BILL ANALYSIS
AB 2261
Page 1
Date of Hearing: April 4, 2006
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2261 (Matthews) - As Introduced: February 22, 2006
SUMMARY : Provides that if sexual contact or penetration of
human remains is found to have occurred after the person killed
the victim, punishment shall be imprisonment in the state prison
for life without the possibility of parole (LWOP).
EXISTING LAW :
1)Provides that every person who willfully mutilates, disinters,
or commits an act of sexual penetration on, or has sexual
contact with, any remains known to be human is guilty of a
felony. [Health and Safety Code Section 7052(a).]
2)States that the above section does not apply to any person
who, under authority of law, removes the remains for
reinterment or performs a cremation. [Health and Safety Code
Section 7052(a).]
3)Provides that "murder" is the unlawful killing of a human
being or a fetus, with malice aforethought. (Penal Code
Section 187.)
4)Specifies that first-degree murder with special circumstances
is punishable by death or by LWOP. (Penal Code Section
190.3.)
5)States that first-degree murder without special circumstances
(Penal Code 190.2) is punishable in the state prison for a
term of 25-years-to-life. (Penal Code Section 190.)
6)Classifies murder according to degrees, either first degree or
second degree. (Penal Code Section 189.)
7)Provides that first-degree murder includes murders perpetrated
by destructive device or explosive; a weapon of mass
destruction; knowing use of ammunition designed primarily to
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penetrate metal or armor; poison; lying in wait; torture; or
by an other kind of willful, deliberate, and premeditated
killing, or which is committed in the perpetration of, or the
attempt to perpetrate the following offenses (Penal Code
Section 189):
a) Arson;
b) Rape;
c) Carjacking;
d) Robbery;
e) Burglary;
f) Mayhem;
g) Kidnapping;
h) Train wrecking;
i) Sodomy;
j) Lewd or lascivious acts on a child under the age of 14
years;
aa) Oral copulation; and,
bb) Forcible sexual penetration, as defined.
8)Provides that second-degree murders include all murders not
specified as first degree. (Penal Code Section 189.)
9)States that first-degree murder with "special circumstances"
(Penal Code Section 190.2) is punishable by death or by LWOP.
(Penal Code Section 190.)
10)Provides that first-degree murder without "special
circumstances" is punishable by imprisonment in the state
prison for a term of 25-years-to-life. (Penal Code Section
190.)
11)Limits imposition of the death penalty to those first-degree
murders where the trial jury finds true at least one of the
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"special circumstances." The Penal Code lists 22 separate
categories of "special circumstances." (Penal Code Section
190.2.)
12)Provides that one of the "special circumstances" is murder
committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or
the immediate flight after committing, or attempting to
commit, specified felonies. [Penal Code Section
190.2(a)(17).] The specified felonies include burglary in the
first or second degree. [Penal Code Section 190(a)(17)(G).]
13)Defines, with respect to human remains, "sexual penetration"
as the unlawful penetration of the vagina or anus, however
slight, by any part of a person's body or other object, or any
act of sexual contact between the sex organs of a person and
the mouth or anus of a dead body, or any oral copulation of a
dead human body for the purpose of sexual arousal,
gratification, or abuse. [Health and Safety Code Section
7052(b)(1).]
14)States, with respect to human remains, that "sexual contact"
is defined as any willful touching by a person of an intimate
part of a dead human body for the purpose of sexual arousal,
gratification, or abuse. [Health and Safety Code Section
7052(b)(2).]
15)Defines "intimate part" as the sexual organ, anus, groin or
buttocks of any person, and the breast of a female. [Penal
Code Section 243.4(g)(1).]
16)States that rape is an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator, under
specified circumstances [Penal Code Section 261(a)]:
a) Where a person is incapable of giving legal consent, due
to a mental disorder or developmental or physical
disability, as specified. The prosecutor is required to
prove, as an element of the crime, that such a disorder
rendered the alleged victim incapable of giving consent
[Penal Code Section 261(a)(1)]:
b) Where it is accomplished against a person's will by
means of force, violence, duress, menace or fear of
immediate and unlawful bodily injury on the person of
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another [Penal Code Section 261(a)(2)];
c) Where a person is prevented from resisting by any
intoxicating or anesthetic substance, as specified [Penal
Code Section 261(a)(3)];
d) Where the person is at the time unconscious of the
nature of the act and this is known to the accused.
