BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 701        Hearing Date:    June 28, 2016     
          
           ----------------------------------------------------------------- 
          |Author:    |Cristina Garcia                                      |
          |-----------+-----------------------------------------------------|
          |Version:   |June 22, 2016                                        |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |No               |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|AA                                                   |
          |           |                                                     |
           ----------------------------------------------------------------- 


                             Subject:  Sex Crimes:  Rape



          HISTORY

          Source:   Author

          Prior Legislation:None

          Support:  California Young Democrats; Los Angeles County  
                    Professional Peace Officers Association

          Opposition:American Civil Liberties Union

          Assembly Floor Vote:                 Not Applicable


          PURPOSE

          The purpose of this bill is to enact a new code section stating  
          that persons convicted of specified sexual assault crimes shall  
          be considered guilty of rape.

          Current law provides generally that sexual assault is a felony,  
          as specified and described in several discrete sections of the  
          Penal Code.  (See e.g., Penal Code §§ 261; 262; 286; 288a; 289  
          and other sections)









          AB 701  (Cristina Garcia )                                PageB  
          of?
          
          This bill would enact a new law, stating:

               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.





                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  









          AB 701  (Cristina Garcia )                                PageC  
          of?
          
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          

          


          COMMENTS










          AB 701  (Cristina Garcia )                                PageD  
          of?
          
          1.Stated Need for This Bill

          The author states:

               The recent case in Palo Alto involving a former  
               Stanford swimmer who sexually assaulted an unconscious  
               woman behind a dumpster has rightfully caused a  
               national uproar.  In this case, the perpetrator could  
               not be charged with rape due to California's outdated  
               definition of it.  Under California law rape is  
               defined as "an act of sexual intercourse" or penile  
               penetration.  Other types of sexual assault-including  
               forcible acts of sexual penetration by a foreign  
               object and sodomy-are defined and categorized as  
               different crimes. Under this definition, since the  
               perpetrator did not penetrate the victim with his  
               penis, no "rape" occurred in the eyes of the law. 

               Under California law there is a bias against lesbian,  
               gay, bisexual, transgender, and queer (LGBTQ) victims  
               because of our narrow definition of rape.  This is  
               especially unjust given the staggering statistics  
               which show that LGBTQ individuals are more likely to  
               be victims of sexual violence than heterosexuals. 

               According to the Human Rights Campaign, 46 percent of  
               bisexual women have been raped, compared to 17 percent  
               of heterosexual women and 13 percent of lesbians and  
               40 percent of gay men and 47 percent of bisexual men  
               have experienced sexual violence other than rape,  
               compared to 21 percent of heterosexual men. 

               California's restrictive definition of rape means a  
               man cannot be raped only sodomized and it means that  
               despite being sexually penetrated with a foreign  
               object, the victim in Palo Alto was not raped only  
               sexually assaulted.  

               AB 701 modernizes the definition of rape to ensure the  
               consequences for such acts are properly assigned to  
               their perpetrator.  When we fail to call rape "rape,"  
               we rob survivors and their families of the justice  
               they deserve.  Rape is rape-the law should reflect  
               that.









          AB 701  (Cristina Garcia )                                PageE  
          of?
          

          2.Recent Gut and Amend

          When this bill came over from the Assembly and until June  
          16th of this year, it pertained to the Gaming Policy  
          Advisory Committee; the bill proposed to increase the  
          membership of that committee from 10 to 12 members, and  
          instead would have required the committee to be composed of  
          5 representatives of controlled gambling licensees, 5  
          members of the general public, and 2 representatives from  
          the Department of Justice.  

          On June 16th this was amended to pertain to sexual assault,  
          and On June 22nd it was amended again, into the version now  
          before the Committee.

