BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
4
6
SB 46 (Alquist)
As Amended February 23, 2009
Hearing date: April 21, 2009
Penal Code
SM:br
STATUTES OF LIMITATIONS
HISTORY
Source: California Coalition Against Sexual Assault
Prior Legislation: SB 256 (Alquist) - Failed passage, Senate
Public Safety
SB 1128 (Alquist) - Ch. 801.2, Stats. 2006
SB 111 (Alquist) - Ch. 479, Stats. 2005
SB 261 (Speier) - 2005, held in Senate
Appropriations Committee.
AB 1667 (Kehoe) - Ch. 368, Stats. 2004
SBX4 2 (Speier) - Ch. 2, Stats. 2003-04 Fourth
Extraordinary Session
AB 78 (Alquist) - Ch. 235, Stats. 2001
AB 1742 (Correa) - Ch. 235, Stats. 2000
AB 25X (Andal) - Ch. 46 Ex., Stats. 1994
AB 290 (Boland) - Ch. 390, Stats. 1993
AB 782 (N. Waters) - Ch. 1312, Stats. 89
Support: California District Attorneys Association; California
State Sheriffs' Association; Chief Probation Officers
of California; California Parole, Probation and
Correctional Association; California Narcotics Officers
Association; California Police Chiefs Association;
California Peace Officers' Association; California
Protective Parents Association; First 5, Santa Clara
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County; Klasskids Foundation; Los Angeles County
District Attorney's Office; Mothers Against Sexual
Predators; San Francisco County District Attorney;
Santa Clara County District Attorney; Santa Clara
County Sheriff's Office, Surviving Parents Coalition;
Crime Victims United; San Bernardino County Sheriff;
San Jose Chief of Police; Peace Officer Research
Association of California (PORAC); California Family
Council; numerous private citizens
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice; Taxpayers for Improving Public
Safety
KEY ISSUE
SHOULD ALL STATUTES OF LIMITATIONS BE REPEALED WHEN THE CRIME
ALLEGED IS A SPECIFIED SEX OFFENSE?
PURPOSE
The purpose of this bill is to eliminate the statute of
limitations for the crimes of rape, sodomy, lewd act on a child
or dependent person, oral copulation, continuous sexual abuse of
a child, or forcible sexual penetration.
Criminal Statute of Limitations Generally
Under current law , statutes of limitations for the commencement
of criminal actions generally are based on the term of the
sentence, the type of offense, or the nature of the victim, as
specified below.
Prosecution for a crime punishable by death, life
imprisonment, life imprisonment without the
possibility of parole, or the embezzlement of public
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funds may be commenced at any time.<1> (Penal Code
799.)
Prosecution for crimes punishable by imprisonment
in the state prison for eight years or more and not
otherwise covered must be commenced within six years
after commission of the offense. (Penal Code 800.)
Prosecution for crimes punishable by
imprisonment in the state prison must be
commenced within three years after commission of
the offense. (Penal Code 801.)
Prosecution for crimes involving fraud, breach of a
fiduciary duty, embezzlement of funds from an elder or
dependent adult, or misconduct by a public official
must be commenced within four years after discovery of
the crime or within four years after completion,
whichever is later. (Penal Code 801.5.)
Prosecution for crimes involving elder or dependent
abuse must be commenced within five years after
commission of the offense. (Penal Code 801.6.)
Prosecution for misdemeanor crimes involving
molesting a child under the age of 14 years or sexual
misconduct with a patient must be commenced within two
years after commission of the offense. For all other
misdemeanors, prosecution must be commenced within one
year after commission of the offense. (Penal Code
802.)
Statute of Limitations for Sex Crimes
Current law provides that the prosecution for a felony sex
offense subject to mandatory sex offender registration, as
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<1> Punishment for murder, attempted premeditated and
deliberate murder, kidnapping for purposes of robbery,
extortion, or certain sex offenses are punishable by life in
prison. (Penal Code 190 and 209.)
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specified, must be commenced within 10 years after commission of
the offense. (Penal Code 801.1.)
Current law provides that the prosecution for inducing a minor
to pose in connection with the production of a representation of
sexual activity involving a minor, must be commenced within 10
years after commission of the offense. (Penal Code 801.2.)
