Amended in Senate June 25, 2013

Amended in Senate May 8, 2013

Amended in Assembly March 20, 2013

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, Daly, Dickinson, Donnelly, Frazier, Gatto, Gordon, Gorell, Grove, Hagman, Hall, Harkey, Holden, Jones, Levine,begin delete Linder,Logue,end deletebegin insert Linder, Logue,end insert Maienschein, Mansoor, Melendez, Morrell, Mullin, Nazarian, Nestande, Olsen, Patterson, Perea,begin delete John A. Pérez,end deletebegin insert John A. end insertbegin insertPérez,end insert 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 amend Sectionsbegin delete 261, 286, 288a, and 289end deletebegin insert 261 and 286end insert of the Penal Code, relating to crimes, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL’S DIGEST

AB 65, as amended, Achadjian. Crimes: sex crimes.

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. Existing law provides various circumstances that constitute sodomy against an individual’sbegin delete will, oral copulation against an individual’s will, and sexual penetration against an individual’send delete 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.

This bill would instead provide that these types ofbegin delete rape, sodomy, oral copulation, and sexual penetrationend deletebegin insert rape and sodomyend insert occur where the person submits under the belief that the person committing the act is someone known to the victim 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.

This bill would declare that it is to take effect immediately as an urgency statute.

Vote: 23. 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:

P3    1(1) Where a person is incapable, because of a mental disorder
2or developmental or physical disability, of giving legal consent,
3and this is known or reasonably should be known to the person
4committing the act. Notwithstanding the existence of a
5conservatorship pursuant to the provisions of the
6Lanterman-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 consent.

11(2) Where it is accomplished against a person’s will by means
12of force, violence, duress, menace, or fear of immediate and
13unlawful bodily injury on the person or another.

14(3) Where a person is prevented from resisting by any
15intoxicating or anesthetic substance, or any controlled substance,
16and this condition was known, or reasonably should have been
17known by the accused.

18(4) Where a person is at the time unconscious of the nature of
19the act, and this is known to the accused. As used in this paragraph,
20“unconscious of the nature of the act” means incapable of resisting
21because the victim meets any one of the following conditions:

22(A) Was unconscious or asleep.

23(B) Was not aware, knowing, perceiving, or cognizant that the
24act occurred.

25(C) Was not aware, knowing, perceiving, or cognizant of the
26essential characteristics of the act due to the perpetrator’s fraud in
27fact.

28(D) Was not aware, knowing, perceiving, or cognizant of the
29essential characteristics of the act due to the perpetrator’s fraudulent
30representation that the sexual penetration served a professional
31purpose when it served no professional purpose.

32(5) Where a person submits under the belief that the person
33committing the act is someone known to the victim other than the
34accused, and this belief is induced by any artifice, pretense, or
35concealment practiced by the accused, with intent to induce the
36belief.

37(6) Where the act is accomplished against the victim’s will by
38threatening to retaliate in the future against the victim or any other
39person, and there is a reasonable possibility that the perpetrator
40will execute the threat. As used in this paragraph, “threatening to
P4    1retaliate” means a threat to kidnap or falsely imprison, or to inflict
2extreme pain, serious bodily injury, or death.

3(7) Where the act is accomplished against the victim’s will by
4threatening to use the authority of a public official to incarcerate,
5arrest, or deport the victim or another, and the victim has a
6reasonable belief that the perpetrator is a public official. As used
7in this paragraph, “public official” means a person employed by
8a governmental agency who has the authority, as part of that
9position, to incarcerate, arrest, or deport another. The perpetrator
10does not actually have to be a public official.

11(b) As used in this section, “duress” means a direct or implied
12threat of force, violence, danger, or retribution sufficient to coerce
13a reasonable person of ordinary susceptibilities to perform an act
14which otherwise would not have been performed, or acquiesce in
15an act to which one otherwise would not have submitted. The total
16circumstances, including the age of the victim, and his or her
17relationship to the defendant, are factors to consider in appraising
18the existence of duress.

