BILL ANALYSIS Ó
SB 14
Page 1
Date of Hearing: June 16, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB 14
(Lara) - As Amended April 14, 2015
SENATE VOTE: 38-0
SUBJECT: CIVIL ACTION FOR Sexual battery: consent defense
KEY ISSUE: IN ORDER TO BETTER PROTECT CHILD VICTIMS OF SEXUAL
ASSAULT, SHOULD CONSENT NOT BE A DEFENSE IN A CIVIL ACTION
INVOLVING SEXUAL BATTERY BETWEEN A MINOR AND AN ADULT WHO IS IN
A POSITION OF AUTHORITY OVER THE MINOR?
SYNOPSIS
This bill eliminates the defense of consent in an action
involving the sexual battery of a minor by an adult in a
position of authority over the minor. This bill arises out of a
disturbing case last year in which a court found against a
14-year-old Los Angeles Unified School District student who sued
the district for negligence after her 28-year old teacher
sexually assaulted her. According to news reports, the teacher
was sentenced to three years in prison, but, in the later civil
case against the school district, a jury found for the district,
in part, because the 14-year old had allegedly consented to the
sexual acts with her teacher. While criminal law is clear that
SB 14
Page 2
minors cannot consent to sexual acts, civil law is less clear
about when and how the defense of consent may be raised. This
bill clarifies that consent may not be raised as a defense in an
action involving the sexual battery of a minor by an adult who
is in a position of authority over the minor and prohibits the
use of evidence of the minor's sexual conduct with the adult to
prove consent. This bill is similar to AB 29 (Campos), which
passed this Committee earlier this year and is now in the
Senate. It is supported by, among others, the California Police
Chiefs Association, California State PTA, Crime Victims United
of California and Planned Parenthood Affiliates of California,
and has no known opposition.
SUMMARY: Prohibits a consent defense in certain civil actions
involving sexual intercourse with a minor and prohibits the use
of evidence of the minor's sexual conduct with the adult
perpetrator. Specifically, this bill:
1)Provides that notwithstanding the existing provision that a
person who consents to an act is not wronged by it, consent is
not a defense in a sexual battery civil action involving a
minor, as specified, if the person who commits the sexual
battery is an adult who is in a position of authority over the
minor.
2)Provides that an adult is in a "position of authority" under
#1), above, if he or she, by reason of that position, is able
to exercise undue influence over a minor and includes, but is
not limited to, a parent, step-parent, foster parent,
relative, partner of any parent or relative, caretaker, youth
leader, recreational director, athletic manager, coach,
teacher, counselor, therapist, religious leader, doctor,
employee of one of the above individuals, or coworker.
Defines "undue influence" as excessive persuasion that causes
another person to act or refrain from acting by overcoming
that person's free will and results in inequity.
SB 14
Page 3
3)Provides that notwithstanding 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 an adult in position of
authority evidence of the minor plaintiff's sexual conduct
with the adult defendant is not admissible to prove consent by
the plaintiff or the absence of injury to the plaintiff.
4)Provides that evidence of the minor 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 before the judge out of the presence of the jury, the
defendant proves that the probative value of that evidence
outweighs the prejudice to the plaintiff.
EXISTING LAW:
1)Creates a duty for every person to abstain from injuring
another person or the property of another, or from infringing
the rights of another. (Civil Code Section 1708. All further
statutory references are to that code, unless otherwise
stated.)
2)Provides a cause of action for sexual battery, as defined, and
allows the plaintiff in such a case to seek general, special
and punitive damages and equitable relief including injunctive
relief and costs. (Section 1708.5.)
3)Provides that a defendant may raise consent as an affirmative
defense to civil liability. (Section 3515.)
SB 14
Page 4
4)Makes it a crime for a person to have sexual intercourse with
a minor under 18 years of age who is not the spouse of the
person. A minor is deemed incapable of affording consent to a
criminal sexual act. (Penal Code 261.5; See also People v.
Brown (1973) 35 Cal.App.3d 317, 326.)
5)Provides that, except as otherwise provided by statute, all
relevant evidence is admissible. Allows 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. (Evidence Code Sections
351-52.)
6)Provides that in any civil action alleging sexual harassment,
sexual assault, or sexual battery, if evidence of sexual
conduct of the plaintiff is offered to attack credibility of
the plaintiff, then: (a) The defendant must provide a written
motion and offer of proof on the relevancy of evidence; (b) if
the court finds that the offer of proof is sufficient, the
court must order a hearing out of the presence of the jury to
allow questioning of the plaintiff regarding the offer of
proof; and (c) if the court finds that evidence offered by the
defendant is relevant and is not otherwise inadmissible, the
court may make an order stating what evidence may be
introduced by the defendant, and the nature of the questions
to be permitted. (Evidence Code Section 783.)
