BILL ANALYSIS Ó AB 2199 Page A Date of Hearing: April 19, 2016 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 2199 (Campos) - As Amended April 7, 2016 As Proposed to be Amended in Committee SUMMARY: Specifies that persons who commit specified sex offenses involving minors shall be subject to an additional two-year sentence enhancement if the offender is a person in a "position of authority" over the victim, as specified. Specifically, this bill: 1)Defines an offender in a "position of authority" over a victim as "a person, 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 stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of the aforementioned persons. 2)Provides that any person who is found guilty of felony statutory rape (when the adult is 21 years of age or older, AB 2199 Page B and the minor is under 16 years of age) who holds a "position of authority" over the minor is subject to an additional term of two-years. 3)Provides that any person who is found guilty of the following acts who holds a "position of authority" over the victim is subject to an additional term of two-years in state prison if convicted of the felony offense in lieu of the alternate misdemeanor offense (when the offenses are alternate felony/misdemeanor "wobblers"): a) Sexual penetration (when the adult is 21 years of age or older, and the minor is under 16 years of age) b) Sodomy (when the adult is 21 years of age or older, and the minor is under 16 years of age). c) Lewd acts (with a 14-15 year old when the adult is 10 years older or more). d) Oral copulation (when the adult is 21 years of age or older, and the minor is under 16 years of age). EXISTING LAW: 1)Specifies that "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. (Pen. Code, § 261.5, subd. (a).) AB 2199 Page C a) 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. (Pen. Code, § 261.5, subd. (b), emphasis added.) b) 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 for 16 months, two, or three years in the county jail for a violation of the felony provision. (Pen. Code, § 261.5, subd. (c), emphasis added.) c) 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 in county jail for two, three, or four years. (Pen. Code, § 261.5, subd. (d), emphasis added.) 2)Provides that any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes as provided, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (Pen. Code § 288, subd. (a).) Any person convicted shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim. The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved. As used in this subdivision, "bodily harm" means any substantial physical injury resulting from the use AB 2199 Page D of force that is more than the force necessary to commit the offense. (Pen. Code § 288 subd. (i).) a) States that any person who commits these acts by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years. (Pen. Code § 288, subd. (b)(1).) b) Provides that any person who is a caretaker and commits these acts upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years. (Pen. Code § 288, subd. (b)(2).) c) Provides that any person who commits a lewd or lascivious act with the intent described, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child. (Pen. Code § 288, subd. (c)(1).) d) States that any person who is a caretaker and a lewd or lascivious act with the intent described upon a dependent person, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. (Pen. Code § 288, subd. (c)(2).) FISCAL EFFECT: Unknown AB 2199 Page E COMMENTS: 1)Author's Statement: According to the author, "Statutory rape cases are often misconceived as a consensual relationship between an adult and a minor. The perpetrator often has great influence over his or victim; this is especially true when the offender is in a position of authority, particularly a coach or a teacher. And although the victims may deny harm, researchers argue that many of these youth often have delayed reactions and later come to realize the inherent power difference in the relationship. These situations can lead to negative effects for the victims. This includes an increased risk for unintended pregnancies, contraction of sexually transmitted infections, delinquency, and long-term psychological effects among adolescents. "People in a position of authority know their victims ages as well as their vulnerability. Therefore, when perpetrators are in a position of authority, they should be punished accordingly. AB 2199 would assist in this effort by providing prosecutors the discretion of a sentence enhancement for adults charged with felony statutory rape." 2)Existing Penalties for these Offenses: Under existing law "unlawful sexual intercourse" (also known as "statutory rape") and lewd and lascivious acts are both punished on a scale depending on the conduct of the perpetrator, and the respective ages of the defendant and the victim of the crime. The entire concept of making these non-forcible crimes illegal is that the minors involved do not have the capacity to consent to sexual acts. The purpose of these laws is to protect children from adults, who are by their age in a position of authority over the minors involved. The reason AB 2199 Page F that these crimes are punished as severely as they are under existing law is that these offenders are taking advantage of minors who are too young to make the decision to engage in sexual acts. This bill seeks to add a sentence enhancement for persons in a position of authority, but the underlying legislation and the prescribed punishments as they currently exist were created for that very reason. Additionally, there are a number of criminal offenses from forcible rape to simple sexual assault which carry a wide range of penalties from misdemeanor to life in state prison. For the specific sections this bill is seeking to add a sentence enhancement to, the following penalties apply: a) Non-forcible, unlawful sexual intercourse (between a defendant 21 years or older, and a victim under 16 years) is punishable as a misdemeanor (year in the county jail) or a felony carrying two, three, or four years in county jail. This bill would add an additional two years in county jail to any felony sentence if the defendant is in a position of authority over the victim. b) Sexual penetration (when the adult is 21 years of age or older, and the minor is under 16 years of age) is punishable as a felony carrying 16 months, two, or three years in state prison. This bill would add an additional two years in state prison if the defendant is in a position of authority over the victim. c) Sodomy (when the adult is 21 years of age or older, and the minor is under 16 years of age) is punishable as a felony carrying 16 months, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim. AB 2199 Page G d) Lewd acts (with a 14-15 year old when the adult is 10 years older or more) is punishable as a misdemeanor (year in the county jail) or a felony carrying one, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim. e) Oral copulation (when the adult is 21 years of age or older, and the minor is under 16 years of age) is punishable as a felony carrying 16 months, two, or three years in state prison. This bill would add an additional two years in state prison to any felony sentence if the defendant is in a position of authority over the victim. 