Amended in Senate June 22, 2016

Amended in Senate June 16, 2016

Amended in Senate September 4, 2015

Amended in Senate July 7, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 701

Introduced by Assembly Members Cristina Garcia and Eggman

(Coauthors: Assembly Members begin insert Arambula, Atkins, end insert Bonilla, Bonta, Gatto, Gipson, Gomez, begin delete Lopez, end delete begin insert Grove, Lopez, McCarty, Olsen, end insert and Williams)

(Coauthors: Senators begin delete Beall and end delete begin insert Beall, Glazer, Hertzberg, and end insert Leyva)

February 25, 2015

An act to begin delete amend Sections 261, 261.5, 262, and 266c of end delete begin insert add Section 260 to end insert the Penal Code, relating to sex crimes.

LEGISLATIVE COUNSEL’S DIGEST

AB 701, as amended, Cristina Garcia. Sex crimes: begin delete Rape. end delete begin insert rape. end insert

begin insert

Existing law defines rape and spousal rape as an act of sexual intercourse accomplished under specified circumstances indicating a lack of consent, force, or duress, as specified. Existing law additionally makes it unlawful to induce a person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person’s free will, and does cause the victim to so act.

end insert begin insert

Existing law defines sodomy as sexual conduct consisting of contact between the penis of one person and the anus of another person. Existing law defines oral copulation as the act of copulating the mouth of one person with the sexual organ or anus of another person. Existing law makes it a crime to commit an act of sexual penetration when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.

end insert begin insert

This bill would deem a person who is convicted of any of the aforementioned offenses guilty of rape for purposes of this bill.

end insert begin delete

Existing law defines rape and spousal rape as an act of sexual intercourse accomplished under specified circumstances indicating lack of consent, force, or duress, as specified. Existing law defines unlawful sexual intercourse as an act of sexual intercourse with a person who is a minor, as specified. Existing law additionally makes it unlawful to induce a person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person’s free will, and does cause the victim to so act.

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This bill would change the definition of rape, spousal rape, and unlawful sexual intercourse to instead mean penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, under the specified conditions. The bill would also make it a crime to induce another person to engage in penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the victim’s free will, and does cause the victim to so act. By expanding the definition of a crime, this bill would impose a state-mandated local program.

end delete begin delete

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.

end delete begin delete

This bill would provide that no reimbursement is required by this act for a specified reason.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program:  begin delete yes end delete begin insert no end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 260 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 260. end insert   

For purposes of this section, a person shall be considered
guilty of rape if he or she is convicted under any the following
sections:

(a) Section 261.

(b) Section 262.

(c) Section 266c.

(d) Section 286.

(e) Section 288a.

(f) Section 289.

end insert

begin delete

SECTION 1.  

Section 261 of the Penal Code is amended to
read:

261.  

(a) Rape is an act of penetration, no matter how slight,
of the vagina or anus with any body part or object, or oral
penetration by a sex organ of another person, accomplished with
a person not the spouse of the defendant, under any of the following
circumstances:

(1) If the victim 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 defendant.
Notwithstanding the existence of a conservatorship pursuant to
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 victim incapable of giving consent.

(2) If the act is accomplished against the victim’s will by means
of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another.

(3) If the victim 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 defendant.

(4) If the victim is at the time unconscious of the nature of the
act, and this is known to the defendant. 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 defendant’s fraud in
fact.

(D) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the defendant’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.

(5) If a victim submits under the belief that the person
committing the act is someone known to the victim other than the
defendant, and this belief is induced by any artifice, pretense, or
concealment practiced by the defendant, with intent to induce the
belief.

(6) If 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 defendant 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) If 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 defendant 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 defendant
does not actually have to be a public official.

(b) 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) 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 261.5 of the Penal Code is amended to read:

261.5.  

(a) Unlawful sexual intercourse is an act of penetration,
no matter how slight, of the vagina or anus with any body part or
object, or oral penetration by a sex organ of another person,
accomplished with a person who is not the spouse of the defendant,
if the person is a minor. For the purposes of this section, a “minor”
is a person under 18 years of age and an “adult” is a person who
is at least 18 years of age.

(b) A defendant who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years older
or three years younger than the defendant, is guilty of a
misdemeanor.

