BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
SB 59 (Evans) - Crimes: sex crimes committed by impersonation.
Amended: February 14, 2013 Policy Vote: Public Safety 6-0
Urgency: Yes Mandate: Yes
Hearing Date: April 8, 2013
Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: SB 59, an urgency measure, would expand the
definition of rape and specified sex crimes committed by fraud
or impersonation to include the occurrence where an individual
submits under the belief that the person committing the act is
the victim's "sexual partner," as defined, and this belief is
induced by artifice, pretense, or concealment by the
perpetrator, with the intent to induce the victim's belief.
Fiscal Impact:
Potential minor near-term increase in state incarceration
costs, likely less than $25,000 (General Fund) annually, for
increased state prison commitments to the extent expanding
the definition of specified crimes results in additional
felony convictions. Out-year costs could potentially be
greater due to the cumulative cost effect of overlapping
base sentence terms, parole, and/or sentence enhancements
applicable to the specified crimes.
Potential future cost pressure of $60,000 (General Fund)
per prison commitment per year to the extent the long-term
impact of pending legislation considered in aggregate
affects the state prison population to a degree that
undermines the state's ability to reduce or sustain prison
overcrowding below the federal court-imposed population
limit.
Likely minor impact to state trial court workload incurred
by the Judicial Branch to the extent the provisions of this
bill result in additional felony court filings and related
court time.
Minor, absorbable workload impact to the DOJ associated
with increased sex offender registration.
Minor non-reimbursable local law enforcement costs, offset
to a degree by minor fine revenue.
SB 59 (Evans)
Page 1
Background: Existing law provides that rape by fraud or
impersonation can only be committed where the victim submits to
the act under the belief that the perpetrator is the spouse of
the victim (Penal Code (PC) § 261(a)(5)). This same provision
also applies to specified crimes involving unlawful oral
copulation, sodomy, or sexual penetration. Due to this
restrictive definition based on the marital status of a victim,
current law creates a discrepancy with respect to the protection
of a victim who is married versus a victim who is not.
In People v. Morales (2013) 212 Cal.App.4th 583, the 2nd
District Court of Appeal reversed the rape conviction of Julio
Morales and returned the case for retrial. The defendant was
charged and convicted of rape of an unconscious person, however,
the jury instructions allowed the jury to potentially convict on
the invalid basis that the defendant was able to engage in the
act because he induced the victim to believe that he was her
boyfriend. Under such circumstances, the perpetrator is guilty
of rape only where the inducement leads the victim to believe
that he or she is the victim's spouse. Because the record failed
to disclose whether the jury relied upon a proper legal theory
to convict, the appellate court reversed the conviction and
ordered the defendant be retried.
As expressed in the 2nd District Court of Appeal's opinion, "A
man enters the dark bedroom of an unmarried woman after seeing
her boyfriend leave late at night, and has sexual intercourse
with the woman while pretending to be the boyfriend. Has the man
committed rape? Because of historical anomalies in the law and
the statutory definition of rape, the answer is no, even though,
if the woman had been married and the man had impersonated her
husband, the answer would be yes." (People v. Morales, supra,
212 Cal.App.4th 586.)
The court urged the Legislature, "to reexamine [PC] section 261,
subdivision (a)(4) and (5), and correct the incongruity that
exists when a man may commit rape by having intercourse with a
woman when impersonating a husband, but not when impersonating a
boyfriend." (People v. Morales, supra, 212 Cal.App.4th 587,
footnote 3.)
This bill addresses an anomaly in the law by updating statutory
definitions to reflect the existence of diverse intimate
SB 59 (Evans)
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relationships in current society and expands the scope of
existing law that narrowly defines rape and specified sex crimes
by fraud to apply only where the perpetrator impersonates the
spouse of the victim.
Proposed Law: This bill would expand the definitions of
specified sex crimes committed by fraud that are restricted to
the impersonation of a spouse to include cases where the
perpetrator induces the victim to believe that he or she is the
victim's "sexual partner," as defined. Specifically, this bill:
Defines "sexual partner" under new PC § 261.1 as an
individual with whom the victim has had consensual sexual
contact, including oral copulation, sodomy, sexual
penetration, or the touching of an intimate part (sexual
organ, anus, groin, buttocks of any person, or breast of a
female) of another person.
