California Legislature—2015–16 Regular Session

Assembly Bill No. 2599

Introduced by Assembly Member Gipson

February 19, 2016

An act to amend Sections 261 and 262 of the Penal Code, relating to rape.

LEGISLATIVE COUNSEL’S DIGEST

AB 2599, as introduced, Gipson. Rape: consent.

Under existing law, rape is an act of sexual intercourse accomplished under certain circumstances, including, among others, circumstances in which sexual intercourse is accomplished where the person was prevented from resisting because of intoxication or where the person is incapable of resisting because the victim was unconscious of the nature of the act.

This bill would instead provide that rape is accomplished where the person was incapable of giving consent because of intoxication or where the person is incapable of giving consent because the victim was unconscious of the nature of the act. By changing the definition of a crime, this bill would impose a state-mandated local program.

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 of the Penal Code is amended to
read:

261.  

(a) Rape is an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator, under any of the
following circumstances:

(1) Where a person is incapable, because of a mental disorder
or developmental or physical disability, of giving legal consent,
and this is known or reasonably should be known to the person
committing the act. Notwithstanding the existence of a
conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving consent.

(2) Where it 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.

(3) Where a person is begin delete prevented from resisting end delete begin insert incapable of
giving consent end insert by any intoxicating or anesthetic substance, or any
controlled substance, and this condition was known, or reasonably
should have been known by the accused.

(4) Where a person is at the time unconscious of the nature of
the act, and this is known to the accused. As used in this paragraph,
“unconscious of the nature of the act” means incapable of begin delete resisting end delete
begin insert giving consent end insert because the victim meets any one of the following
conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the
act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

(D) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.

(5) Where a person submits under the belief that the person
committing the act is someone known to the victim other than the
accused, and this belief is induced by any artifice, pretense, or
concealment practiced by the accused, with intent to induce the
belief.

(6) Where the act is accomplished against the victim’s will by
threatening to retaliate in the future against the victim or any other
person, and there is a reasonable possibility that the perpetrator
will execute the threat. As used in this paragraph, “threatening to
retaliate” means a threat to kidnap or falsely imprison, or to inflict
extreme pain, serious bodily injury, or death.

(7) Where the act is accomplished against the victim’s will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, “public official” means a person employed by
a governmental agency who has the authority, as part of that
position, to incarcerate, arrest, or deport another. The perpetrator
does not actually have to be a public official.

(b) As used in this section, “duress” means a direct or implied
threat of force, violence, danger, or retribution sufficient to coerce
a reasonable person of ordinary susceptibilities to perform an act
which otherwise would not have been performed, or acquiesce in
an act to which one otherwise would not have submitted. The total
circumstances, including the age of the victim, and his or her
relationship to the defendant, are factors to consider in appraising
the existence of duress.

(c) As used in this section, “menace” means any threat,
declaration, or act which shows an intention to inflict an injury
upon another.

SEC. 2.  

Section 262 of the Penal Code is amended to read:

262.  

(a) Rape of a person who is the spouse of the perpetrator
is an act of sexual intercourse accomplished under any of the
following circumstances:

(1) Where it 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.

(2) Where a person is begin delete prevented from resisting end delete begin insert incapable of
giving consent end insert by any intoxicating or anesthetic substance, or any
controlled substance, and this condition was known, or reasonably
should have been known, by the accused.

(3) Where a person is at the time unconscious of the nature of
the act, and this is known to the accused. As used in this paragraph,
“unconscious of the nature of the act” means incapable of begin delete resisting end delete
begin insert giving consent end insert because the victim meets one of the following
conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the
act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

(4) Where the act is accomplished against the victim’s will by
threatening to retaliate in the future against the victim or any other
person, and there is a reasonable possibility that the perpetrator
will execute the threat. As used in this paragraph, “threatening to
retaliate” means a threat to kidnap or falsely imprison, or to inflict
extreme pain, serious bodily injury, or death.

(5) Where the act is accomplished against the victim’s will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, “public official” means a person employed by
a governmental agency who has the authority, as part of that
position, to incarcerate, arrest, or deport another. The perpetrator
does not actually have to be a public official.

(b) As used in this section, “duress” means a direct or implied
threat of force, violence, danger, or retribution sufficient to coerce
a reasonable person of ordinary susceptibilities to perform an act
which otherwise would not have been performed, or acquiesce in
an act to which one otherwise would not have submitted. The total
circumstances, including the age of the victim, and his or her
relationship to the defendant, are factors to consider in apprising
the existence of duress.

(c) As used in this section, “menace” means any threat,
declaration, or act that shows an intention to inflict an injury upon
another.

(d) If probation is granted upon conviction of a violation of this
section, the conditions of probation may include, in lieu of a fine,
one or both of the following requirements:

(1) That the defendant make payments to a battered women’s
shelter, up to a maximum of one thousand dollars ($1,000).

(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds
are the direct result of the defendant’s offense.

For any order to pay a fine, make payments to a battered
women’s shelter, or pay restitution as a condition of probation
under this subdivision, the court shall make a determination of the
defendant’s ability to pay. In no event shall any order to make
payments to a battered women’s shelter be made if it would impair
the ability of the defendant to pay direct restitution to the victim
or court-ordered child support. Where the injury to a married person
is caused in whole or in part by the criminal acts of his or her
spouse in violation of this section, the community property may
not be used to discharge the liability of the offending spouse for
restitution to the injured spouse, required by Section 1203.04, as
operative on or before August 2, 1995, or Section 1202.4, or to a
shelter for costs with regard to the injured spouse and dependents,
required by this section, until all separate property of the offending
spouse is exhausted.

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.