BILL ANALYSIS
SB 1402
Page 1
SENATE THIRD READING
SB 1402 (Kuehl)
As Amended April 18, 2006
Majority vote
SENATE VOTE :33-0
PUBLIC SAFETY 6-0
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|Ayes:|Leno, La Suer, Cohn, |
| |Dymally, Goldberg, |
| |Spitzer |
| | |
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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,
SB 1402
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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
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; and,
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.
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.
FISCAL EFFECT : None
COMMENTS : 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.
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"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 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."
Please see the policy committee analysis for full discussion of
this bill.
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744
FN: 0015124