BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 765 (Achadjian)
As Amended May 5, 2011
Hearing date: June 28, 2011
Penal Code
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RAPE BY FRAUD
HISTORY
Source: Santa Barbara District Attorney
Prior Legislation: SB 1421 (Romero) - Ch. 302, Stats. 2002
Support: California Communities United Institute; California
District Attorneys Association; California Police
Chiefs Association; California Commission on the
Status of Women; Santa Barbara County Sheriff;
California Coalition Against Sexual Assault; Santa
Barbara Rape Crisis Center; University of California,
Santa Barbara; State Public Affairs Committee (SPAC)
of the Junior Leagues Palo Alto Mid- Peninsula; Los
Angeles County District Attorney's Office; Crime
Victims Action Alliance
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD RAPE BY FRAUD BE DEFINED TO INCLUDE CIRCUMSTANCES WHERE THE
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PERPETRATOR INDUCES THE VICTIM TO BELIEVE THAT HE<1> IS THE VICTIM'S
COHABITANT?
PURPOSE
The purpose of this bill is to define the form of rape by fraud,
in which the perpetrator induces the victim to believe that he
is the victim's spouse, shall also apply where the perpetrator
induces the victim to believe that he is the victim's
cohabitant.
Existing law provides rape is an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator.
As relevant to this bill, some of the circumstances establishing
rape are the following:
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.
Where a person submits 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.
Where the victim is 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:
o Was unconscious or asleep.
o Was not aware, knowing, perceiving, or
cognizant that the act occurred.
o Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act
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<1> As a matter of law, a woman can rape a man if the two have
sexual intercourse and the man engaged in the act because he was
forced to do so, was too intoxicated to resist, or another form
of the crime applies. Further, a woman can be convicted of rape
as an aider and abettor. However, in the vast majority of
rapes, a man is the perpetrator and the woman is the victim.
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due to the perpetrator's fraud in fact.
o Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act
due to the perpetrator's fraudulent representation
that the sexual penetration served a professional
purpose when it served no professional purpose. (Pen.
Code � 261(a)(1)-(7).)
This bill provides that rape occurs where the victim submits to
sexual intercourse because she believes that the person
committing the act is the victim's cohabitant and this belief is
induced by any artifice, pretense or concealment by the
perpetrator, with the intent to induce the victim's belief.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
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prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Under existing law, felony rape can be prosecuted in
cases where a victim submitted to sexual activity
"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."
Currently, if a victim submits to sexual activity
under the belief that the person committing the act is
the victim's cohabitant (boyfriend) the perpetrator
cannot be prosecuted for felony rape.
Existing statutes related to domestic violence define
and recognize cohabitation in order to protect
individuals that suffer from domestic abuse, corporal
injury, spousal abuse and spousal battery.
2. Different Application of Rape Law based on Marital Status
Under current law, rape by fraud can only be committed where the
perpetrator holds himself or herself out to be the spouse of the
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victim. Because of this exclusive listing, there appears to be
a discrepancy in current law with respect to the protection of a
victim who is not married but 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., Pen. Code � 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 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.
SHOULD THE CRIME OF RAPE BY FRAUD UNDER CIRCUMSTANCES WHERE THE
PERPETRATOR INDUCES THE VICTIM TO BELIEVE THAT HE IS THE
VICTIM'S SPOUSE ALSO APPLY WHERE THE VICTIM BELIEVES THAT THE
PERPETRATOR IS HER COHABITANT?
3. Incident That Prompted Introduction of This Bill
The background information submitted by the author to the
Committee included the following description by the Santa
Barbara County District Attorney's Office - the sponsor of the
bill - of the facts of the incident that prompted introduction
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
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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.
4. Background on why Prosecutor Concluded that a Rape charge was
not Possible in the Incident Underlying Introduction of the
Bill
This recitation of the facts raises the issue of whether or not
the District Attorney concluded that the case would be difficult
to prove to a jury, or whether or not the District Attorney
concluded that there was no legal basis for a rape charge.
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As a matter of law, a rape occurs in circumstances where the
victim initially consensually engages in intercourse, but then
withdraws her consent and communicates that to the man with whom
she is having intercourse. (In re John Z. (2003) 29 Cal.4th
756.) "�W]e conclude that the offense of forcible rape occurs
when, during apparently consensual intercourse, the victim
expresses an objection and attempts to stop the act and the
defendant forcibly continues despite the objection." (Id., at
p. 758.)
The facts described by the sponsor include that the victim
resisted when she realized that the man with whom she was having
intercourse was not her boyfriend. In discussions with
Committee staff, the Santa Barbara District Attorney explained
that the man immediately ceased intercourse when the victim
objected and resisted. As such, under the ruling of the
California Supreme Court in John Z. it is certainly arguable
that prosecution could not prove a rape under existing law.
(Id., at pp. 756, 758 and 762.)
The facts would constitute rape if the perpetrator did not cease
having intercourse with the victim and did not penetrate the
victim's vagina in the slightest degree after she resisted.
5. Issue of Whether or not the Facts of the Incident Support a
Residential Burglary Charge
Residential burglary is the entry into a residence with the
intent to commit theft or any felony. It appears that the
perpetrator in the Santa Barbara incident entered the victim's
residence without consent. If the perpetrator also had the
intent to commit a rape, he was guilty of residential burglary.
A burglary occurs when the perpetrator enters the residence with
the intent to commit a felony or steal something. The fact that
a felony does not occur after the entry into the residence does
not affect the fact that the burglary has occurred.
However, the Santa Barbara case was quite anomalous. According
to the District Attorney, the perpetrator had a history of
entering women's residences and touching their legs while they
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slept. Because the perpetrator did not touch an intimate part of
the women's body in these incidents, the defense likely had an
excellent defense that he did not have the intent to commit a
felony when he entered the residences. Simply touching a
woman's leg would not constitute felony sexual battery, which
includes an element that the perpetrator touched an intimate
part of the victim's body. The defense thus would have argued
that on the one occasion in which the perpetrator had
intercourse with the victim, he simply took advantage of the
situation without prior intent to commit a felony.
Representatives of the sponsor have informed Committee staff
that the perpetrator in the incident discussed in this analysis
was sentenced to a substantial prison term after he pleaded
guilty to assault with intent to commit a sex crime (Pen. Code
�220) in an unrelated incident. The conviction requires the man
to register as a sex offender.
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