BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair S
2005-2006 Regular Session B
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SB 1402 (Kuehl) 2
As Introduced February 22, 2006
Hearing date: March 28, 2006
Penal Code
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SPOUSAL RAPE
HISTORY
Source: Author
Prior Legislation: AB 187 (Solis) - Chapter 595, Stats. 1993
AB 546 (Mori) - Chapter 994, Stats. 1979
Support: Office of the Attorney General; California District
Attorney's Office
Opposition:California Public Defenders Association; California
Attorneys for Criminal Justice
KEY ISSUE
SHOULD THE REPORTING REQUIREMENT IN THE SPOUSAL RAPE STATUTE BE
ELIMINATED?
PURPOSE
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The purpose of this bill is to eliminate the reporting
requirement in the spousal rape statute.
Current law provides that rape is an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator, as
specified. (Penal Code 261.)
Current law provides that rape of a person who is the spouse of
the perpetrator is an act of sexual intercourse accomplished
under specified circumstances. (Penal Code 262.)
Current law requires, with respect only to spousal rape (and not
non-spousal rape), that no prosecution shall be commenced
"unless the violation was reported to medical personnel, a
member of the clergy, an attorney, a shelter representative, a
counselor, a judicial officer, a rape crisis agency, a
prosecuting agency, a law enforcement officer, or a firefighter
within one year after the date of the violation. This reporting
requirement shall not apply if the victim's allegation of the
offense is corroborated by independent evidence that would
otherwise be admissible during trial."
This bill would delete this requirement.
COMMENTS
1. Stated Need for This Bill
The author states:
California is one of the few remaining states to
impose a reporting requirement for spousal rape.
Courts in other states have found any
distinction between marital and nonmarital rape
to be unconstitutional. Most importantly, in
the case of People v. Garcia, a California
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appellate court "respectfully suggest[ed] the
time has come to eliminate" the reporting
requirement. (footnote omitted)
2. What This Bill Would Do
As explained by the author and detailed above, the spousal rape
crime in current law, Penal Code Section 262, requires that a
prosecution may commence only if the crime has been reported to
specified persons within one year of the crime or if the
victim's allegation is corroborated by independent evidence, as
specified. No similar reporting requirement is contained in the
non-marital rape statute (Penal Code 261).
This bill would eliminate this reporting requirement.
3. Legislative History; Current Law
Before 1979, the law did not recognize that a wife could be
raped by her husband. AB 546 (Mori) enacted a spousal rape law,
and distinguished between marital and nonmarital rape. The
Senate Judiciary Committee analysis of AB 546 stated:
Proponents of this bill believe that a woman
does not give up her right of consent to sexual
intercourse by virtue of marriage, and that the
existing definition of rape treats married women
in an unequal and unfair fashion. Supporters of
AB 546 feel that existing law reflects archaic
notions that the wife is a man's property to be
used or abused as he sees fit. (emphasis in
original)
The Committee analysis conjectured that "(e)nforcing this bill's
provisions could present difficult problems of proof, however.
Rape is never easy to prove under any
circumstances, since the issue of consent often
boils down to the word of the victim versus the
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word of the accused.
When the accused happened to be the spouse of
the alleged victim, these problems of proof
would be exacerbated, since defense counsel
could easily interject the issue of the
complaining witness' motive for making the
accusation. The case involving John and Greta
Rideout in Oregon exemplifies what could go
wrong with a spousal rape statute: a wife files
a rape charge in an already troubled marital
situation, the husband is acquitted, and the
couple later reconcile.<1> (emphasis in
original)
As enacted in1979, AB 546 required the following reporting
provision:
. . . (T)here shall be no arrest or prosecution
under this section unless the violation of this
section is reported to a peace officer having
the power to arrest for a violation of this
section or to the district attorney of the
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<1> The Rideouts eventually did divorce. In addition, the
court issued a restraining order against John, who violated it
and subsequently served time in jail. "The Rideouts were a
classic example of a couple trapped in a domestic violence
cycle. Greta's post-trial reconciliation with John is not
evidence of a rape hoax, but rather the classic behavior of a
battered woman. Had the Rideout prosecutor made a more explicit
domestic violence link, the case might have escaped the media's
ridicule and may have even educated people. Instead, the
debacle reinforced popular myths about marital rape, both
through the courtroom drama and the media's depiction of events.
. . . 'Greta went down in history as a woman who accused her
husband of raping her and then went back to him - a woman, like
Scarlett O'Hara, who likes rape.'" Note, The Ultimate Weapon?:
Demythologizing Spousal Rape and Reconceptualizing Its
Prosecution, 48 Stan. L. Rev. 677 (1996).
