BILL ANALYSIS Ó
SB 14
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SENATE THIRD READING
SB
14 (Lara)
As Amended April 14, 2015
Majority vote
SENATE VOTE: 38-0
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |O'Donnell | |
| | | | |
| | | | |
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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:
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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.
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.
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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.
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.
3)Provides that a defendant may raise consent as an affirmative
defense to civil liability.
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.
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.
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
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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.
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
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.
FISCAL EFFECT: None
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
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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.
Background on the Differences Between Criminal and Civil Sexual
Offenses in California. Under California criminal law, it is
unlawful to have sexual intercourse with a minor under 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), Chapter
1531, creating a civil action for injuries resulting from sexual
battery. SB 2336 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
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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.
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].)
Analysis Prepared by:
Leora Gershenzon / JUD. / (916) 319-2334 FN:
0000949
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