punished by imprisonment in
34the state prison for 6, 8, or 10 years.

35(D) This paragraph does not preclude prosecution under Section
36269, Section 288.7, or any other provision of law.

37(3) Any person who commits an act of oral copulation where
38the act is accomplished against the victim’s will by threatening to
39retaliate in the future against the victim or any other person, and
40there is a reasonable possibility that the perpetrator will execute
P9    1the threat, shall be punished by imprisonment in the state prison
2for three, six, or eight years.

3(d) (1) Any person who, while voluntarily acting in concert
4with another person, either personally or by aiding and abetting
5that other person, commits an act of oral copulation (1) when the
6act is accomplished against the victim’s will by means of force or
7fear of immediate and unlawful bodily injury on the victim or
8another person, or (2) where the act is accomplished against the
9victim’s will by threatening to retaliate in the future against the
10victim or any other person, and there is a reasonable possibility
11that the perpetrator will execute the threat, or (3) where the victim
12is at the time incapable, because of a mental disorder or
13developmental or physical disability, of giving legal consent, and
14this is known or reasonably should be known to the person
15committing the act, shall be punished by imprisonment in the state
16prison for five, seven, or nine years. Notwithstanding the
17 appointment of a conservator with respect to the victim pursuant
18to the provisions of the Lanterman-Petris-Short Act (Part 1
19(commencing with Section 5000) of Division 5 of the Welfare and
20Institutions Code), the prosecuting attorney shall prove, as an
21element of the crime described under paragraph (3), that a mental
22disorder or developmental or physical disability rendered the
23alleged victim incapable of giving legal consent.

24(2) Any person who, while voluntarily acting in concert with
25another person, either personally or aiding and abetting that other
26person, commits an act of oral copulation upon a victim who is
27under 14 years of age, when the act is accomplished against the
28victim’s will by means of force or fear of immediate and unlawful
29bodily injury on the victim or another person, shall be punished
30by imprisonment in the state prison for 10, 12, or 14 years.

31(3) Any person who, while voluntarily acting in concert with
32another person, either personally or aiding and abetting that other
33person, commits an act of oral copulation upon a victim who is a
34minor 14 years of age or older, when the act is accomplished
35against the victim’s will by means of force or fear of immediate
36and unlawful bodily injury on the victim or another person, shall
37be punished by imprisonment in the state prison for 8, 10, or 12
38years.

39(4) This paragraph does not preclude prosecution under Section
40269, Section 288.7, or any other provision of law.

P10   1(e) Any person who participates in an act of oral copulation
2while confined in any state prison, as defined in Section 4504 or
3in any local detention facility as defined in Section 6031.4, shall
4be punished by imprisonment in the state prison, or in a county
5jail for a period of not more than one year.

6(f) Any person who commits an act of oral copulation, and the
7victim is at the time unconscious of the nature of the act and this
8is known to the person committing the act, shall be punished by
9imprisonment in the state prison for a period of three, six, or eight
10years. As used in this subdivision, “unconscious of the nature of
11the act” means incapable of resisting because the victim meets one
12of the following conditions:

13(1) Was unconscious or asleep.

14(2) Was not aware, knowing, perceiving, or cognizant that the
15act occurred.

16(3) Was not aware, knowing, perceiving, or cognizant of the
17essential characteristics of the act due to the perpetrator’s fraud in
18fact.

19(4) Was not aware, knowing, perceiving, or cognizant of the
20essential characteristics of the act due to the perpetrator’s fraudulent
21representation that the oral copulation served a professional purpose
22when it served no professional purpose.

23(g) Except as provided in subdivision (h), any person who
24commits an act of oral copulation, and the victim is at the time
25incapable, because of a mental disorder or developmental or
26physical disability, of giving legal consent, and this is known or
27reasonably should be known to the person committing the act,
28shall be punished by imprisonment in the state prison, for three,
29six, or eight years. Notwithstanding the existence of a
30conservatorship pursuant to the provisions of the
31Lanterman-Petris-Short Act (Part 1 (commencing with Section
325000) of Division 5 of the Welfare and Institutions Code), the
33prosecuting attorney shall prove, as an element of the crime, that
34a mental disorder or developmental or physical disability rendered
35the alleged victim incapable of giving consent.

36(h) Any person who commits an act of oral copulation, and the
37victim is at the time incapable, because of a mental disorder or
38developmental or physical disability, of giving legal consent, and
39this is known or reasonably should be known to the person
40committing the act, and both the defendant and the victim are at
P11   1the time confined in a state hospital for the care and treatment of
2the mentally disordered or in any other public or private facility
3for the care and treatment of the mentally disordered approved by
4a county mental health director, shall be punished by imprisonment
5in the state prison, or in a county jail for a period of not more than
6one year. Notwithstanding the existence of a conservatorship
7pursuant to the provisions of the Lanterman-Petris-Short Act (Part
81 (commencing with Section 5000) of Division 5 of the Welfare
9and Institutions Code), the prosecuting attorney shall prove, as an
10 element of the crime, that a mental disorder or developmental or
11physical disability rendered the alleged victim incapable of giving
12legal consent.

