BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 14 (Lara)
          Version: March 16, 2015
          Hearing Date:  April 7, 2015
          Fiscal: No
          Urgency: No
          RD   
                    

                                        SUBJECT
                                           
              Sexual battery:  consent defense:  minors, sexual conduct

                                      DESCRIPTION  

          This bill would prohibit the use of consent as a defense in any  
          sexual battery civil action involving a minor victim where the  
          person committing the sexual battery is an adult who is in a  
          position of authority, as defined. This bill would prohibit the  
          use of any evidence of the minor's sexual conduct with the adult  
          perpetrator, except in limited circumstances. 

           BACKGROUND
           
          California civil law generally provides that no one can be  
          wronged by an act where he or she has consented to that act  
          causing the injury or loss.  (See Civ. Code Sec. 3515; in a  
          legal sense, the word "consent" means capable, deliberate, and  
          voluntary assent or agreement to, or concurrence in, some act or  
          purpose, implying physical and mutual power and free action.  
          Heine v. Wright (1926) 76 Cal.App. 338, 343.)  

          As a matter of criminal law, in cases involving allegations of  
          unlawful sexual intercourse, consent does not operate to  
          preclude a criminal violation because bright lines are drawn  
          based on the age of the individuals.  Instead the relevant  
          question is the "age of consent."  If a person over the age of  
          consent has sexual intercourse with a person under the age of  
          consent, the older person may be prosecuted for statutory rape  
          regardless of whether the younger person consented to the act.   
          In a criminal case, the age of consent is 18, pursuant to Penal  








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          Code Section 261.5 (which generally makes it a crime for a  
          person over 18 to have intercourse with a person under eighteen.  
           Depending on the age of the victim and the perpetrator, or  
          their age difference, the penalty varies). 

          Last November, various news outlets reported that in a civil  
          case filed by a 14-year old student against the Los Angeles  
          County Unified School District (LAUSD) seeking compensation for  
          emotional trauma suffered as a result of sexual acts committed  
          against her by her middle school teacher (who was convicted on  
          criminal charges of lewd acts against a child and sentenced to  
          three years in prison in 2011), the LAUSD argued in defense that  
          the student was mature enough to consent to sex with her  
          teacher. (See e.g. Watanabe, L.A. Unified Says Girl, 14, Could  
          Consent to Sex With Teacher, Los Angeles Times (Nov. 13, 2014)  
           [as of Mar. 26, 2015].)

          While the lawyer who made the argument was subsequently removed  
          from the case and LAUSD ultimately prevailed in the case on  
          separate (non-consent related) grounds, at least three bills  
          were introduced earlier this session to attempt to address the  
          situation, of which this bill is one. 

          Accordingly, this bill seeks to remove any doubt as to whether a  
          minor can consent to sex with an adult in a position of  
          authority over the minor, as specified.  It also seeks to  
          prohibit any prejudice to the minor by introduction of evidence  
          relating to the minor's sexual history for the specific purpose  
          of proving consent or an absence of injury.  The bill would  
          allow the introduction of such evidence only upon a hearing of  
          the court out of the presence of the jury in a manner consistent  
          with existing law, for the limited purposes of attacking the  
          credibility of the plaintiff minor or to prove something other  
          than consent, as specified. 

           CHANGES TO EXISTING LAW
           
          1.   Existing criminal law  provides 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 under 18 years of age. Existing law provides  
            that:
                 any person who engages in an act of unlawful sexual  
               intercourse with a minor who is not more than three years  







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               older or three years younger than the perpetrator, is  
               guilty of a misdemeanor;
                 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 as specified; and 
                 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, as  
               specified, for two, three, or four years.  (Pen. Code Sec.  
               261.5(a)-(c).)

             Existing civil law  provides that a person who consents to an  
            act is not wronged by it. (Civ. Code Sec. 3515.)

             Existing civil law  provides that the rights of personal  
            relations forbid the seduction of a person under the age of  
            legal consent. (Civ. Code Sec. 49; see also Section 43 for  
            rights of personal relations.)  

             Existing civil law  provides that there is no cause of action  
            for "seduction of a person over age of legal consent." (Civ.  
            Code Sec. 43.5.)

             Existing civil law  enumerates specified acts that constitute a  
            sexual battery and provides that a person who commits a sexual  
            battery upon another is liable to that person for specified  
            damages. Existing law also authorizes courts in such actions  
            to award equitable relief, including, but not limited to, an  
            injunction, costs, and any other relief the court deems  
            proper. Existing law also provides that those rights and  
            remedies provided in this section are in addition to any other  
            rights and remedies provided by law. (Civ. Code. Sec.  
            1708.5(a)-(c), (e).)

