BILL ANALYSIS Ó
AB 860
Page 1
Date of Hearing: April 7, 2015
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
860 (Daly) - As Amended March 25, 2015
SUMMARY: Expands the definitions of sexual battery, rape,
sodomy, forced oral copulation, sodomy, and sexual penetration
to include non-consensual sexual contact by a person who has
been engaged for a professional purpose. Specifically, this
bill:
1)Expands the crime of sexual battery to apply to a person who
performs professional services that entail having access to
another person's body, who touches an intimate part of the
that person's body while performing those services and the
touching was against the person's will and for the purpose of
sexual arousal, sexual gratification, or sexual abuse.
Punishes this crime by imprisonment in the state prison for
two, three, or four years, and by a fine not exceeding
$10,000.
2)Expands the definitions of rape, sodomy, oral copulation, and
sexual penetration to include when any of those acts are
performed against a victim's will by a professional whose
services entail having access to the victim's body, if the
conduct is performed by the professional while performing
those services. By expanding the scope of crimes, this bill
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would impose a state-mandated local program.
EXISTING LAW:
1)States any person who touches an intimate part of another
person while that person is unlawfully restrained by the
accused or an accomplice, and if the touching is against the
will of the person touched and is for the purpose of sexual
arousal, sexual gratification, or sexual abuse, is guilty of
sexual battery. A violation of this law is punishable by
imprisonment in a county jail for not more than one year, and
by a fine not exceeding $2,000; by imprisonment in the state
prison for two, three, or four years; and by a fine not
exceeding $10,000. (Pen. Code, § 243.4, subd. (a))
2)Provides rape is an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator, under any of
the following circumstances:
a) Where a person 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 person committing the act. Notwithstanding
the existence of a conservatorship, as specified, the
prosecuting attorney shall prove, as an element of the
crime, that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving
consent.
b) Where it is accomplished against a person's will by
means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or
another.
c) Where a person 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 accused.
d) Where a person submits under the belief that the person
committing the act is the victim's spouse, and this belief
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is induced by any artifice, pretense, or concealment
practiced by the accused, with intent to induce the belief.
e) Where 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 perpetrator will execute the threat.
As used in this paragraph, "threatening to retaliate" is
defined as a threat to kidnap or falsely imprison, or to
inflict extreme pain, serious bodily injury, or death.
f) Where 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 perpetrator is
a public official. As used in this paragraph, "public
official" is defined as a person employed by a governmental
agency who has the authority, as part of that position, to
incarcerate, arrest, or deport another. The perpetrator
does not actually have to be a public official. (Pen.
Code, § 261(a)(1) to (7).)
3)States where a person is at the time unconscious of the nature
of the act, and this is known to the accused. As used in this
paragraph, "unconscious of the nature of the act" is defined
as 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
perpetrator's fraud in fact.
d) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the
perpetrator's fraudulent representation that the sexual
penetration served a professional purpose when it served no
professional purpose. (Pen. Code, § 261, subds. (a)(4)(A)
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to (D).)
4)States any person who commits an act of sodomy 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 shall be
punished by imprisonment in the state prison for three, six,
or eight years. (Pen. Code, § 286, subd. (c)(2).)
5)Requires that any person who commits an act of oral copulation
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
shall be punished by imprisonment in the state prison for
three, six, or eight years. (Pen. Code, § 288a, subd.
(c)(2).)
6)States any person who commits 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
shall be punished by imprisonment in the state prison for
three, six, or eight years. (Pen. Code, § 289, subd. (a)(1).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Sexual Assault
is a serious crime, and perpetrators who use positions of
trust to assault their clients should be prosecuted to the
fullest extent of the law. AB 860 will ensure that these
violators are charged with felony sex crimes."
2)Background: According to the background provided by the
author, under current law, providers of specified professional
services who sexually assault their clients can be charged
with a felony sex crime if any of the following conditions
occur:
A) Fraud in fact (e.g., informing a client that they will
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be examined by a medical instrument causing penetration,
obtaining their consent, and then performing the
"examination" using their own body part)
B) Fraud by inducement (e.g., informing a client that
sexual penetration served a professional purpose when it
did not)
C) Or if the victim was unaware, unconscious, restrained,
or unable to perceive the essential characteristics of the
sexual act.
-However-
A perpetrator of these types of crimes can only be tried for
misdemeanor sexual battery if all of the following occur:
During a session, there is touching which is
clearly not related to the professional service, which
the victim cannot reasonably believe was said service;
and
The victim was conscious of the nature of the
act in terms of its sexual nature; and
The victim did not consent to the act under
fraudulent means (fraud in fact or inducement).
For example: An individual receives facial treatments, and
the service provider begins to massage other parts of his or
her body sexually without asking the victim for consent (or
misleading the victim by claiming that the act was part of
that service). If the provider then stops when the victim
objects, the provider could only be charged, under current
law, with misdemeanor sexual battery.
