Amended in Assembly July 3, 2013

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, Gaines, Galgiani, Hancock, Jackson, Lara, Leno, Liu, Nielsen, Padilla, Pavley, and Wolk)

(Coauthors: Assembly Members Brown, Garcia, Maienschein, V. Manuel Pérez, Quirk-Silva, and Ting)

January 7, 2013


An act to amend Sectionsbegin delete 261, 286, 288a,end deletebegin insert 288aend insert and 289 of 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 constitutebegin delete 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,end delete oral copulation against an individual’sbegin delete will,end deletebegin insert willend insert 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 ofbegin delete rape, sodomy,end delete oralbegin delete copulation,end deletebegin insert copulationend insert and sexual penetration occur where the individual submits under the belief that the individual 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:

begin delete
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 someone known to the victim other than the
24accused and this belief is induced by any artifice, pretense, or
25concealment practiced by the accused, with intent to induce the
26belief.

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.

12

SEC. 2.  

Section 286 of the Penal Code is amended to read:

13

286.  

(a) Sodomy is sexual conduct consisting of contact
14between the penis of one person and the anus of another person.
15Any sexual penetration, however slight, is sufficient to complete
16the crime of sodomy.

17(b) (1) Except as provided in Section 288, any person who
18participates in an act of sodomy with another person who is under
1918 years of age shall be punished by imprisonment in the state
20prison, or in a county jail for not more than one year.

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

24(c) (1) Any person who participates in an act of sodomy with
25another person who is under 14 years of age and more than 10
26years 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 sodomy when the
29act 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 sodomy with another
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 the
38state prison for 9, 11, or 13 years.

39(C) Any person who commits an act of sodomy with another
40person who is a minor 14 years of age or older when the act is
P5    1accomplished against the victim’s will by means of force, violence,
2duress, menace, or fear of immediate and unlawful bodily injury
3on the victim or another person shall be punished by imprisonment
4in the state prison for 7, 9, or 11 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 sodomy where the act
8is accomplished against the victim’s will by threatening to retaliate
9in the future against the victim or any other person, and there is a
10reasonable possibility that the perpetrator will execute the threat,
11shall be punished by imprisonment in the state prison for three,
12six, or eight years.

13(d) (1) Any person who, while voluntarily acting in concert
14with another person, either personally or aiding and abetting that
15other person, commits an act of sodomy when the act is
16accomplished against the victim’s will by means of force or fear
17of immediate and unlawful bodily injury on the victim or another
18person or where the act is accomplished against the victim’s will
19 by threatening to retaliate in the future against the victim or any
20other person, and there is a reasonable possibility that the
21perpetrator will execute the threat, shall be punished by
22imprisonment in the state prison for five, seven, or nine years.

23(2) Any person who, while voluntarily acting in concert with
24another person, either personally or aiding and abetting that other
25person, commits an act of sodomy upon a victim who is under 14
26years of age, when the act is accomplished against the victim’s
27will by means of force or fear of immediate and unlawful bodily
28injury on the victim or another person, shall be punished by
29imprisonment in the state prison for 10, 12, or 14 years.

30(3) Any person who, while voluntarily acting in concert with
31another person, either personally or aiding and abetting that other
32person, commits an act of sodomy upon a victim who is a minor
3314 years of age or older, when the act is accomplished against the
34victim’s will by means of force or fear of immediate and unlawful
35bodily injury on the victim or another person, shall be punished
36by imprisonment in the state prison for 7, 9, or 11 years.

37(4) This subdivision does not preclude prosecution under Section
38269, Section 288.7, or any other provision of law.

39(e) Any person who participates in an act of sodomy with any
40person of any age while confined in any state prison, as defined
P6    1in Section 4504, or in any local detention facility, as defined in
2Section 6031.4, shall be punished by imprisonment in the state
3prison, or in a county jail for not more than one year.

4(f) Any person who commits an act of sodomy, and the victim
5is at the time unconscious of the nature of the act and this is known
6to the person committing the act, shall be punished by
7imprisonment in the state prison for three, six, or eight years. As
8used in this subdivision, “unconscious of the nature of the act”
9means incapable of resisting because the victim meets one of the
10following conditions:

11(1) Was unconscious or asleep.

12(2) Was not aware, knowing, perceiving, or cognizant that the
13act occurred.

14(3) Was not aware, knowing, perceiving, or cognizant of the
15essential characteristics of the act due to the perpetrator’s fraud in
16fact.

17(4) Was not aware, knowing, perceiving, or cognizant of the
18essential characteristics of the act due to the perpetrator’s fraudulent
19representation that the sexual penetration served a professional
20purpose when it served no professional purpose.

