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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