BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 860 (Daly) - Sex crimes: professional services
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|Version: June 2, 2015 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: June 29, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 860 would do the following:
Increase the penalty to an alternate felony-misdemeanor for
the crime of sexual battery involving a person who performs
professional services that entail having access to another
person's body, who touches an intimate part of that person
while performing those services, and the touching is against
the will of the person touched and for the specific purpose of
sexual arousal, sexual gratification, or sexual abuse.
Expand the definitions of the crimes of rape, sodomy, oral
copulation, and sexual penetration to include when any of
those acts are performed against a victim's will by a person
while that person is performing professional services that
entail having access to the victim's body.
Fiscal
Impact:
Future increase in state costs, potentially in excess of
$200,000 (General Fund) per year for new commitments to state
prison for felony convictions for sexual battery. The impact
AB 860 (Daly) Page 1 of
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to state prison costs related to the changes to the
definitions of other sex crimes is estimated to be minor.
Potential increase in non-reimbursable local incarceration
costs (General Fund*) for additional cases charged under the
wobbler vs. misdemeanor offense of sexual battery, resulting
in extended jail terms.
*Proposition 30 (2012) provides that legislation enacted after
September 30, 2012, that has an overall effect of increasing the
costs already borne by a local agency for public safety
services, as defined, are not subject to mandate reimbursement,
however, apply to local agencies only to the extent the State
provides annual funding for the cost increase. Legislation
creating a new crime or changing the definition of an existing
crime is exempt from this funding provision, however,
legislation changing the penalty for a crime is not similarly
exempted. To the extent it is determined that the provisions of
this bill change the penalty for the crime of sexual battery
under specified conditions, any net increase in costs to local
agencies attributable to provisions of this legislation could
potentially require annual funding from the State.
Background: Existing law provides that a person is guilty of sexual
battery if he or she touches an intimate part of another person
for the purpose of sexual arousal, sexual gratification, or
sexual abuse, while the victim is unconscious of the nature of
the act because the perpetrator fraudulently represented that
the touching served a professional purpose. Additionally,
existing law provides that a 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. Under existing law, the aforementioned crimes
are punishable as alternate felony-misdemeanors, punishable by
imprisonment in a county jail for up to one year and by a fine
of up to $2,000, or by imprisonment in state prison for two,
three, or four years, and a fine of up to $10,000. (Penal Code
(PC) § 243.4(c).)
In contrast, under existing law, any person who touches an
intimate part of another person, if the touching is against the
will of the person touched, and is for the specific purpose of
sexual arousal, sexual gratification, or sexual abuse, is guilty
AB 860 (Daly) Page 2 of
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of misdemeanor sexual battery, punishable by a fine not
exceeding $2,000, or by imprisonment in a county jail not
exceeding six months, or by both that fine and imprisonment. (PC
§ 243.4(e).)
As explained in the Senate Committee on Public Safety analysis
of this bill:
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?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.
Proposed Law: This bill:
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 that
person while performing those services, and the touching is
against the will of the person touched and for the specific
purpose of sexual arousal, sexual gratification, or sexual
abuse.
Expands the definitions of the crimes of rape, sodomy, oral
copulation, and sexual penetration to include when any of
those acts are performed against a victim's will by a person
while that person is performing professional services that
entail having access to the victim's body.
Related
Legislation: None applicable.
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Staff
Comments: By expanding the circumstances under which a
defendant would be in violation of the alternate
felony-misdemeanor offense of sexual battery, this bill will
potentially result in new commitments to state prison and an
increase in annual General Fund costs. The magnitude of costs
would be dependent on various factors including the charging
decisions of prosecutors, the details of each case, and the
prison term imposed on each defendant. While the number of
defendants to be impacted is unknown, to the extent even two
cases per year are impacted statewide, cumulative costs for new
commitments to state prison could exceed $200,000 annually. This
estimate is based on an in-state contract bed cost of $34,000
per year.
While data from the CDCR indicate that only 40 individuals per
year have been committed to state prison on average over the
past three years (2012-2014) for felony sexual battery, arrest
and conviction data from the Department of Justice (DOJ)
indicate nearly 1,000 arrests and 175 convictions per year for
misdemeanor sexual battery (PC § 243.4(e)). While it is unknown
how many additional individuals will be charged with a felony as
provided under the provisions of this bill instead of the
existing misdemeanor sexual battery offense, future costs could
potentially be significant.
Similarly, local jails could potentially incur increases in
costs for lengthier jail terms under the provisions of this
measure. Commitments to county jail that otherwise would have
been subject to a misdemeanor jail term of up to six months
could instead be charged under the wobbler offense which is
punishable by up to one year in jail.
Under 2011 Realignment Legislation, the state provided funding
to the counties to place offenders in county jail for specified
felonies that previously would have required a state prison
sentence. Pursuant to Proposition 30 (2012), legislation enacted
after September 30, 2012, that has an overall effect of
increasing the costs already borne by a local agency for
programs or levels of service mandated by the 2011 Realignment
Legislation apply to local agencies only to the extent that the
state provides annual funding for the cost increase. Proposition
30 specifies that legislation defining a new crime or changing
the definition of an existing crime is not subject to this
provision, however, legislation changing the penalty for a crime
AB 860 (Daly) Page 4 of
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is not similarly exempted. To the extent it is determined that
the provisions of this bill change the penalty for the specified
crime of sexual battery under specified circumstances from a
misdemeanor to a wobbler, any net increase in costs to local
jails could potentially require annual funding from the State
(General Fund).
The Three-Judge Court has ordered the State to reduce its prison
population to 137.5 percent of the prison system's design
capacity by February 28, 2016. Pursuant to its February 10, 2014
order, the Court has ordered the CDCR to implement several
population reduction measures, prohibited an increase in the
population of inmates housed in out-of-state facilities, and
indicated the Court will maintain jurisdiction over the State
for as long as necessary to ensure the State's compliance with
the 137.5 percent final benchmark is durable, and that such
durability is firmly established. Any future increases to the
State's prison population challenge the ability of the State to
reach and maintain such a "durable solution," and could require
the State to pursue one of several options, including
contracting-out for additional bed space or releasing current
inmates early onto parole.
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