BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 701 Hearing Date: June 28, 2016
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|Author: |Cristina Garcia |
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|Version: |June 22, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|AA |
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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)
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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
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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
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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.
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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
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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
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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.
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<1>
http://www.calcasa.org/wp-content/uploads/2010/12/CALCASA-2008-Su
pport-for-Survivors-Mini-Book.pdf
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2. Section 262.
3. Section 266c.
4. Section 286.
5. Section 288a.
6. Section 289.
(b) This section is declarative of current law.
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