BILL ANALYSIS Ó SB 333 Page 1 Date of Hearing: June 30, 2015 Counsel: Stella Choe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair SB 333 (Galgiani) - As Amended May 6, 2015 SUMMARY: Specifies that any person who possesses Ketamine, gamma hydroxybutyric acid (GHB) or Rohypnol with the intent to commit sexual assault, as defined, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years. Specifically, this bill: 1)Defines "sexual assault" for the purposes of this bill to mean conduct in violation of specified provisions of law penalizing sexual battery, rape, spousal rape, sodomy, or oral SB 333 Page 2 copulation. 2)States the finding of the Legislature that in order to deter the possession of Ketamine, GHB, and Rohypnol (flunitrazepam) by sexual predators and to take steps to prevent the use of these drugs to incapacitate victims for purposes of sexual exploitation, it is necessary and appropriate that an individual who possesses one of these substances for predatory purposes be subject to felony penalties. EXISTING LAW: 1)Provides that the possession of specified controlled substances including Ketamine, flunitrazepam and GHB, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor punishable by up to one year in a county jail, except for a person who has one or more prior convictions for a specified violent felony or has been convicted of a prior offense requiring the person to register as a sex offender, then the penalty shall be a felony. (Health & Saf. Code, §§ 11350, subd. (a) and 11377, subd. (a).) 2)Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code, §§ 11054 to 11058.) 3)States, except as provided, that every person who possesses SB 333 Page 3 for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, shall be punished by imprisonment in a county jail for two, three, or four years. (Health & Saf. Code, § 11351.) 4)Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).) 5)States that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, two or three years. (Health & Saf. Code, § 11378.) 6)Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code, § 11379, subd. (a).) 7)States that every person guilty of administering to another any chloroform, ether, laudanum, or any controlled substance, anesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years. (Pen. Code, § 222.) SB 333 Page 4 8)States that rape is an act of sexual intercourse accomplished where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (Pen. Code, §§ 261, subd. (a)(3); 262, subd. (a)(2).) 9)Specifies felony penalties for any person who commits an act of sodomy, oral copulation or sexual penetration where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (Pen. Code, §§ 286, subd. (i); 288a, subd. (i); 289, subd. (e).) FISCAL EFFECT: Unknown. COMMENTS: 1)Author's Statement: According to the author, "During my time in the State Legislature, this body has been dedicated to spreading awareness and preventing sexual assault. When a ballot measure such as Proposition 47 is placed in front of voters, the potential for unintended consequences arise. I firmly believe that voters in California did not intend to weaken sexual assault statutes by passing Prop 47. The malicious intent behind possessing and using 'date rape' drugs on another individual is a heinous act deserving of a serious consequence." 2)Proposition 47: On November 4, 2014, California voters approved Proposition 47, also known as the Safe Neighborhoods SB 333 Page 5 and Schools Act, which reduced penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. Proposition 47 also allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced. According to the California Secretary of State's web site, 59.6 percent of voters approved Proposition 47. (See < http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-comp lete-sov.pdf > [as of Mar. 14, 2015].) The purpose of the measure was "to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 70.) One of the ways the measure created savings was by requiring misdemeanor penalties instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession for personal use, unless the defendant has prior convictions for specified violent crimes. (Ibid.) Four months into its implementation, Proposition 47 has resulted in fewer inmates in state prisons and county jails. According to the Legislative Analysts' Office (LAO), "As of January 28, 2015, the inmate population in the state's prisons was about 113,500, or 3,600 inmates below the February 2015 cap, and slightly below the final February 2016 cap. The expected impact of Proposition 47 on the prison population will make it easier for the state to remain below the population cap." (LAO, The 2015-16 Budget: Implementation of Proposition 47 (Feb. 2015), p. 10.) The LAO report also found that Proposition 47 will likely reduce the costs of criminal justice for counties, by freeing up jail beds and reducing the time probation departments need to follow prisoners after they are released. (Id. at p. 17.) 