7)Generally renders inadmissible in any civil action alleging
sexual harassment, sexual assault or sexual battery, opinion
evidence, reputation evidence and evidence of specific
instances of plaintiff's sexual conduct in order to prove
consent by the plaintiff or the absence of injury to the
plaintiff. However, provides that this general prohibition is
SB 14
Page 5
not applicable to evidence of the plaintiff's sexual conduct
with the alleged perpetrator. Provides that this does not
make inadmissible any evidence offered to attack the
credibility of the plaintiff. (Evidence Code Section
1106(a).)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This bill arises out of a disturbing case last year
in which a court found against a 14-year-old Los Angeles Unified
School District student who sued the district for negligence
after her 28-year old teacher sexually assaulted her. According
to news reports, the teacher was sentenced to three years in
prison, but in the later civil case against the school district,
a jury found for the district, in part, because the 14-year old
allegedly consented to sexual activities with her teacher.
While criminal law is clear that minors cannot consent to sexual
acts, civil law is less clear about when and how a consent
defense may be raised. This bill confirms that consent may not
be raised as a defense in an action involving the sexual battery
of a minor by an adult who is in a position of authority over
the minor, nor can evidence of the minor's sexual conduct with
the adult be used as evidence in court, except for very limited
instances.
In support, the author writes, "SB 14 will prevent an adult in a
position of authority who sexually abuses a child from claiming
that child consented or from using that child's sexual history
in defense of a civil claim for damages. Ultimately, this bill
will ensure minors who are sexually abused are able to get the
help they need to recover from trauma inflicted by an adult who
was supposed to take care of them."
Background on the Differences Between Criminal and Civil Sexual
SB 14
Page 6
Offenses in California. Under California criminal law, it is
unlawful to have sexual intercourse with a minor under the 18
years of age unless the partners are married (previously this
provision was known as statutory rape). Accordingly, in a
criminal case involving unlawful sexual intercourse with a
minor, the minor is deemed incapable of consenting - regardless
of whether the minor may have afforded genuine or valid consent.
However, district attorneys have discretion about which cases
to prosecute, and it is unlikely that two 17-year-olds or an
18-year-old in a relationship with a 17-year-old would be
prosecuted for consensual sexual intercourse. Additionally, the
punishment differs based on the age differential between the
parties. The greater the age difference, the more severe the
potential punishment.
In 1990, the Legislature enacted SB 2336 (Roberti), Chap. 1531,
Stats. 1990, creating a civil action for injuries resulting from
sexual battery. The statute was intended to provide victims of
criminal sexual offenses with the ability to pursue a separate
civil remedy in civil court. In fact, SB 2336 was intended to
"respond[] to the inability of the criminal justice system to
adequately address the victims of rape or other sexual crimes."
(Assembly Subcommittee on the Administration of Justice,
Analysis of SB 2336 (June 1990) (quoting the bill's author).)
Accordingly, SB 2336 afforded a victim "redress for a sexual
injury in the civil process where the standard of proof is lower
and you do not need a unanimous jury." (Id.)
Under civil law principles, consent is generally available as a
defense. While civil law creates an obligation for every person
to abstain from injuring another person, a defendant in a civil
action can present, as a defense, evidence that the injured
person consented to the injury. Thus, when the Legislature
created a new civil action for sexual battery, the general civil
law defenses attached to the new civil action, absent
legislative directive to the contrary. Accordingly, a consent
defense is possible in a civil action for sexual battery.
SB 14
Page 7
Courts in California have not adopted a singular strategy for
how to treat the issue of consent. Some courts have found that
the minor's consent is relevant in considering civil liability.
(See Cynthia M. v. Rodney E. (1991) 228 Cal.App.3d 1040, 1044
[case involved two minors]; Doe v. Starbucks (2009) 2009 U.S.
Dist. LEXIS 118878 at 18-19 [case involved a 16-year old and her
24-year old supervisor where the court, relying on the
California Supreme Court case of People v. Tobias (2001) 25
Cal.4th 327, 33-334, 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 the Penal Code and amending the rape
statute to no longer include sex with a minor in the definition
of rape].) Other courts have prohibited a defendant from
raising a consent defense, at least with respect to a civil
action based on the Penal Code. (See In re Kennedy (2009) WL
256511 [a bankruptcy court found that consent could not be
raised as a defense to a civil action based on the criminal
sexual intercourse with a minor statute, but might be possible
for an action based on the Civil Code].)
Some States Allow a Consent Defense to a Civil Sexual Assault
Case Involving a Minor, While Other Do Not. The Committee's
review of other state laws did not find any state that has
adopted a statute prohibiting a consent defense in a civil
action involving sexual battery. Instead, state courts have
generally adopted two different approaches. Some state courts,
relying on the existing criminal statutory rape framework,
prohibit the consent defense. (See C.C.H. v. Philadelphia
Phillies (2008) 596 Pa. 23, 40 [court determined that evidence
of the minor's consent to sexual contact, like in criminal
proceedings, was not an available defense in determining civil
liability]; Wilson v. Tobiassen (1989) 97 Or. App. 527, 534
["[I]f conduct is made criminal in order to protect a certain
class of persons irrespective of their consent, the consent of
SB 14
Page 8
members of that class to the conduct is not effective to bar a
tort action. Accordingly, we hold that a person's incapacity to
consent . . . extends to civil cases."].) Other courts, relying
on the principal that the civil and criminal laws are uniquely
different, allow the consent defense. (See Tate v. Board of
Education of Prince George's County (2004) 155 Md. App. 536, 554
[holding that a minor's consent to sexual battery is relevant
for purposes of determining civil liability]; LK v. Reed (1994)
631 So.2d 604, 608 [holding that age alone cannot fully
invalidate a consent defense, rather it should be considered as
part of comparative fault analysis].)
