BILL ANALYSIS Ó
AB 2199
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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,
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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).)
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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Opposition
American Civil Liberties Union
Legal Services for Prisoners with Children
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744