BILL ANALYSIS Ó
AB 29
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Date of Hearing: March 24, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 29
(Campos) - As Introduced December 1, 2014
As Proposed to be Amended
SUBJECT: Civil action for sexual BATTERY: Consent defense
KEY ISSUE: IN ORDER TO BETTER PROTECT CHILD VICTIMS OF SEXUAL
ASSAULT, SHOULD CONSENT NOT BE AVAILABLE, EITHER AS A DEFENSE OR
TO MITIGATE DAMAGES, IN A CIVIL ACTION INVOLVING SEXUAL BATTERY
BETWEEN A MINOR AND AN ADULT WHO IS IN A POSITION OF AUTHORITY
OVER THE MINOR?
SYNOPSIS
As proposed to be amended, this bill eliminates the defense of
consent in an action involving the sexual battery of a minor by
an adult in a position of authority in relation to the minor,
and prevents consent from being used to mitigate damages. This
bill arises out of a disturbing case last year in which a court
found against a 14-year-old Los Angeles Unified School District
student who sued the district for negligence after her 28-year
old teacher sexually assaulted her. According to news reports,
the teacher was sentenced to three years in prison, but, in the
later civil case against the school district, a jury found for
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the district, in part, because the 14-year old had allegedly
consented to the sexual acts with her teacher. While criminal
law is clear that minors cannot consent to sexual acts, the
civil law is less than clear about when and how the defense of
consent may be raised. This bill makes clear that consent may
not be raised as a defense in an action involving the sexual
battery of a minor by an adult in a position of authority over
the minor, nor can consent be used to mitigate damages. This
bill is supported by California Communities United Institute and
several individuals. It has no known opposition.
SUMMARY: Prohibits a consent defense in certain civil actions
involving sexual intercourse. Specifically, this bill provides
that consent shall not be a defense, nor shall it mitigate
damages, in a civil action involving sexual battery, as defined,
between an adult and a minor, if the adult was in a position of
trust, authority, supervision, or acted as a caretaker in
relation to the minor when the battery occurred.
EXISTING LAW:
1)Creates a duty for every person to abstain from injuring
another person or the property of another, or from infringing
the rights of another person. (Civil Code Section 1708. All
further statutory references are to that code unless otherwise
stated.)
2)Provides a cause of action for sexual battery, as defined, and
allows the plaintiff in such a case to seek general, special
and punitive damages and equitable relief including injunctive
relief and costs. (Section 1708.5.)
3)Provides that a defendant may raise consent as an affirmative
defense to civil liability. (Section 3515.)
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4)Makes it a crime for a person to have sexual intercourse with
a minor under 18 years of age who is not the spouse of the
person. A minor is deemed incapable of affording consent to a
criminal sexual act. (Penal Code 261.5; see also People v.
Brown (1973) 35 Cal.App.3d 317, 326.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This bill arises out of a disturbing case last year
in which a court found against a 14-year-old Los Angeles Unified
School District student who had sued the district for negligence
after her 28-year old teacher sexually assaulted her. According
to news reports, the teacher was sentenced to three years in
prison, but in the later civil case against the school district
a jury found for the district, in part, because the 14-year old
had allegedly consented to sexual activities with her teacher.
While criminal law is clear that minors cannot consent to sexual
acts, the civil law is less than clear about when and how a
defense on consent may be raised. This bill makes clear that
consent may not be raised as a defense in an action involving
the sexual battery of a minor by an adult in a position of
authority over the minor, nor can consent be used to mitigate
damages.
In support, the author writes that that the bill "closes an
unintended consequence and interpretation that leads to the
loophole on the Civil Code side; so defendants cannot argue that
a child consented to sex to anyone in a position of authority in
cases where the victim's family is seeking compensation for
emotional damages."
Background on the Differences Between Criminal and Civil Sexual
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Offenses in California: Under California criminal law, it is
unlawful to have sexual intercourse with a minor under the 18
years of age unless the partners are married (previously this
provision was known as statutory rape). Accordingly, in a
criminal case involving unlawful sexual intercourse with a
minor, the minor is deemed incapable of consenting to sexual
intercourse - regardless of whether the minor may have afforded
genuine or valid consent. However, district attorneys have
discretion about what cases to prosecute, and it is unlikely
that two 17-year-olds or an 18 year-old in a relationship with a
17 year-old would be prosecuted for sexual intercourse.
Additionally, the punishment differs based on the age
differential between the parties -- the greater the age
differential, the bigger the potential punishment.