21(g) Except as provided in subdivision (h), a person who commits
22an act of sodomy, and the victim is at the time incapable, because
23of a mental disorder or developmental or physical disability, of
24giving legal consent, and this is known or reasonably should be
25known to the person committing the act, shall be punished by
26imprisonment in the state prison for three, six, or eight years.
27Notwithstanding the existence of a conservatorship pursuant to
28the Lanterman-Petris-Short Act (Part 1 (commencing with Section
295000) of Division 5 of the Welfare and Institutions Code), the
30prosecuting attorney shall prove, as an element of the crime, that
31a mental disorder or developmental or physical disability rendered
32the alleged victim incapable of giving consent.

33(h) Any person who commits an act of sodomy, and the victim
34is at the time incapable, because of a mental disorder or
35developmental or physical disability, of giving legal consent, and
36this is known or reasonably should be known to the person
37committing the act, and both the defendant and the victim are at
38the time confined in a state hospital for the care and treatment of
39the mentally disordered or in any other public or private facility
40for the care and treatment of the mentally disordered approved by
P7    1a county mental health director, shall be punished by imprisonment
2in the state prison, or in a county jail for not more than one year.
3Notwithstanding the existence of a conservatorship pursuant to
4the Lanterman-Petris-Short Act (Part 1 (commencing with Section
55000) of Division 5 of the Welfare and Institutions Code), the
6prosecuting attorney shall prove, as an element of the crime, that
7a mental disorder or developmental or physical disability rendered
8the alleged victim incapable of giving legal consent.

9(i) Any person who commits an act of sodomy, where the victim
10is prevented from resisting by an intoxicating or anesthetic
11substance, or any controlled substance, and this condition was
12known, or reasonably should have been known by the accused,
13shall be punished by imprisonment in the state prison for three,
14six, or eight years.

15(j) Any person who commits an act of sodomy, where the victim
16submits under the belief that the person committing the act is
17someone known to the victim other than the accused, and this
18belief is induced by any artifice, pretense, or concealment practiced
19by the accused, with intent to induce the belief, shall be punished
20by imprisonment in the state prison for three, six, or eight years.

21(k) Any person who commits an act of sodomy, where the act
22is accomplished against the victim’s will by threatening to use the
23authority of a public official to incarcerate, arrest, or deport the
24victim or another, and the victim has a reasonable belief that the
25perpetrator is a public official, shall be punished by imprisonment
26in the state prison for three, six, or eight years.

27As used in this subdivision, “public official” means a person
28employed by a governmental agency who has the authority, as part
29of that position, to incarcerate, arrest, or deport another. The
30perpetrator does not actually have to be a public official.

31(l) As used in subdivisions (c) and (d), “threatening to retaliate”
32means a threat to kidnap or falsely imprison, or inflict extreme
33pain, serious bodily injury, or death.

34(m) In addition to any punishment imposed under this section,
35the judge may assess a fine not to exceed seventy dollars ($70)
36against any person who violates this section, with the proceeds of
37this fine to be used in accordance with Section 1463.23. The court,
38however, shall take into consideration the defendant’s ability to
39pay, and no defendant shall be denied probation because of his or
40her inability to pay the fine permitted under this subdivision.

end delete
P8    1

begin deleteSEC. 3.end delete
2begin insertSECTION 1.end insert  

Section 288a of the Penal Code is amended to
3read:

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 21 years
12of age who participates in an act of oral copulation with another
13person 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 (A) 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 (B) 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 (C) 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
17appointment 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
10element 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 is someone known to the victim other than the accused, 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.

8

begin deleteSEC. 4.end delete
9begin insertSEC. 2.end insert  

Section 289 of the Penal Code is amended to read:

10

289.  

(a) (1) (A) Any person who commits an act of sexual
11penetration when the act is accomplished against the victim’s will
12by means of force, violence, duress, menace, or fear of immediate
13and unlawful bodily injury on the victim or another person shall
14be punished by imprisonment in the state prison for three, six, or
15eight years.

16(B) Any person who commits an act of sexual penetration upon
17a child who is under 14 years of age, when the act is accomplished
18against the victim’s will by means of force, violence, duress,
19menace, or fear of immediate and unlawful bodily injury on the
20victim or another person, shall be punished by imprisonment in
21the state prison for 8, 10, or 12 years.

22(C) Any person who commits an act of sexual penetration upon
23a minor who is 14 years of age or older, when the act is
24accomplished against the victim’s will by means of force, violence,
25duress, menace, or fear of immediate and unlawful bodily injury
26on the victim or another person, shall be punished by imprisonment
27in the state prison for 6, 8, or 10 years.

28(D) This paragraph does not preclude prosecution under Section
29269, Section 288.7, or any other provision of law.

30(2) Any person who commits an act of sexual penetration when
31the act is accomplished against the victim’s will by threatening to
32retaliate in the future against the victim or any other person, and
33there is a reasonable possibility that the perpetrator will execute
34the threat, shall be punished by imprisonment in the state prison
35for three, six, or eight years.