Statute of Limitations for Felony Sex Crimes against Minors
In addition to the 10-year statute of limitations applicable
above, current law authorizes a criminal complaint to be filed
in specified child sex crime<2> cases as follows:
A. If the crime is alleged to have been committed
against a person when that person was under the age of 18,
prosecution may commence any time up to the victim's 28th
birthday (Penal Code 801.1); or
B. Within one year of the date a person any age reports to
a California law enforcement agency that he or she, while under
the age of 18 years, was a victim of a sex crime, as specified,
if all of the following occur:
1. The limitation period specified in
Section 800, 801, or 801.1, whichever is later,
has expired.
2. The crime involved substantial sexual
conduct, as specified, excluding masturbation
that is not mutual.
3. There is independent evidence that
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<2> The applicable sex crimes are: rape (Penal Code 261);
sodomy (Penal Code 286); child molestation (Penal Code 288);
oral copulation (Penal Code 288a); continuous sexual abuse of
a child (Penal Code 288.5); and forcible sexual penetration
(Penal Code 289 and 289.5 (under prior law), as specified
(Penal Code 289.5).
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corroborates the victim's allegation.<3> If the
victim was 21 years of age or older at the time
of the report, the independent evidence shall
clearly and convincingly corroborate the victim's
allegation. (Penal Code 803 (g).); or
C. Within one year of the date on which the identity of the
suspect is conclusively established by DNA testing, if both of
the following conditions are met:
1. The crime is one that is subject to
mandatory sex offender registration, as
specified; and
2. The offense was committed prior to
January 1, 2001, and biological evidence
collected in connection with the offense is
analyzed for DNA type no later than January 1,
2004, or the offense was committed on or after
January 1, 2001, and biological evidence
collected in connection with the offense is
analyzed for DNA type no later than two years
from the date of the offense. (Penal Code
803 (h).)
This bill would provide that there is no statute of limitations
under any circumstances for rape, sodomy, lewd act on a child or
dependent person, oral copulation, continuous sexual abuse of a
child, or forcible sexual penetration.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
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<3> Current law provides that no "evidence may be used to
corroborate the victim's allegation that otherwise would be
inadmissible during trial. Independent evidence does not
include the opinions of mental health professionals." (Penal
Code 803 (g)(3).)
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currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<4>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
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<4> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<5>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
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<5> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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This bill does appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Existing law precludes victims of sexual assault from
having their attacker brought to justice beyond the
statute of limitations which is 10-years for adult
victims and prior to the 28th birthday for child
victims.
An arbitrary prosecutorial time limit does not ensure
closure for victims of sexual assault and does not
promote public safety. The impact of these crimes
goes beyond the physical and psychological harm to
the victim which requires a lifetime of work to
address. It also has a tremendous adverse impact on
society.
Due to the violent nature of these crimes, victims
often suppress the memory of the horrific attacks
making it impossible to report the crime within the
statute of limitations. In many cases, especially
involving children, the perpetrator threatens to harm
family members of the victim if they reveal the
abuse. In order to cope with the pain, many victims
turn to alcohol, drugs abuse or other destructive
behaviors.
Statistics indicate that victims of these crimes are
three times more likely to suffer from depression;
six times more likely to suffer from post-traumatic
stress disorder; 13 times more likely to abuse
alcohol; 26 times more likely to abuse drugs and four
times more likely to contemplate suicide.
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Currently, 21 states in the U.S. either no longer
have or never had a statute of limitations for felony
sex crimes. According to the California Coalition
Against Sexual Assault (CALCASA), the typical child
molester assaults an average of 117 children in their
lifetime. It is time we send a message to sex
offenders that justice will always prevail.
SB 46 allows prosecutors to bring rapists and child
molesters to justice at any time regardless of when
they committed the crime. This would serve as a
deterrent to those who prey on innocent people and
would reflect our current understanding of the
psychology of these vicious and life altering crimes.
The failure to bring an abuser to justice due to an
arbitrary statute of limitations simply rewards the
perpetrator and punishes the victim. There should be
no time limit for justice to be served. Sexual
assault crimes should receive the same treatment as
embezzlement cases, which like murder do not have a
statute of limitations at all.