Because these acts are not committed while the person is
impaired or unconscious of the actions of the provider, they
can object to it and are able to perceive the essential
characteristics of the sex act. Their consent is not
considered to have been obtained by fraudulent
misrepresentation during the course of the treatment. In this
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instance, the rape by fraud in fact or inducement statutes do
not apply.
As a consequence, some individuals who have committed a
felonious sexual assault can only be charged with less serious
crimes.
1)Penalties Provided in Existing Law: This bill provides any
massage therapist, physical therapist, holistic healer,
chiropractor, or other professional service provider who
touches an intimate part of another's body against his or her
will for sexual gratification while in the practice of the
profession is guilty of one of the enumerated sex crimes.
Lack of consent is the foundation of most prosecutions for
sexual assault and may be proven many ways. The victim
objects to the conduct and the defendant disregards the
objection by force, duress, threat of force, or threat of
future retaliation. (See Pen. Code §§ 261(a)(2), 286(c)(2),
and 288a(c)(2).) The penalty for most forcible sex offenses
is three, six or eight years in state prison. However, there
are instances in which the defendant may be guilty of a sex
offense even where the victim did not specifically object.
Lack of consent is implied if the victim is not able to object
because he or she is unconscious, unaware the act occurred, or
was not aware of the essential characteristics of the act
because of fraud. (See Pen. Code §§ 261(a)(4) and 288a(f)(1)
to (4).) This includes a perpetrator who fraudulently claims
the act is necessary for some professional purpose or
otherwise convinces the victim to consent to one act but then
does another. The courts have distinguished between "fraud in
fact" and "fraud in inducement." Fraud in fact "appears to be
limited to those narrow situations in which the victim
consented to the defendant's act, but because the victim
believed the essential characteristics of the act consented to
were different from the characteristics of the act the
defendant actually committed, the victim was incapable of
resisting the act actually committed because the victim was
ignorant of the true nature of the act permitted. In
contrast, when the victim consents to the defendant's act with
the full knowledge of the essential characteristics of the
act, a conviction was induced the
unconscious-due-to-fraud-in-fact concept cannot stand even
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though the victim was induced to consent by fraudulent
representations as to the benefits resulting from the act."
(People v. Stuedemann (2007) 156 Cal.App. 4th 1, 7; People v.
Cook (1964) 228 Cal.App. 2nd 716, 718; People v. Harris
(hereinafter Harris) (1979) 93 Cal. App. 3rd 103, 114.) In
People v. Harris, the defendant's conviction for rape was
overturned under a "fraud in fact" theory. In that case, the
victim agreed to sexual intercourse with the defendant if she
lost a bet, but was unaware the bet was rigged to ensure she
lost. (Harris at 111).
In affirming the rape conviction of a physician, the California
Appellate Court stated, "It is settled that a victim need not
be totally and physically unconscious in order for the statute
defining rape as an act of sexual intercourse accomplished
with a person who is at the time 'unconscious of the nature of
the act' to apply (citation omitted). In this context,
unconsciousness is related to the issue of consent, which, in
prosecution under Penal Code Section 261 (rape) is 'defined to
mean positive cooperation in act or attitude pursuant to an
exercise of free will. The person must act freely and
voluntarily and have knowledge of the nature of the act or
transaction." (Penal Code Section 261.6). (People v.
Ogunmola (hereinafter Ogunmola) (1987) 193 Cal.App 3rd 274,
279; see also People v. Minkowski (1962) 204 Cal.App. 2nd
832.) In Ogunmola, the defendant was a gynecologist who raped
patients while performing examinations. Neither of the two
victims knew the defendant was engaged in the criminal conduct
until he committed the act of penetration. Neither victim
objected at the time of the examination. The Appellate Court
held:
"Similarly, in the present case, the trier of fact could
reasonably conclude from the testimony of the victim
gynecological patients, who reposed great trust in their
physician in placing themselves in positions of great
vulnerability from which they could not readily perceive his
conduct toward them, that neither was aware of the nature of
the act, i.e., neither consciously perceived or recognized
that defendant was not engaged in an examination, but rather
in an act of sexual intercourse, until he had accomplished
sexual penetration, and the crime had occurred. Each of the
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victims, who had consented to a pathological examination, with
its concomitant manual and instrumental intrusions, was
'unconscious of the nature of the act' of sexual intercourse
committed upon her by defendant, until the same was
accomplished, and cannot be said to have consented thereto.
Defendant's conduct on each occasion was clearly within the
scope of Penal Code Section 261(a)(4) (rape of an unconscious
person), and constituted rape." (Ogunmola at 280, 281.) The
Ogunmola case likely proceeded under a theory that the victims
were not aware or cognizant of the act when it occurred and
does not seem to deal with fraud in fact. (Penal Code Section
261(a)(4)(B).)