             This bill  would provide that notwithstanding Section 3515  
            above, consent shall not be a defense in a sexual battery  
            civil action, as specified, if the person who commits the  
            sexual battery is an adult who is in a position of authority  
            over the minor.  








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             This bill  would provide that, for these purposes, 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.  
            This bill would further define position of authority for these  
            purposes to include, but not be 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 these aforementioned persons,  
            or adult coworker. 
             
            This bill  would define "undue influence" to have the same  
            meaning as provided under the Welfare and Institutions Code,  
            which defines the term to mean excessive persuasion that  
            causes another person to act or refrain from acting by  
            overcoming that person's free will and results in inequity.   
            (See Welf. & Inst. Code Sec. 15610.70.  That section further  
            requires certain factors, including the vulnerability of the  
            victim and the influencer's apparent authority, as specified,  
            to be considered in making this determination.)

          2.    Existing law  provides that, except as otherwise provided by  
            statute, all relevant evidence is admissible.  (Evid. Code  
            Sec. 351.) 

             Existing law  authorizes a court, in its discretion, to exclude  
            evidence if its probative value is substantially outweighed by  
            the probability that its admission will (a) necessitate undue  
            consumption of time or (b) create substantial danger of undue  
            prejudice, of confusing the issues, or of misleading the jury.  
            (Evid. Code Sec. 352.)

             Existing law  generally allows the court or jury to consider  
            various types of evidence, such as prior inconsistent  
            statements, in determining the credibility of a witness any  
            matter that has any tendency in reason to prove or disprove  
            the truthfulness of the witness's testimony at the hearing.   
            (Evid. Code Sec. 780.)


             Existing law  provides that in any civil action alleging  
            conduct which constitutes sexual harassment, sexual assault,  
            or sexual battery, if evidence of sexual conduct of the  
            plaintiff is offered to attack credibility of the plaintiff,  







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            as specified, the following procedures shall be followed:
             (1)  The defendant must provide a written motion to the court  
               and the plaintiff's attorney stating that the defense has  
               an offer of proof of the relevancy of evidence of the  
               sexual conduct of the plaintiff proposed to be presented.
             (2)  The written motion must be accompanied by an affidavit  
               in which the offer of proof shall be stated.
             (3)  If the court finds that the offer of proof is  
               sufficient, the court must order a hearing out of the  
               presence of the jury, if any, and at the hearing allow the  
               questioning of the plaintiff regarding the offer of proof  
               made by the defendant.
             (4)  At the conclusion of the hearing, if the court finds  
               that evidence proposed to be offered by the defendant  
               regarding the sexual conduct of the plaintiff is relevant,  
               as specified, and is not inadmissible pursuant to Section  
               352 above, the court may make an order stating what  
               evidence may be introduced by the defendant, and the nature  
               of the questions to be permitted. The defendant may then  
               offer evidence pursuant to the order of the court.  (Evid.  
               Code Sec. 783.)

             Existing law  renders certain types of evidence inadmissible  
            under specified circumstances. (Evid. Code Secs. 1100-1109.)  
            Existing law, in any civil action alleging conduct which  
            constitutes sexual harassment, sexual assault, or sexual  
            battery, generally renders opinion evidence, reputation  
            evidence, and evidence of specific instances of plaintiff's  
            sexual conduct, or any of such evidence, inadmissible by the  
            defendant in order to prove consent by the plaintiff or the  
            absence of injury to the plaintiff.  (Evid. Code Sec.  
            1106(a).)

             Existing law  provides that the above general prohibition is  
            not applicable to evidence of the plaintiff's sexual conduct  
            with the alleged perpetrator.  Existing law also provides that  
            this exception does not make inadmissible any evidence offered  
            to attack the credibility of the plaintiff pursuant to the  
            procedures specified in Section 783, above.  (Evid. Code Sec.  
            1106(b), (d).) 

             This bill  would provide that notwithstanding the exception  
            above for evidence of the plaintiff's sexual conduct with the  
            alleged perpetrator, in any civil action arising out of sexual  
            battery involving a minor and adult in position of authority,  







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            as specified, 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.  
             This bill  would provide that such evidence of the plaintiff's  
            sexual conduct may only be introduced to attack the  
            credibility of the plaintiff in accordance with existing law  
            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  
            existing law. 

