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                |
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          |----------------+-----+----------------------+--------------------|
          |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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