BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 860 Hearing Date: June 16, 2015
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|Author: |Daly |
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|Version: |June 2, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Sex Crimes: Professional Services
HISTORY
Source: Orange County District Attorney
Prior Legislation:AB 59 (Evans) -- Ch. 282. Stats. 2013
AB 65 (Achadjian) -- Ch. 259, Stats. 2013
SB 765 (Achadjian) - Held in Senate Public
Safety, 2011
AB 2049 (Saldana) -- Amended to become a new
bill, 2008
SB 1421 (Romero) - Ch. 302, Stats. 2002
Support: California District Attorneys Association; California
Police Chiefs; Los Angeles County District Attorney;
San Diego County District Attorney
Opposition:Legal Services for Prisoners with Children
Assembly Floor Vote: 78 - 0
PURPOSE
The purposes of this bill are 1) to provide that where a person
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is performing a professional service in which the person has
access to the body of client or customer and the person touches
an intimate part of the body of the client or customer, and the
touching is against the will of the client or customer, the
person is guilty of the alternate felony-misdemeanor of sexual
battery; and 2) to provide that where a person who is performing
a professional service under these circumstances engages in
sexual intercourse, sodomy oral copulation, or sexual
penetration against the will of the victim, the person is guilty
of a felony.
Existing law:
Provides that rape or another specified sex crime is a sexual
act accomplished under any of the following circumstances and is
generally punished by a prison term three, six or eight years,
unless a higher penalty is specified:
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:
o Rape - Pen. Code § 261(a)(1) to (6)
o Sodomy § 286, subd. (c)(2)(A)-(C) - sodomy the penalty is
three, six or eight
unless the victim is a minor. If the victim is under 14, the
prison term is 9, 11 or 13
year. If the victim is 14 or older, the penalty is 7, 9 or 11
years in prison
o Oral copulation - Penal Code § 288a (c)(2)(1)-(3). Prison
term is 3, 6, or 8 years unless victim is a minor. If victim
is under 14, the penalty is 8, 10 or 12 years. If victim is 14
or older, the penalty is 6, 8 or 10 years.
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o Sexual penetration - 289 (a) Three, six or eight year prison
term, unless the
victim is a minor. Where the victim is under the age of 14,
the prison term is 8, 10 or 12 eyars. Where the
victim is a minor who is at least 14 years of
age, the prison term is 6, 8 or 10 years.
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. (Pen. Code §§ 261, subd.
(a)(1); 286, subd. (g); 288a, subd. (h); 289, subd. (b).)
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. Pen. Code §§ 261, subd. (a)(3); 286, subd. (i);
288a, subd. (i); 289, subd. (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. Pen. Code §§ 261, subd.
(a)(1); 286, subd. (g); 288a, subd. (h); 289, subd. (b).)
Provides that where an act of sexual intercourse, sodomy, oral
copulation or sexual penetration is accomplished against the
victim's will by threatening to use the authority of a public
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official to incarcerate, arrest, or deport the victim or
another, and the victim has a reasonable belief that the
perpetrator is a public official, the crime is a felony,
punishable by a prison termof three, six or eight years. 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, subd. (a)(7); 286, subd. (k), 288a, subd.
(k), 289, subd. (g.))
States that a sex crime is committed where a person is at the
time unconscious of the nature of the sex act, and this is known
to the accused. "Unconscious of the nature of the act" is
defined as incapable of resisting because the circumstances of
the incident meet one of the following conditions:
The victim was unconscious or asleep.
The victim was not aware, knowing, perceiving, or
cognizant that the act occurred.
The victim was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act due
to the perpetrator's fraud in fact.
The victim 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.
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The victim believed that the person committing the act
was someone known to the victim other than the accused, and
this belief is induced by any artifice, pretense, or
concealment practiced by the accused, with intent to induce
the belief. (Rape - Pen. Code §§ 261(a)(4)(A) to (D);
Sodomy - 286, subd. (f); Oral Copulation - 288a, subd. (f);
Sexual penetration - 289, subd. (d).)
Provides that any person who touches an intimate part of another
person while that person is unlawfully restrained by the accused
or an accomplice, and the touching is against the will of the
person touched, and the touching is for the purpose of sexual
arousal, gratification orl abuse, is guilty of sexual battery.
This offense is punishable by imprisonment in a county jail of
up to one year, a fine not exceeding $2,000, or both, or by
imprisonment in the state prison for two, three, or four years;
and by a fine not exceeding $10,000. This form of sexual battery
includes an element that the perpetrator touch the victim's bare
skin. (Penal Code Section 243.4, subds. (a) and (f).)
