BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
5
9
SB 59 (Evans)
As Amended February 14, 2013
Hearing date: February 26, 2013
Penal Code (URGENCY)
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SEX CRIMES COMMITTED BY IMPERSONATION
HISTORY
Source: Author
Prior Legislation: SB 1421 (Romero) - Ch. 302, Stats. 2002
AB 765 (Achadjian) - held in Senate Public Safety,
2012
Support: California Coalition Against Sexual Assault; Crime
Victims United of California; California Police Chiefs
Association; California State Sheriffs' Association;
Chief Probation Officers of California; Sonoma County
Commission on the Status of Women; Humboldt County
District Attorney; Marin County District Attorney;
City Council and Commission on the Status of Women of
the City of Glendale; City of West Hollywood; Peace
Officers Research Association of California; Napa
Emergency Women's Services; California District
Attorneys Association (in Concept); Napa County
District Attorney
Opposition:None known
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KEY ISSUE
SHOULD SEX CRIMES COMMITTED BY FRAUD BE DEFINED TO INCLUDE
CIRCUMSTANCES WHERE THE PERPETRATOR INDUCES THE VICTIM TO BELIEVE
THAT HE OR SHE IS THE VICTIM'S "SEXUAL PARTNER," DEFINED AS A PERSON
WITH WHOM THE VICTIM HAS ENGAGED IN CONSENSUAL SEXUAL ACTIVITY?
PURPOSE
The purpose of this bill is to define rape and other sex crimes
committed by fraud or impersonation to include cases where the
perpetrator induces the victim to believe that he is the
victim's "sexual partner," which is defined as a person with
whom the victim has engaged in consensual sexual activity,
including sexual intercourse, oral copulation, sodomy, sexual
penetration and touching of an intimate body part.
Existing law provides that rape is an act of sexual intercourse
accomplished against the will of the victim. As relevant to
this bill, some of the circumstances establishing rape are the
following:
Force or coercion : The rape is accomplished against a
person's will by means of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the
person of another.
Perpetrator poses as victim's spouse : Where a person
submits under the belief that the person committing the act
is the victim's spouse, and this belief is induced by any
artifice, pretense, or concealment practiced by the
accused, with intent to induce the belief.
Victim is unconscious or unconscious of the nature of
the act : Where the victim is unconscious of the nature of
the act, and this is known to the accused. As used in this
paragraph, "unconscious of the nature of the act" is
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defined as incapable of resisting because the victim meets
one of the following conditions:
o Was unconscious or asleep.
o Was not aware, knowing, perceiving, or
cognizant that the act occurred.
o Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act
due to the perpetrator's fraud in fact.
o Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act
due to the perpetrator's fraudulent representation
that the sexual penetration served a professional
purpose when it served no professional purpose. (Pen.
Code § 261(a)(1)-(7).)
Existing law provides that rape as defined in Section 261 is
punishable by imprisonment in the state prison for three, six,
or eight years. (Pen. Code § 264.)
Existing law includes numerous felony sex crimes that are
committed where the perpetrator engaged in oral copulation,
sodomy, or sexual penetration in a prohibited manner. The
statutes are largely equivalent to the rape statute and involve
the following conduct:
The perpetrator used force or compulsion.
The perpetrator engaged the act while the victim was
unconscious of the nature of the act, as specified.
The perpetrator fraudulently induced the victim to
believe that he or she was the spouse of the victim. (Pen.
Code §§ 286 (sodomy), 288a (oral copulation) and 289
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(sexual penetration).)<1>
Existing law provides that where sodomy, sexual penetration or
oral copulation is committed by force or compulsion, or where
the victim is unconscious of the nature of the act, the crime is
punishable by imprisonment in the state prison for three, six,
or eight years. (Pen. Code §§ 268, 288a and 289.)
This bill provides that rape, or felonious oral copulation,
sodomy or sexual penetration, occurs where the victim submits to
the sexual act because he or she believes that the person
committing the act is the victim's "sexual partner," and this
belief is induced by any artifice, pretense or concealment by
the perpetrator, with the intent to induce the victim's belief.