"Unconscious of the nature of the act" is defined as
incapable of resisting because of the existence of
specified conditions, such as being unconscious or asleep,
unaware that the act had occurred, unaware due to the
perpetrator's fraudulent representation that the sexual
penetration served a professional purpose, and others
[Penal Code Section 261(a)(4)];
e) Where a person submits under the belief that the person
committing the act is the victim's spouse and this belief
is induced by artifice, pretense or concealment practiced
by the accused [Penal Code Section 261(a)(5)];
f) Where the act is accomplished against the victim's will
by threatening to retaliate in the future against the
victim or any other person, as specified [Penal Code
Section 261(a)(6)]; and,
g) Where the act is accomplished against the victim's will
by threatening to use the authority of a public official to
incarcerate, arrest, or deport the victim or another.
[Penal Code Section 261(a)(7).]
17)Provides that in prosecutions of specified sex offenses in
which consent is an issue, "consent" is defined as positive
cooperation in an act or attitude of free will. States that
the person must act freely and voluntarily and have knowledge
of the nature of the act or transaction involved. (Penal Code
Section 261.6.)
18)States that the essential guilt of rape consists in the
outrage to the person and feelings of the victim of the rape.
Provides that any sexual penetration, however slight, is
sufficient to complete the crime. (Penal Code Section 263.)
19)Provides that rape, as defined, is punishable by imprisonment
in the state prison for three, six or eight years. [Penal
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Code Section 264(a).]
20)States that the Legislature finds and declares that the
purpose of imprisonment for crime is punishment. Provides
that this purpose is best served by terms proportionate to the
seriousness of the offense with provision for uniformity in
sentences of offenders committing the same offense under
similar circumstances. States that the Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity in sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to
be imposed by the court with specified discretion. [Penal
Code Section 1101(a)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In 1998, the
State of California felt the loss of Deborah Whitlock, a
resident of Merced County. Ms. Whitlock had been a victim of
murder and her body indicated sexual assault.
"At the time of her case, the State had no legislation in place
to protect human remains from sexual assaults. According to
information from the deputy district attorney who investigated
and prosecuted the case, forensic evidence could not determine
whether sexual intercourse occurred before or after death.
Therefore, the conclusion of her case noted that the victim
was deceased during the time of sexual assault and no charges
for the assault applied in the verdict.
"In 2004, AB 1493 (Runner), Chapter 413, Statutes of 2004,
addressed sexual behavior with human remains as a felony. On
the other hand, rape has greater penalties. Sexual acts on
the remains of a murdered victim reflect a similar conduct to
that of rape; therefore these two conducts should deserve
similar punishments.
"This bill punishes more severely sexual acts by murderers on
their victims, thus balancing the punishments for these
similar actions."
2)Background Provided by the Author : According to the
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background information provided by the author, "Existing law
addresses sexual contact with human remains as a felony. This
conduct reflects similar actions to those of rape; therefore,
sexual contact with human remains should deserve similar
punishment."
3)Prior Bill Introduced in Response to this Murder : In 2000, AB
2826 (Cardoza) would have created additional special
circumstances to the law which, if found to be true, would
have authorized the imposition of the death penalty or LWOP.
AB 2826 was introduced in response to the murder of Ms.
Whitlock, and one of the proposed new special circumstances
was the intentional killing of the victim in order to engage
in sexual acts upon the victim's corpse. AB 2826 failed
passage in this Committee.
The Assembly Public Safety Committee analysis of AB 2826, dated
April 25, 2000, stated "According to information from the
deputy district attorney who investigated and prosecuted the
case, there were indications of a sexual assault present at
the scene. However, forensic analysis could not determine
whether sexual intercourse occurred before or after death. If
the victim was deceased when the assault took place, the
special circumstances of rape/murder would not apply. The
decision was made to allow the defendant to plead guilty to
first-degree murder for a sentence of LWOP. Upon being
interviewed after pleading guilty, the defendant stated he had
engaged in the [sexual] activity after killing the victim."
The analysis of AB 2826 also stated that "according to material
submitted by the author . . . Ms. Whitlock had been murdered
in her home in the early hours of the morning by having her
throat severely slashed by an intruder. [N]ine years passed
between the killing and the arrest of the suspect."
It therefore appears that Ms. Whitlock was murdered during the
course of a burglary. If she was murdered during the course
of first- or second-degree burglary, the case could have been
prosecuted as a death penalty case pursuant to Penal Code
Section 190.2(a)(17)(G)] as murder committed during the course
of specified felonies, including burglary, is punishable by
death or by LWOP. (Penal Code Section 190.3.)
Does the fact that the prosecutor determined to accept a guilty
plea to murder, punishable by LWOP, instead of charging the
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defendant with first-degree murder with special circumstances
(which would have made the defendant death-penalty eligible)
constitute a rational basis for changing the law with respect
to sexual contact with human remains? Should the punishment
for sexual contact with human remains be the same as the
punishment for murder? As stated above, the Legislature has
determined that sentences should be fixed by statute in
proportion to the seriousness of the offense. [Penal Code
Section 1101(a)(1).]