Expands the definition of rape under PC § 261(a)(5) to
include the circumstance where sexual intercourse is
accomplished with a person not the spouse of the
perpetrator, under the belief that the person committing
the act is the victim's sexual partner.
Expands the definition of sodomy under PC § 286(j) to
include the circumstance where the victim submits under the
belief that the person committing the act is the victim's
sexual partner.
Expands the definition of oral copulation under PC §
288a(j) to include the case where the victim submits under
the belief that the person committing the act is the
victim's sexual partner.
Expands the definition of sexual penetration under PC §
289(f) to include the case when the victim submits under
the belief that the person committing the act or causing
the act to be committed is the victim's sexual partner.
Includes an urgency clause stating, "In order to protect
the public safety by minimizing the threat posed by sexual
predators at the earliest possible time, it is necessary
that this act take effect immediately."
Related Legislation: AB 65 (Achadjian) 2013, an urgency measure,
would expand the definitions of rape, sodomy, oral copulation,
and sexual penetration by fraud to include the occurrence where
the victim submits to the specified act under the belief that
the person committing the act is someone other than the accused.
SB 59 (Evans)
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This bill is pending hearing in the Assembly Committee on
Appropriations.
AB 765 (Achadjian) 2011 would have expanded the definition of
rape by fraud to include the circumstance that occurs where a
person submits to the act of sexual intercourse under the belief
that the person committing the act is the victim's cohabitant.
This bill was held in the Senate Committee on Public Safety.
Staff Comments: By broadening the definition of specified sex
offenses committed by impersonation to extend beyond a victim's
spouse and instead apply where the victim believes the
perpetrator is his or her "sexual partner," the provisions of
this bill serve to protect a larger population of victims,
potentially resulting in an increased number of felony
prosecutions and convictions than otherwise would have occurred
under existing law. Based on information from the Department of
Corrections and Rehabilitation (CDCR), felony convictions for
rape by impersonation of a spouse have historically been few and
infrequent, with only five state prison commitments over the
past decade serving a sentence with a conviction for rape under
PC § 261(a)(5), and no admissions to state prison for unlawful
oral copulation, sodomy, or sexual penetration by fraud over the
same time period.
Arrest data from the DOJ indicates 32 arrests were charged for
these offenses from 2009 through 2012. Detailed disposition data
is unavailable at this time, but to the extent this bill leads
to an increased number of arrests resulting in felony
convictions that previously would have been denied, dismissed,
or litigated under alternate charges, this bill could result in
increased state incarceration costs of $10,275 (CDCR inmate
overcrowding rate for 2013-14) per inmate per year. The base
prison term for the specified sex offenses in this bill is a
triad of three, six, or eight years. Additionally, various
sentence enhancements of up to five years apply to recidivists
with prior convictions for the offenses specified in this bill.
Subsequent to serving the base sentence term, felony convictions
under PC § 261(a)(5) would also be subject to parole supervision
($3,000 per parolee per year) due to the classification of rape
under PC § 261 in its entirety as a 'serious' felony. Ongoing
annual costs would be dependent on the number of convictions,
frequency over time, and length of sentences served.
SB 59 (Evans)
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California's prison system continues to operate under federal
oversight as it addresses the issues of prison overcrowding and
constitutionally adequate health care in its 33 facilities. On
January 7, 2013, the state requested the court vacate or modify
its order requiring the state to reduce the inmate population.
The three-judge panel did not issue judgment on whether to
vacate the population limit but issued an order extending the
deadline for meeting the population limit from June to December
2013. While this bill independently is not likely to impact the
prison population significantly, considered collectively with
all pending legislative proposals potentially exacerbating
prison overcrowding, the effect of any future increases to the
prison population creates cost pressure of $60,000 (General
Fund) per inmate per year to the extent overall prison
population growth potentially requires additional capital
outlay.
Recommended Amendments: Staff recommends a technical amendment
to remove the proposed addition of the word 'any' to the
definition of rape of an unconscious person under PC §
261(a)(4). It is unclear whether clarification to this section
of code is necessary. Considering the comparable statutory
construction of existing provisions under PC § 286(f), 288a(f),
and 289(d) that were not similarly amended, staff recommends an
amendment to remove the word 'any' to render PC § 261(a)(4)
unchanged and consistent with similar provisions under current
law.