(c) A person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger
than the defendant is guilty of either a misdemeanor or a felony,
and shall be punished by imprisonment in a county jail not
exceeding one year, or by imprisonment pursuant to subdivision
(h) of Section 1170.

(d) A person 21 years of age or older who engages in an act of
unlawful sexual intercourse with a minor who is under 16 years
of age is guilty of either a misdemeanor or a felony, and shall be
punished by imprisonment in a county jail not exceeding one year,
or by imprisonment pursuant to subdivision (h) of Section 1170
for two, three, or four years.

(e) (1) Notwithstanding any other provision of this section, an
adult who engages in an act of unlawful sexual intercourse with a
minor in violation of this section may be liable for civil penalties
in the following amounts:

(A) An adult who engages in an act of unlawful sexual
intercourse with a minor less than two years younger than the adult
is liable for a civil penalty not to exceed two thousand dollars
($2,000).

(B) An adult who engages in an act of unlawful sexual
intercourse with a minor at least two years younger than the adult
is liable for a civil penalty not to exceed five thousand dollars
($5,000).

(C) An adult who engages in an act of unlawful sexual
intercourse with a minor at least three years younger than the adult
is liable for a civil penalty not to exceed ten thousand dollars
($10,000).

(D) An adult over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor under 16 years of age is
liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).

(2) The district attorney may bring actions to recover civil
penalties pursuant to this subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action
shall be deposited with the treasurer of the county in which the
judgment was entered, and the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which is hereby created in
the State Treasury. Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the purpose of preventing
underage pregnancy upon appropriation by the Legislature.

(3) In addition to any punishment imposed under this section,
the judge may assess a fine not to exceed seventy dollars ($70)
against a person who violates this section with the proceeds of this
fine to be used in accordance with Section 1463.23. The court shall
take into consideration the defendant’s ability to pay, and a
defendant shall not be denied probation because of his or her
inability to pay the fine permitted under this subdivision.

SEC. 3.  

Section 262 of the Penal Code is amended to read:

262.  

(a) Rape of a person who is the spouse of the defendant
is an act of penetration, no matter how slight, of the vagina or anus
with any body part or object, or oral penetration by a sex organ of
another person, accomplished under any of the following
circumstances:

(1) If the act is 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.

(2) If a victim 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 defendant.

(3) If a victim is, at the time, unconscious of the nature of the
act, and this is known to the defendant. As used in this paragraph,
“unconscious of the nature of the act” means incapable of resisting
because the victim meets 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 defendant’s fraud in
fact.

(4) If 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 defendant 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.

(5) If 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 defendant 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 defendant
does not actually have to be a public official.

(b) 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 apprising
the existence of duress.

(c) As used in this section, “menace” means any threat,
declaration, or act that shows an intention to inflict an injury upon
another.

(d) If probation is granted upon conviction of a violation of this
section, the conditions of probation may include, in lieu of a fine,
one or both of the following requirements:

(1) That the defendant make payments to a battered women’s
shelter, up to a maximum of one thousand dollars ($1,000).

(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds
are the direct result of the defendant’s offense.

For any order to pay a fine, make payments to a battered
women’s shelter, or pay restitution as a condition of probation
under this subdivision, the court shall make a determination of the
defendant’s ability to pay. In no event shall any order to make
payments to a battered women’s shelter be made if it would impair
the ability of the defendant to pay direct restitution to the victim
or court-ordered child support. If the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be
used to discharge the liability of the offending spouse for restitution
to the injured spouse, required by Section 1203.04, as operative
on or before August 2, 1995, or Section 1202.4, or to a shelter for
costs with regard to the injured spouse and dependents, required
by this section, until all separate property of the offending spouse
is exhausted.

SEC. 4.  

Section 266c of the Penal Code is amended to read:

266c.  

(a) Every person who induces any other person to engage
in penetration, no matter how slight, of the vagina or anus with
any body part or object, or oral penetration by a sex organ of
another person, when the victim’s consent is procured by false or
fraudulent representation or pretense that is made with the intent
to create fear, and which does induce fear, and that would cause
a reasonable person in like circumstances to act contrary to the
person’s free will, and does cause the victim to so act, is punishable
by imprisonment in a county jail for not more than one year or in
the state prison for two, three, or four years.

(b) As used in this section, “fear” means the fear of physical
injury or death to the victim or to any relative of the victim or
member of the victim’s family.

SEC. 5.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because 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.

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