BILL ANALYSIS
SB 1402
Page 1
Date of Hearing: June 13, 2006
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 1402 (Kuehl) - As Amended: April 18, 2006
SUMMARY : Deletes the requirement that spousal rape only be
prosecuted where the victim reported the attack to a specified
person within one year of the offense or where the offense is
corroborated by independent evidence that would otherwise be
admissible at trial.
EXISTING LAW :
1)Provides that the rape of a person who is the spouse of the
perpetrator is an act of sexual intercourse accomplished under
any of the following circumstances:
a) 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 or
another.
b) 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.
c) Where a person is at the time unconscious of the nature
of the act, and this is known to the accused. As used in
this paragraph, "unconscious of the nature of the act" is
defined as incapable of resisting because the victim meets
one of the following conditions: was unconscious or
asleep; was not aware, knowing, perceiving, or cognizant
that the act occurred; and was not aware, knowing,
perceiving, or cognizant of the essential characteristics
of the act due to the perpetrator's fraud in fact.
d) Where the act is accomplished against the victim's will
by threatening to retaliate in the future against the
victim or any other person, and there is a reasonable
SB 1402
Page 2
possibility that the perpetrator will execute the threat.
As used in this paragraph, "threatening to retaliate" is
defined as a threat to kidnap or falsely imprison, or to
inflict extreme pain, serious bodily injury, or death.
e) 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, and
the victim has a reasonable belief that the perpetrator is
a public official. As used in this paragraph, "public
official" is defined as a person employed by a governmental
agency who has the authority, as part of that position, to
incarcerate, arrest, or deport another. The perpetrator
does not actually have to be a public official. [Penal
Code Section 262(a)(1) to (5).]
2)Prohibits the commencement of the prosecution for spousal rape
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.
[Penal Code Section 262(b).]
3)Defines "duress" as a direct or implied threat of force,
violence, danger, or retribution sufficient to coerce a
reasonable person of ordinary susceptibilities to perform an
act which otherwise would not have been performed, or
acquiesce in an act to which one otherwise would not have
submitted. The total circumstances, including the age of the
victim, and his or her relationship to the defendant, are
factors to consider in apprising the existence of duress.
[Penal Code Section 262(c).]
4)States that if probation is granted upon conviction of a
violation of this section, the conditions of probation may
include, in lieu of a fine, one or both of the following
requirements:
a) That the defendant make payments to a battered women's
shelter, up to a maximum of $1,000.
SB 1402
Page 3
b) That the defendant reimburse the victim for reasonable
costs of counseling and other reasonable expenses that the
court finds are the direct result of the defendant's
offense. [Penal Code Section 262(d)(1) and (2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author' Statement : According to the author, "This bill will
ensure that all victims of rape are afforded equal protection
under the law by eliminating the current additional reporting
requirement for marital rape. Prior to the late 1970's,
spouses were exempt from laws against sexual assault, and most
states did not consider spousal rape a crime. Today, rape of
a spouse is a crime in all 50 states as well as the District
of Columbia. While the Legislature has enacted a series of
bills removing most distinctions between rape and marital
rape, the statutes still diverge substantively in one crucial
respect: reporting requirements.
"Under California's marital rape statute, in addition to
reporting to prosecutorial authorities or law enforcement
within a six-year statute of limitations, as all rape victims
are required to do, a victim of rape by a spouse must also
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 of the
violation, or the crime may not be prosecuted. This
additional reporting requirement does not apply if the
victim's allegation is 'corroborated' by independent evidence
that would be admissible during trial.
The Legislature long ago decided that 'corroboration' of rape,
most often a very private crime, is difficult or impossible in
most cases and, therefore, California's current rape statute,
with the exception of marital rape, contains no such
requirement. Both statutes have a statute of limitations of
six years, but the reporting requirement under the marital
rape statute effectively diminishes the limit to one year for
marital rape. By deleting this reporting requirement for
spousal rape, this bill will help rape victims in their
efforts to pursue the prosecution of their abusers.
California is one of the few remaining states to impose a
SB 1402
Page 4
reporting requirement for spousal rape. Courts in other
states have found any distinction in the law between marital
and non-marital rape to be unconstitutional. Most
importantly, in the case of People v. Garcia , a California
appellate court 'respectfully suggest[ed] the time has come to
eliminate' the reporting requirement."
2)Legislative History of Spousal Rape : 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 non-marital rape. The Senate Judiciary
Committee's 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."
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 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."
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 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
SB 1402
Page 5
reporting period to one year. When AB 187 was originally
introduced, it proposed to eliminate the reporting
requirement. Legislative history indicates AB 187 was amended
as it passed out of the Assembly Public Safety Committee to
instead augment the reporting provisions as now reflected in
law.