           COMMENT
           
          1.   Stated need for the bill
           
          According to the author: 

            Currently, the protections that exist in the civil and penal  
            code regarding consent are different.  Civil code currently  
            allows defendants to argue minors consented to sexual activity  
            with an adult to avoid liability.  Additionally, the law  
            allows defendants to use minor's sexual history as evidence  
            against the minor. 

            SB 14 ensures that consent may not be used as a defense in a  
            sexual battery case if the person is an adult in a position of  
            authority and [the] victim is a minor. The bill also prohibits  
            defendants from using a minor's sexual history as evidence of  
            the minor's consent or absence of injury.  

          2.   Bill narrowly limits the ability of a minor to grant civil  
          consent in specific instances
           
          This bill would prevent the defense of consent in a civil case  
          involving sexual battery where the plaintiff is a minor and the  
          defendant is an adult in a position of authority. For these  
          purposes, an adult would be deemed to be in a "position of  
          authority" if by reason of that position, he or she is able to  
          exercise undue influence over a minor, as defined under existing  
          law. The bill would include a non-exhaustive list of persons in  
          a "position of authority," including, for example, a natural  
          parent, relative, caretaker, adult coach, teacher, therapist,  
          religious leader, doctor, or adult coworker. 







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          As noted in the Background, this bill arose in part due to a  
          recent situation in Los Angeles where, in a civil lawsuit  
          arising out of harms suffered as a result of sexual acts against  
          a 14-year old student, the lawyer for the Los Angeles Unified  
          School District (LAUSD) provided a defense that included an  
          argument that the minor plaintiff consented to the sexual acts  
          which ultimately lead to the criminal conviction of her teacher  
          for lewd acts against a child. 

          While the LAUSD case was not decided on grounds of consent by  
          the minor, the author provides an example to the Committee that  
          shows, as recently as 2009, a California federal district court  
          ruled that persons under eighteen may legally consent to sex  
          with an adult.  Specifically, in the case of Doe v. Starbucks  
          (2009) 2009 U.S. Dist. LEXIS 118878, a civil lawsuit involving a  
          16-year old and 24-year old, the parties disputed whether  
          persons under 18 in California can legally consent. The U.S.  
          District Court for the Central District of California agreed  
          with the defendants that they can.  (See id. at 18.)  The court,  
          relying on the California Supreme Court case of People v. Tobias  
          (2001) 25 Cal.4th 327, 333-334, found that the California  
          Legislature implicitly acknowledged that "in some cases at  
          least, a minor may be capable of giving legal consent to sexual  
          relations," by creating a separate statute for what constitutes  
          unlawful sexual intercourse with a minor in Section 261.5 of the  
          Penal Code and amending the rape statute (Section 261 of the  
          Penal Code) to no longer include sex with a minor in the  
          definition of rape. (Starbucks, 2009 U.S. Dist. LEXIS at 18-19,  
          quoting Tobias.)  The Starbucks court added that, "[w]hile  
          Tobias was a criminal case, the rule that 'a minor may be  
          capable of giving legal consent to sexual relations' has been  
          extended to non-criminal cases."  (Id. at 19 [internal citation  
          omitted].)  

          Notably, as described above, this bill would only apply to  
          sexual battery civil actions involving an adult who is in a  
          position of authority over the plaintiff minor.  Accordingly,  
          the bill would likely not have any impact in situations such as  
          those involving a 17-year old minor plaintiff and 18-year old  
          adult defendant who began dating as minors. It would also  
          effectively avoid any unintended inferences or consequences with  
          respect to the ability of minors to provide consent for other  
          purposes, such as medical care.  Again, it is narrowly drafted  
          to specifically apply to situations, such as that seen in the  







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          LAUSD case referenced in the Background, where a minor is preyed  
          upon by a person who, by nature of his or her position as well  
          as age, can exert undue influence over the minor.

          3.   Exclusion of evidence of minor's sexual history with alleged  
            perpetrator  

          To avoid any harm from the introduction of sexual history  
          evidence that could potentially bias the jury against the minor,  
          the bill would also amend the Evidence Code to generally exclude  
          evidence as to a minor's sexual history with the alleged  
          perpetrator to prove consent or the absence of injury. 

          Generally, public policy disfavors the exclusion of relevant  
          evidence at trial and, accordingly, the Evidence Code begins  
          with a general presumption that all relevant evidence is  
          admissible.  (See Evid. Code Sec. 351.)  A judge may, however,  
          exclude otherwise relevant evidence based upon the undue  
          prejudice that the evidence would pose to the party against whom  
          it is sought to be introduced.  Specifically, Section 352  
          authorizes a court, in its discretion, to exclude evidence if  
          its probative value is substantially outweighed by the  
          probability that its admission will (a) necessitate undue  
          consumption of time or (b) create substantial danger of undue  
          prejudice, of confusing the issues, or of misleading the jury.  
          The Evidence Code also reflects certain situations wherein in  
          the Legislature has determined that policy dictates that various  
          types of evidence be made inadmissible as a matter of law. (See  
          Evid. Code Sec. 1100 et seq.)  