13(i) Any person who commits an act of oral copulation, where
14the victim is prevented from resisting by any intoxicating or
15anesthetic substance, or any controlled substance, and this condition
16was known, or reasonably should have been known by the accused,
17shall be punished by imprisonment in the state prison for a period
18of three, six, or eight years.

19(j) Any person who commits an act of oral copulation, where
20the victim submits under the belief that the person committing the
21act isbegin delete the victim’s spouse,end deletebegin insert someone other than the accused,end insert and
22this belief is induced by any artifice, pretense, or concealment
23practiced by the accused, with intent to induce the belief, shall be
24punished by imprisonment in the state prison for a period of three,
25six, or eight years.

26(k) Any person who commits an act of oral copulation, where
27the act is accomplished against the victim’s will by threatening to
28use the authority of a public official to incarcerate, arrest, or deport
29the victim or another, and the victim has a reasonable belief that
30the perpetrator is a public official, shall be punished by
31imprisonment in the state prison for a period of three, six, or eight
32years.

33As used in this subdivision, “public official” means a person
34employed by a governmental agency who has the authority, as part
35of that position, to incarcerate, arrest, or deport another. The
36perpetrator does not actually have to be a public official.

37(l) As used in subdivisions (c) and (d), “threatening to retaliate”
38means a threat to kidnap or falsely imprison, or to inflict extreme
39pain, serious bodily injury, or death.

P12   1(m) In addition to any punishment imposed under this section,
2the judge may assess a fine not to exceed seventy dollars ($70)
3against any person who violates this section, with the proceeds of
4this fine to be used in accordance with Section 1463.23. The court
5shall, however, take into consideration the defendant’s ability to
6pay, and no defendant shall be denied probation because of his or
7her inability to pay the fine permitted under this subdivision.

8begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 289 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

9

289.  

(a) (1) (A) Any person who commits an act of sexual
10penetration when the act is accomplished against the victim’s will
11by means of force, violence, duress, menace, or fear of immediate
12and unlawful bodily injury on the victim or another person shall
13be punished by imprisonment in the state prison for three, six, or
14eight years.

15(B) Any person who commits an act of sexual penetration upon
16a child who is under 14 years of age, when the act is accomplished
17against the victim’s will by means of force, violence, duress,
18menace, or fear of immediate and unlawful bodily injury on the
19victim or another person, shall be punished by imprisonment in
20the state prison for 8, 10, or 12 years.

21(C) Any person who commits an act of sexual penetration upon
22a minor who is 14 years of age or older, when the act is
23accomplished against the victim’s will by means of force, violence,
24duress, menace, or fear of immediate and unlawful bodily injury
25on the victim or another person, shall be punished by imprisonment
26in the state prison for 6, 8, or 10 years.

27(D) This paragraph does not preclude prosecution under Section
28269, Section 288.7, or any other provision of law.

29(2) Any person who commits an act of sexual penetration when
30the act is accomplished against the victim’s will by threatening to
31retaliate in the future against the victim or any other person, and
32there is a reasonable possibility that the perpetrator will execute
33the threat, shall be punished by imprisonment in the state prison
34for three, six, or eight years.

35(b) Except as provided in subdivision (c), any person who
36commits an act of sexual penetration, and the victim is at the time
37incapable, because of a mental disorder or developmental or
38physical disability, of giving legal consent, and this is known or
39reasonably should be known to the person committing the act or
40causing the act to be committed, shall be punished by imprisonment
P13   1in the state prison for three, six, or eight years. Notwithstanding
2the appointment of a conservator with respect to the victim pursuant
3to the provisions of the Lanterman-Petris-Short Act (Part 1
4(commencing with Section 5000) of Division 5 of the Welfare and
5Institutions Code), the prosecuting attorney shall prove, as an
6element of the crime, that a mental disorder or developmental or
7physical disability rendered the alleged victim incapable of giving
8legal consent.

9(c) Any person who commits an act of sexual penetration, and
10the victim is at the time incapable, because of a mental disorder
11or developmental or physical disability, of giving legal consent,
12and this is known or reasonably should be known to the person
13committing the act or causing the act to be committed and both
14the defendant and the victim are at the time confined in a state
15hospital for the care and treatment of the mentally disordered or
16in any other public or private facility for the care and treatment of
17the mentally disordered approved by a county mental health
18director, shall be punished by imprisonment in the state prison, or
19in a county jail for a period of not more than one year.
20Notwithstanding the existence of a conservatorship pursuant to
21the provisions of the Lanterman-Petris-Short Act (Part 1
22(commencing with Section 5000) of Division 5 of the Welfare and
23Institutions Code), the prosecuting attorney shall prove, as an
24element of the crime, that a mental disorder or developmental or
25physical disability rendered the alleged victim incapable of giving
26legal consent.