This bill defines a "sexual partner" as any person with whom the
victim has engaged in consensual sexual intercourse, oral
copulation, sodomy, sexual penetration or the touching of an
intimate part of the body.
This bill defines an intimate part of the body to include the
genitals, anus, or buttocks of any person, and the breasts of a
woman.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
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<1> Sodomy is defined as any penetration of the anus of one
person by the penis another person. Oral copulation is the
copulation of the mouth of one person with the sexual organ or
anus of another person. Sexual penetration is the penetration
of the genital opening or anus of one person with an object,
device, body part other than a penis, or an unknown object. An
unknown object can include a penis, where the victim is unaware
of the actual nature of the object. (Pen. Code §§ 286, subd.
(a), 288a, subd. (a), 289, subd. (k).)
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prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
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unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error; whether a measure proposes
penalties which are proportionate, and cannot be achieved
through any other reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
SB 59 responds to a legal anomaly in an outdated rape
statute. In People v. Morales, the 2nd District Court
of Appeal overturned the rape conviction of Julio
Morales based on a provision from the 1870's that
upholds the rights of a married victim where the
perpetrator pretends to be the victim's spouse.
In Morales, the victim was unmarried, and the
conviction was overturned. The court acknowledged the
archaic statute that has resulted in an overturned
rape conviction and exposed this anomaly that protects
the rights of married individuals, but not the rights
of others.
SB 59 updates the arcane language contained in various
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sections of the California Penal Code by substituting
and defining the new term of "sexual partner" in the
place of the term "spouse." Doing so would expand the
definition to include single individuals, domestic
partners and individuals currently excluded by the
narrow use of the term "spouse." Justice cannot be
conditioned on a victim's marital status and this bill
creates equity within the law.
2. Different Application of Rape Law Based on Marital Status
Under current law, a specified form of rape by fraud or
impersonation can only be committed where the perpetrator
induced the victim to believe that he or she is the spouse of
the victim.<2> Where the victim believed the person with whom
she was having sex was not her spouse, but was her boyfriend,
cohabitant or significant other, no crime was committed. This
same provision applies to specified crimes involving unlawful
oral copulation, sodomy or sexual penetration (by an object,
device or body part).
In the domestic violence context, victims are broadly defined to
include a spouse, cohabitant, former spouse, cohabitant, former
cohabitant, or mother or father of the perpetrator's child.
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<2> California law separately defines each form of sex crimes
committed by fraud or artifice, rather than by setting a generic
standard. For example, a doctor told the victim that he was
performing a vaginal examination with a medical device, but
actually penetrated her vagina with his penis. This is
generally described as fraud in fact, as the perpetrator lied
about the actual act performed. (People v. Ogunmola (1987) 193
Cal.App.3d 274.) Another defendant posed as a doctor and told
the victim that she must have sexual intercourse with an
anonymous donor (actually the defendant) to cure her of a rare,
infectious disease. This is a form rape by of fraud in the
inducement, as the perpetrator acknowledged the sexual act, but
lied about the reason for the act. (Pen. Code § 266c.) What
distinguishes fraud in fact from fraud in the inducement is not
always clear. (People v. Morales (2013) 212 Cal.App.4th 583,
591-594.)
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(Pen. Code § 273.5.) The misdemeanor domestic violence statute
is broader still, as it includes a fiancé, fiancée or person
with whom the perpetrator had, or is having, a dating
relationship. (Pen. Code § 243, subds. (e)-(f).)
SHOULD THE CRIMES OF RAPE, ORAL COPULATION, SODOMY, AND SEXUAL
PENETRATION BY FRAUD APPLY WHERE THE VICTIM BELIEVES THAT THE
PERPETRATOR IS HIS OR HER SEXUAL PARTNER, NOT ONLY HIS OR HER
SPOUSE?