Provides that where any person touches an intimate part of
another person for the purpose of sexual arousal, gratification
or abuse, and the touching is against the will of the person
touched, the person is guilty of sexual battery. This offense
is a misdemeanor, punishable by imprisonment in a county jail of
up to six months, a fine not exceeding $2,000, or both. The
maximum fine is $3,000 if the defendant employs the victim. For
this form of sexual battery, tghe touching need not be on bare
skin. (Penal Code Section 243.4, subd. (e)(1)-(2))
Provides that sexual battery includes the touching of an
intimate body part where the perpetrator fraudulently claimed
that it served a professional purpose. The crime is an
alternate felony-misdemeanor, punishable by imprisonment in
county jail for up to one year, a fine of up to $1,000, or both,
or by imprisonment in state prison for two, three or four year
and a fine of up to $10,000. (Pen. Code § 243.4, subd. (c).
This bill expands the definition of sexual battery to include
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the following circumstances: A professional who performs
services that entail having access to another person's body
touches an intimate part of a client's or patient's body for the
purpose of sexual arousal and against the will of the client or
patient. This form of sexual battery is an alternate
felony-misdemeanor, punishable by imprisonment for up to one
year, a fine of up to $1,000, or both, or by imprisonment in
state prison for two, three or four years and a fine of up to
$10,000.
This bill expands the definition of rape, illegal sodomy, oral
copulation and sexual penetration to include the following
circumstances: A professional who performs services that entail
having access to another person's body engages in sexual
intercourse, sodomy, oral copulation or sexual penetration for
the purpose of sexual arousal and "against the will" of the
client or patient. Rape, sodomy, oral copulation or sexual
penetration in this form is a felony, punishable by a prison
term of three, six or eight years and a fine of up to $10,000.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight 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.
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In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 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).
While significant gains have been made in reducing the prison
population, the state now 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.
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COMMENTS
1. Need for This Bill
According to the author:
Providers of professional treatment services, who
sexually assault their clients during the course of a
treatment session, are typically charged with felony
sex crimes. However, under certain circumstances,
California law only allows particular offenders to be
charged with misdemeanor sexual battery. As a
consequence, some individuals who have clearly crossed
the line and committed sexual assaults can only be
charged with less serious crimes.
AB 860 adds provisions that will correct this
oversight and classify the actions of these
professional service providers as felonies. 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.
2.Contrast Between Sexual Battery Where the Victim is
Unlawfully Restrained and Sexual Battery by Fraud
In circumstances other than the provision of professional
services, sexual battery includes the elements of a touching of
an intimate body part of the victim that is against the will of
the victim. The element that the touching be against the will
of the victim is equivalent to the touching being without
consent of the victim. The crime is an alternate
felony-misdemeanor if the victim of the unwanted touching was
"unlawfully restrained." If the victim was not unlawfully
restrained, the crime is a misdemeanor.
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It appears that in cases where a person providing a professional
service touches an intimate part of a client's or patient's body
without consent, prosecutors have not generally charged the
services provider with a sexual battery of a person who is
unlawfully restrained. Despite the fact that an unclothed
person receiving a massage or medical examination is in a sense
under the control of the service provider, prosecutors
apparently believe that they could not prove that the victim was
unlawfully restrained. Prosecutors charge these defendants with
a form of sexual battery by fraud, under the theory that the
service provider used some sort of deception or ruse to touch
the victim for sexual gratification, not a legitimate
professional purpose.
Unlawful restraint is not limited to the application of physical
force. Psychological pressure or an assertion of authority can
suffice. A decision of the Court of Appeal has described
unlawful restraint as follows:
A person is unlawfully restrained when his or her
liberty is being controlled by words, acts or
authority of the perpetrator aimed at depriving the
person's liberty, and such restriction is against the
person's will; a restraint is not unlawful if it is
accomplished by lawful authority and for a lawful
purpose, as long as the restraint continues to be for
a lawful purpose. The "unlawful restraint required for
violation of section 243.4 is something more than the
exertion of physical effort required to commit the
prohibited sexual act." (People v. Arnold (1992) 6
Cal.App.4th 19, 28, citing and quoting People v. Pahl
(1991) 226 Cal.App.3d 1651, 1661.)