          



          3.Background: California Sex Assault Crimes

          California's sexual assault crimes are set forth in  
          discrete sections that describe the specific nature of the  
          sexual assault.  For example, rape, defined as  
          nonconsensual sexual intercourse (Penal Code § 261),  
          nonconsensual sodomy (Penal Code § 286), nonconsensual oral  
          copulation (Penal Code section 288a) and nonconsensual  
          sexual penetration (Penal Code § 289) all set forth  
          particular sex crimes based upon the nature of the felony  
          conduct.  Each of these crimes carries the same sentence  
          triads and life sentences where aggravating circumstances  
          are present.  Over the last many years have been amended to  
          reflect a broader, more comprehensive understanding of the  
          fundamental nature of these sex crimes.  While the specific  
          conduct is proscribed in discrete sections of the law,  
          those sections contain mirroring language.  

          Of these statutes, only nonconsensual sexual intercourse is  
          expressly described as "rape."  Sodomy is described as  
          "sodomy."  Oral copulation is described as "oral  
          copulation."  And, nonconsensual sexual penetration is  
          described as "sexual penetration."  These descriptions,  
          however, do not limit the scope, application or sentences  









          AB 701  (Cristina Garcia )                                PageF  
          of?
          
          for these crimes.  The law considers these crimes to be  
          equally grave.

          Sexual assault statutes have evolved significantly over the  
          last several years.  As explained in a training manual for  
          sexual assault counselors prepared by the California  
          Coalition Against Sexual Assault:

               . . .  In the past fifteen years, we've addressed a  
               number of issues as they've emerged. Rape has been  
               brought into the public policy arena, we've expanded  
               our understanding of what sexual violence is (to  
               include sexual harassment, for example), we've built  
               multiple levels of prevention work, and continue to  
               learn about the full range of ways sexual violence  
               impacts the lives of survivors. We've learned that our  
               solutions and remedies cannot be narrowly focused on  
               one system or set of systems (e.g, criminal legal  
               system, health care) but instead we should focus our  
               solutions on every facet of our society - because, as  
               sexual violence is a trauma that impacts the  
               survivor's body, mind, and soul, so too are the  
               remedies survivors seek. Our legal remedies continue  
               to grow, but we must also grow other systems as well.

               . . . Understanding the range of behaviors that make  
               up the spectrum of sexual violence is important to  
               help you see the depth and breadth of the problem of  
               sexual violence; it is also important to help you  
               understand the specific types of experiences the  
               survivors whom you support have had. However, though  
               the circumstances and details about each type of  
               sexual violence may be distinct, it is critical to  
               note that each type of victimization does not  
               correspond to a specific impact or type of recovery  
               for each victim. Though there are some generalities,  
               the impact sexual violence has on its victims varies  
               from victim to victim. The impact and consequences of  
               the violence vary widely, but not necessarily in  
               direct relationship to the form the violence has  













          AB 701  (Cristina Garcia )                                PageG  
          of?
          
               taken.<1>  



          4.What This Bill Would Do

          This bill would enact a new code section stating that for its  
          purposes, a person shall be considered guilty of rape if he or  
          she is convicted under any the following sections:

               (a) Section 261 (sexual intercourse);
               (b) Section 262 (spousal rape);
               (c) Section 266c (sexual acts by fraud, fear, etc.);
               (d) Section 286 (sodomy);
               (e) Section 288a (oral copulation); or
               (f) Section 289 (sexual penetration).

          Members may wish to discuss how this bill, by apparently  
          redefining the crime of "rape" to include more sex crimes than  
          sexual intercourse, would impact the interpretation and  
          application of the extensive case law on California's sex crime  
          statutes.

          5.Suggested Amendments
          
          Members may wish to consider amending this bill as follows, in  
          an attempt to ensure that its provisions do not weaken or  
          otherwise confuse existing law:

               Strike current language and replace with the  
               following:

               Add section 263.1 to the Penal Code, to provide:

               (a)       The Legislature finds and declares that the  
               following sexual assault crimes may be considered as  
               rape for purposes relating to the support of  
               survivors:

               1.        Section 261.
               ----------------------
          <1>  
          http://www.calcasa.org/wp-content/uploads/2010/12/CALCASA-2008-Su 
          pport-for-Survivors-Mini-Book.pdf









          AB 701  (Cristina Garcia )                                PageH  
          of?
          
               2.        Section 262.
               3.        Section 266c.
               4.        Section 286.
               5.        Section 288a.
               6.        Section 289.

               (b)       This section is declarative of current law.



                                      -- END -