Amended in Assembly June 12, 2013

Amended in Senate April 16, 2013

Amended in Senate February 14, 2013

Senate BillNo. 59


Introduced by Senator Evans

(Principal coauthors: Senators Hill and Steinberg)

(Coauthors: Senators Beall, Block, Cannella, Corbett, De León, DeSaulnier, Fuller,begin insert Gaines,end insert Galgiani, Hancock, Jackson, Lara, Leno, Liu,begin insert Nielsen, Padilla,end insertPavley, and Wolk)

(Coauthors: Assembly Members Brown, Garcia, Maienschein,begin delete and Quirk-Silvaend deletebegin insert V. Manuel Pérez,end insertbegin insert Quirk-Silva, and Tingend insert)

January 7, 2013


An act to amend Sections 261, 286, 288a, and 289 ofbegin delete, and to add Section 261.1 to,end delete the Penal Code, relating to crimes, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL’S DIGEST

SB 59, as amended, Evans. Crimes: sex crimes.

Existing law provides various circumstances that constitute rape, including an act of sexual intercourse 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. 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.

This bill would instead provide that these types of rape, sodomy, oral copulation, and sexual penetration occur where the individual submits under the belief that the individual committing the act isbegin delete the victim’s sexual partner. This bill would define sexual partner to include any individual with who the victim has had consensual sexual contact, as definedend deletebegin insert someone known to the victim other than the accusedend insert.

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:

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
13prosecuting attorney shall prove, as an element of the crime, that
14a mental disorder or developmental or physical disability rendered
15the alleged victim incapable of giving consent.

P3    1(2) Where it is accomplished against a person’s will by means
2of force, violence, duress, menace, or fear of immediate and
3unlawful bodily injury on the person or another.

4(3) Where a person is prevented from resisting by any
5intoxicating or anesthetic substance, or any controlled substance,
6and this condition was known, or reasonably should have been
7known by the accused.

8(4) Where a person is at the time unconscious of the nature of
9the act, and this is known to the accused. As used in this paragraph,
10“unconscious of the nature of the act” means incapable of resisting
11because the victim meets one of the following conditions:

12(A) Was unconscious or asleep.

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

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

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

22(5) Where a person submits under the belief that the person
23committing the act is begin delete the victim’s sexual partner, as defined in
24Section 261.1,end delete
begin insert someone known to the victim other than the accusedend insert
25 and this belief is induced by any artifice, pretense, or concealment
26practiced by the accused, with intent to induce the belief.

27(6) Where the act is accomplished against the victim’s will by
28threatening to retaliate in the future against the victim or any other
29person, and there is a reasonable possibility that the perpetrator
30will execute the threat. As used in this paragraph, “threatening to
31retaliate” means a threat to kidnap or falsely imprison, or to inflict
32extreme pain, serious bodily injury, or death.

33(7) Where the act is accomplished against the victim’s will by
34threatening to use the authority of a public official to incarcerate,
35arrest, or deport the victim or another, and the victim has a
36reasonable belief that the perpetrator is a public official. As used
37in this paragraph, “public official” means a person employed by
38a governmental agency who has the authority, as part of that
39position, to incarcerate, arrest, or deport another. The perpetrator
40does not actually have to be a public official.

P4    1(b) As used in this section, “duress” means a direct or implied
2threat of force, violence, danger, or retribution sufficient to coerce
3a reasonable person of ordinary susceptibilities to perform an act
4which otherwise would not have been performed, or acquiesce in
5an act to which one otherwise would not have submitted. The total
6circumstances, including the age of the victim, and his or her
7relationship to the defendant, are factors to consider in appraising
8the existence of duress.

9(c) As used in this section, “menace” means any threat,
10declaration, or act which shows an intention to inflict an injury
11upon another.

begin delete12

SEC. 2.  

Section 261.1 is added to the Penal Code, to read:

13

261.1.  

“Sexual partner” means an individual with who the
14victim has had consensual sexual contact, including oral copulation,
15sodomy, sexual penetration, or the touching of an intimate part of
16another person as defined in paragraph (1) of subdivision (g) of
17Section 243.4.

end delete
18

begin deleteSEC. 3.end delete
19begin insertSEC. 2.end insert  

Section 286 of the Penal Code is amended to read:

20

286.  

(a) Sodomy is sexual conduct consisting of contact
21between the penis of one person and the anus of another person.
22Any sexual penetration, however slight, is sufficient to complete
23the crime of sodomy.

