Amended in Senate March 16, 2015

Senate Bill No. 14

Introduced by Senator Lara

(Coauthors: Senators Anderson begin delete and end delete begin insert , Mitchell, and end insert Vidak)

( begin delete Coauthor: end delete begin insert Coauthors: end insert Assembly begin delete Member end delete begin insert Members Chá end insert begin insert vez, Cooper, Gonzalez, Lopez, Maienschein, Olsen, Rodriguez, end insert Mark Stone begin insert , and Steinorth end insert )

December 1, 2014

An act to add Section 1708.5.5 to the Civil Code, and to amend Section 1106 of the Evidence Code, relating to civil actions.

LEGISLATIVE COUNSEL’S DIGEST

SB 14, as amended, Lara. begin delete Nonconsensual sexual intercourse: sexual history: minors. end delete begin insert Sexual battery: consent defense: minors, sexual conduct. end insert

begin delete

Under existing criminal law, 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 under 18 years of age. Existing

end delete

begin insert Existing end insert civil law makes a person who commits a sexual battery, as defined, upon another liable to that person for damages and authorizes a court to award equitable relief, as specified. begin insert Existing civil law provides that he or she who consents to an act is not wronged by it. end insert

This bill begin delete would, under civil law, define nonconsensual sexual intercourse as an act of sexual intercourse between an adult and a person who is not the spouse of the adult, if the person is under 18 years of age. end delete begin insert would prohibit consent from being a defense in any sexual battery civil action if the person committing the sexual battery is a specified adult who is in a position of authority and is able to exercise undue influence, as defined, over the minor. end insert

Under existing law, in any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of plaintiff’s sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff. begin delete Under existing case law, the elements of a civil cause of action for negligence are the existence of a duty (the obligation to other persons to conform to a standard of care to avoid unreasonable risk of harm to them); breach of that duty (conduct below the standard of care); causation (between the defendant’s act or omission and the plaintiff’s injuries); and damages. end delete begin insert Existing law requires specified procedures to be followed in any civil action alleging conduct constituting sexual harassment, sexual assault, or sexual battery if evidence of sexual conduct of the plaintiff is offered to attack the credibility of the plaintiff, as specified. Existing law authorizes the court in its discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will either necessitate undue consumption of time or create substantial danger of undue prejudice, confusing the issues, or misleading the jury. end insert

This bill begin delete would, in any negligence civil action, prohibit the admissibility of any evidence of a minor plaintiff’s sexual history by the defendant in order to prove consent by the minor plaintiff. end delete begin insert would, in any sexual battery civil action involving a minor and an adult who is in a position of authority as described above, prohibit evidence of the plaintiff minor’s sexual conduct with the defendant adult from being admissible to prove consent by the plaintiff or the absence of injury to the plaintiff. The bill would authorize such evidence of the plaintiff’s sexual conduct to be introduced only to attack the credibility of the plaintiff or to prove something other than consent by the plaintiff if, upon a hearing of the court out of the presence of the jury, the defendant proves that the probative value of that evidence outweighs the prejudice to the plaintiff, as specified. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1708.5.5 is added to the Civil Code, to
read:

begin delete

1708.5.5.  

Nonconsensual sexual intercourse is an act of sexual
intercourse between an adult and a person who is not the spouse
of the adult, if the person is a minor. For purposes of this section,
a “minor” is a person who is under 18 years of age and an “adult”
is a person who is at least 18 years of age.

end delete

begin insert

begin insert 1708.5.5. end insert   

end insert begin insert

(a) Notwithstanding Section 3515, consent shall not
be a defense in any civil action under Section 1708.5 if the person
who commits the sexual battery is an adult who is in a position of
authority over the minor.

end insert begin insert

(b) For purposes of this section, 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 natural parent, step-parent, foster
parent, relative, partner of any such parent or relative, caretaker,
adult youth leader, recreational director who is an adult, adult
athletic manager, adult coach, teacher, counselor, therapist,
religious leader, doctor, adult employee of one of those
aforementioned persons, or adult coworker.

end insert begin insert

(c) For purposes of this section “undue influence” has the same
meaning as in Section 15610.70 of the Welfare and Institutions
Code.

end insert

SEC. 2.  

Section 1106 of the Evidence Code is amended to read:

1106.  

(a)  begin delete (1) end delete begin delete   end delete In any civil action alleging conduct which
constitutes sexual harassment, sexual assault, or sexual battery,
opinion evidence, reputation evidence, and evidence of specific
instances of plaintiff’s sexual conduct, or any of that evidence, is
not admissible by the defendant in order to prove consent by the
plaintiff or the absence of injury to the plaintiff, unless the injury
alleged by the plaintiff is in the nature of loss of consortium.

begin delete

(2) Notwithstanding any other law, in any negligence civil
action, no evidence of a minor plaintiff’s sexual history is
admissible by the defendant in order to prove consent by the
plaintiff. For purposes of this paragraph, a “minor” is a person
who is under 18 years of age.

end delete

(b)  begin delete Paragraph (1) of subdivision end delete begin insert Subdivision end insert (a) shall not be
applicable to evidence of the plaintiff’s sexual conduct with the
alleged perpetrator.

begin insert

(c) Notwithstanding subdivision (b), in any civil action brought
pursuant to Section 1708.5 of the Civil Code involving a minor
and adult as described in Section 1708.5.5 of the Civil Code,
evidence of the plaintiff minor’s sexual conduct with the defendant
adult shall not be admissible to prove consent by the plaintiff or
the absence of injury to the plaintiff. Such evidence of the plaintiff’s
sexual conduct may only be introduced to attack the credibility of
the plaintiff in accordance with Section 783 or to prove something
other than consent by the plaintiff if, upon a hearing of the court
out of the presence of the jury, the defendant proves that the
probative value of that evidence outweighs the prejudice to the
plaintiff consistent with Section 352.

end insert begin delete

(c)

end delete

begin insert (d) end insert   If the plaintiff introduces evidence, including testimony of
a witness, or the plaintiff as a witness gives testimony, and the
evidence or testimony relates to the plaintiff’s sexual conduct, the
defendant may cross-examine the witness who gives the testimony
and offer relevant evidence limited specifically to the rebuttal of
the evidence introduced by the plaintiff or given by the plaintiff.

begin delete

(d) Except as provided in paragraph (2), nothing

end delete

begin insert (e) end insert begin insert   end insert begin insert Nothing end insert in this section shall be construed to make
inadmissible any evidence offered to attack the credibility of the
plaintiff as provided in Section 783.