3. Incident That Prompted Introduction of This Bill
This bill was prompted by the well-publicized reversal of the
rape conviction of Julio Morales. (People v. Morales (2013) 212
Cal.App.4th 583.) Morales was charged with and convicted of
rape of an unconscious person. The prosecution's theory of the
case was that Morales had intercourse with the victim while she
was asleep. (The victim is called "Jane Doe" in the opinion.)
The 2nd District Court of Appeal reversed Morales' conviction
because the jury could have convicted him on the invalid theory
that he had induced the victim to believe that he was her
boyfriend.
The appellate court found that there was ample evidence to
convict Morales of rape under the prosecution's theory that
Morales had intercourse with the victim while she was asleep.
The court ordered that Morales be retried on this basis. The
jury instructions allowed the jury to convict Morales of rape on
the invalid basis that Morales was able to engage in intercourse
with the victim because he induced her to believe that he was
her boyfriend. The invalid theory arose because Morales claimed
that the victim was awake when they began having intercourse and
that she likely believed he was her boyfriend. The prosecutor
then argued to the jurors that even if they believed Morales, he
was still guilty of rape by fraud. However, under existing
California law, it is not rape for a person to induce a woman to
have sexual intercourse with him by posing as her boyfriend.
Under such circumstances, the perpetrator is guilty of rape only
where he induces or leads the victim to believe that he is her
spouse. (People v. Morales, supra, 212 Cal.App.4th 583,
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586-587, 589-597.)
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4. Related Assembly Bill - AB 65 (Achadjian) - Rape by
Impersonation Occurs Where the Perpetrator Induces the Victim
to Believe That He is Anyone Other Than the Perpetrator
As amended on February 20, 2013, AB 65 (Achadjian) provides that
rape by fraud occurs in any situation in which the perpetrator
induces the victim to believe that he or she is anyone other
than the perpetrator. AB 65 applies only to rape cases, not
other sex crimes.
5. Incident That Prompted Introduction of AB 65 (Achadjian) and a
Related Bill - AB 765 - (Achadjian) in 2012
While the facts of Morales are peculiar, the Santa Barbara
incident that prompted introduction of AB 65 (Achadjian) can
perhaps be best described as bizarre. In the Santa Barbara
case, the defendant went through a window into the bedroom of a
sleeping woman. She awoke when the defendant began having
intercourse with her. She did not protest or resist because she
thought the defendant was her boyfriend, with whom she had lived
for 10 years. When she realized that the defendant was not her
boyfriend, she resisted. He immediately ceased having
intercourse with her. Because the victim and her boyfriend were
not married, the defendant could not be prosecuted for rape by
fraudulently inducing her to believe he was her spouse. Because
the defendant ceased having intercourse with the perpetrator
after she realized he was not her boyfriend, the perpetrator did
not commit rape by force.
The defendant was convicted of misdemeanor sexual battery
and trespass. However, in an unrelated incident, the
defendant was convicted of felony assault with intent to
commit a sex crime. (Pen. Code § 220.) He was sentenced
to prison and is required to register as a sex offender.
6. Sentencing Considerations
This bill corrects an anomaly in the law that defines rape and
other sex crimes by impersonation to apply only where the
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perpetrator pretends to be the spouse of the victim. The rape
by impersonation statute is anachronistic, as it does not
reflect the varied close relationships accepted by mainstream
society today. This bill extends the existing penalties for
this type of sex crime to include cases where the perpetrator
induced the victim to engage in sexual activity by impersonating
the victim's sexual partner.
The base prison sentence for a sex crime is a triad of three,
six, or eight years in prison. Each sexual act in a sex offense
incident constitutes a separately punishable crime. Unlike most
felonies where consecutive (additional) terms are imposed as 1/3
of the middle term, consecutive sex crime sentences can, and
often must, be for the full term. Numerous enhancements and
special sentencing schemes for recidivists and particularly
egregious offenders apply in sex crime cases. Under numerous
circumstances, a defendant either can or must be sentenced to a
life term.
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