BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                        AB 29


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          ASSEMBLY THIRD READING


          AB  
          29 (Campos)


          As Amended April 6, 2015


          Majority vote


           --------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                   |Noes                 |
          |                |      |                       |                     |
          |                |      |                       |                     |
          |----------------+------+-----------------------+---------------------|
          |Judiciary       |10-0  |Mark Stone, Wagner,    |                     |
          |                |      |Alejo, Chau, Chiu,     |                     |
          |                |      |Cristina Garcia,       |                     |
          |                |      |Gallagher, Holden,     |                     |
          |                |      |Maienschein, O'Donnell |                     |
           --------------------------------------------------------------------- 


          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,  
          by an adult of 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  








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            person or the property of another, or from infringing the rights  
            of another person.   


           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.  


          3)Provides that a defendant may raise consent as an affirmative  
            defense to civil liability. 


          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.  (See also People v. Brown (1973) 35 Cal.App.3d 317,  
            326.)  


          FISCAL EFFECT:  None


          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 (LAUSD) 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.








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          Background on the Differences Between Criminal and Civil Sexual  
          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), Chapter 1531,  
          Statutes of 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  








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          civil action for sexual battery.


          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:  A 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:  The bill specifically  
          prohibits a consent defense in a civil action involving sexual  
          battery between a minor and an 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, LAUSD 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 LAUSD 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.




          Analysis Prepared by:                                               
                          Leora Gershenzon / JUD. / (916) 319-2334  FN:  
          0000088















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