2. What This Bill Would Do
As explained by the author, this bill would eliminate the
statute of limitations for the sex crimes enumerated above. The
law currently provides four potential statutory "windows" for
commencing prosecutions of sex crimes.
The first window is the general limitations period
for prosecuting sex crimes, which is 10 years from when
the crime was committed. (Penal Code 801.1 (b).)
The second window applies if the crime is alleged to
have been committed against a person when that person
was under the age of 18, in which case prosecution may
commence any time up to the victim's 28th birthday.
(Penal Code 801.1.). (Penal Code 803 (f).)
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A third window allows that: when the 10-year
limitations period has lapsed, a criminal complaint may
be filed within one year of the date a person of any
age reports to law enforcement that they were a victim
of a child sex crime, if a) the crime involved
"substantial sexual conduct", as specified;<6> and b)
there is independent evidence that corroborates the
victim's allegation, which must be proved by clear and
convincing evidence if the victim is 21 years of age or
older at the time of the report. (Penal Code 803
(g).)
A fourth window is available at all times: a
criminal complaint may be filed within one year of the
date on which the identity of a suspect is conclusively
established by DNA testing in sex crime cases if the
DNA is analyzed in a timely manner, as specified.
(Penal Code 803 (h).)
This bill would revise the law to provide that for the sex
crimes of rape, sodomy, child molestation, oral copulation,
continuous sexual abuse of a child, forcible acts of sexual
penetration, and flight of a sex offender to avoid prosecution,
there would be no criminal statute of limitations. These
offenses include consensual acts, such as oral copulation
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<6> "Substantial sexual conduct" for purposes of this section
cross-references Penal Code Section 1203.066 (b), excluding
"masturbation that is not mutual." "Substantial sexual conduct"
is penetration of the vagina or rectum of either the victim or
the offender by the penis of the other or by any foreign object,
oral copulation, or masturbation of either the victim or the
offender. ( 1203.066 (b).) "Masturbation of either the victim
or the offender" means "any touching or contact, however slight,
of the genitals of either the victim or the offender." (People
v. Chambless (1999) 74 Cal.App.4th 773 [defendant touched girl's
vagina and made her touch his penis].) Mutual masturbation
shown where defendant rubbed Vaseline on a boy's penis. (People
v. Lamb (1999) 76 Cal.App.4th 664, 678-679.)
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between minors which, under the bill, could be prosecuted at any
time during the life of the participant.
This bill also would revise current law to delete those sections
described above that apply when the 10-year limitation period
lapses.
3. Operation of and Public Policy behind the Statute of
Limitations; Policy Questions Raised by This Bill
The statute of limitations requires commencement of a
prosecution within a certain period of time after the commission
of a crime. A prosecution is initiated by filing an indictment
or information, filing a complaint, certifying a case to
superior court, or issuing an arrest or bench warrant. (Penal
Code 804.) The failure of a prosecution to be commenced
within the applicable period of limitation is a complete defense
to the charge. The statute of limitations is jurisdictional and
may be raised as a defense at any time, before or after
judgment. (People v. Morris (1988) 46 Cal.3d 1, 13.) The
defense may only be waived under limited circumstances. (See
Cowan v. Superior Court (1996) 14 Cal.4th 367.)
In 1984, the California Law Revision Commission published a
series of recommendations to revise the statute of limitations.
The impetus for reform derived from numerous changes made to the
statute by the Legislature - there were 11 legislative
enactments amending the felony statute of limitations in 14
years. The Commission commented, "[t]his simple scheme has been
made complex by numerous modifications . . . the result of this
development is that the California law is complex and filled
with inconsistencies." The Commission described the rationale
of the statute:
The statute of limitations is simply a societal
declaration that it will no longer pursue a criminal
after a certain period of time. The period selected
may be somewhat arbitrary but still achieves
society's purpose of imposing an outside limit that
recognizes the staleness problem, that requires that
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crime must come to light and be investigated within a
reasonable time, and that represents the point after
which society declares it no longer has an interest
in prosecution and seeks repose.
