BILL NUMBER: SB 991 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Jackson
FEBRUARY 12, 2014
An act to amend Sections 261, 261.6, 264, and 290 of the Penal
Code, relating to sex offenses.
LEGISLATIVE COUNSEL'S DIGEST
SB 991, as introduced, Jackson. Sex offenses: second degree rape.
(1) Under existing law, rape is an act of sexual intercourse
accomplished under specified circumstances, including, among others,
where the act was 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. Under existing law, rape is a
felony. Under existing law, sodomy is sexual conduct consisting of
contact between the penis of one person and the anus of another.
Under existing law, oral copulation is the act of copulating the
mouth of one person with the sexual organ or anus of another person.
Under existing law, an act of sodomy, oral copulation, or sexual
penetration accomplished against a victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person is a felony.
Existing law defines consent for purposes of the above crimes to
mean positive cooperation in act or attitude pursuant to an exercise
of free will.
This bill would define an act of sexual intercourse, sodomy, oral
copulation, or sexual penetration which is accomplished without the
affirmative and freely given consent of the victim as rape in the 2nd
degree. The bill would make rape in the 2nd degree a felony
punishable by imprisonment in the state prison for 2, 3, or 4 years
for the first offense, and by imprisonment in the state prison for 3,
6, or 8 years for a 2nd or subsequent violation. The bill could make
the defendant ineligible for probation for a 2nd or subsequent
violation, and if probation is granted for a first offense, the bill
would allow the conditions of probation to include a requirement to
make payments to a rape victim counseling center or to reimburse the
victim for the reasonable costs of counseling, as provided.
The bill would define consent for these purposes, and for purposes
of the above existing crimes, to mean positive cooperation in act or
attitude pursuant to an exercise of free will, which is
affirmatively and freely given.
By creating a new crime, this bill would impose a state-mandated
local program.
(2) Existing law requires persons convicted of specified sex
offenses, or attempts to commit those offenses, to register with
local law enforcement agencies while residing in the state or while
attending school or working in the state.
This bill would require a person convicted of rape in the 2nd
degree to register with local law enforcement agencies as a sex
offender. By imposing additional duties on local authorities, and by
creating a new crime by requiring additional persons to be registered
as sex offenders, this bill would create a state-mandated local
program.
(3) 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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 261 of the Penal Code is amended to read:
261. (a) Rape in the first degree is an act of sexual
intercourse accomplished with a person not the spouse of the
perpetrator, under any of the following circumstances:
(1) Where a person is incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act. Notwithstanding the existence of a conservatorship pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
consent.
(2) Where it 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 or another.
(3) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the
accused perpetrator .
(4) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused
perpetrator . As used in this paragraph, "unconscious of the
nature of the act" means incapable of resisting because the victim
meets any one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(D) 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.
(5) Where a person submits under the belief that the person
committing the act is someone known to the victim other than the
accused, and this belief is induced by any artifice, pretense, or
concealment practiced by the accused, with intent to induce the
belief.
(6) Where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the
perpetrator will execute the threat. As used in this paragraph,
"threatening to retaliate" means a threat to kidnap or falsely
imprison, or to inflict extreme pain, serious bodily injury, or
death.
(7) Where the act is accomplished against the victim's will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, "public official" means a person employed by a
governmental agency who has the authority, as part of that position,
to incarcerate, arrest, or deport another. The perpetrator does not
actually have to be a public official.
(b) (1) Rape in the second degree is an act of sexual intercourse,
an act of sodomy as described in subdivision (a) of Section 286, an
act of oral copulation as described in subdivision (a) of Section
288a, or an act of sexual penetration as described in paragraph (1)
of subdivision (k) of Section 289, which is accomplished without the
affirmative and freely given consent of the victim, and a reasonable
person would not have believed there was affirmatively and freely
given consent. In a prosecution made pursuant to this subdivision,
the prosecutor is required to demonstrate that the defendant did not
reasonably believe that affirmative consent had been freely given.
(2) In determining whether consent was affirmatively and freely
given, the totality of the circumstances, including the age of the
victim, his or her relationship to the defendant, and any handicap or
disability of the victim, and any threats of hardship not amounting
to duress, shall be considered.
(b)
(c) As used in this section, "duress" means a direct or
implied threat of force, violence, danger, or retribution sufficient
to coerce a reasonable person of ordinary susceptibilities to
perform an act which otherwise would not have been performed, or
acquiesce in an act to which one otherwise would not have submitted.