19(c) As used in this section, “menace” means any threat,
20declaration, or act which shows an intention to inflict an injury
21upon another.

22

SEC. 2.  

Section 286 of the Penal Code is amended to read:

23

286.  

(a) Sodomy is sexual conduct consisting of contact
24between the penis of one person and the anus of another person.
25Any sexual penetration, however slight, is sufficient to complete
26the crime of sodomy.

27(b) (1) Except as provided in Section 288, any person who
28participates in an act of sodomy with another person who is under
2918 years of age shall be punished by imprisonment in the state
30prison, or in a county jail for not more than one year.

31(2) Except as provided in Section 288, any person over 21 years
32of age who participates in an act of sodomy with another person
33who is under 16 years of age shall be guilty of a felony.

34(c) (1) Any person who participates in an act of sodomy with
35another person who is under 14 years of age and more than 10
36years younger than he or she shall be punished by imprisonment
37in the state prison for three, six, or eight years.

38(2) (A) Any person who commits an act of sodomy when the
39act is accomplished against the victim’s will by means of force,
40violence, duress, menace, or fear of immediate and unlawful bodily
P5    1injury on the victim or another person shall be punished by
2imprisonment in the state prison for three, six, or eight years.

3(B) Any person who commits an act of sodomy with another
4person who is under 14 years of age when the act is accomplished
5against the victim’s will by means of force, violence, duress,
6menace, or fear of immediate and unlawful bodily injury on the
7victim or another person shall be punished by imprisonment in the
8state prison for 9, 11, or 13 years.

9(C) Any person who commits an act of sodomy with another
10person who is a minor 14 years of age or older when the act is
11accomplished against the victim’s will by means of force, violence,
12duress, menace, or fear of immediate and unlawful bodily injury
13on the victim or another person shall be punished by imprisonment
14in the state prison for 7, 9, or 11 years.

15(D) This paragraph does not preclude prosecution under Section
16269, Section 288.7, or any other provision of law.

17(3) Any person who commits an act of sodomy where the act
18is accomplished against the victim’s will by threatening to retaliate
19in the future against the victim or any other person, and there is a
20reasonable possibility that the perpetrator will execute the threat,
21shall be punished by imprisonment in the state prison for three,
22six, or eight years.

23(d) (1) Any person who, while voluntarily acting in concert
24with another person, either personally or aiding and abetting that
25other person, commits an act of sodomy when the act is
26accomplished against the victim’s will by means of force or fear
27of immediate and unlawful bodily injury on the victim or another
28person or where the act is accomplished against the victim’s will
29by threatening to retaliate in the future against the victim or any
30other person, and there is a reasonable possibility that the
31perpetrator will execute the threat, shall be punished by
32imprisonment in the state prison for five, seven, or nine years.

33(2) Any person who, while voluntarily acting in concert with
34another person, either personally or aiding and abetting that other
35person, commits an act of sodomy upon a victim who is under 14
36years of age, when the act is accomplished against the victim’s
37will by means of force or fear of immediate and unlawful bodily
38injury on the victim or another person, shall be punished by
39imprisonment in the state prison for 10, 12, or 14 years.

P6    1(3) Any person who, while voluntarily acting in concert with
2another person, either personally or aiding and abetting that other
3person, commits an act of sodomy upon a victim who is a minor
414 years of age or older, when the act is accomplished against the
5victim’s will by means of force or fear of immediate and unlawful
6bodily injury on the victim or another person, shall be punished
7by imprisonment in the state prison for 7, 9, or 11 years.

8(4) This subdivision does not preclude prosecution under Section
9269, Section 288.7, or any other provision of law.

10(e) Any person who participates in an act of sodomy with any
11person of any age while confined in any state prison, as defined
12in Section 4504, or in any local detention facility, as defined in
13Section 6031.4, shall be punished by imprisonment in the state
14prison, or in a county jail for not more than one year.

