AB 1276, as introduced, Santiago. Sexual assault.
Existing law establishes various sexual assault offenses, including the offense of rape. Under existing law, rape is defined as an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, under certain circumstances, including where the act 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.
This bill would make technical, nonsubstantive changes to the these provisions.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 261 of the Penal Code is amended to
2read:
(a) Rape is an act of sexual intercourse accomplished
4with a personbegin insert who isend insert not the spouse of the perpetrator, under any
5of the following circumstances:
P2 1(1) Where a person is incapable, because of a mental disorder
2or developmental or physical disability, of giving legal consent,
3and this is known or reasonably should be known to the person
4committing the act. Notwithstanding the existence of a
5conservatorship pursuant to the provisions of the
6Lanterman-Petris-Short Act (Part 1 (commencing with Section
75000) of Division 5 of the Welfare and Institutions Code), the
8prosecuting attorney shall prove, as an element of the crime, that
9a mental disorder or developmental or physical disability rendered
10the alleged victim incapable of giving
consent.
11(2) Where it is accomplished against a person’s will by means
12of force, violence, duress, menace, or fear of immediate and
13unlawful bodily injury on the person or another.
14(3) Where a person is prevented from resisting by any
15intoxicating or anesthetic substance, or any controlled substance,
16and this condition was known, or reasonably should have been
17known by the accused.
18(4) Where a person is at the time unconscious of the nature of
19the act, and this is known to the accused. As used in this paragraph,
20“unconscious of the nature of the act” means incapable of resisting
21because the victim meets any one of the following conditions:
22(A) Was unconscious or asleep.
23(B) Was not aware, knowing, perceiving, or cognizant that the
24act occurred.
25(C) Was not aware, knowing, perceiving, or cognizant of the
26essential characteristics of the act due
to the perpetrator’s fraud in
27fact.
28(D) Was not aware, knowing, perceiving, or cognizant of the
29essential characteristics of the act due to the perpetrator’s fraudulent
30representation that the sexual penetration served a professional
31purpose when it served no professional purpose.
32(5) Where a person submits under the belief that the person
33committing the act is someone known to the victim other than the
34accused, and this belief is induced by any artifice, pretense, or
35concealment practiced by the accused, with intent to induce the
36belief.
37(6) Where the act is accomplished against the victim’s will by
38threatening to retaliate in the future against the victim or any other
39person, and there is a reasonable possibility that the perpetrator
40will execute the threat. As used in this paragraph, “threatening to
P3 1retaliate” means a threat tobegin delete kidnap orend deletebegin insert
kidnap,end insert falsely imprison, or
2begin delete toend delete inflict extreme pain, serious bodily injury, or death.
3(7) Where the act is accomplished against the victim’s will by
4threatening to use the authority of a public official to incarcerate,
5arrest, or deport the victim or another, and the victim has a
6reasonable belief that the perpetrator is a public official. As used
7in this paragraph, “public official” means a person employed by
8a governmental agency who has the authority, as part of that
9position, to incarcerate, arrest, or deport another. The perpetrator
10does not actually have to be a public official.
11(b) As used in this section, “duress” means a direct or implied
12threat of force, violence, danger, or retribution sufficient to coerce
13a reasonable person of ordinary susceptibilities to perform an act
14begin delete whichend deletebegin insert
thatend insert otherwise would not have been performed, or acquiesce
15in an act to which one otherwise would not have submitted. The
16total circumstances, including the age of the victim, and his or her
17relationship to the defendant, are factors to consider in appraising
18the existence of duress.
19(c) As used in this section, “menace” means any threat,
20declaration, or act which shows an intention to inflict an injury
21upon another.
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