The total circumstances, including the age of the victim, and his or
her relationship to the defendant, are factors to consider in
appraising the existence of duress.
(c)
(d) As used in this section, "menace" means any threat,
declaration, or act which shows an intention to inflict an injury
upon another.
SEC. 2. Section 261.6 of the Penal Code is amended to read:
261.6. In prosecutions under Section 261, 262, 286, 288a, or 289,
in which consent is at issue, "consent" shall be defined to mean
positive cooperation in act or attitude pursuant to an exercise of
free will , which is affirmatively and freely given . The
person must act freely and voluntarily and have
knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be
sufficient to constitute consent where consent is at issue in a
prosecution under Section 261, 262, 286, 288a, or 289.
Nothing in this section shall affect the admissibility of evidence
or the burden of proof on the issue of consent.
SEC. 3. Section 264 of the Penal Code is amended to read:
264. (a) Except as provided in subdivision (c), rape, as defined
in subdivision (a) of Section 261 or Section
262, is punishable by imprisonment in the state prison for three,
six, or eight years.
(b) In addition to any punishment imposed under this section the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates Section 261 or 262 with the proceeds of this
fine to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
(c) (1) Any person who commits rape in violation of paragraph (2)
of subdivision (a) of Section 261 upon a child who is under 14 years
of age shall be punished by imprisonment in the state prison for 9,
11, or 13 years.
(2) Any person who commits rape in violation of paragraph (2) of
subdivision (a) of Section 261 upon a minor who is 14 years of age or
older shall be punished by imprisonment in the state prison for 7,
9, or 11 years.
(3) Rape in the second degree, as defined in subdivision (b) of
Section 261, is punishable by imprisonment in the state prison for
two, three, or four years. A second or subsequent act of rape in the
second degree, brought and tried separately, is punishable by
imprisonment in the state prison for three, six, or eight years and
the defendant shall not be eligible for probation.
(4) (A) If probation is granted upon conviction for a first
violation of subdivision (b) of Section 261, the conditions of
probation may include, in lieu of a fine, one or both of the
following:
(i) That the defendant make payments to a rape victim counseling
center of not more than one thousand dollars ($1,000).
(ii) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
a direct result of the offense.
(B) The court shall make a determination of the defendant's
ability to pay, and in no event shall any order to make payments to a
rape victim counseling center be made if it would impair the ability
of the defendant to pay direct restitution to the victim.
(3)
(5) This subdivision does not preclude prosecution
under Section 269, Section 288.7, or any other provision of law.
SEC. 4. Section 290 of the Penal Code is amended to read:
290. (a) Sections 290 to 290.024, inclusive, shall be known and
may be cited as the Sex Offender Registration Act. All references to
"the Act" in those sections are to the Sex Offender Registration Act.
(b) Every person described in subdivision (c), for the rest of his
or her life while residing in California, or while attending school
or working in California, as described in Sections 290.002 and
290.01, shall be required to register with the chief of police of the
city in which he or she is residing, or the sheriff of the county if
he or she is residing in an unincorporated area or city that has no
police department, and, additionally, with the chief of police of a
campus of the University of California, the California State
University, or community college if he or she is residing upon the
campus or in any of its facilities, within five working days of
coming into, or changing his or her residence within, any city,
county, or city and county, or campus in which he or she temporarily
resides, and shall be required to register thereafter in accordance
with the Act.
(c) The following persons shall be required to register:
Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military
court of a violation of Section 187 committed in the perpetration, or
an attempt to perpetrate, rape or any act punishable under Section
286, 288, 288a, or 289, Section 207 or 209 committed with intent to
violate Section 261, 286, 288, 288a, or 289, Section 220, except
assault to commit mayhem, subdivision (b) and (c) of Section 236.1,
Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision
(a) of , and subdivision (b) of, Section 261,
paragraph (1) of subdivision (a) of Section 262 involving the use of
force or violence for which the person is sentenced to the state
prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h,
subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286,
288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision
(b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10,
311.11, or 647.6, former Section 647a, subdivision (c) of Section
653f, subdivision 1 or 2 of Section 314, any offense involving lewd
or lascivious conduct under Section 272, or any felony violation of
Section 288.2; any statutory predecessor that includes all elements
of one of the above-mentioned offenses; or any person who since that
date has been or is hereafter convicted of the attempt or conspiracy
to commit any of the above-mentioned offenses.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.