This Bill Eliminates the Defense of Consent When the Adult is in
a Position of Authority Over the Minor. This bill specifically
prohibits a consent defense in a civil action involving sexual
battery between a minor and adult who was in a position of
authority over the minor. The bill specifically defines an
adult as being in a "position of authority" if he or she, by
reason of that position, is able to exercise undue influence
over a child and includes a non-exhaustive list of positions of
authority, including parents, relatives, caretakers, youth
leaders, coaches, teachers, counselors, religious leaders, or
doctors. Thus, if this bill had been law, Los Angeles Unified
School District would not have been able to raise the
14-year-old girl's alleged consent as a defense. It might,
however, still have been able to argue that the girl's
willingness to hide the criminal acts made it harder for the
District to learn of the sexual assault and to protect the girl
from harm.
The Bill Also Limits the Use of Evidence of the Minor's Sexual
History That Could Potentially Bias a Jury. To avoid any harm
from the introduction of sexual history evidence that could
potentially bias the jury against a child, this bill also
generally excludes evidence of the child's sexual history with
the adult to prove consent or the absence of injury. Generally,
public policy disfavors the exclusion of relevant evidence at
SB 14
Page 9
trial and, accordingly, the Evidence Code begins with a general
presumption that all relevant evidence is admissible. (See
Evidence Code Section 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 create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.
The Evidence Code also makes certain evidence generally
inadmissible as a matter of law. (See Evidence Code Section
1100 et seq.) Most relevant to this bill is Section 1106 of the
Evidence Code, which operates to bar the admission, by the
defendant, of evidence of specific instances of plaintiff's
sexual conduct 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 the 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 credibility of the plaintiff pursuant to
specified procedures. Those procedures require, among other
things, that the defendant must first provide a written motion
to the court and the plaintiff's attorney with an offer of proof
of the relevancy of evidence of sexual conduct of the plaintiff
proposed to be presented. If the court finds the offer of proof
to be sufficient, it 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
SB 14
Page 10
relevant and if the court does not find the evidence
inadmissible pursuant to its 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 Evidence Code Sections 352,
780, and 783.)
Accordingly and following that model, this bill provides that,
in any civil action arising out of sexual battery of a child by
an adult in a position of authority, evidence of the minor
plaintiff's sexual conduct with the adult defendant is not
admissible to prove consent by the plaintiff or absence of
injury to the plaintiff. Building upon existing Evidence Code
rules, the bill only allows 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 allows 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.
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
who is statutorily incapable of consenting to sexual battery by
an adult in a position of authority over the child.
Regardless of This Legislation, Minors in California Can Still
Consent to Various Treatments and Services. California law
explicitly provides that minors may consent to various medical
and mental health services, including, among other things,
contraceptive use; medical treatment related to a pregnancy or
sexually transmitted disease; abortion; sexual assault treatment
SB 14
Page 11
services; and outpatient mental health services, including drug
and alcohol abuse treatment. This bill does not limit or change
those existing minor consent provisions.
ARGUMENTS IN SUPPORT: Planned Parenthood Affiliates of
California writes in support:
California criminal law places higher penalties on those in a
position of power over a minor who sexually abuses a child.
Despite the consequences, according to a recent federal report
on child abuse in public schools, nearly 1 in 10 students are
subjected to sexual abuse by teachers, coaches, principals,
bus drivers, or other school personnel during their K-12
career.
Currently in a California civil case, a perpetrator can argue
that the child consented to a sexual relationship with an
adult in a position of authority. Evidence of the child's
sexual history can also be introduced, unlike in criminal
cases, where California's rape shield law protects victims
from their sexual history being used against them. These
loopholes are dangerous and threaten the safety of our
children by allowing sexual predators off the hook for child
abuse and negligence.
SB 14 will prevent an adult in a position of authority who
sexually abuses a child from claiming that child consented or
from using that child's sexual history in defense of a civil
claim for damages. Ultimately, this bill will ensure minors
who are sexually abused are able to get the help they need to
recover from trauma inflicted by an adult who was supposed to
take care of them.
Related Pending Legislation: AB 29 (Campos) would, in any
SB 14
Page 12
sexual battery civil action involving a minor and an adult who
is in a position of authority, as defined, prohibit evidence of
the minor's sexual conduct with the defendant adult from being
admissible to prove either consent by the plaintiff, or the
absence of injury to the plaintiff. This bill passed this
Committee and is awaiting hearing in the Senate.
REGISTERED SUPPORT / OPPOSITION:
Support
California Police Chiefs Association
California State PTA
Child Abuse Prevention Center
Crime Victims United of California
Junior League of Long Beach
Planned Parenthood Affiliates of California
Opposition
SB 14
Page 13
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334