The punishment for rape of a person is imprisonment in the state
prison for three, six, or eight years. [Penal Code Section
264(a).] The essential guilt of rape consists of the outrage
to the person and feelings of the victim of the rape. (Penal
Code Section 263.) A dead body is incapable of feelings or
outrage; therefore, it seems that the punishment for sexual
penetration of a dead body necessarily must be less than that
for rape.
Moreover, murder is punishable by LWOP. Inasmuch as Penal Code
Section 1101 mandates that sentences should be fixed in
proportion to the seriousness of the offense, can the same
sentence for sexual contact with a dead body and murder of a
live person reasonably be established by the Legislature?
It is of note that the defendant in the case that was the
impetus for this bill pleaded guilty to murder, with a LWOP
sentence.
4)The Crime of Rape Requires a Live Victim : The California
Supreme Court has held that "rape requires a live victim.
Rape must be accomplished with a person, not a dead body. It
must be accomplished against a person's will. A dead body
cannot consent to or protest a rape, nor can it be in fear of
immediate and unlawful bodily injury." [ People v. Hillhouse ,
27 Cal. 4th 469 (2002), cert. denied 2003 U.S LEXIS 717
(2003), citing People v. Kelly , 1 Cal. 4th at p. 524.] "The
statutory references to a 'person' or an 'individual' as the
victim clearly contemplate someone alive. Indeed no further
harm can befall someone already dead. [ People v. Hillhouse ,
supra, at page 497.] "A dead body has no feelings of
outrage," referencing Penal Code Section 263, citing People v.
Sellers (1988) 203 Cal. App. 3d 1042, 1050; People v. Ramirez ,
(1990) 50 Cal. 3d 1158, 1176 (applying a similar rule to the
crime of sodomy.)
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Therefore, the background information provided by the author
that states that sexual contact with human remains deserves
similar punishment to the crime of rape is inconsistent with
the holdings of the California Supreme Court and various
California appellate courts. Although the physical actions
involved in rape and in sexual contact with human remains may
be similar, an argument for similar punishment ignores Penal
Code Section 263 which states that the essential guilt of rape
consists in the outrage to the person and feelings of the
victim of the rape. As stated by the California Supreme Court
in People v. Hillhouse , supra,
"The statutory references to a 'person' or an 'individual' as
the victim clearly contemplate someone alive. Indeed no
further harm can befall someone already dead." [ People v.
Hillhouse , supra, at page 497.]
5)Prior Legislation :
a) AB 1493 (Runner), Chapter 413, Statutes of 2003,
expanded the scope of existing law to make it a felony to
have sexual contact with remains known to be human.
b) AB 2826 (Cardoza), of the 1999-2000 Legislative Session,
would have included in the special circumstances for murder
a murder in which the defendant intentionally killed the
victim to engage in sexual acts upon the corpse, among
other acts. AB 2826 failed passage in this Committee.
c) AB 1992 (McDonald), of the 1995-96 Legislative Session,
would have made it a felony to engage in sexual activity
with a corpse. AB 1992 was never heard by this Committee
and returned to the Chief Clerk.
6)Arguments in Support : The City of Modesto Police Department
states, "Deborah Ann Whitlock was murdered in 1988. The case
remained unsolved for 11 years until Scott Fizzell was
identified as her killer. In 1999, I was the the sergeant in
the Crimes against Persons Unit for the Modesto Police
Department and was involved in the arrest of Fizzell. For the
past several years, I have watched as Jackie MacDonald has
fought for tougher penalties on those who commit heinous
crimes. She is truly an advocate for victims' rights. [T]he
Modesto Police Department is in full support of this bill."
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7)Arguments in Opposition :
a) The California Attorneys for Criminal Justice (CACJ)
states, "Fortunately, we already have sufficient laws to
punish those who murder for sexual gain and for those who
mutilate corpses. CACJ sees this bill as unnecessary and a
real threat to the good people who have to deal with the
dead and their relatives in our state."
b) The Taxpayers for Improving Public Safety states, "Such
an offense is so far outside of the realm of reality for an
overwhelming majority of murders - so outrageously
abnormal - that it is an anomaly which ought to be treated as
a mental health issue long before it is addressed
criminally."
REGISTERED SUPPORT / OPPOSITION :
Support
City of Modesto Police Department
Crime Victims United of California
Opposition
California Attorneys for Criminal Justice
Taxpayers for Improving Public Safety
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744