This bill essentially treats the sexual exploiting of a patient
or client's vulnerability during an examination, treatment or
massage as being equivalent to non-consensual sexual touching of
a person who is unlawfully restrained. The bill presents the
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issue of whether these two situations be punished in an
equivalent manner:
Sexual Battery in Professional Services, other than by Fraud
o A person (a) is receiving a professional service;
o The professional service provider has access to the
person's body, such as during a medical examination or
massage;
o The service provider touches an intimate part of the
person's body; and
o The touching was against the will of the person
(without consent).
Sexual Battery of an Unlawfully Restrained Person
o A person is being unlawfully restrained - stuck in
against a wall in a crowded subway car, ordered to remain
in her car by a person with apparent authority, severely
intoxicated;
o The perpetrator touches an intimate part of the
person's body;
o The touching was against the will of the person/victim.
It can be argued that where a person is in the care of a
professional service provider, and the service provider has
relatively easy and open access to intimate parts of the
person's body, the person is in a vulnerable position equivalent
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to being unlawfully restrained. A person receiving a massage or
a gynecological examination would have to get up from table, put
on clothes and leave if they want to get away from the service
provider. However, not all forms of professional services place
clients or patients in equivalent vulnerable positions. A
person who is unclothed in a closed massage room is in a more
vulnerable position than a person in a dentist chair in a
relatively open plan dental office with numerous other patients
in and dentists in close proximity.
SHOULD THE NON-CONSENSUAL TOUCHING OF A PATIENT OR CLIENT DURING
THE PROVIDING OF PROFESSIONAL SERVICES BE TREATED AS EQUIVALENT
TO NON-CONSENSUAL TOUCHING OF AN UNLAWFULLY RESTRAINED PERSON?
3. Existing Law on Fraudulently Obtaining Consent for Sexual
Conduct
Appellate courts have distinguished between "fraud in fact" and
"fraud in inducement." Fraud in fact occurs where the defendant
essentially lies about the actual character of the sex act. For
example, in a 1987 case a gynecologist told two patients that he
was examining them manually or with a medical device for
diagnostic purposes. In each case, the patient was on the
examining table, feet in stirrups and covered by a drape. She
could not see what the doctor was doing. The doctor, after
apparently performing a partial exam using a speculum, placed
his penis in the patient's vagina. Only after the penetration
had occurred did each victim understand what had happened. The
appellate court found that the defendant had used fraud in fact
to accomplish the intercourse and that each victim had been
unconscious of the nature of the act. (People v. Ogunmola
(1987) 193 Cal.App 3rd 274, 279.)
In People v. Minkowski (1962) 202 Cal.App.2d 832 the defendant
was a doctor who treated the two young victims (16 and 19 years
old) for menstrual cramps. He directed each patient to turn
away from him and bend over at the waist. He then placed a cold
metal instrument in her vagina, but then inserted something that
was not cold. In fact, the doctor had inserted his penis into
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their vaginas. This occurred on numerous occasions. The
defendant was convicted of numerous counts of rape. The
convictions were proper because each patient could not have
consented to the Minkowski's insertion of his penis into her
vagina because she was not conscious of the nature of the
defendant's acts.
In many, if not most, circumstances, fraud in the inducement is
not a crime. Essentially, fraud in the inducement occurs where
one person lies to the other about why he or she should engage
in a sex act. Nevertheless, the person who is persuaded to
engage in the act knows that he or she is engaging in a sex act.
For example, in one published case, a woman had intercourse
with a man because she lost in a game of chance. The game was
fixed, but no crime was committed because she was fully aware of
the character of the sex acts and thus her consent was legally
valid. (People v. Harris (1979) 93 Cal. App. 3rd 103, 114.)
There are a number of statutory exceptions to the rule that
fraud in the inducement cannot support a criminal conviction.
One exception is the crime defined in Penal Code section 266c,
where the fraud in the inducement caused the victim to agree to
engage in a sex act with the defendant because the defendant
falsely induced her to be afraid. Penal Code section 266c was
enacted in response to the reversal of the defendant's
conviction in Boro v. Superior Court (1985) 163 Cal.App.3d 1224,
1226. In Boro, the defendant -- a purported doctor -- convinced
a patient that she must engage in sexual intercourse with a
"donor" who had been previously injected with a special serum.
Contrary to the defendant's assertion, the patient's life was
not in danger and the so-called donor was the defendant. Boro's
conviction for rape was overturned on appeal because the woman's
consent was obtained through fraudulent inducement, which did
not nullify ("vitiate") consent. In response to the decision in
Boro, the Legislature amended the law, as described above,
effective in 1986.