15(f) Any person who commits an act of sodomy, and the victim
16is at the time unconscious of the nature of the act and this is known
17to the person committing the act, shall be punished by
18imprisonment in the state prison for three, six, or eight years. As
19used in this subdivision, “unconscious of the nature of the act”
20means incapable of resisting because the victim meets one of the
21following conditions:

22(1) Was unconscious or asleep.

23(2) Was not aware, knowing, perceiving, or cognizant that the
24act occurred.

25(3) Was not aware, knowing, perceiving, or cognizant of the
26essential characteristics of the act due to the perpetrator’s fraud in
27fact.

28(4) Was not aware, knowing, perceiving, or cognizant of the
29essential characteristics of the act due to the perpetrator’s fraudulent
30representation that the sexual penetration served a professional
31purpose when it served no professional purpose.

32(g) Except as provided in subdivision (h), a person who commits
33an act of sodomy, and the victim is at the time incapable, because
34of a mental disorder or developmental or physical disability, of
35giving legal consent, and this is known or reasonably should be
36known to the person committing the act, shall be punished by
37imprisonment in the state prison for three, six, or eight years.
38Notwithstanding the existence of a conservatorship pursuant to
39the Lanterman-Petris-Short Act (Part 1 (commencing with Section
405000) of Division 5 of the Welfare and Institutions Code), the
P7    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(h) Any person who commits an act of sodomy, and the victim
5is at the time incapable, because of a mental disorder or
6developmental or physical disability, of giving legal consent, and
7this is known or reasonably should be known to the person
8committing the act, and both the defendant and the victim are at
9the time confined in a state hospital for the care and treatment of
10the mentally disordered or in any other public or private facility
11for the care and treatment of the mentally disordered approved by
12a county mental health director, shall be punished by imprisonment
13in the state prison, or in a county jail for not more than one year.
14Notwithstanding the existence of a conservatorship pursuant to
15the Lanterman-Petris-Short Act (Part 1 (commencing with Section
165000) of Division 5 of the Welfare and Institutions Code), the
17prosecuting attorney shall prove, as an element of the crime, that
18a mental disorder or developmental or physical disability rendered
19the alleged victim incapable of giving legal consent.

20(i) Any person who commits an act of sodomy, where the victim
21is prevented from resisting by an intoxicating or anesthetic
22substance, or any controlled substance, and this condition was
23known, or reasonably should have been known by the accused,
24shall be punished by imprisonment in the state prison for three,
25six, or eight years.

26(j) Any person who commits an act of sodomy, where the victim
27submits under the belief that the person committing the act is
28someone known to the victim other than the accused, and this
29belief is induced by any artifice, pretense, or concealment practiced
30by the accused, with intent to induce the belief, shall be punished
31by imprisonment in the state prison for three, six, or eight years.

32(k) Any person who commits an act of sodomy, where the act
33is accomplished against the victim’s will by threatening to use the
34authority of a public official to incarcerate, arrest, or deport the
35victim or another, and the victim has a reasonable belief that the
36perpetrator is a public official, shall be punished by imprisonment
37in the state prison for three, six, or eight years.

38As used in this subdivision, “public official” means a person
39employed by a governmental agency who has the authority, as part
P8    1of that position, to incarcerate, arrest, or deport another. The
2perpetrator does not actually have to be a public official.

3(l) As used in subdivisions (c) and (d), “threatening to retaliate”
4means a threat to kidnap or falsely imprison, or inflict extreme
5pain, serious bodily injury, or death.

6(m) In addition to any punishment imposed under this section,
7the judge may assess a fine not to exceed seventy dollars ($70)
8against any person who violates this section, with the proceeds of
9this fine to be used in accordance with Section 1463.23. The court,
10however, shall take into consideration the defendant’s ability to
11pay, and no defendant shall be denied probation because of his or
12her inability to pay the fine permitted under this subdivision.

begin delete
13

SEC. 3.  