In 1990, the Legislature enacted SB 2336 ((Roberti), Chap. 1531,
Stats. 1990) to create a civil action for injuries resulting
from a sexual battery. The statute was intended to provide
victims of criminal sexual offenses the ability to pursue a
separate civil remedy in civil court. In fact, SB 2336 was
intended to "respond[] to the inability of the criminal justice
system to adequately address the victims of rape or other sexual
crimes." Accordingly, SB 2336 affords a victim "redress for a
sexual injury in the civil process where the standard of proof
is lower and you do not need a unanimous jury."
Under civil law principles, consent has always been an available
defense. While civil law creates an obligation for every person
to abstain from injuring another person, a defendant in a civil
action can raise, as a defense, that the injured person
consented to the injury. Thus, when the Legislature created a
new civil action for sexual battery, the civil law principles of
defenses attached to the new civil action, absent legislative
directive to the contrary. Accordingly, a consent defense is
possible in a civil action for sexual battery.
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Courts in California have not adopted a singular treatment to
the issue of consent by minors in civil actions for sexual
battery. Some courts have found that the minor's consent is
relevant in considering civil liability. (See Cynthia M. v.
Rodney E. (1991) 228 Cal.App.3d 1040, 1044 (case involved two
minors).) Other courts have prohibited a defendant from raising
a consent defense. (See In re Kennedy (2009) WL 256511 (a
bankruptcy court found that consent could not be raised as a
defense to a civil action based on the criminal sexual
intercourse with a minor statute, but might be possible for an
action based on the Civil Code).)
Some States Allow a Consent Defense to a Civil Sexual Assault
Case Involving a Minor, While Others Do Not: The Committee's
review of other state laws did not find any state that has
adopted a statute prohibiting a consent defense in a civil
action involving sexual battery. Instead, state courts have
generally adopted two different approaches. Some state courts,
relying on the existing criminal statutory rape framework,
prohibit the consent defense. (See, e.g., C.C.H. v.
Philadelphia Phillies (2008) 596 Pa. 23, 40 (court determined
that evidence of the minor's consent to sexual contact, like in
criminal proceedings, was not an available defense in
determining civil liability); Wilson v. Tobiassen (1989) 97 Or.
App. 527, 534 ("[I]f conduct is made criminal in order to
protect a certain class of persons irrespective of their
consent, the consent of members of that class to the conduct is
not effective to bar a tort action. Accordingly, we hold that a
person's incapacity to consent . . . extends to civil cases.")
Other courts, relying on the principal that the civil and
criminal laws are uniquely different, allow the consent defense.
(See, e.g., Tate v. Board of Education of Prince George's
County (2004) 155 Md. App. 536, 554 (holding that a minor's
consent to sexual battery is relevant for purposes of
determining civil liability); LK v. Reed (1994) 631 So.2d 604,
608 (holding that age alone cannot fully invalidate a consent
defense, rather it should be considered as part of comparative
fault analysis).)
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This Bill Eliminates the Defense of Consent When There is a
Power Differential Between a Minor and an Adult: AB 29
specifically prohibits a consent defense in a civil action
involving sexual battery between a minor and adult who was in a
position of trust, authority, supervision, or who acted as a
caretaker in relation to the minor. The bill also prevents
consent from being used to mitigate damages in such a case.
Thus, if this bill had been law, Los Angeles Unified School
District would not have been able to raise the 14-year-old
girl's alleged consent as a defense or to mitigate its damages.
It might, however, still be able to argue that the girl's
willingness to hide the criminal acts made it harder for the
District to learn of the sexual assault and to protect the girl
from harm.
Regardless of This Legislation, Minors in California Can Still
Consent to Various Treatments and Services: California law
explicitly provides that minors may consent to various medical
and mental health services, including, among other things,
contraceptive use; medical treatment related to a pregnancy or
sexually transmitted disease; abortion; sexual assault treatment
services; and outpatient mental health services, including drug
and alcohol abuse treatment. This bill does not in any way
limit or change those existing minor consent provisions.
Related Pending Legislation: SB 14 (Lara) would, in any sexual
battery civil action involving a minor and an adult who is in a
position of authority, as defined, prohibit evidence of the
minor's sexual conduct with the defendant adult from being
admissible to prove consent by the plaintiff or the absence of
injury to the plaintiff. This bill is awaiting hearing in the
Senate.
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REGISTERED SUPPORT / OPPOSITION:
Support
California Communities United Institute
Six individuals
Opposition
None on file
Analysis Prepared by:Leora Gershenzon and Eric Dang / JUD. /
(916) 319-2334
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