BILL ANALYSIS Ó AB 29 Page 1 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 AB 29 Page 2 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. AB 29 Page 3 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 AB 29 Page 4 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)). AB 29 Page 5 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 AB 29 Page 6