BILL ANALYSIS                                                                                                                                                                                                    Ó






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                         SB 14|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   THIRD READING 


          Bill No:  SB 14
          Author:   Lara (D), et al.
          Amended:  4/14/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  6-0, 4/7/15
           AYES:  Jackson, Vidak, Anderson, Hertzberg, Leno, Monning
           NO VOTE RECORDED:  Wieckowski

           SUBJECT:   Sexual battery:  consent defense:  minors sexual  
                     conduct


          SOURCE:    Author


          DIGEST:  This bill prohibits 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 prohibits the use  
          of any evidence of the minor's sexual conduct with the adult  
          perpetrator, except in limited circumstances.


          ANALYSIS:   


          Existing law: 


           1) 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  








                                                                      SB 14  
                                                                    Page  2


             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  
                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.  


           1) Provides that a person who consents to an act is not wronged  
             by it. 


           2) Provides that the rights of personal relations forbid the  
             seduction of a person under the age of legal consent. 


           3) Provides that there is no cause of action for "seduction of  
             a person over age of legal consent." 


           4) 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 the rights and  







                                                                      SB 14  
                                                                    Page  3


             remedies provided in these provisions are in addition to any  
             other rights and remedies provided by law.


           5) Provides that, except as otherwise provided by statute, all  
             relevant evidence is admissible. 


           6) 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.


           7) 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.  


           8) 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, as specified,  
             the following procedures shall be followed:


                   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.


                   The written motion must be accompanied by an affidavit  
                in which the offer of proof shall be stated.


                   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  







                                                                      SB 14  
                                                                    Page  4


                questioning of the plaintiff regarding the offer of proof  
                made by the defendant.


                   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 existing  
                law above (because the probability of undue prejudice  
                would outweigh the probative value of the evidence), 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.  


           1) Renders certain types of evidence inadmissible under  
             specified circumstances. In any civil action alleging conduct  
             which constitutes sexual harassment, sexual assault, or  
             sexual battery, existing law 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.  


           2) 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 outlined under specified law.


          This bill: 


           1) Provides that notwithstanding the existing provision that a  
             person who consents to an act is not wronged by it, 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.  








                                                                      SB 14  
                                                                    Page  5



           2) Provides that, for these purposes, an adult 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 provides that 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, youth leader, recreational  
             director, athletic manager, coach, teacher, counselor,  
             therapist, religious leader, doctor, employee of one of these  
             aforementioned persons, or coworker. 


           3) Defines "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.  


           4) Provides that notwithstanding the provision of existing law  
             that permits the use of 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, 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.  


           5) Provides 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. 


          Background


          California civil law generally provides that no one can be  







                                                                      SB 14  
                                                                    Page  6


          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  
          Code Section 261.5 (which generally makes it a crime for a  
          person over 18 to have intercourse with a person under 18.   
          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)  
           
                                                                    Page  7


          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.  This bill allows  
          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.


          Comments


          The author writes: 


            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.  


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified4/14/15)


          California Communities United Institute 
          Crime Victims United of California
          Junior League of Long Beach







                                                                      SB 14  
                                                                    Page  8


          Planned Parenthood Affiliates of California
          Approximately 50 individuals


          OPPOSITION:   (Verified4/14/15)


          None received







          Prepared by:Ronak Daylami / JUD. / (916) 651-4113
          4/15/15 16:29:11


                                   ****  END  ****