3)California Constitutional Limitations on Amending a Voter Initiative: Because Proposition 47 was a voter initiative, the Legislature may not amend the statute without subsequent SB 333 Page 6 voter approval unless the initiative permits such amendment, and then only upon whatever conditions the voters attached to the Legislature's amendatory powers. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd. (c).) The California Constitution states, "The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." (Cal. Const., art. II, § 10, subd. (c).) Therefore, unless the initiative expressly authorizes the Legislature to amend, only the voters may alter statutes created by initiative. The purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent. Courts have a duty to jealously guard the people's initiative power and, hence, to apply a liberal construction to this power wherever it is challenged in order that the right to resort to the initiative process is not improperly annulled by a legislative body. (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473.) Yet, despite the strict bar on the Legislature's authority to amend initiative statutes, judicial decisions have recognized that the Legislature is not thereby precluded from enacting laws addressing the general subject matter of an initiative. The Legislature remains free to address a "related but distinct area" or a matter that an initiative measure "does not specifically authorize or prohibit." (People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026.) As to the Legislature's authority to amend the initiative, Proposition 47 states: "This act shall be broadly construed to accomplish its purposes. The provisions of this measure may be amended by a two-thirds vote of the members of each house of the Legislature and signed by the Governor so long as the amendments are consistent with and further the intent of SB 333 Page 7 this act. The Legislature may by majority vote amend, add, or repeal provisions to further reduce the penalties for any of the offenses addressed by this act." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 74.) This bill does not affect Proposition 47 because this bill does not deal with simple possession of drugs. Similar to the statutes that require specific intent to sell controlled substances which remain felonies, this bill will require specific intent to commit sexual assault in order to charge a defendant with a felony. Because the bill as amended does not affect Proposition 47, this bill does not have to go before the voters. 4)"Club Drugs": Ketamine, GHB, and flunitrazepam are commonly designated as "club drugs" due to their association with raves, nightclubs, concerts, and parties. Other drugs included in this designation are MDMA (ecstasy), methamphetamine, and cocaine. Club drugs became popular in the 1990s and tend to be used by youth and young adults to heighten mood, increase extraversion and physical energy, and intensify the senses. (National Inst. on Drug Abuse, Drug Facts: Club Drugs (GHB, Ketamine, and Rohypnol) (December 2014) < http://www.drugabuse.gov/publications/drugfacts/club-drugs-ghb -ketamine-rohypnol > [as of Mar. 18, 2015].) Studies also show that these drugs are commonly used by members in the LGBT community. (Palamar and Halkitis, A Qualitative Analysis of GHB Use Among Gay Men: Reasons for Use Despite Potential Adverse Outcomes (Jan. 2006); Mansergh, et al., The Circuit Party Men's Health Survey: Findings and Implications for Gay and Bisexual Men, American Journal of Public Health (June 2001).) GHB: According to the National Institute on Drug Abuse, GHB is a central nervous system (CNS) depressant that was approved by the Food and Drug Administration (FDA) in 2002 for use in the treatment of narcolepsy, which is a sleep disorder. This SB 333 Page 8 approval came with severe restrictions, including its use only for the treatment of narcolepsy, and the requirement for a patient registry monitored by the FDA. GHB is also a metabolite of the inhibitory neurotransmitter gamma-aminobutyric acid (GABA). It exists naturally in the brain, but at much lower concentrations than those found when GHB is abused. Rohypnol (flunitrazepam): According to the National Institute on Drug Abuse, Rohypnol is a benzodiazepine (chemically similar to sedative-hypnotic drugs such as Valium or Xanax), but it is not approved for medical use in this country, and its importation is banned. Ketamine: According to the National Institute on Drug Abuse, Ketamine is a dissociative anesthetic, mostly used in veterinary practice. (National Inst. on Drug Abuse, Drug Facts: Club Drugs (GHB, Ketamine, and Rohypnol) (December 2014) < http://www.drugabuse.gov/publications/drugfacts/club-drugs-ghb -ketamine-rohypnol > [as of Mar. 18, 2015].) Recently, small studies at prestigious medical centers like Yale, Mount Sinai and the National Institute of Mental Health suggest Ketamine can relieve depression in many people who are not helped by widely used conventional antidepressants like Prozac or Lexapro. (Hamilton, Depression Treatments Inspired by Club Drug Move Ahead in Tests, (Jun. 2015) National Public Radio < http://www.npr.org/sections/health-shots/2015/05/28/409800015/k etamine-depression-treatments-inspired-by-club-drug-move-ahead- in-tests> [as of June 19, 2015]; Pollack, Special K, a Hallucinogen, Raises Hopes and Concerns as a Treatment for Depression, New York Times (Dec. 9, 2014).) Due to these drugs' uses both recreationally and clinically, any law that punishes simple possession of these drugs would likely result in capturing many people who do not possess these drugs for predatory purposes. This bill specifies that a person must possess one of these drugs with the intent to commit sexual assault in order for the person to be punished SB 333 Page 9 with a felony. 