          Most relevant to this bill is Section 1106 of the Evidence Code,  
          which operates to generally bar the admission of opinion  
          evidence, reputation evidence, and evidence of specific  
          instances of plaintiff's sexual conduct, by the defendant to  
          prove consent by the plaintiff or the absence of injury to the  
          plaintiff in civil actions alleging sexual harassment, sexual  
          assault, or sexual battery. There is, however, an exception to  
          that general prohibition where the evidence relates to the  
          plaintiff's sexual conduct with the alleged perpetrator.  
          Additionally, defendants are permitted to cross-examine any  
          witnesses and offer relevant evidence specifically to rebut  
          evidence introduced by the plaintiff or given by the plaintiff,  
          where the plaintiff has introduced evidence relating to his or  
          her own sexual conduct.  Lastly, the exception does not affect  
          the admissibility of any evidence offered to attack the  







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          credibility of the plaintiff pursuant to specified procedures.   
          (Evid. Code Sec. 1106.)  Those procedures outline, among other  
          things, that the defendant must first provide a written motion  
          to the court and the plaintiff's attorney stating it has an  
          offer of proof of the relevancy of evidence of sexual conduct of  
          the plaintiff proposed to be presented and then, if it finds the  
          offer of proof to be sufficient, the court must hold a hearing  
          outside of the presence of the jury to allow questioning of the  
          plaintiff regarding the offer of proof. Only at the conclusion  
          of that hearing, if the court finds that evidence proposed to be  
          offered by the defendant regarding the sexual conduct of the  
          plaintiff is relevant, as specified, and is not rendered  
          inadmissible pursuant to the court's analysis of the probative  
          value and potential prejudice, the court may make an order  
          stating what evidence may be introduced by the defendant, and  
          the nature of the questions to be permitted.  (See Evid. Code  
          Sec. 352, 780, and 783.)

          Accordingly, this bill would amend Section 1106 to also specify  
          that in any civil action arising out of sexual battery involving  
          a minor and adult in position of authority, as specified,  
          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.  Building  
          upon existing Evidence Code rules, the bill would only allow the  
          introduction of evidence of the plaintiff's sexual conduct to  
          either: (1) attack the credibility of the plaintiff in  
          accordance with existing law; or (2) prove something other than  
          consent by the plaintiff. Even then, the bill only would allow  
          the admission of the evidence, 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 existing law. 

          Arguably, in doing so, the bill strikes an appropriate balance  
          between the public policies in favor of putting forth all  
          relevant evidence before judges and juries, and in favor of  
          preventing undue prejudice to a party-particularly where that  
          party is a minor incapable of giving legal consent to sexual  
          acts with an adult who is in a position of authority. 



          4.   Author's technical amendments
                







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          Given that the bill applies only in situations where the person  
          who commits the sexual battery "is an adult who is in a position  
          of authority over the minor," the following amendments would  
          make clear that all of the enumerated examples of "position of  
          authority" apply only where the person in that position is an  
          adult.
            
             Author amendments  : 

            On page 3, line 10, strike out "a person" and insert "an  
            adult"

            On page 3, line 15, strike "adult" before "youth leader,"  
            after "recreational director," and at the end of the line. 

            On page 3, line 16, strike "adult" before "coach"

            On page 3, line 17, strike "adult" before "employee"

            On page 3, line 18, strike "adult" before "coworker"


           Support  :  California Communities United Institute; Crime Victims  
          United of California; Junior League of Long Beach; Planned  
          Parenthood Affiliates of California; approximately 50  
          individuals

           Opposition  :  None Known

           HISTORY
           
           Source  :  Author 

           Related Pending Legislation  :  AB 29 (Campos, 2015) would provide  
          that notwithstanding existing law, in any civil action involving  
          sexual intercourse between an adult and a minor, it shall not be  
          a defense that the minor consented to the sexual intercourse.  
          This bill was heard by the Assembly Judiciary Committee and  
          passed with amendments on a 10-0 vote. 

          SB 30 (Gaines, 2015), as introduced, would have defined  
          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. That bill was  
                               subsequently gutted and amended and has been withdrawn from this  







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          Committee as a result.

           Prior Legislation  :  None Known 

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