3)On-Going Concerns for 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. In February of last 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 AB 2199 Page H 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). However, even though the state has complied with the federal court order, the prison population needs to be maintained, not increased. And according to the Legislative Analyst's Office (LAO), "CDCR is currently projecting that the prison population will increase by several thousand inmates in the next few years and will reach the cap by June 2018 and exceed it by 1,000 inmates by June 2019." ( http://www.lao.ca.gov/reports/2014/budget/criminal-justice/cri minal-justice-021914.aspx .) The LAO also notes that predicting the prison population is "inherently difficulty" and subject to "considerable uncertainty." (Ibid.) Nevertheless, creating a new exclusion for county jail sentences when the prison population is already expected to increase seems imprudent. This bill would add a two-year sentence enhancement to violations of Pen. Code § 288, which are served in state prison. These sentence enhancements are to be served after AB 2199 Page I the underlying criminal penalties which range from three years in state prison, to ten years in state prison. Additionally, if the victim sustains bodily harm during the commission of the offense, than the defendant can already receive a life sentence. 4)Criminal Penalty Increases: Over the last few years, Governor Brown has vetoed bills that create new crimes or particularize otherwise prohibited conduct. This bill would go much farther, by actually creating sentence enhancements which are served after the time prescribed by the underlying offense. Additionally, depending on the offense, some of these enhancements are intended to be served in the county jail, and others in state prison. Both our jails and prisons are currently overcrowded. Governor Brown said, in a blanket veto message sent October 3, 2015 which returned nine bills, "Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. "Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded. "Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective." 5)Argument in Support: According to the California Police Chiefs Association, "AB 2199 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 to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she AB 2199 Page J engaged in the act of unlawful sexual intercourse. "By strengthening our laws to protect children from those who would use their influence and authority for exploitive purposes, our judicial system will now have an added tool to combat these crimes." 6)Argument in Opposition: According to The American Civil Liberties Union, "The American Civil Liberties Union of California regrets to inform you of our opposition to AB 2199, a bill that provides additional sentence enhancements for individuals convicted of certain crimes involving minors if the accused person was "in a position of authority" as defined. In light of existing law regulating such conduct, the changes proposed by AB 2199 appear unnecessary and counterproductive. "While the intent of AB 2199 appears to be to provide greater protection for minors, research has shown that more severe sentences do not actually enhance public safety.<1> Studies have concluded that the severity of punishment does not generally have an increased effect on deterrence.<2> Rather, researchers have found that certainty of punishment - that someone will be punished for a particular crime - has a greater deterrent effect than the severity of the punishment itself.<3> "California law already provides significant punishments for -------------------------- <1> Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment (Sentencing Project 2010) available at http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf <2> Id. <3> Id. AB 2199 Page K the crimes listed in AB 2199. Under existing statutes, a person who is 21 years of age or older that has unlawful sexual intercourse with a person who is under age 16 can be punished with up to four years in custody. (Penal Code, §261.5(d).) If the conduct involves evidence of force, duress or coercion, then the offense is punished under other statutes with much lengthier sentences. Similarly, under existing law, a person who commits a lewd act on a minor under 14 years of age can be punished with up to eight years in state prison and more if duress, force or coercion are involved. (Penal Code, §288(a) and (b).) These punishments can be further enhanced by a myriad of existing sentence enhancements. "Indeed, Governor Brown has criticized our state's criminal laws, particularly the number of sentencing enhancements, observing, "[t]here are now 400 separate enhancements that can add up to 25 years, each one of them, and now you have over 5,000 separate criminal provisions."<4> As the Governor stated in his veto message of several bills last fall, "[t]his multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit."<5> "Additionally, now is not the time for California to be adding longer prison sentences to crimes, particularly when it is not clear that these longer sentences will have any greater deterrent effect. Corrections spending remains high; the -------------------------- <4> Scott Shafer, Prosecutors Cry Foul Over Jerry Brown's Ballot Measure, KQED, Feb. 12, 2016, available at http://ww2.kqed.org/news/2016/02/12/prosecutors-cry-foul-over-jer ry-browns-ballot-measure <5>Patrick McGreevy, With Strong Message Against Creating New Crimes, Gov. Brown Vetoes Drone Bills, LA Times, Oct. 3, 2015, available at http://www.latimes.com/politics/la-me-pc-gov-brown-vetoes-bills-r estricting-hobbyist-drones-at-fires-schools-prisons-20151003-stor y.html AB 2199 Page L Governor's proposed 2016-17 provides $11.2 billion for adult corrections and an additional $1.2 billion for other parts of the state corrections system.<6> Rather than enacting new, longer penalties, the Legislature should strive to simplify the state's complex Penal Code, unless longer sentences are truly necessary. While protecting minors from victimization is an extremely important objective, we believe that lengthening sentences for the offenses referenced in this bill will not accomplish that goal. For these reasons, we must oppose AB 2199." REGISTERED SUPPORT / OPPOSITION: Support California Police Chiefs Association Child Abuse Prevention Center Crime Victims United of California --------------------------- <6> Scott Graves, Corrections Spending Remains High Under Governor's Proposed Budget, Despite Big Drop in Correctional Populations (California Budget and Policy Center 2016) available at http://calbudgetcenter.org/wp-content/uploads/Corrections-Spendin g-Remains-High-Under-the-Governor%E2%80%99s-Proposed-Budget-Despi te-Big-Drop-in-Correctional-Populations.pdf AB 2199 Page M Opposition American Civil Liberties Union Legal Services for Prisoners with Children Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744