24(b) (1) Except as provided in Section 288, any person who
25participates in an act of sodomy with another person who is under
2618 years of age shall be punished by imprisonment in the state
27prison, or in a county jail for not more than one year.

28(2) Except as provided in Section 288, any person overbegin delete the age
29ofend delete
21 yearsbegin insert of ageend insert who participates in an act of sodomy with
30another person who is under 16 years of age shall be guilty of a
31felony.

32(c) (1) Any person who participates in an act of sodomy with
33another person who is under 14 years of age and more than 10
34years younger than he or she shall be punished by imprisonment
35in the state prison for three, six, or eight years.

36(2) (A) Any person who commits an act of sodomy when the
37act is accomplished against the victim’s will by means of force,
38violence, duress, menace, or fear of immediate and unlawful bodily
39injury on the victim or another person shall be punished by
40imprisonment in the state prison for three, six, or eight years.

P5    1(B) Any person who commits an act of sodomy with another
2person who is under 14 years of age when the act is accomplished
3against the victim’s will by means of force, violence, duress,
4menace, or fear of immediate and unlawful bodily injury on the
5victim or another person shall be punished by imprisonment in the
6state prison for 9, 11, or 13 years.

7(C) Any person who commits an act of sodomy with another
8person who is a minor 14 years of age or older when the act is
9accomplished against the victim’s will by means of force, violence,
10duress, menace, or fear of immediate and unlawful bodily injury
11on the victim or another person shall be punished by imprisonment
12in the state prison for 7, 9, or 11 years.

13(D) This paragraph does not preclude prosecution under Section
14269, Section 288.7, or any other provision of law.

15(3) Any person who commits an act of sodomy where the act
16is accomplished against the victim’s will by threatening to retaliate
17in the future against the victim or any other person, and there is a
18reasonable possibility that the perpetrator will execute the threat,
19shall be punished by imprisonment in the state prison for three,
20six, or eight years.

21(d) (1) Any person who, while voluntarily acting in concert
22with another person, either personally or aiding and abetting that
23other person, commits an act of sodomy when the act is
24accomplished against the victim’s will by means of force or fear
25of immediate and unlawful bodily injury on the victim or another
26person or where the act is accomplished against the victim’s will
27 by threatening to retaliate in the future against the victim or any
28other person, and there is a reasonable possibility that the
29perpetrator will execute the threat, shall be punished by
30imprisonment in the state prison for five, seven, or nine years.

31(2) Any person who, while voluntarily acting in concert with
32another person, either personally or aiding and abetting that other
33person, commits an act of sodomy upon a victim who is under 14
34years of age, when the act is accomplished against the victim’s
35will by means of force or fear of immediate and unlawful bodily
36injury on the victim or another person, shall be punished by
37imprisonment in the state prison for 10, 12, or 14 years.

38(3) Any person who, while voluntarily acting in concert with
39another person, either personally or aiding and abetting that other
40person, commits an act of sodomy upon a victim who is a minor
P6    114 years of age or older, when the act is accomplished against the
2victim’s will by means of force or fear of immediate and unlawful
3bodily injury on the victim or another person, shall be punished
4by imprisonment in the state prison for 7, 9, or 11 years.

5(4) This subdivision does not preclude prosecution under Section
6269, Section 288.7, or any other provision of law.

7(e) Any person who participates in an act of sodomy with any
8person of any age while confined in any state prison, as defined
9in Section 4504, or in any local detention facility, as defined in
10Section 6031.4, shall be punished by imprisonment in the state
11prison, or in a county jail for not more than one year.

12(f) Any person who commits an act of sodomy, and the victim
13is at the time unconscious of the nature of the act and this is known
14to the person committing the act, shall be punished by
15imprisonment in the state prison for three, six, or eight years. As
16used in this subdivision, “unconscious of the nature of the act”
17means incapable of resisting because the victim meets one of the
18following conditions:

19(1) Was unconscious or asleep.

20(2) Was not aware, knowing, perceiving, or cognizant that the
21act occurred.

22(3) Was not aware, knowing, perceiving, or cognizant of the
23essential characteristics of the act due to the perpetrator’s fraud in
24fact.

25(4) Was not aware, knowing, perceiving, or cognizant of the
26essential characteristics of the act due to the perpetrator’s fraudulent
27representation that the sexual penetration served a professional
28purpose when it served no professional purpose.

