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)
          JM:mc

                           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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                                                              SB 59 (Evans)
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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  
          ---------------------------
          <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.   
          ---------------------------
          <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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