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county in which the violation occurred, within
30 days after the day of the violation.
In 1993, AB 187 (Solis) broadened these reporting provisions to
include the list now in current law, and to extend the reporting
period to one year.<2> When AB 187 was originally introduced,
it proposed to eliminate the reporting requirement. Legislative
history indicates the bill was amended as it passed out of the
Assembly Public Safety Committee to instead augment the
reporting provisions as now reflected in law.
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<2> Again, as explained above the 1-year reporting requirement
can be met by reporting the rape to any of the following:
medical personnel, a member of the clergy, an attorney, a
shelter representative, a counselor, a judicial officer, a rape
crisis agency, a prosecuting agency, a law enforcement officer,
or a firefighter, within one year after the date of the
violation.
At least one legal commentator has noted that this one-year
reporting period effectively shortens the limitations period for
bringing spousal rape prosecutions:
Although recent legislation removes most
distinctions between sections 261 and 262, the
statutes still diverge substantively in one
crucial respect: reporting requirements. Under
section 262, a wife must report the rape to
"medical personnel, a member of the clergy, an
attorney, a shelter representative, a counselor,
a judicial officer, a rape crisis agency, a
prosecuting agency, a law enforcement officer or
a firefighter within one year after the date of
the violation." Section 261 contains no
parallel requirement. Both statutes carry (the
same) statute of limitations . . . but the
reporting requirement under section 262
effectively diminishes that parameter to one
year for spousal rape. Lemon finds the
disparity particularly troubling, since marital
rapes typically occur in a series of assaults
over long periods of time. Besides
misconceiving the nature of marital rape, the
reporting provision of section 262, in Lemon's
view, serves as a legislative reflection of the
myth that "vengeful wives will lie" and that
husbands, therefore, need protection.<3>
The author notes a 2001 court of appeal case in which a spousal
rape conviction was upheld, even though the victim did not
report the rape for over a year, because the allegations were
corroborated by independent evidence as allowed by the statute.
In People v. Garcia, 89 Cal.App.4th 1321 (2001), the court in
dicta opined, however, that the reporting provision in Section
262 ought to be repealed:
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<3> Note, supra note 1, at 697-698. The author cites Nancy
Lemon, a lecturer at Boalt Hall School of Law and "lobbyist for
marital rape reform."
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The Attorney General points out that California
is one of the few states to impose such a
reporting requirement and that several states
recently have repealed similar statutory
reporting requirements. The Attorney General
also notes that other states have found any
distinction between marital and nonmarital rape
to be unconstitutional. (See People v. Liberta
(1984) 64 N.Y.2d 152, 167 [474 N.E.2d 567,
575-576], and cases cited therein.)
We also note that prior to 1993, this
subdivision had read "(b) The provisions of
Section 800 shall apply to this section;
however, there shall be no arrest or prosecution
under this section unless the violation of this
section is reported to a peace officer having
the power to arrest for a violation of this
section or to the district attorney of the
county in which the violation occurred, within
90 days after the day of the violation."
Although we have found no helpful legislative
history, it seems the Legislature attempted to
ease the reporting requirement for spousal rape .
We respectfully suggest the time has come to
eliminate such a requirement.<4>
SHOULD THE ONE-YEAR REPORTING REQUIREMENT IN THE SPOUSAL RAPE
STATUTE BE ELIMINATED?
IS THERE ANY OBJECTIVE POLICY RATIONALE FOR RETAINING A
REPORTING REQUIREMENT IN THE SPOUSAL RAPE STATUTE WHICH IS NOT
REQUIRED FOR NONSPOUSAL RAPE?
DOES THIS REPORTING REQUIREMENT IMPOSE A PRACTICAL OBSTACLE TO
MARITAL RAPE PROSECUTIONS? IF IT DOES NOT, IS IT NEVERTHELESS A
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<4> People v. Garcia, supra, 89 Cal.App.4th at 1337
(note 7) (some citations omitted; emphasis added).
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VESTIGE OF A LEGISLATIVE COMPROMISE NEARLY 30 YEARS OLD WHICH NO
LONGER IS RELEVANT OR NECESSARY?
4. Technical Amendment
The author intends to amend this bill to also delete the first
sentence currently in subdivision (b) of Penal Code Section 262.
This would be a purely technical amendment of no legal
consequence. The language proposed to be stricken, "(s)ection
800 shall apply to this section," is redundant and unnecessary.
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