29(g) Except as provided in subdivision (h), a person who commits
30an act of sodomy, and the victim is at the time incapable, because
31of a mental disorder or developmental or physical disability, of
32giving legal consent, and this is known or reasonably should be
33known to the person committing the act, shall be punished by
34imprisonment in the state prison for three, six, or eight years.
35Notwithstanding the existence of a conservatorship pursuant to
36the Lanterman-Petris-Short Act (Part 1 (commencing with Section
375000) of Division 5 of the Welfare and Institutions Code), the
38prosecuting attorney shall prove, as an element of the crime, that
39a mental disorder or developmental or physical disability rendered
40the alleged victim incapable of giving consent.

P7    1(h) Any person who commits an act of sodomy, and the victim
2is at the time incapable, because of a mental disorder or
3developmental or physical disability, of giving legal consent, and
4this is known or reasonably should be known to the person
5committing the act, and both the defendant and the victim are at
6the time confined in a state hospital for the care and treatment of
7the mentally disordered or in any other public or private facility
8for the care and treatment of the mentally disordered approved by
9a county mental health director, shall be punished by imprisonment
10in the state prison, or in a county jail for not more than one year.
11Notwithstanding the existence of a conservatorship pursuant to
12the Lanterman-Petris-Short Act (Part 1 (commencing with Section
135000) of Division 5 of the Welfare and Institutions Code), the
14prosecuting attorney shall prove, as an element of the crime, that
15a mental disorder or developmental or physical disability rendered
16the alleged victim incapable of giving legal consent.

17(i) Any person who commits an act of sodomy, where the victim
18is prevented from resisting by an intoxicating or anesthetic
19substance, or any controlled substance, and this condition was
20known, or reasonably should have been known by the accused,
21shall be punished by imprisonment in the state prison for three,
22six, or eight years.

23(j) Any person who commits an act of sodomy, where the victim
24submits under the belief that the person committing the act isbegin delete the
25victim’s sexual partner, as defined in Section 261.1end delete
begin insert someone known
26to the victim other than the accusedend insert
, and this belief is induced by
27any artifice, pretense, or concealment practiced by the accused,
28with intent to induce the belief, shall be punished by imprisonment
29in the state prison for three, six, or eight years.

30(k) Any person who commits an act of sodomy, where the act
31is accomplished against the victim’s will by threatening to use the
32authority of a public official to incarcerate, arrest, or deport the
33victim or another, and the victim has a reasonable belief that the
34perpetrator is a public official, shall be punished by imprisonment
35in the state prison for three, six, or eight years.

36As used in this subdivision, “public official” means a person
37employed by a governmental agency who has the authority, as part
38of that position, to incarcerate, arrest, or deport another. The
39perpetrator does not actually have to be a public official.

P8    1(l) As used in subdivisions (c) and (d), “threatening to retaliate”
2means a threat to kidnap or falsely imprison, or inflict extreme
3pain, serious bodily injury, or death.

4(m) In addition to any punishment imposed under this section,
5the judge may assess a fine not to exceed seventy dollars ($70)
6against any person who violates this section, with the proceeds of
7this fine to be used in accordance with Section 1463.23. The court,
8however, shall take into consideration the defendant’s ability to
9pay, and no defendant shall be denied probation because of his or
10her inability to pay the fine permitted under this subdivision.

11

begin deleteSEC. 4.end delete
12begin insertSEC. 3.end insert  

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

13

288a.  

(a) Oral copulation is the act of copulating the mouth
14of one person with the sexual organ or anus of another person.

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

20(2) Except as provided in Section 288, any person overbegin delete the age
21ofend delete
21 yearsbegin insert of ageend insert who participates in an act of oral copulation
22with another person who is under 16 years of age is guilty of a
23felony.

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
14with another person, either personally or by aiding and abetting
15that other person, commits an act of oral copulationbegin delete (1)end deletebegin insert (A)end insert when
16the act is accomplished against the victim’s will by means of force
17or fear of immediate and unlawful bodily injury on the victim or
18another person, orbegin delete (2)end deletebegin insert (B)end insert where the act is accomplished against
19the victim’s will by threatening to retaliate in the future against
20the victim or any other person, and there is a reasonable possibility
21that the perpetrator will execute the threat, orbegin delete (3)end deletebegin insert (C)end insert where the
22victim is 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
27appointment 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
20element 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 isbegin delete the victim’s sexual partner, as defined in Section 261.1end delete
32begin insert someone known to the victim other than the accusedend insert, and this belief
33is induced by any artifice, pretense, or concealment practiced by
34the accused, with intent to induce the belief, shall be punished by
35imprisonment in the state prison for a period of three, six, or eight
36years.