27(d) Any person who commits an act of sexual penetration, and
28the victim is at the time unconscious of the nature of the act and
29this is known to the person committing the act or causing the act
30to be committed, shall be punished by imprisonment in the state
31prison for three, six, or eight years. As used in this subdivision,
32“unconscious of the nature of the act” means incapable of resisting
33because the victim meets one of the following conditions:

34(1) Was unconscious or asleep.

35(2) Was not aware, knowing, perceiving, or cognizant that the
36act occurred.

37(3) Was not aware, knowing, perceiving, or cognizant of the
38essential characteristics of the act due to the perpetrator’s fraud in
39fact.

P14   1(4) Was not aware, knowing, perceiving, or cognizant of the
2essential characteristics of the act due to the perpetrator’s fraudulent
3representation that the sexual penetration served a professional
4purpose when it served no professional purpose.

5(e) Any person who commits an act of sexual penetration when
6the victim is prevented from resisting by any intoxicating or
7anesthetic substance, or any controlled substance, and this condition
8was known, or reasonably should have been known by the accused,
9shall be punished by imprisonment in the state prison for a period
10of three, six, or eight years.

11(f) Any person who commits an act of sexual penetration when
12the victim submits under the belief that the person committing the
13act or causing the act to be committed isbegin delete the victim’s spouse,end delete
14begin insert someone other than the accused,end insert and this belief is induced by any
15artifice, pretense, or concealment practiced by the accused, with
16intent to induce the belief, shall be punished by imprisonment in
17the state prison for a period of three, six, or eight years.

18(g) Any person who commits an act of sexual penetration when
19the act is accomplished against the victim’s will by threatening to
20use the authority of a public official to incarcerate, arrest, or deport
21the victim or another, and the victim has a reasonable belief that
22the perpetrator is a public official, shall be punished by
23imprisonment in the state prison for a period of three, six, or eight
24years.

25As used in this subdivision, “public official” means a person
26employed by a governmental agency who has the authority, as part
27of that position, to incarcerate, arrest, or deport another. The
28perpetrator does not actually have to be a public official.

29(h) Except as provided in Section 288, any person who
30participates in an act of sexual penetration with another person
31who is under 18 years of age shall be punished by imprisonment
32in the state prison or in the county jail for a period of not more
33than one year.

34(i) Except as provided in Section 288, any person over the age
35of 21 years who participates in an act of sexual penetration with
36another person who is under 16 years of age shall be guilty of a
37felony.

38(j) Any person who participates in an act of sexual penetration
39with another person who is under 14 years of age and who is more
P15   1than 10 years younger than he or she shall be punished by
2imprisonment in the state prison for three, six, or eight years.

3(k) As used in this section:

4(1) “Sexual penetration” is the act of causing the penetration,
5however slight, of the genital or anal opening of any person or
6causing another person to so penetrate the defendant’s or another
7person’s genital or anal opening for the purpose of sexual arousal,
8gratification, or abuse by any foreign object, substance, instrument,
9or device, or by any unknown object.

10(2) “Foreign object, substance, instrument, or device” shall
11include any part of the body, except a sexual organ.

12(3) “Unknown object” shall include any foreign object,
13substance, instrument, or device, or any part of the body, including
14a penis, when it is not known whether penetration was by a penis
15or by a foreign object, substance, instrument, or device, or by any
16other part of the body.

17(l) As used in subdivision (a), “threatening to retaliate” means
18a threat to kidnap or falsely imprison, or inflict extreme pain,
19serious bodily injury or death.

20(m) As used in this section, “victim” includes any person who
21the defendant causes to penetrate the genital or anal opening of
22the defendant or another person or whose genital or anal opening
23is caused to be penetrated by the defendant or another person and
24who otherwise qualifies as a victim under the requirements of this
25section.

26

begin deleteSEC. 2.end delete
27begin insertSEC. 5.end insert  

No reimbursement is required by this act pursuant to
28Section 6 of Article XIII B of the California Constitution because
29the only costs that may be incurred by a local agency or school
30district will be incurred because this act creates a new crime or
31infraction, eliminates a crime or infraction, or changes the penalty
32for a crime or infraction, within the meaning of Section 17556 of
33the Government Code, or changes the definition of a crime within
34the meaning of Section 6 of Article XIII B of the California
35Constitution.



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