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In 2002, SB 1421 (Romero) <1> amended various sex crime statutes
to cover cases where a physician or other professional obtained
consent for intercourse or another sexual act through persuading
the victim that the intercourse or other act served a
professional purpose, although it did no such thing. (See, Pen.
Code §§ 261, subd. (a)(4)(D); 289 (d)(4), and other sex crime
statutes.) These new crimes did not require proof that the
defendant obtained consent by fear. In the incident that
prompted introduction of SB 1421 of 2002, an X-ray technician
digitally penetrated patients during the course of obtaining
X-ray images. The technician informed the women that the
digital penetrations were necessary for the procedure, although
the facts of the case are not discussed in any analysis of the
bill.
In 2013, new forms of sex crimes by fraud were enacted by SB 59
(Evans) and AB 65 (Achadjian), Chapters 282 and 259
respectively. The two bills covered circumstances where the
victim consented to engage in sexual acts with the defendant
because the victim incorrectly believed the other person to be
someone known to him or her. In these cases, the prosecution
must prove that the defendant induced the victim's mistaken
belief or "by any artifice, pretense, or concealment practiced
by the accused, with intent to induce the belief."
In one case addressed by the 2013 legislation, a woman was
asleep in her apartment bedroom when a man she believed was her
live-in boyfriend began having sex with her. In fact, the
defendant had entered the apartment through a window and the
victim's boyfriend was in the living room. In another case -
Morales - a woman had been to a party with some others. She
went to bed when she got home. Her boyfriend left, but her
brother's friend came into her room and engaged in intercourse
with her until she realized that the defendant was not her
boyfriend. Prior to enactment of SB 59 and AB 65, the crime of
fraudulently obtained consent for a sex act through
impersonation only applied to cases where the victim was induced
to believe the perpetrator was her spouse.
---------------------------
<1> SB 1421 (Romero) Ch. 392, Stats. 2002
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4. People v. Stuedemann (2007) 156 Cal.App.4th 1 and People v.
Robinson (2014) 227 Cal. App.4th 387
This bill appears, in large part, to address the reversal of
convictions and attendant issues in People v. Stuedemann (2007)
156 Cal.App. 4th 1, and People v. Robinson<2> (2014) 227 Cal.
App.4th 387.
Stuedemann
In Stuedemann, the defendant, a massage therapist, was charged
with sexual penetration of an unconscious person and oral
copulation of an unconscious person. In particular, the
prosecutor alleged that the victim was "unconscious of the
nature of the act" due to the perpetrator's fraud in fact.
(Pen. Code §§288a, subd. (f)(3) and 289, subd. (d)(3).)
Defendant Stuedemann met victim Griselda while he was giving
sample massages at a swap meet. Griselda made an appointment
for a full massage at defendant's business. The scheduled
one-hour massage had gone on for two hours before the conduct
forming the basis for the charges occurred. The court in
Stuedemann described the facts:
The massage began with Stuedemann instructing Griselda
to lie face down on a table. He covered her with a
sheet and began massaging her back. At one point,
----------------------
<2> Robinson has been accepted for review by the California
Supreme Court on an issue that is only marginally relevant to
this bill. Robinson cannot be cited as authority for the
opinions and findings expressed in the case, although those
opinions and findings may be correct. Robinson is described in
this analysis to illustrate the issues presented by the bill,
not as a statement or reflection of existing law.
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Stuedemann moved her panties to one side to massage
her buttocks. When he was finished massaging her
back, he instructed Griselda to lie on her back and,
when she was face up, he put a mask over her eyes
[ostensibly as part of aromatherapy]. While Griselda
was on her back, Stuedemann initially kept the sheet
in place to cover her while he massaged her. However,
as the massage progressed, Stuedemann lowered the
sheet and, without saying anything, massaged her
breasts and nipples. She said nothing to him about it.
He then lowered the sheet further and began
massaging her abdomen. He pulled down her panties and
twice inserted his finger into her vagina. He then
orally copulated her, at which point Griselda sat up
quickly and told him to stop. Stuedemann stopped,
said "I'm sorry," and left the room. He did not tell
her that he was going to digitally penetrate or orally
copulate her. (Id., at pp. 4-5.)
The court rejected the fraud in fact theory and stated: "There
is no evidence Griselda 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." (Id., at p. 8.)