37(k) Any person who commits an act of oral copulation, where
38the act is accomplished against the victim’s will by threatening to
39use the authority of a public official to incarcerate, arrest, or deport
40the victim or another, and the victim has a reasonable belief that
P12   1the perpetrator is a public official, shall be punished by
2imprisonment in the state prison for a period of three, six, or eight
3years.

4As used in this subdivision, “public official” means a person
5employed by a governmental agency who has the authority, as part
6of that position, to incarcerate, arrest, or deport another. The
7perpetrator does not actually have to be a public official.

8(l) As used in subdivisions (c) and (d), “threatening to retaliate”
9means a threat to kidnap or falsely imprison, or to inflict extreme
10pain, serious bodily injury, or death.

11(m) In addition to any punishment imposed under this section,
12the judge may assess a fine not to exceed seventy dollars ($70)
13against any person who violates this section, with the proceeds of
14this fine to be used in accordance with Section 1463.23. The court
15shall, however, take into consideration the defendant’s ability to
16pay, and no defendant shall be denied probation because of his or
17her inability to pay the fine permitted under this subdivision.

18

begin deleteSEC. 5.end delete
19begin insertSEC. 4.end insert  

Section 289 of the Penal Code is amended to read:

20

289.  

(a) (1) (A) Any person who commits an act of sexual
21penetration when the act is accomplished against the victim’s will
22by means of force, violence, duress, menace, or fear of immediate
23and unlawful bodily injury on the victim or another person shall
24be punished by imprisonment in the state prison for three, six, or
25eight years.

26(B) Any person who commits an act of sexual penetration upon
27a child who is under 14 years of age, when the act is accomplished
28against the victim’s will by means of force, violence, duress,
29menace, or fear of immediate and unlawful bodily injury on the
30victim or another person, shall be punished by imprisonment in
31the state prison for 8, 10, or 12 years.

32(C) Any person who commits an act of sexual penetration upon
33a minor who is 14 years of age or older, when the act is
34accomplished against the victim’s will by means of force, violence,
35duress, menace, or fear of immediate and unlawful bodily injury
36on the victim or another person, shall be punished by imprisonment
37in the state prison for 6, 8, or 10 years.

38(D) This paragraph does not preclude prosecution under Section
39269, Section 288.7, or any other provision of law.

P13   1(2) Any person who commits an act of sexual penetration when
2the act is accomplished against the victim’s will by threatening to
3retaliate in the future against the victim or any other person, and
4there is a reasonable possibility that the perpetrator will execute
5the threat, shall be punished by imprisonment in the state prison
6for three, six, or eight years.

7(b) Except as provided in subdivision (c), any person who
8commits an act of sexual penetration, and the victim is at the time
9incapable, because of a mental disorder or developmental or
10physical disability, of giving legal consent, and this is known or
11reasonably should be known to the person committing the act or
12causing the act to be committed, shall be punished by imprisonment
13in the state prison for three, six, or eight years. Notwithstanding
14the appointment of a conservator with respect to the victim pursuant
15to the provisions of the Lanterman-Petris-Short Act (Part 1
16(commencing with Section 5000) of Division 5 of the Welfare and
17Institutions Code), the prosecuting attorney shall prove, as an
18element of the crime, that a mental disorder or developmental or
19physical disability rendered the alleged victim incapable of giving
20legal consent.

21(c) Any person who commits an act of sexual penetration, and
22the victim is at the time incapable, because of a mental disorder
23or developmental or physical disability, of giving legal consent,
24and this is known or reasonably should be known to the person
25committing the act or causing the act to be committed and both
26the defendant and the victim are at the time confined in a state
27hospital for the care and treatment of the mentally disordered or
28in any other public or private facility for the care and treatment of
29the mentally disordered approved by a county mental health
30director, shall be punished by imprisonment in the state prison, or
31in a county jail for a period of not more than one year.
32Notwithstanding the existence of a conservatorship pursuant to
33the provisions of the Lanterman-Petris-Short Act (Part 1
34(commencing with Section 5000) of Division 5 of the Welfare and
35Institutions Code), the prosecuting attorney shall prove, as an
36element of the crime, that a mental disorder or developmental or
37physical disability rendered the alleged victim incapable of giving
38legal consent.

39(d) Any person who commits an act of sexual penetration, and
40the victim is at the time unconscious of the nature of the act and
P14   1this is known to the person committing the act or causing the act
2to be committed, shall be punished by imprisonment in the state
3prison for three, six, or eight years. As used in this subdivision,
4“unconscious of the nature of the act” means incapable of resisting
5because the victim meets one of the following conditions:

6(1) Was unconscious or asleep.