The three principal policy reasons for felony limitations
statutes may be summarized as follows:
Staleness : The statute of limitations
protects persons accused of crime: (i) from
having to face charges based on evidence that
may be unreliable and (ii) from losing access
to the evidentiary means to defend against the
accusation. With the passage of time, memory
fades, witnesses die or otherwise become
unavailable, and physical evidence becomes
unobtainable or contaminated.
Prompt Investigation : The statute of
limitations imposes a priority among crimes for
investigation and prosecution. The deadline
serves to motivate the police and to ensure
against bureaucratic delays in investigating
crimes.
Repose : The statute of limitations
reflect society's lack of desire to prosecute
for crimes committed in the distant past. The
interest in repose represents a societal
evaluation of the time after which it is
neither profitable nor desirable to commence a
prosecution.
These principals are reflected in court decisions. The United
States Supreme Court has stated that statutes of limitations are
the primary guarantee against bringing overly stale criminal
charges. (United States v. Ewell (1966) 383 U.S. 116, 122.)
There is a measure of predictability provided by specifying a
limit beyond which there is an irrebutable presumption that a
defendant's right to a fair trial would be prejudiced. Such
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laws reflect legislative assessments of relative interests of
the state and the defendant in administering and receiving
justice. More recently, in Stogner v. California (2003) 123
S.Ct. 2446, the Court underscored the basis for statutes of
limitations:
Significantly, a statute of limitations reflects a
legislative judgment that, after a certain time, no
quantum of evidence is sufficient to convict. And
that judgment typically rests, in large part, upon
evidentiary concerns - for example, concern that the
passage of time has eroded memories or made witnesses
or other evidence unavailable.<7>
Cautioning against eliminating the statute of limitations
entirely in sex cases, one commentator states:
The gravity of sex offenses combined with many
victims' inability to report them . . . call for
alterations to existing statutes of limitations on
sex crimes. . . .
Some states have decided that the best way to deal
with this problem is to throw out statutes of
limitations on sex crimes altogether. This is an
impulsive and overbroad reaction that could cause
serious problems in the future.
Our criminal justice system has relied upon statutes
of limitations for over three and a half centuries.
In effect, they are the only practical protection a
defendant has against pre-accusation delay.
Moreover, the main problem with discarding these
statutes in cases of rape and sexual abuse is that
justification for doing so would necessarily rest on
the gravity of these crimes. This will inevitably
lead to a comparison between the seriousness of rape
and other types of crimes. For example, one may
argue that kidnapping is as grave as rape; that armed
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<7> Stogner, supra, 123 S.Ct. at 2452 (citations omitted).
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robbery is as serious as sexual assault, etc. It
would be difficult to imagine a more slippery slope
than the one that would result from eliminating
statutes of limitations on sex crimes altogether.
. . .
Although eliminating statutes of limitations on sex
crimes is an understandable reaction to the problem,
in the long run it could lead to the obliteration of
all criminal statutes of limitations, which
ultimately would jeopardize the defense of innocent
suspects. Such a shift in the balance between
defendants' rights and the administration of justice
could result in dire consequences, including a
forceful pendulum swing in the opposite direction.<8>
WOULD ELIMINATING THE LIMITATION PERIOD FOR SEX OFFENSES ENHANCE
THE ADMINISTRATION OF CRIMINAL JUSTICE IN THESE CASES?
HOW WOULD ELIMINATING THE STATUTE OF LIMITATIONS IN SEX CRIMES
IMPACT THE ABILITY OF DEFENDANTS TO DEFEND THEMSELVES?
TO THE EXTENT memories fade, witnesses die or leave the area,
and physical evidence becomes more difficult to obtain,
identify, or preserve, TO WHAT EXTENT, IF ANY, WOULD ELIMINATING
THE STATUTE OF LIMITATIONS IN SEX CASES INCREASE THE possibility
of erroneous convictionS IN CASES WHERE prosecution HAS NOT BEEN
prompt?
iF the statute of limitations IS the only practical protection
against pre-accusation delay, AS SOME SUGGEST, IS IT POSSIBLE
THAT PRE-ACCUSATION DELAY COULD BECOME PREVALENT AS A STRATEGY?
