BILL ANALYSIS �
AB 765
Page 1
Date of Hearing: April 5, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 765 (Achadjian) - As Amended: March 23, 2011
SUMMARY : Expands the definition of "rape by fraud" to include
submission of the victim to sexual intercourse under the belief
that the perpetrator is a "cohabitant", as specified.
EXISTING LAW :
1)Defines "rape" as an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator, as specified.
�Penal Code Section 261(a).]
2)States rape by fraud is committed when a person submits to
sexual intercourse under the belief that the person
committing the act is the victim's spouse, and this belief is
induced by any artifice, pretense, or concealment practiced by
the accused, with intent to induce the belief. �Penal Code
Section 261(a)(5).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Assembly Bill
765 would protect victims of rape by clarifying that a
perpetrator who induces a victim into sexual activity by
impersonating a cohabitant (live-in boyfriend or girlfriend)
is guilty of felony rape.
"Non-marital cohabitation is at an all-time high. In 2011, the
U.S. Census Bureau reported that over 15 million partners live
together in 7.5 million households. With those facts in mind,
it is clear that the current laws governing rape prosecution
are out of date by not recognizing the common practice of
cohabitation.
"Assembly Bill 765 would protect victims of rape by making it
AB 765
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clear that a perpetrator who impersonates a victim's spouse or
cohabitant in order to commit a sexual act is guilty of felony
rape. Doing so would empower District Attorneys with the
tools necessary to prosecute rape cases."
2)Background : According to the Santa Barbara District
Attorney's Office (the sponsor of this bill), "A recent
attempt by the Santa Barbara County District Attorney to
prosecute a rape case clearly demonstrates the deficiency in
existing law. The case involved a male suspect who entered a
residence during the night and had intercourse with the female
occupant. The victim believed that the suspect was her
boyfriend with whom she shared the residence. Although she was
awake during the encounter, the victim did not immediately
realize that the person with whom she was engaged in an act of
intercourse was not her boyfriend. When the victim realized
that the man was not her boyfriend she resisted and the
perpetrator fled.
"Although the perpetrator was arrested, the District Attorney
could not prosecute him for felony rape, simply due to the
fact that the victim and her boyfriend of 10 years lived
together but were not married. Had the couple been married,
the crime could have been prosecuted as a felony rape. Due to
the deficiency in existing statute, the District Attorney's
only option was to prosecute the perpetrator for misdemeanor
sexual battery and trespass, and the case was settled when the
defendant pled guilty to the lesser charges."
3)Incomplete Categorization of Impersonated Person in Cases of
Rape by Fraud : Under current law, rape by fraud can only be
committed where the perpetrator holds himself or herself out
to be the spouse of the victim. Because of this exclusive
listing, there appears to be a discrepancy in current law with
respect to the protection of a victim who chooses not to be
married but nevertheless lives with a significant other.
In other criminal contexts, such as felony domestic violence, a
cohabitant is treated the same as a spouse for purposes of
protecting the victim. �See e.g., Penal Code Section 273.5.]
This bill partially corrects this inconsistency by creating an
expanded definition of rape by fraud to include a person with
whom the victim is cohabiting. Arguably, there are other
intimate relationships, such as a fianc�, or a person with
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whom the defendant currently has an intimate relationship but
with whom the victim chooses not to cohabitate, which
implicate the same policy concerns but which are not included.
4)Related Legislation : AB 545 (Perez) expands the categories of
relationships that constitute felony domestic violence
resulting in a traumatic condition to include former
fianc�s/fianc�es, as well as current and former dating
relationships. AB 545 is pending hearing by this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Communities United Institute
California District Attorneys Association
Opposition
None
Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744