BILL ANALYSIS                                                                                                                                                                                                    



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          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  








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          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. 








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          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.)









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          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  








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            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  








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          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.








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          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  








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          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  








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          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  








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          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  








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          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  








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          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










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          None on file




          Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334