The court distinguished the Ogunmola case in which a doctor
raped patients who initially believed he was performing a
clinical examination, but actually inserted his penis into each
victim's vagina:
Unlike Ogunmola ? there was no evidence Griselda
consented to anything resembling the [sexual] acts
undertaken by Stuedemann. Although Griselda consented
to a massage, the result of which made her vulnerable
to Stuedemann's [sexual] acts? the evidence showed she
was fully aware of the nature of Stuedemann's [sexual]
acts ? and was capable of (and did) express her
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non-consent and resistance to the conduct. ?
Stuedemann's 'conduct, reprehensible though it was,
did not [constitute criminal 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]. (Id., at p.
14.)
Robinson
In Robinson, Lee Hoang Robinson induced two girls - sisters
Dianna and Christine - to come to his beauty salon after
business hours for free facials. Two other charged incidents
involved adult women. In one, Robinson promised to pay
37-year-old Trang T. $40 if she modeled for him while he
demonstrated a facial for students. In the other, heoffered a
free facial to Odette M.
After Dianna and Christine came to Robinson's spa, they took off
their tops and bras, but left their pants on, and put on robes.
Robinson applied a heavy cream on their faces as the girls lay
on massage tables in the same room. Robinson then told them he
would give them a "European massage," but did not explain what
that was. In succession, he massaged each girl's arms and
breasts and then unbuttoned her pants. Dianna became
frightened, but said nothing to Robinson as he lowered her pants
several inches, slipped his hand beneath her underwear and
rubbed her vaginal area. Christine put her hands on the button
of her pants when Robinson tried to unbutton them. She relented
when Robinson told her this was simply part of a European
massage and that he did "this all the time for other girls." He
lowered Christine's pants to mid-thigh, folded back her
underwear and rubbed her thighs near her vagina. When Robinson
attempted to place his finger in her vagina, Christine pushed
his hand away and pulled up her underwear. Robinson then
massaged Christine's arms, stomach and breasts. (People v.
Robinson, supra, 227 Cal.App.4th 387, 390-392.)
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Soon after Trang came to Robinson's salon, they were left alone.
He told her that the students had not yet arrived, but he was
going to start the facial. Robinson put some lotion on Trang's
face, but quickly began massaging her arms, legs and feet with
oil. Trang objected to the massage, but Robinson opened her robe
and placed his hands on her breasts. When Trang objected again,
Robinson told he to relax because it was standard procedure. He
then began rubbing her breasts and tried to put his hands
beneath her underwear. When she objected, Robinson turned her
over on her stomach and massaged her back and buttocks. She
said nothing because she did not want him to become angry.
Robinson then reached between her legs, touched her clitoris and
digitally penetrated her vagina. When Trang told Robinson that
she had to leave, Robinson began wiping her with a towel, and
then digitally penetrated her with his hand and finger. She
then grabbed her clothes and ran to the police. (Id., at pp.
392-393.)
An incident involving 24-year-old Odette was very similar to the
incident involving Trang T. After putting some cream on Odette's
face, Robinson rubbed or squeezed her stomach, vaginal area and
breasts. She protested each action. Robinson then wiped a towel
over her body as she told him to stop. He left the room after
telling her to leave the cream on for 10 minutes. She did so
because she was afraid. When she left the salon a few minutes
later she angrily confronted Robinson in the parking lot. She
reported the incident to the police a week thereafter. (Id., at
pp. 393-394.)
The court in Robinson upheld the convictions as to Dianna and
Christine for sexual battery by fraud, as based on an inducement
that the sexual touching was for a professional purpose. The
court found that the girls had relied on Robinson's assurances
that his acts were a legitimate and normal part of a "European
massage." The fact that neither girl objected until Robinson
put his finger in Christine's vagina showed that they believed
Robinson's conduct was legitimate. Thus, the girls were unaware
that the touching did not serve a professional purpose.
The court reversed the sexual battery and digital penetration
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convictions as to Odette and Trang, however. The objections
voiced by Trang and Odette clearly showed that they did not
believe that Robinson's rubbing of their breast and vaginal
areas, and the digital penetrations of Trang, served any
legitimate professional purpose.
The reversal of the sexual battery by fraud as to victims Trang
and Odette does not mean that Robinson could not have been
convicted of sexual battery and sexual penetration by force had
he been charged with those offenses. He was only charged with
crimes committed by fraud. Once the trial began, jeopardy
attached and he could not be charged with other crimes in these
incidents.
