BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 2058 (Cohn) 8
As Amended May 26, 2006
Hearing date: June 27, 2006
Penal Code
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LEWD CONDUCT
HISTORY
Source: Author
Prior Legislation: None
Support: Los Angeles County District Attorney's Office;
California Protective Parents Association; Peace Officers
Research Association of California
Opposition:California Attorneys for Criminal Justice; Taxpayers
for Improving Public Safety
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUES
SHOULD existing provisions of law that make it a wobbler for a
person to commit any lewd and lascivious act upon a minor who is 14
or 15 years of age, AS SPECIFIED, BE EXPANDED to also include minors
who are 16 and 17 years of age?
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SHOULD THIS PROVISION OF LAW expressly state that this provision
shall not preclude prosecution and punishment under other provisionS
of law that provide for a greater penalty, as specified?
PURPOSE
The purpose of this bill is to 1) expand existing provisions of
law that make it a wobbler for a person to commit any lewd and
lascivious act upon a minor who is 14 or 15 years of age to also
include minors who are 16 and 17 years of age, and 2) expressly
state that this provision shall not preclude prosecution and
punishment under other provisions of law that provide for a
greater penalty, as specified.
Current law provides that any person who willfully and lewdly
commits any lewd or lascivious act, as specified, with a child
who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child, is guilty of a felony and
shall be punished by imprisonment in the state prison for three,
six, or eight years. (Penal Code 288(a).)
Current law further provides that any person who commits an act
described above and the victim is a child of 14 or 15 years,
and that person is at least 10 years older than the child, is
guilty of a wobbler, punishable by imprisonment in the state
prison for one, two, or three years, or by imprisonment in a
county jail for not more than one year. (Penal Code 288(c).)
This bill would expand this provision (subdivision (c), directly
above) to also apply where the victim is a child of 16 or 17
years of age.
This bill additionally would expressly state with respect to
subdivision (c) of Penal Code Section 288, that "(n)othing in
this subdivision shall preclude prosecution and punishment
under any other provision of law providing a greater penalty,
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including, but not limited to, Section 261.5, subdivision (b)
of Section 286, subdivision (b) of Section 288a, or
subdivision (h) or (i) of Section 289."<1>
COMMENTS
1. Stated Need for This Bill
The author states in part:
There is such a high degree of trust placed in school
employees and such a high degree of opportunity for
that trust to be violated, it is imperative there be
a statute that prohibits sexual contact of any kind
between school employees and students. There are
many individuals that prey upon young teenagers.
These individuals have hundreds of victims and yet
not face more than county jail time upon conviction.
This bill protects minors age 14 to 17 by ensuring
that those who commit lewd and lascivious acts upon
them are appropriately convicted as felons.
2. What This Bill Would Do
This bill would do two things:
expand existing provisions of law that make it a
wobbler for a person to commit any lewd and
lascivious act upon a minor who is 14 or 15 years of
age to also include minors who are 16 and 17 years
of age; and
expressly state that this provision shall not
preclude prosecution and punishment under other
provision of law that provides for a greater
penalty, as specified.
3. Scope of "Lewd or Lascivious" Act
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<1> These are cross-references to statutory rape, sodomy, oral
copulation and sexual penetration crimes, as specified.
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This bill would expand the existing wobbler for a "lewd or
lascivious" act with a 14 or 15 year old where the offender is
at least 10 years older than the victim to also apply to a 16 or
17 year-old victim. "Lewd or lascivious" under the statute
embraces a wide range of proscribed conduct.
Existing law defines a lewd act with a child as:
Any touching (through clothing or on the skin) of
a child (by the defendant or by the child at the
instigation of the defendant);
Done for sexual gratification (of the perpetrator
or the child). (People v. Martinez (1995) 11
Cal.4th 434, 452.) While lewd conduct generally
involves sexually motivated touching of a child's
breasts, buttocks or external sexual organs, lewd
conduct may involve sexually motivated touching of
any part of the body with sexual intent. (Ibid.)
Defined sex crimes (rape, oral copulation, etc.)
may also be charged as lewd conduct. (People v.
Pearson (1986) 42 Cal.3d 351.)
Existing law defines two forms of lewd conduct with a child
under the age of 14: 1) Where the crime is accomplished by
force, fear, duress or menace. 2) Where no force, fear,
duress, etc., is used. The sentence for the crime itself is the
same whether or not force or duress was used. However, numerous
other consequences apply based on whether or not the crime
involved force or duress. (Pen. Code 288, subds. (a)-(b).)
Existing law, as interpreted by the courts, defines or describes
force, duress and menace thus:
Force : The majority of cases hold that the
element of "force" is shown by force that allowed
the defendant to accomplish the act without the
child's consent. (People v. Neel (1993) 19
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Cal.App.4th 1784.)
Duress : Direct or implied threat of force,
violence, danger, hardship or retribution sufficient
to allow commission of the act. The jury shall
consider all of the circumstances in determining
whether duress was proved, including the age of the
victim and his or her relationship to the defendant.
(People v. Pitmon (1985) 170 Cal.App.3d 38, 47-51.)
(e.g., a threat to send a child to bed without
dinner would appear to constitute duress.)
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The jury instruction for this offense makes the scope of this
conduct clear:
A "lewd or lascivious act" is defined as any
touching of the body of a child under the age of
14 years with the specific intent to arouse,
appeal to, or gratify the sexual desires of either
party. To constitute a lewd or lascivious act, it
is not necessary that the bare skin be touched.
The touching may be through the clothing of the
child.<2>
The practical effect of this bill would be to extend the crime
of child molestation - which is subject to lifetime sex offender
registration -- to include touching a non-intimate part of the
body, including through the clothing, for sexual gratification,
of a 16 or 17 year-old where the person doing the touching is at
least 10 years older than the minor.
GIVEN THE WIDE RANGE OF CONDUCT COVERED UNDER THIS STATUTE,
SHOULD IT BE EXPANDED TO APPLY TO 16 AND 17 YEAR-OLD VICTIMS?
4. Existing Statutes Apply to Sexual Conduct with Minors
In addition to sex crimes that apply to adult victims (like
rape, etc.), numerous existing statutes apply to sexual
misconduct with minors. For example:
Annoying or molesting a child under 18 (Penal Code
647.6);
Contributing to the delinquency of a minor under
18(Penal Code 272);
Sexual battery (Penal Code 243.4); and
Unlawful sexual intercourse (Penal Code 261.5).
IS THIS BILL NECESSARY?
5. Need for Additional Provision Unclear
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<2> CALJIC 10.41.
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As noted above, this bill would add the following provision to
the existing subdivision concerning lewd conduct with a 14 or 15
year-old when the offender is at least 10 years older:
Nothing in this subdivision shall preclude
prosecution and punishment under any other
provision of law providing a greater penalty,
including, but not limited to, Section 261.5,
subdivision (b) of Section 286, subdivision (b)
of Section 288a, or subdivision (h) or (i) of
Section 289.
Committee staff is unaware of any precedent suggesting that
current law precludes the prosecution and punishment described
in this language. Therefore, the need for this provision is
unclear. The inclusion of this language may create arguments
that defendants currently being prosecuted under this section
cannot be convicted and punished for the enumerated offenses.
WHY IS THIS PROVISION NECESSARY?
WOULD THIS PROVISION CAUSE UNNECESSARY CONFUSION OR ADVERSE
CONSEQUENCES WITH RESPECT TO ONGOING OR FUTURE CASES INVOLVING
THESE OR OTHER SEX CRIMES AGAINST CHILDREN?
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