TO WHAT EXTENT, IF ANY, WOULD ELIMINATING THE LIMITATIONS PERIOD
FOR SEX OFFENSES HAVE INADVERTENT ADVERSE CONSEQUENCES, SUCH AS
ENGENDERING BUREAUCRATIC DELAYS IN INVESTIGATING SEX CRIMES?
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<8> Lauren Kearns, Incorporating Tolling Provisions into Sex
Crimes Statutes of Limitations, 13 Temp. Pol. & Civ. Rts. L.
Rev. 325 (Fall 2003) (citations omitted).
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IF STATUTES OF LIMITATIONS FOR SEXUAL ASSAULTS ARE ELIMINATED,
WILL THIS LEAD TO ELIMINATING STATUTES OF LIMITATIONS FOR OTHER
OFFENSES?
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4. Changes to the Statute of Limitations for Sex Crimes against
Children
In the late 1980s, lawmakers across the country became
increasingly aware of the issue of child sex abuse. "The
problem of sexual abuse of children has, over the past two
decades, increasingly preoccupied our nation's pundits,
academics, and parents, and communities have begun to turn to
legislation to assuage their fears and protect their children.
As laws requiring registration by sex offenders have become
commonplace, some legislatures have also sought to redress
sexual crimes that have long gone unprosecuted, either because
the victims had repressed their memories of the abuse or
because the victims had been afraid to come forward."<9>
The California Legislature reflected the national concern. In
1989, AB 782 (N. Waters) enacted Penal Code Section 803 (f),
which established a new maximum limitation period for criminal
complaints by a child under the age of 18 for specified sex
offenses. In 1993, AB 290 (Boland, Ch. 390, Stats. 1993) was
enacted to provide that a criminal complaint may be filed
within one year of the date of a report to a law enforcement
agency by a person of any age alleging that he or she, while
under the age of 18 years, was the victim of sex abuse under
specified circumstances. Subsequent legislation expanded these
provisions.<10>
In addition, California enacted legislation in the 1990s to
revive otherwise expired child sexual abuse cases to apply the
newly extended limitation periods to these old cases.<11>
These revival provisions, however, were struck down in 2003 by
the United States Supreme Court in Stogner v. United States,
supra. In Stogner, the Court ruled that a law enacted after
--------------------------
<9> 117 Harv. L. Rev. 268 (November 2003), THE SUPREME
COURT, 2002 TERM: LEADING CASES: 1. CONSTITUTIONAL LAW:
2. EX POST FACTO CLAUSE.
<10> See AB 25X (Andal) (Ch. Ex. 46, Stats. 1994).
<11> AB 2014 (Boland) (Ch. 130, Stats. 1996); AB 700 (Alby)
(Ch. 29, Stats. 1997)
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expiration of a previously applicable limitations period
violates the Ex Post Facto Clause when it is applied to revive
a previously time-barred prosecution. The Court concluded
that Section 803 (g) threatened the very kind of harm that the
Ex Post Facto Clause seeks to avoid. The Court noted that the
statute deprived the defendant of the "'fair warning' that
might have led him to preserve exculpatory evidence," and
warned that "a Constitution that permits such an extension, by
allowing legislatures to pick and choose when to act
retroactively, risks both 'arbitrary and potentially
vindictive legislation. . . .'"<12>
While this bill does not attempt to authorize prosecution of
cases in which the statute of limitations has already expired,
it would allow prosecution at any time in the future of any
case that was within the statute of limitations at the time of
its enactment.
Most recently, in 2005, SB 111(Alquist) created the window
that allows specified sex offenses alleged to have been
committed when the victim was under the age of 18 to be
commenced any time prior to the victim's 28th birthday. This
provision went into effect January 1, 2006.
SINCE THE MOST RECENT CHANGES TO THE STATUTE OF LIMITATIONS FOR
SEX OFFENSES WENT INTO EFFECT IN 2006, IS THERE EVIDENCE THAT
THOSE CHANGES HAVE NOT BEEN EFFECTIVE?
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<12> Stogner, supra, at 2449-2450 (citations omitted)