However, had Robinson been charged with and convicted of sex
crimes committed by force, those convictions would almost
certainly have been upheld on appeal. Both victims told
Robinson to stop his sexual touching. Yet, he persisted. That
certainly appears to establish that the acts were accomplished
without the consent - and against the will - of the victims.
There was clearly sufficient evidence to support convictions, as
convictions will be upheld against a claim of insufficient
evidence only if no reasonable jury could have convicted the
defendant upon the evidence at trial.
5. Prosecutions in Cases Similar to Stuedemann and Robinson if
This Bill is Enacted
It is likely that many cases prosecuted under this bill would
turn on the interpretation by the jury of ambiguous conduct by
the parties during a professional service appointment, or an
ostensible professional appointment. In such cases, the
defendant would have touched the alleged victim's body and then
went on to engage in some sort of sexual touching or conduct.
The essential issue will be whether or not the defendant
reasonably believed that the alleged victim was receptive to his
conduct and thus consented. (People v. Mayberry (1975) 15
Cal.3d 143, 153-158; CALCRIM. 1000.) In a case where the
defendant sought consent and the victim refused, a sex act would
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be prosecuted as forced rape or another sex crime. As a
practical matter, many cases will likely turn on whether jurors
would find that a person in the place of the alleged victim
would not expect the service provider to act as did the
defendant. If so, jurors will likely convict. If the jurors
find that the defendants acts would have been expected, jurors
are likely to acquit.
In Stuedemann, the victim did not express an objection when the
defendant twice digitally penetrated her vagina. Rather, she
did not object until the defendant orally copulated her. Had
she objected upon the first vaginal penetration, the second
penetration and the oral copulation would very likely have
produced convictions for forced sexual penetration and forced
oral copulation. The same can be said about the Robinson
incidents involving Dianna and Christine. A different jury
could well have found that the touching was not against their
wills - essentially finding that they consented through their
conduct.
6. Issue of Whether or not the Rape Provisions in this Bill
Would Apply to Non-Professionals Who Offer a Professional
Service or Purport to Offer a Professional Service
The sex crime provisions of this bill are defined in terms of
the defendant performing professional services that entail
having access to another person's body. The bill does not
define a professional service. That raises the following
question: Must the service be a legitimate or recognized
professional service, or is a purported, but fraudulent,
professional service covered by the bill? This issue could
determine the outcome in many cases. For example, it appears
that the defendant in Stuedemann truly was a massage therapist.
He sexually touched and orally copulated the victim during what
was otherwise a legitimate or standard massage. In contrast, it
appears that the defendant in Robinson employed a ruse in
claiming to perform a European massage, when he was actually
just touching and digitally penetrating the victims for sexual
gratification.
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The court in Robinson held that the defendant need not be
qualified or certified to perform the service he or she offer,
just that the defendant claimed his actions served a
"professional purpose," as stated in the governing statute. <3>
The Robinson, court would affirm a conviction for sexual acts
committed during counterfeit services, if the victim believed
the defendant's claims. The court found that "even though he
was not a medical professional, the jury could reasonably
conclude he had a purported 'professional purpose' for his
actions." The court further explained: [T]he precise nature of
the perpetrator's employment is less important? that the
appearance of authority and of a legitimate purpose that allows
the perpetrator to [sexually exploit]the victim without the
victim's understanding of the true nature of the act. (People
v. Robinson, supra, 227 Cal.App.4th at pp. 394-395; quoting and
citing People v. Bautista (2008) 163 CalApp.4th 762, citations
and internal quote marks omitted.)
WITHIN THE MEANING OF THIS BILL, WHAT IS A PROFESSIONAL SERVICE?
IF THE DEFENDANT CLAIMS TO OFFER A PROFESSIONAL SERVICE, BUT THE
SERVICE IS NOT LEGITIMATE OR RECOGNIZED, COULD THE DEFENDANT BE
CONVICTED UNDER THIS BILL?
SHOULD THE BILL BE AMENDED TO SPECIFY THAT THE PROFESSIONAL
SERVICE NEED NOT BE LEGITIMATE OR RECOGNIZED, BUT THAT THE
VICTIM MUST REASONABLY RELY ON THE DEFENDANT'S ASSERTION THAT HE
OR SHE IS PERFORMING A TRUE PROFESSIONAL SERVICE?
-- END -
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<3> Robinson claimed on appeal that the Dianna and Christine
could not have reasonably believed that Robinson was actually
performing a true professional service.
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