Section 288a of the Penal Code is amended to read:

14

288a.  

(a) Oral copulation is the act of copulating the mouth
15of one person with the sexual organ or anus of another person.

16(b) (1) Except as provided in Section 288, any person who
17participates in an act of oral copulation with another person who
18is under 18 years of age shall be punished by imprisonment in the
19state prison, or in a county jail for a period of not more than one
20year.

21(2) Except as provided in Section 288, any person over 21 years
22 of age who participates in an act of oral copulation with another
23person who is under 16 years of age is guilty of a felony.

24(c) (1) Any person who participates in an act of oral copulation
25with another person who is under 14 years of age and more than
2610 years younger than he or she shall be punished by imprisonment
27in the state prison for three, six, or eight years.

28(2) (A) Any person who commits an act of oral copulation when
29the act is accomplished against the victim’s will by means of force,
30violence, duress, menace, or fear of immediate and unlawful bodily
31injury on the victim or another person shall be punished by
32imprisonment in the state prison for three, six, or eight years.

33(B) Any person who commits an act of oral copulation upon a
34person who is under 14 years of age, when the act is accomplished
35against the victim’s will by means of force, violence, duress,
36menace, or fear of immediate and unlawful bodily injury on the
37victim or another person, shall be punished by imprisonment in
38the state prison for 8, 10, or 12 years.

39(C) Any person who commits an act of oral copulation upon a
40minor who is 14 years of age or older, when the act is accomplished
P9    1against the victim’s will by means of force, violence, duress,
2menace, or fear of immediate and unlawful bodily injury on the
3victim or another person, shall be punished by imprisonment in
4the state prison for 6, 8, or 10 years.

5(D) This paragraph does not preclude prosecution under Section
6269, Section 288.7, or any other provision of law.

7(3) Any person who commits an act of oral copulation where
8the act is accomplished against the victim’s will by threatening to
9retaliate in the future against the victim or any other person, and
10there is a reasonable possibility that the perpetrator will execute
11the threat, shall be punished by imprisonment in the state prison
12for three, six, or eight years.

13(d) (1) Any person who, while voluntarily acting in concert
14 with another person, either personally or by aiding and abetting
15that other person, commits an act of oral copulation (A) when the
16act is accomplished against the victim’s will by means of force or
17fear of immediate and unlawful bodily injury on the victim or
18another person, or (B) where the act is accomplished against the
19victim’s will by threatening to retaliate in the future against the
20victim or any other person, and there is a reasonable possibility
21that the perpetrator will execute the threat, or (C) where the victim
22is at the time incapable, because of a mental disorder or
23developmental or physical disability, of giving legal consent, and
24this is known or reasonably should be known to the person
25committing the act, shall be punished by imprisonment in the state
26prison for five, seven, or nine years. Notwithstanding the
27 appointment of a conservator with respect to the victim pursuant
28to the provisions of the Lanterman-Petris-Short Act (Part 1
29(commencing with Section 5000) of Division 5 of the Welfare and
30Institutions Code), the prosecuting attorney shall prove, as an
31element of the crime described under paragraph (3), that a mental
32disorder or developmental or physical disability rendered the
33alleged victim incapable of giving legal consent.

34(2) Any person who, while voluntarily acting in concert with
35another person, either personally or aiding and abetting that other
36person, commits an act of oral copulation upon a victim who is
37under 14 years of age, when the act is accomplished against the
38victim’s will by means of force or fear of immediate and unlawful
39bodily injury on the victim or another person, shall be punished
40by imprisonment in the state prison for 10, 12, or 14 years.

P10   1(3) Any person who, while voluntarily acting in concert with
2another person, either personally or aiding and abetting that other
3person, commits an act of oral copulation upon a victim who is a
4minor 14 years of age or older, when the act is accomplished
5against the victim’s will by means of force or fear of immediate
6and unlawful bodily injury on the victim or another person, shall
7be punished by imprisonment in the state prison for 8, 10, or 12
8years.