7(2) Was not aware, knowing, perceiving, or cognizant that the
8act occurred.

9(3) Was not aware, knowing, perceiving, or cognizant of the
10essential characteristics of the act due to the perpetrator’s fraud in
11fact.

12(4) Was not aware, knowing, perceiving, or cognizant of the
13essential characteristics of the act due to the perpetrator’s fraudulent
14representation that the sexual penetration served a professional
15purpose when it served no professional purpose.

16(e) Any person who commits an act of sexual penetration when
17the victim is prevented from resisting by any intoxicating or
18anesthetic substance, or any controlled substance, and this condition
19was known, or reasonably should have been known by the accused,
20shall be punished by imprisonment in the state prison for a period
21of three, six, or eight years.

22(f) Any person who commits an act of sexual penetration when
23the victim submits under the belief that the person committing the
24act or causing the act to be committed isbegin delete the victim’s sexual partner,
25as defined in Section 261.1end delete
begin insert someone known to the victim other
26than the accusedend insert
, and this belief is induced by any artifice,
27pretense, or concealment practiced by the accused, with intent to
28induce the belief, shall be punished by imprisonment in the state
29prison for a period of three, six, or eight years.

30(g) Any person who commits an act of sexual penetration when
31the act is accomplished against the victim’s will by threatening to
32use the authority of a public official to incarcerate, arrest, or deport
33the victim or another, and the victim has a reasonable belief that
34the perpetrator is a public official, shall be punished by
35imprisonment in the state prison for a period of three, six, or eight
36years.

37As used in this subdivision, “public official” means a person
38employed by a governmental agency who has the authority, as part
39of that position, to incarcerate, arrest, or deport another. The
40perpetrator does not actually have to be a public official.

P15   1(h) Except as provided in Section 288, any person who
2participates in an act of sexual penetration with another person
3who is under 18 years of age shall be punished by imprisonment
4in the state prison or inbegin delete theend deletebegin insert aend insert county jail for a period of not more
5than one year.

6(i) Except as provided in Section 288, any person overbegin delete the age
7ofend delete
21 yearsbegin insert of ageend insert who participates in an act of sexual penetration
8with another person who is under 16 years of age shall be guilty
9of a felony.

10(j) Any person who participates in an act of sexual penetration
11with another person who is under 14 years of age and who is more
12than 10 years younger than he or she shall be punished by
13imprisonment in the state prison for three, six, or eight years.

14(k) As used in this section:

15(1) “Sexual penetration” is the act of causing the penetration,
16however slight, of the genital or anal opening of any person or
17causing another person to so penetrate the defendant’s or another
18person’s genital or anal opening for the purpose of sexual arousal,
19gratification, or abuse by any foreign object, substance, instrument,
20or device, or by any unknown object.

21(2) “Foreign object, substance, instrument, or device” shall
22include any part of the body, except a sexual organ.

23(3) “Unknown object” shall include any foreign object,
24substance, instrument, or device, or any part of the body, including
25a penis, when it is not known whether penetration was by a penis
26or by a foreign object, substance, instrument, or device, or by any
27other part of the body.

28(l) As used in subdivision (a), “threatening to retaliate” means
29a threat to kidnap or falsely imprison, or inflict extreme pain,
30serious bodily injury or death.

31(m) As used in this section, “victim” includes any person who
32the defendant causes to penetrate the genital or anal opening of
33the defendant or another person or whose genital or anal opening
34is caused to be penetrated by the defendant or another person and
35who otherwise qualifies as a victim under the requirements of this
36section.

37

begin deleteSEC. 6.end delete
38begin insertSEC. 5.end insert  

No reimbursement is required by this act pursuant to
39Section 6 of Article XIII B of the California Constitution because
40the only costs that may be incurred by a local agency or school
P16   1district will be incurred because this act creates a new crime or
2infraction, eliminates a crime or infraction, or changes the penalty
3for a crime or infraction, within the meaning of Section 17556 of
4the Government Code, or changes the definition of a crime within
5the meaning of Section 6 of Article XIII B of the California
6Constitution.

7

begin deleteSEC. 7.end delete
8begin insertSEC. 6.end insert  

This act is an urgency statute necessary for the
9immediate preservation of the public peace, health, or safety within
10the meaning of Article IV of the Constitution and shall go into
11immediate effect. The facts constituting the necessity are:

12In order to protect the public safety by minimizing the threat
13posed by sexual predators at the earliest possible time, it is
14necessary that this act take effect immediately.



O

    96