BILL NUMBER: AB 701	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 22, 2016
	AMENDED IN SENATE  JUNE 16, 2016
	AMENDED IN SENATE  SEPTEMBER 4, 2015
	AMENDED IN SENATE  JULY 7, 2015

INTRODUCED BY   Assembly Members Cristina Garcia and Eggman
   (Coauthors: Assembly Members  Arambula,   Atkins,
 Bonilla, Bonta, Gatto, Gipson, Gomez,  Lopez, 
 Grove,   Lopez,   McCarty,   Olsen,
 and Williams)
   (Coauthors: Senators Beall  , Glazer,   Hertzberg,
 and Leyva)

                        FEBRUARY 25, 2015

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



	LEGISLATIVE COUNSEL'S DIGEST


   AB 701, as amended, Cristina Garcia. Sex crimes:  Rape.
  rape.  
   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.  
   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.  
   This bill would deem a person who is convicted of any of the
aforementioned offenses guilty of rape for purposes of this bill.
 
   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.  
   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.  
   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 no reimbursement is required by this
act for a specified reason. 
   Vote: majority. Appropriation: no. Fiscal committee:  yes
  no  . State-mandated local program:  yes
  no  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 260 is added to the  
Penal Code   , to read:  
   260.  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. 
  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.