9(4) This paragraph does not preclude prosecution under Section
10269, Section 288.7, or any other provision of law.

11(e) Any person who participates in an act of oral copulation
12while confined in any state prison, as defined in Section 4504 or
13in any local detention facility as defined in Section 6031.4, shall
14be punished by imprisonment in the state prison, or in a county
15jail for a period of not more than one year.

16(f) Any person who commits an act of oral copulation, and the
17victim is at the time unconscious of the nature of the act and this
18is known to the person committing the act, shall be punished by
19imprisonment in the state prison for a period of three, six, or eight
20years. As used in this subdivision, “unconscious of the nature of
21the act” means incapable of resisting because the victim meets one
22of the following conditions:

23(1) Was unconscious or asleep.

24(2) Was not aware, knowing, perceiving, or cognizant that the
25act occurred.

26(3) Was not aware, knowing, perceiving, or cognizant of the
27essential characteristics of the act due to the perpetrator’s fraud in
28fact.

29(4) Was not aware, knowing, perceiving, or cognizant of the
30essential characteristics of the act due to the perpetrator’s fraudulent
31representation that the oral copulation served a professional purpose
32when it served no professional purpose.

33(g) Except as provided in subdivision (h), any person who
34commits an act of oral copulation, and the victim is at the time
35incapable, because of a mental disorder or developmental or
36physical disability, of giving legal consent, and this is known or
37reasonably should be known to the person committing the act,
38shall be punished by imprisonment in the state prison, for three,
39six, or eight years. Notwithstanding the existence of a
40conservatorship pursuant to the provisions of the
P11   1Lanterman-Petris-Short Act (Part 1 (commencing with Section
25000) of Division 5 of the Welfare and Institutions Code), the
3prosecuting attorney shall prove, as an element of the crime, that
4a mental disorder or developmental or physical disability rendered
5the alleged victim incapable of giving consent.

6(h) Any person who commits an act of oral copulation, and the
7victim is at the time incapable, because of a mental disorder or
8developmental or physical disability, of giving legal consent, and
9this is known or reasonably should be known to the person
10committing the act, and both the defendant and the victim are at
11the time confined in a state hospital for the care and treatment of
12the mentally disordered or in any other public or private facility
13for the care and treatment of the mentally disordered approved by
14a county mental health director, shall be punished by imprisonment
15in the state prison, or in a county jail for a period of not more than
16one year. Notwithstanding the existence of a conservatorship
17pursuant to the provisions of the Lanterman-Petris-Short Act (Part
181 (commencing with Section 5000) of Division 5 of the Welfare
19and Institutions Code), the prosecuting attorney shall prove, as an
20 element of the crime, that a mental disorder or developmental or
21physical disability rendered the alleged victim incapable of giving
22legal consent.

23(i) Any person who commits an act of oral copulation, where
24the victim is prevented from resisting by any intoxicating or
25anesthetic substance, or any controlled substance, and this condition
26was known, or reasonably should have been known by the accused,
27shall be punished by imprisonment in the state prison for a period
28of three, six, or eight years.

29(j) Any person who commits an act of oral copulation, where
30the victim submits under the belief that the person committing the
31act is someone known to the victim other than the accused, and
32this belief is induced by any artifice, pretense, or concealment
33practiced by the accused, with intent to induce the belief, shall be
34punished by imprisonment in the state prison for a period of three,
35six, or eight years.

36(k) Any person who commits an act of oral copulation, where
37the act is accomplished against the victim’s will by threatening to
38use the authority of a public official to incarcerate, arrest, or deport
39the victim or another, and the victim has a reasonable belief that
40the perpetrator is a public official, shall be punished by
P12   1imprisonment in the state prison for a period of three, six, or eight
2years.