5)Drug-Facilitated Sexual Assault Statistics: Although a person may be surreptitiously drugged with Rohypnol, GHB, or Ketamine in order to incapacitate that person, it is much more common for a person to consume these drugs voluntarily for its intoxicating effects. One study, funded by the National Institute of Justice, examined the prevalence, nature, and reporting of various types of sexual assault experienced by college students. (Krebs, et al., The Campus Sexual Assault Study, National Institute of Justice (Oct. 2007).) The researchers worked with two large, public universities to collect data from over 6,800 undergraduate students (5,466 women and 1,375 men). The data indicated that 7.8% of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol and 0.6% were sexually assaulted when they were incapacitated after having been given a drug without their knowledge. (Id. at p. iv; see also Section 6-1.) The study found that the majority of the sexual assault victims that were incapacitated reported having consumed alcohol (89%) or being intoxicated prior to being assaulted (82%). (Id. at Section 5.1.3.) Another study conducted by the University of Illinois at Chicago, funded by the U.S. Department of Justice, worked with four clinics (Texas, California, Minnesota, and Washington State) to study the prevalence of drugs in sexual assault cases received by these clinics. (Negruz, et al., Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois, Chicago (Nov. 2005).) The study used self-reporting surveys as well as toxicological analyses of the subjects. The drugs inquired about in the self-reporting survey included marijuana, cocaine, and amphetamines. These three drugs were chosen because they are not normally given surreptitiously. (Id. at pp. 7-8.) The toxicological analyses tested for those three drugs, as well as other drugs that are often considered "date rape drugs" which include Rohypnol, SB 333 Page 10 GHB, Ketamine, clonazepam and scopolamine. (Id. at p. 112.) Testing positive for one of these drugs could be due to several different reasons: valid prescription use by the subject, recreational drug use by the subject, surreptitious drug administration by a potential assailant, or, in the case of GHB, endogenous levels because GHB exists naturally in the human body. (Id. at pp. 112-113.) Among the 144 participants, 61.8% tested positive for one of the drugs being analyzed in the study. (Negruz, Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, supra, at p. 2.) The drugs separated out as "date rape" drugs were found in seven subjects (4.86%), of which three had a prescription. No one admitted to having a prescription for GHB, or using it recreationally, and GHB was only found in levels considered to be endogenous. (Id. at p. 113.) However, the study does note that GHB has a short detection time of 10-12 hours and because only four subjects reported to the clinic within 12 hours, if any of the subjects had been given GHB, the levels would have been undetectable. (Id. at p. 121.) Ketamine and scopolamine were not reported to by any of the subjects in the surveys, and were not found. Flunitrazepam (Rohypnol) was not admitted to by anyone, but was found in four subjects. (Id. at p. 113.) However, when tested a second time a week later, some of these subjects tested positive for flunitrazepam again, indicating that the subjects are likely recreational users of the drug but did not report it in the survey. (Id. at pp. 89, 189.) Based on these results, the study concluded that most of the subjects positive for these drugs had taken them by their own accord and not received them surreptitiously. (Id. at p. 189.) The study also evaluated whether participants truthfully reported their drug use. The number of subjects who admitted to taking drugs voluntarily was 40%, as compared to the 61.8% of subjects who tested positive for one of the analyzed drugs. (Negruz, Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, supra, at p. 190.) Researchers hypothesized that the subjects' under-reporting of their drug SB 333 Page 11 usage may be attributed to the fact that the drugs being analyzed are illegal and a person may face prosecution for its use, or that the subjects may have felt that that their recreational use of illegal drugs could negatively affect the course of a sexual assault prosecution. (Id. at pp. 16, 190.) While drug-facilitated sexual assault is a