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
Penal Code Sections 261 and 262, the statutes still diverge
substantively in one crucial respect: reporting requirements.
Under Penal Code 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." Penal Code Section 261 contains no parallel
requirement. Both statutes carry (the same) statute of
limitations . . . but the reporting requirement under Penal
Code Section 262 effectively diminishes that parameter to one
year for spousal rape. Ms. Nancy Lemon, Lecturer, University
of California, Berkeley, 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 Penal Code
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.
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 Penal Code Section 262 ought to be repealed:
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
SB 1402
Page 6
non-marital rape to be unconstitutional. [See People vs.
Liberta (1984) 64 N.Y.2nd 152, 167]. "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."
3)Prior Legislation : AB 187 (Solis), Chapter 595, Statutes of
1993, deleted the current definition of spousal rape and
instead defines spousal rape in substantially the same manner
as the definition of rape, except as specified.
4)Arguments in Support : The California Coalition Against Sexual
Assault states, "This bill would ensure that all victims of
rape are afforded equal protection under the law by
eliminating the additional reporting requirement for marital
rape. Under California's marital rape statute, in addition to
reporting to prosecutorial authorities or law enforcement
within a six year statute of limitations, as all rape victims
are required to do, a victim of rape by a spouse must also
report the rape to 'a medical personnel, a member of the
clergy, an attorney, a shelter representative, a counselor, a
judicial officer, a rape crisis agency, a prosecuting
attorney, a law enforcement officer or firefighter' within one
year of the violation.
"This additional reporting requirement does not apply if the
victim's allegation is 'corroborated' by independent evidence
that would be admissible at trial. The Legislature long ago
decided that 'corroboration' of rape, an often very private
crime, is difficult or impossible in most cases and,
therefore, California's current rape statute of limitations of
six years, bit the reporting requirement under the marital
rape statute effectively diminishes the limit to one year for
marital rape. California is one of the few remaining states
to impose a reporting requirement for spousal rape. The
states of Pennsylvania and South Dakota recently repealed
similar statutes. Courts in other states have found any
SB 1402
Page 7
distinction between marital and non-marital to be
unconstitutional. Most importantly, a California appellate
court 'respectfully suggested the time has come to eliminate'
the reporting requirement [ People vs. Garcia 89 Cal.App.4th
1321; 107 Cal. Rptr.2nd 889 (2001).]"
5)Arguments in Opposition : The California Public Defenders
Association states, "This bill would amend Penal Code Section
262 to eliminate the requirement that spousal rape have been
reported within one year to a listed medical, police,
clerical, legal or psychological personnel or that it be
corroborated by independent admissible evidence. Given the
increase in the divorce rate and the resulting decreases in
the standard of living for most women and children, the
specter of women threatening or falsely accusing her former
spouse of rape is an unfortunate reality. The current law
carefully and thoughtfully provides a system of checks and
balances that protects both parties. In 1993, when the
spousal rape statute (Penal Code Section 262) was amended to
more closely mirror rape law and eliminate the differences,
the Legislature struggled with the requiring that the offense
be reported within 90 days, then deleted any reporting
requirement making it subject to the then three-year statute
of limitations and finally reached an artfully drawn
compromise of requiring either independent admissible evidence
or reporting within one year. The current statute states that
the incident must be reported within one year to a wide
variety of disinterested professional parties or that the
victim's allegation is corroborated by independent admissible
evidence. Independent admissible evidence as construed by the
court cuts a broad swath which is not limited to physical
evidence."
REGISTERED SUPPORT / OPPOSITION :
Support
California Coalition Against Sexual Assault (Sponsor)
American Association of University Women
Calegislation
California Commission on the Status of Women
California Department of Justice
California District Attorneys Association
California National Organization for Women
California Partnership to End Domestic Violence
SB 1402
Page 8
Coalition to End Family Violence
Community Overcoming Relationship Abuse
Community Solutions
DOVES Domestic Violence Education and Services
Family Services of Tulare County
Junior Leagues of California
Lambda Letters Project
Los Angeles County District Attorney's Office
Marin Abused Women's Services
Marajee Mason Center
North County Women's Resource Center and Shelter
Office of the Attorney General
Riley Center of St. Vincent De Paul Society
Santa Clara County Domestic Violence Advocacy Consortium
South Bay Community Services
South Lake Tahoe Women's Center
Support Network for Battered Women
STAND! Against Domestic Violence
YWCA of Glendale
Women Escaping a Violent Environment
Opposition
California Public Defenders Association
California Attorneys for Criminal Justice
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744