3As used in this subdivision, “public official” means a person
4employed by a governmental agency who has the authority, as part
5of that position, to incarcerate, arrest, or deport another. The
6perpetrator does not actually have to be a public official.

7(l) As used in subdivisions (c) and (d), “threatening to retaliate”
8means a threat to kidnap or falsely imprison, or to inflict extreme
9pain, serious bodily injury, or death.

10(m) In addition to any punishment imposed under this section,
11the judge may assess a fine not to exceed seventy dollars ($70)
12against any person who violates this section, with the proceeds of
13this fine to be used in accordance with Section 1463.23. The court
14shall, however, take into consideration the defendant’s ability to
15pay, and no defendant shall be denied probation because of his or
16her inability to pay the fine permitted under this subdivision.

17

SEC. 4.  

Section 289 of the Penal Code is amended to read:

18

289.  

(a) (1) (A) Any person who commits an act of sexual
19penetration when the act is accomplished against the victim’s will
20by means of force, violence, duress, menace, or fear of immediate
21and unlawful bodily injury on the victim or another person shall
22be punished by imprisonment in the state prison for three, six, or
23eight years.

24(B) Any person who commits an act of sexual penetration upon
25a child who is under 14 years of age, when the act is accomplished
26against the victim’s will by means of force, violence, duress,
27menace, or fear of immediate and unlawful bodily injury on the
28victim or another person, shall be punished by imprisonment in
29the state prison for 8, 10, or 12 years.

30(C) Any person who commits an act of sexual penetration upon
31a minor who is 14 years of age or older, when the act is
32accomplished against the victim’s will by means of force, violence,
33duress, menace, or fear of immediate and unlawful bodily injury
34on the victim or another person, shall be punished by imprisonment
35in the state prison for 6, 8, or 10 years.

36(D) This paragraph does not preclude prosecution under Section
37269, Section 288.7, or any other provision of law.

38(2) Any person who commits an act of sexual penetration when
39the act is accomplished against the victim’s will by threatening to
40retaliate in the future against the victim or any other person, and
P13   1there is a reasonable possibility that the perpetrator will execute
2the threat, shall be punished by imprisonment in the state prison
3for three, six, or eight years.

4(b) Except as provided in subdivision (c), any person who
5commits an act of sexual penetration, and the victim is at the time
6incapable, because of a mental disorder or developmental or
7physical disability, of giving legal consent, and this is known or
8reasonably should be known to the person committing the act or
9causing the act to be committed, shall be punished by imprisonment
10in the state prison for three, six, or eight years. Notwithstanding
11the appointment of a conservator with respect to the victim pursuant
12to the provisions of the Lanterman-Petris-Short Act (Part 1
13(commencing with Section 5000) of Division 5 of the Welfare and
14Institutions Code), the prosecuting attorney shall prove, as an
15 element of the crime, that a mental disorder or developmental or
16physical disability rendered the alleged victim incapable of giving
17legal consent.

18(c) Any person who commits an act of sexual penetration, and
19the victim is at the time incapable, because of a mental disorder
20or developmental or physical disability, of giving legal consent,
21and this is known or reasonably should be known to the person
22committing the act or causing the act to be committed and both
23the defendant and the victim are at the time confined in a state
24hospital for the care and treatment of the mentally disordered or
25in any other public or private facility for the care and treatment of
26the mentally disordered approved by a county mental health
27director, shall be punished by imprisonment in the state prison, or
28in a county jail for a period of not more than one year.
29 Notwithstanding the existence of a conservatorship pursuant to
30the provisions of the Lanterman-Petris-Short Act (Part 1
31(commencing with Section 5000) of Division 5 of the Welfare and
32Institutions Code), the prosecuting attorney shall prove, as an
33element of the crime, that a mental disorder or developmental or
34physical disability rendered the alleged victim incapable of giving
35legal consent.