Penal Code Section 263 states, "The essential guilt of rape
consists in the outrage to the person and feelings of the
victim of the rape. Any sexual penetration, however, slight,
is sufficient to complete the crime". It is unclear how this
bill will provide more protection to the victims because it
requires the specified sex offense be committed against the
will of the victim. In instances where the victim objects or
there is no opportunity for consent because he or she is
"unconscious", as specified, the offender is guilty of the
substantive offense (rape, sodomy, oral copulation, rape with
a foreign object or sexual battery).
2)People v. Stuedemann: The sponsor points to People v.
Stuedemann (hereinafter Stuedemann) (2007) 156 Cal.App. 4th 1
as evidence of infirmity in the law that must be remedied. In
Stuedemann, the People charged the defendant, a massage
therapist, with sexual penetration of an unconscious person
and oral copulation of an unconscious person, as specified.
Penal Code Section 288a(f)(3) is oral copulation of a person
who is "unconscious of the nature of the act" because the
victim was not aware of the essential characteristics of the
act due to the perpetrator's fraud in fact. Penal Code
Section 289(d)(3) is sexual penetration under the same
circumstances. The defendant was convicted of both charges at
trial and appealed. The theory presented by the People was
that the defendant was guilty oral copulation and sexual
penetration because the victim was unconscious of the
essential characteristics of the act due to the defendant's
fraud in fact. (Stuedemann at 6.) Therefore, the appellate
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court reviewed the case pursuant to a fraud in fact claim.
However, the court was not persuaded by the fraud in fact
theory and stated, "Applying this framework here [defining
fraud in fact], the evidence does not support a conviction
under the unconsciousness provisions of oral copulation and
sexual penetration. There is no evidence Griselda [the
victim] consented or cooperated (was 'incapable of resisting')
because of her ignorance of the true nature of the acts
performed by Stuedemann. To the contrary, she did not permit
Stuedemann to orally copulate or digitally penetrate her
believing the copulation or penetration was something other
than a sexual copulation or penetration; instead, she
immediately recognized the acts for what they were and
expressed her non-consent." (Stuedemann at 11.)
The court distinguished the Ogunmola case explained above
because the victim in this case was not consenting to a full
on medical examination where penetration for some legitimate
purpose might occur. The court concluded, "Unlike Ogunmola
and its predecessors, there was no evidence Griselda consented
to anything resembling the acts undertaken by Stuedemann.
Although Griselda consented to a massage, the result of which
made her vulnerable to Stuedemann's acts that overstepped the
boundaries of her consent, the evidence showed she was fully
aware of the nature of Stuedemann's acts when those acts
transgressed the boundaries and was capable of (and did)
express her non-consent and resistance to the conduct. We
conclude that Stuedemann's 'conduct, reprehensible though it
was', did not violate [sections on oral copulation and sexual
penetration] because Griselda was not unconscious due to
Stuedemann's fraud in fact, the only theory asserted by the
prosecution.] If there is a statutory oversight in this area
of the penal law, the Legislature may address it (citation
omitted)." (Stuedemann at 14.)
Additionally, the court offers under existing law to re-sentence
the defendant for battery, as specified; however, the parties
reject the court's invitation. It is unclear if charging the
defendant under a different statute - one not based on fraud -
would have resulted in a different outcome. Although, as the
court points out, this case is somewhat troubling, there are
factual issues of consent. The only remedy is to craft a
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statute that would remove the consent element where the victim
is in a state of undress or is otherwise in a semi-vulnerable
position. However, this may inadvertently punish consensual
conduct or fail to protect persons who are fully clothed or
not necessarily in a semi-vulnerable position. As noted
above, this bill's language still requires the action be
committed against the person's will. If that were the case in
Stuedemann if the defendant had disregarded the victim's
objections, the defendant would be guilty of oral copulation
and sexual penetration and no discussion of consent would have
been necessary.
3)Argument in Support: According to The Orange County District
Attorney, "The Orange County District Attorney's Office is
pleased to support AB 860, which would close a loophole in the
law to address sexual predators who provide professional
services (such as doctors, chiropractors, massage therapists
and others in positions of trust/power) and prey on vulnerable
victims.
"Currently, there is no provision in the law to address a sexual
assault committed without a victims' consent in the context of
professional services, other than misdemeanor sexual battery.
AB 860 addresses this gap in the law by providing that a
sexual assault committed against these vulnerable victims will
be punished similarly to offenses where their consent was
obtained fraudulently.
"My office strongly supports this legislation that will protect
the public from sexual predators. Thank you for your
leadership on this important issue."
4)Prior Legislation: AB 2049 (Saldana), of the 2007-2008
Legislative Session, was identical to this bill. AB 2049 was
never heard in Senate Public Safety.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys' Association
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Orange County District Attorney's Office
Opposition
None
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744