BILL ANALYSIS �
AB 2078
Page 1
Date of Hearing: March 27, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2078 (Nielsen) - As Amended: March 21, 2012
SUMMARY : Includes peace officers in the category of people
subject to criminal penalties for engaging in consensual sexual
activity with confined persons, and adds a clarification to the
definition of a "detention facility" for purposes of the crime.
Specifically, this bill :
1)Adds peace officers to the list of individuals who are
prohibited from engaging in consenting sexual activity with a
confined person.
2)Specifies that a detention facility includes a vehicle
"transporting a person after he or she has been arrested but
has not been booked."
3)Makes technical, non-substantive changes.
EXISTING LAW :
1)Prohibits sexual activity between a consenting adult confined
in a detention facility and an employee, officer, agent or
volunteer of the detention facility, except for authorized
conjugal visits. �Penal Code Section 289.6(a)(2) and (f).]
2)Defines a detention facility as:
a) A prison, jail, camp, or other correctional facility
used for the confinement of adults or both adults and
minors;
b) A building or facility used for the confinement of
adults or adults and minors pursuant to a contract with a
public entity;
c) A room that is used for holding persons for interviews,
interrogations, or investigations and that is separate from
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a jail or located in the administrative area of a law
enforcement facility;
d) A vehicle used to transport confined persons during
their period of confinement; and
e) A court holding facility located within or adjacent to a
court building that is used for the confinement of persons
for the purpose of court appearances. �Penal Code Section
289.6(c).]
3)Provides that any person who commits an act of sexual
intercourse 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
where the victim has a reasonable belief that the perpetrator
is a public official, is guilty of rape. �Penal Code Section
261(a)(7).]
4)Provides that any person who commits an act of sodomy when 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,
shall be punished by imprisonment in the state prison for a
period of three, six, or eight years. �Penal Code Section
286(k).]
5)Provides that any person who commits an act of oral copulation
when 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, shall be punished by imprisonment in the
state prison for a period of three, six, or eight years.
�Penal Code Section 288a(k).]
6)Provides that any person who commits an act of sexual
penetration when 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, shall be punished by imprisonment in the
state prison for a period of three, six, or eight years.
�Penal Code Section 289(g).]
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7)Defines a "public official" for purposes of the rape, sodomy,
oral copulation, and sexual penetration statutes 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 Sections 261(a)(7), 286(k), 288a(k),
and 289(g).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author," AB 2078 is in
direct response to a despicable act that occurred last year in
Northern California and the failure to provide justice for the
victim.
"Current law states that it is illegal for an "employee or
officer of a custodial facility" to engage in consensual sex
with a detainee. The section of the Penal Code that deals
with unlawful acts with a confined individual (289.6), states
that a detention facility is also a vehicle that is being used
to transport someone who is confined.
"In the summer of 2010, an Anderson police officer was
transporting a female subject to the jail, located in Redding.
The female had been arrested for driving under the influence
of alcohol. On the way from the Anderson Police Department,
where she was arrested but not booked, to the Shasta County
Jail, the officer pulled over and raped the female victim.
The victim immediately reported the crime once she was booked
in the Shasta County jail. The Redding Police Department
conducted the investigation and filed a complaint with the
Shasta County District Attorney's Office.
"The previous District Attorney, in 2010, felt that the act was
not consensual and charged the Anderson Police Officer with
rape under PC 261 and PC 289.6, as the victim was in custody
at the time.
"The current District Attorney, who prosecuted the case in the
fall of 2011, claimed there was a "loophole" in PC 289.6. He
claims there is no specific section in PC 289.6 that prohibits
consensual sex between an officer and someone in custody,
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unless they have been specifically contained in a detention
facility. As a result of the interpretation or loophole, the
District Attorney was unwilling to prosecute the case as rape,
and the Anderson Police Office escaped with a plea deal that
resulted in a 1-year maximum jail sentence.
"This is a travesty of justice. I have introduced AB 2078 to
ensure that this sort of crime will be prosecuted to the full
extent in the future. AB 2078 would make it crystal clear
that confinement includes "transporting anyone after he or she
has been arrested but not yet booked."
2)Is It Necessary to Clarify What Kind of Vehicle Qualifies as a
Detention Facility ? For purposes of the statute, a detention
facility is defined as: a prison, jail, camp, or other
correctional facility used for the confinement of adults or
both adults and minors; a building or facility used for the
confinement of adults or adults and minors pursuant to a
contract with a public entity; a room that is used for holding
persons for interviews, interrogations, or investigations and
that is separate from a jail or located in the administrative
area of a law enforcement facility; a vehicle used to
transport confined persons during their period of confinement;
or court holding facility located within or adjacent to a
court building that is used for the confinement of persons for
the purpose of court appearances. (Emphasis added.)
In People v. Bojorquez (2010) 183 Cal.App.4th 407, the
appellate court considered whether a county animal shelter
qualified as a detention facility where women participating in
a work-release program were volunteering there in lieu of
their jail confinement. In order to answer this question, the
court had to decide whether the women were "confined" within
the meaning of the statute. The statute does not define the
term "confinement," and the court noted that confinement can
be reasonably interpreted to mean either actual imprisonment
or a circumstance short of imprisonment involving restriction
or liberty or movement. (Id. at p. 418.) Since the term is
subject to two reasonable interpretations, the court looked to
the legislative intent and history of the statute. The
legislative purpose was to deter the sexual abuse of persons
in custody by their custodians. There were several amendments
which expanded the protections of the statute. The court
decided that "�t]he rather extensive legislative history of
section 289.6 supports a construction of 'confinement' that
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comports with the more expansive definition proposed by the
Attorney General, rather than the narrower definition urged by
defendant." (Id. at p. 419.) "�W]e cannot conclude the
Legislature intended the protections of section 289.6,
subdivision (a)(2), to apply only to inmates held in detention
facilities with iron bars, armed guards and '24/7' lockup
procedures." (Id. at p. 421.) The court interpreted
"confinement" broadly to include the community work release
program. And so, the court held that the animal shelter used
in conjunction with the work-release program qualified as a
detention facility used for the confinement of adults. (Id.
at p. 416.)
Applying the rationale in Bojorquez, supra, 183 Cal.App.4th
407, the proposed clarification of the type of vehicle that is
included within the definition of a detention facility seems
unnecessary. A police car transporting an arrestee for
booking is "a vehicle used to transport a confined person
during their period of confinement" since an arrested person
sitting in a patrol is "confined" in that his or her liberty
is restrained and movement is restricted.
3)Argument in Support : According to the California State
Sheriffs' Association , "Current law states that it is illegal
for a peace officer to engage in any sexual activity with
someone who is in their custody. Current law also states that
confinement also includes a vehicle to transport someone who
is handcuffed. However, the law is currently vague on the
issue of transporting a confined individual who has been
'arrested' but has not been processed or 'booked.'
"This reasonable legislation protects law enforcement personnel
as well as those in their custody."
4)Prior Legislation :
a) SB 377 (Polanco), Chapter 806, Statutes of 1999,
extended the reach of the statute by adding volunteers and
contractors in detention facilities to those subject to
criminal penalties for engaging in sexual activity with
confined persons, and added parolees to those protected by
the statute.
b) AB 685 (Wayne), Chapter 209, Statutes of 1997, added to
the definition of "detention facility," for purposes of the
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statute, a health facility in which the victim has been
detained involuntarily.
c) AB 1568 (Solis), Chapter 499, Statutes of 1994, created
the crime of consensual sexual activity with a confined
adult.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Probation, Parole and Correctional Association
California State Sheriffs' Association
Opposition
None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744