BILL NUMBER: AB 2199 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Campos
FEBRUARY 18, 2016
An act to amend Sections 261.5 and 647.64 the Penal Code, relating
to sexual offenses.
LEGISLATIVE COUNSEL'S DIGEST
AB 2199, as introduced, Campos. Sexual offenses against minors:
persons in a position of authority.
(1) Existing law provides various circumstances that constitute
rape, which are punishable by imprisonment in the state prison for 3,
6, or 8 years, except as specified.
Existing law also prescribes circumstances that constitute
unlawful sexual intercourse, some of which involve an adult
perpetrator who engages in that unlawful intercourse with a minor, as
specified. Unlawful sexual intercourse under those circumstances is
punishable by imprisonment for 2, 3, or 4 years, and also may be
subject to designated civil penalties or fines. Under existing law,
any person 21 years of age or older who engages in an act of unlawful
sexual intercourse with a minor who is under 16 years of age is
guilty of either a misdemeanor or a felony, punishable by
imprisonment in a county jail not exceeding one year, or by
imprisonment pursuant to a specified provision of law for 2, 3, or 4
years.
This bill would subject any person 21 years of age or older who
engages in an act of unlawful sexual intercourse with a minor who is
under 16 years of age and is convicted of a felony a sentence
enhancement of 2, 4, or 6 years, if the perpetrator holds a position
of authority over the minor with whom he or she engaged in the act of
unlawful sexual intercourse. By changing the penalty for the
commission of unlawful sexual intercourse under the above
circumstances, this bill would impose a state-mandated local program.
(2) Existing law makes it a misdemeanor to annoy or molest a child
under 18 years of age. Existing law makes it a misdemeanor to engage
in conduct with an adult whom the perpetrator believes is a child if
that conduct would otherwise violate the above provision if directed
toward a child and if the perpetrator is motivated by an unnatural
or abnormal sexual interest in children.
This bill would subject a person who violates those provisions
with respect to a minor under 16 years of age over whom the person
holds a position of authority to an additional term of imprisonment
of 2, 4, or 6 years beyond the otherwise applicable term. By creating
a new crime, the bill would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement. This bill would provide that no reimbursement is
required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 261.5 of the Penal Code is amended to read:
261.5. (a) Unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse of the
perpetrator, if the person is a minor. For the purposes of this
section, a "minor" is a person under the age of 18 years and an
"adult" is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years older or
three years younger than the perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger than
the perpetrator is guilty of either a misdemeanor or a felony, and
shall be punished by imprisonment in a county jail not exceeding one
year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d) Any person 21 years of age or older who engages in an act of
unlawful sexual intercourse with a minor who is under 16 years of age
is guilty of either a misdemeanor or a felony, and shall be punished
by imprisonment in a county jail not exceeding one year, or by
imprisonment pursuant to subdivision (h) of Section 1170 for two,
three, or four years.
(e) Notwithstanding any other provision of this section, a person
who is guilty of a felony pursuant to subdivision (d) who holds a
position of authority over the minor with whom he or she has engaged
in an act of unlawful sexual intercourse, shall be punished by an
additional term of imprisonment in a county jail for two, four, or
six years.
(1) For purposes of this subdivision, a person is in a "position
of authority" if he or she, by reason of that position, is able to
exercise undue influence over a minor. A "position of authority"
includes, but is not limited to, a parent, stepparent, foster parent,
relative, partner of the parent or relative, caretaker, youth
leader, recreational director, athletic manager, coach, teacher,
counselor, therapist, religious leader, doctor, employee of one of
those aforementioned persons, or coworker.
(2) For purposes of this subdivision, "undue influence" has the
same meaning as that term is defined in Section 15610.70 of the
Welfare and Institutions Code.
(e)
(f) (1) Notwithstanding any other provision of this
section, an adult who engages in an act of sexual intercourse with a
minor in violation of this section may be liable for civil penalties
in the following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse
with a minor less than two years younger than the adult is liable for
a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse
with a minor at least two years younger than the adult is liable for
a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse
with a minor at least three years younger than the adult is liable
for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor under 16 years of age is
liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).
(2) The district attorney may bring actions to recover civil
penalties pursuant to this subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action
shall be deposited with the treasurer of the county in which the
judgment was entered, and the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which is hereby created in the
State Treasury. Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the purpose of preventing
underage pregnancy upon appropriation by the Legislature.
(3) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
SEC. 2. Section 647.6 of the Penal Code is amended to read:
647.6. (a) (1) Every person who annoys or molests any child under
18 years of age shall be punished by a fine not exceeding five
thousand dollars ($5,000), by imprisonment in a county jail not
exceeding one year, or by both the fine and imprisonment.
(2) Every person who, motivated by an unnatural or abnormal sexual
interest in children, engages in conduct with an adult whom he or
she believes to be a child under 18 years of age, which conduct, if
directed toward a child under 18 years of age, would be a violation
of this section, shall be punished by a fine not exceeding five
thousand dollars ($5,000), by imprisonment in a county jail for up to
one year, or by both that fine and imprisonment.
(b) Every person who violates this section after having entered,
without consent, an inhabited dwelling house, or trailer coach as
defined in Section 635 of the Vehicle Code, or the inhabited portion
of any other building, shall be punished by imprisonment in the state
prison, or in a county jail not exceeding one year, and by a fine
not exceeding five thousand dollars ($5,000).
(c) (1) Every person who violates this section shall be punished
upon the second and each subsequent conviction by imprisonment in the
state prison.
(2) Every person who violates this section after a previous felony
conviction under Section 261, 264.1, 269, 285, 286, 288a, 288.5, or
289, any of which involved a minor under 16 years of age, or a
previous felony conviction under this section, a conviction under
Section 288, or a felony conviction under Section 311.4 involving a
minor under 14 years of age shall be punished by imprisonment in the
state prison for two, four, or six years.
(d) A person who violates this section with respect to a minor
under 16 years of age over whom the person holds a position of
authority shall be punished by an additional term of imprisonment for
two, four, or six years beyond any term otherwise applicable under
this Section.
(1) For purposes of this subdivision, a person is in a "position
of authority" if he or she, by reason of that position, is able to
exercise undue influence over a minor. A "position of authority"
includes, but is not limited to, a parent, stepparent, foster parent,
relative, partner of the parent or relative, caretaker, youth
leader, recreational director, athletic manager, coach, teacher,
counselor, therapist, religious leader, doctor, employee of one of
those aforementioned persons, or coworker.
(2) For purposes of this subdivision, "undue influence" has the
same meaning as that term is defined in Section 15610.70 of the
Welfare and Institutions Code.
(d)
(e) (1) In any case in which a person is convicted of
violating this section and probation is granted, the court shall
require counseling as a condition of probation, unless the court
makes a written statement in the court record, that counseling would
be inappropriate or ineffective.
(2) In any case in which a person is convicted of violating this
section, and as a condition of probation, the court prohibits the
defendant from having contact with the victim, the court order
prohibiting contact shall not be modified except upon the request of
the victim and a finding by the court that the modification is in the
best interest of the victim. As used in this paragraph, "contact
with the victim" includes all physical contact, being in the presence
of the victim, communication by any means, any communication by a
third party acting on behalf of the defendant, and any gifts.
(e) Nothing in this section prohibits
(f) This section does not prohibit
prosecution under any other provision of law.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.