36(b) Except as provided in subdivision (c), any person who
37commits an act of sexual penetration, and the victim is at the time
38incapable, because of a mental disorder or developmental or
39physical disability, of giving legal consent, and this is known or
40reasonably should be known to the person committing the act or
P13   1causing the act to be committed, shall be punished by imprisonment
2in the state prison for three, six, or eight years. Notwithstanding
3the appointment of a conservator with respect to the victim pursuant
4to the provisions of the Lanterman-Petris-Short Act (Part 1
5(commencing with Section 5000) of Division 5 of the Welfare and
6Institutions Code), the prosecuting attorney shall prove, as an
7element of the crime, that a mental disorder or developmental or
8physical disability rendered the alleged victim incapable of giving
9legal consent.

10(c) Any person who commits an act of sexual penetration, and
11the victim is at the time incapable, because of a mental disorder
12or developmental or physical disability, of giving legal consent,
13and this is known or reasonably should be known to the person
14committing the act or causing the act to be committed and both
15the defendant and the victim are at the time confined in a state
16hospital for the care and treatment of the mentally disordered or
17in any other public or private facility for the care and treatment of
18the mentally disordered approved by a county mental health
19director, shall be punished by imprisonment in the state prison, or
20in a county jail for a period of not more than one year.
21Notwithstanding the existence of a conservatorship pursuant to
22the provisions of the Lanterman-Petris-Short Act (Part 1
23(commencing with Section 5000) of Division 5 of the Welfare and
24Institutions Code), the prosecuting attorney shall prove, as an
25element of the crime, that a mental disorder or developmental or
26physical disability rendered the alleged victim incapable of giving
27legal consent.

28(d) Any person who commits an act of sexual penetration, and
29the victim is at the time unconscious of the nature of the act and
30this is known to the person committing the act or causing the act
31to be committed, shall be punished by imprisonment in the state
32prison for three, six, or eight years. As used in this subdivision,
33“unconscious of the nature of the act” means incapable of resisting
34because the victim meets one of the following conditions:

35(1) Was unconscious or asleep.

36(2) Was not aware, knowing, perceiving, or cognizant that the
37act occurred.

38(3) Was not aware, knowing, perceiving, or cognizant of the
39essential characteristics of the act due to the perpetrator’s fraud in
40fact.

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 is someone known to the
14victim other than the accused, 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 a county jail for a period of not more than
33one year.

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

37(j) Any person who participates in an act of sexual penetration
38with another person who is under 14 years of age and who is more
39than 10 years younger than he or she shall be punished by
40imprisonment in the state prison for three, six, or eight years.

P15   1(k) As used in this section:

2(1) “Sexual penetration” is the act of causing the penetration,
3however slight, of the genital or anal opening of any person or
4causing another person to so penetrate the defendant’s or another
5person’s genital or anal opening for the purpose of sexual arousal,
6gratification, or abuse by any foreign object, substance, instrument,
7or device, or by any unknown object.

8(2) “Foreign object, substance, instrument, or device” shall
9include any part of the body, except a sexual organ.

10(3) “Unknown object” shall include any foreign object,
11substance, instrument, or device, or any part of the body, including
12a penis, when it is not known whether penetration was by a penis
13or by a foreign object, substance, instrument, or device, or by any
14other part of the body.

15(l) As used in subdivision (a), “threatening to retaliate” means
16a threat to kidnap or falsely imprison, or inflict extreme pain,
17serious bodily injury or death.

18(m) As used in this section, “victim” includes any person who
19the defendant causes to penetrate the genital or anal opening of
20the defendant or another person or whose genital or anal opening
21is caused to be penetrated by the defendant or another person and
22who otherwise qualifies as a victim under the requirements of this
23section.

24

begin deleteSEC. 5.end delete
25begin insertSEC. 3.end insert  

No reimbursement is required by this act pursuant to
26Section 6 of Article XIII B of the California Constitution because
27the only costs that may be incurred by a local agency or school
28district will be incurred because this act creates a new crime or
29infraction, eliminates a crime or infraction, or changes the penalty
30for a crime or infraction, within the meaning of Section 17556 of
31the Government Code, or changes the definition of a crime within
32the meaning of Section 6 of Article XIII B of the California
33Constitution.

34

begin deleteSEC. 6.end delete
35begin insertSEC. 4.end insert  

This act is an urgency statute necessary for the
36immediate preservation of the public peace, health, or safety within
37the meaning of Article IV of the Constitution and shall go into
38immediate effect. The facts constituting the necessity are:

P16   1In order to protect the public safety by minimizing the threat
2posed by sexual predators at the earliest possible time, it is
3necessary that this act take effect immediately.



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