serious problem, these studies confirm that it occurs most often after an individual's own recreational use of drugs, rather than surreptitious drugging by another person. Drugs such as Rohypnol, Ketamine and GHB may be used to facilitate sexual assault of an incapacitated person, but these are not the only drugs that can be used, nor are they the most commonly used. The substance that is most commonly found in sexual assault victims is alcohol. (Krebs, The Campus Sexual Assault Study, supra at p. 89; also see Grimes, Alcohol is by far the most dangerous "date rape drug" (Sept. 22, 2014) The Guardian, < http://www.theguardian.com/science/blog/2014/sep/22/alcohol-da te-rape-drug-facilitated-sexual-assault-dfsa > [as of Mar. 19, 2015].) This bill targets persons who possess these drugs for predatory purposes, rather than those who merely possess these drugs for personal use. This will ensure that victims of these crimes who may have consumed these drugs voluntarily prior to being assaulted will not have to fear prosecution of a felony when deciding to whether to report the incident. 6)Argument in Support: According to the California Probation, Parole and Correctional Association, "Ketamine, flunitrazapam, or gamma hydroxybutyric acid (GHB) commonly known as 'date rape' or 'club' drugs can be found as pills, liquids, or powders. These drugs are used by perpetrators with the intent to assist in sexual assault or robbery. When ingested, these drugs can affect a person very quickly and cause victims to become weak, confused, and even pass out. Victims usually do not remember what happened while they were drugged. "These drugs while lawful when used for medical purposes, are SB 333 Page 12 very potent and dangerous. Those who use them with the intent to commit sexual and physical assault, and other crimes, should be prosecuted accordingly." 7)Argument in Opposition: According to Legal Services for Prisoners with Children, "A small number of people may intend to use these drugs to aid in committing an assault. However, we have seen that harsher punishment has not proven to be a deterrent in drug use, drug abuse or in rates of sexual violence over the past decades. Instead, we have seen a concurrent rise in drug use, abuse, and drug related violence along with increased penalties. Incredibly, decreasing penalties, increasing education and increasing education and increasing compassion have all been proven to lower the harms associated with substance abuse and not to increase rates of use. "Our prisons and jails are overcrowded, underfunded, and ill-equipped to address and dismantle the culture of sexual violence, misogyny and oppression that leads to sexual assault. This bill may make it more likely that more people spend more time in prison - environments of sexual aggression, violence, and oppression - where they are unlikely to reform, and from which they may be more likely to go on to become violence or hardened criminals. Furthermore, this bill will force taxpayers to bear the burdens of arrest, trial and felony imprisonment - more than $47,000 per person, per year of incarceration. This money is better spent on safer neighborhoods and schools - exactly where Proposition 47 voters meant for it to go." 8)Related Legislation: AB 46 (Lackey) is substantially similar to this bill. AB 46 was held in the Committee on Appropriations' Suspense File. 9)Prior Legislation: a) SB 649 (Leno), of the 2013-2014 Legislative Session, would have made the simple possession for personal use of SB 333 Page 13 cocaine, cocaine base, heroin, opium, and other specified narcotics, opiates and hallucinogens listed in the controlled substance schedule an alternate felony/misdemeanor, rather than a straight felony. SB 649 was vetoed. b) SB 1506 (Leno), of the 2011-2012 Legislative Session, would have made the unlawful possession of specified controlled substances a misdemeanor. SB 1506 failed passage on the Senate floor. c) SB 1067 (Horton), of the 2003-2004 Legislative session, would have excluded the drugs GHB, Rohypnol, and Ketamine from coverage by the term "nonviolent drug possession offense" thereby making possession of these drugs ineligible for probation and drug treatment under Proposition 36, approved by the voters on November 7, 2000. SB 1067 failed passage in this Committee. REGISTERED SUPPORT / OPPOSITION: Support California District Attorneys Association (Sponsor) California Peace Officers' Association California Police Chiefs Association SB 333 Page 14 California Probation, Parole and Correctional Association California Sexual Assault Investigators Association California State Lodge, Fraternal Order of Police California State Sheriffs' Association Crime Victims Action Alliance Insurance Commissioner Dave Jones Los Angeles County District Attorney's Office Los Angeles County Professional Peace Officers Association Long Beach Police Officers Association Sacramento County Deputy Sheriffs' Association Opposition Legal Services for Prisoners with Children Analysis Prepared by:Stella Choe / PUB. S. / (916) 319-3744 SB 333 Page 15