BILL ANALYSIS Ó SB 14 Page 1 SENATE THIRD READING SB 14 (Lara) As Amended April 14, 2015 Majority vote SENATE VOTE: 38-0 ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Judiciary |10-0 |Mark Stone, Wagner, | | | | |Alejo, Chau, Chiu, | | | | |Gallagher, | | | | | | | | | | | | | | |Cristina Garcia, | | | | |Holden, Maienschein, | | | | |O'Donnell | | | | | | | | | | | | ------------------------------------------------------------------ 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: SB 14 Page 2 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. SB 14 Page 3 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 SB 14 Page 4 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 SB 14 Page 5 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 SB 14 Page 6 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 SB 14 Page 7