36(d) Any person who commits an act of sexual penetration, and
37the victim is at the time unconscious of the nature of the act and
38this is known to the person committing the act or causing the act
39to be committed, shall be punished by imprisonment in the state
40prison for three, six, or eight years. As used in this subdivision,
P14   1“unconscious of the nature of the act” means incapable of resisting
2because the victim meets one of the following conditions:

3(1) Was unconscious or asleep.

4(2) Was not aware, knowing, perceiving, or cognizant that the
5act occurred.

6(3) Was not aware, knowing, perceiving, or cognizant of the
7essential characteristics of the act due to the perpetrator’s fraud in
8fact.

9(4) Was not aware, knowing, perceiving, or cognizant of the
10essential characteristics of the act due to the perpetrator’s fraudulent
11representation that the sexual penetration served a professional
12purpose when it served no professional purpose.

13(e) Any person who commits an act of sexual penetration when
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(f) Any person who commits an act of sexual penetration when
20the victim submits under the belief that the person committing the
21act or causing the act to be committed is someone known to the
22victim other than the accused, and this belief is induced by any
23artifice, pretense, or concealment practiced by the accused, with
24intent to induce the belief, shall be punished by imprisonment in
25the state prison for a period of three, six, or eight years.

26(g) Any person who commits an act of sexual penetration when
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(h) Except as provided in Section 288, any person who
38participates in an act of sexual penetration with another person
39who is under 18 years of age shall be punished by imprisonment
P15   1in the state prison or in a county jail for a period of not more than
2one year.

3(i) Except as provided in Section 288, any person over the age
4of 21 years who participates in an act of sexual penetration with
5another person who is under 16 years of age shall be guilty of a
6felony.

7(j) Any person who participates in an act of sexual penetration
8with another person who is under 14 years of age and who is more
9than 10 years younger than he or she shall be punished by
10imprisonment in the state prison for three, six, or eight years.

11(k) As used in this section:

12(1) “Sexual penetration” is the act of causing the penetration,
13however slight, of the genital or anal opening of any person or
14causing another person to so penetrate the defendant’s or another
15person’s genital or anal opening for the purpose of sexual arousal,
16gratification, or abuse by any foreign object, substance, instrument,
17or device, or by any unknown object.

18(2) “Foreign object, substance, instrument, or device” shall
19include any part of the body, except a sexual organ.

20(3) “Unknown object” shall include any foreign object,
21substance, instrument, or device, or any part of the body, including
22a penis, when it is not known whether penetration was by a penis
23or by a foreign object, substance, instrument, or device, or by any
24other part of the body.

25(l) As used in subdivision (a), “threatening to retaliate” means
26a threat to kidnap or falsely imprison, or inflict extreme pain,
27serious bodily injury or death.

28(m) As used in this section, “victim” includes any person who
29the defendant causes to penetrate the genital or anal opening of
30the defendant or another person or whose genital or anal opening
31is caused to be penetrated by the defendant or another person and
32who otherwise qualifies as a victim under the requirements of this
33section.

end delete
34

begin deleteSEC. 5.end delete
35begin insertSEC. 3.end insert  

No reimbursement is required by this act pursuant to
36Section 6 of Article XIII B of the California Constitution because
37the only costs that may be incurred by a local agency or school
38district will be incurred because this act creates a new crime or
39infraction, eliminates a crime or infraction, or changes the penalty
40for a crime or infraction, within the meaning of Section 17556 of
P16   1the Government Code, or changes the definition of a crime within
2the meaning of Section 6 of Article XIII B of the California
3Constitution.

4

begin deleteSEC. 6.end delete
5begin insertSEC. 4.end insert  

This act is an urgency statute necessary for the
6immediate preservation of the public peace, health, or safety within
7the meaning of Article IV of the Constitution and shall go into
8immediate effect. The facts constituting the necessity are:

9In order to protect the public from the danger of rapebegin insert and sodomyend insert
10 by those who impersonate others, at the earliest possible time, it
11is necessary that this act take effect immediately.



O

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