BILL ANALYSIS                                                                                                                                                                                                    �



                                                                  AB 2078
                                                                  Page  1

          Date of Hearing:   April 18, 2012

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                   AB 2078 (Nielsen) - As Amended:  March 21, 2012 

          Policy Committee:                              Public 
          SafetyVote:  6-0

          Urgency:     No                   State Mandated Local Program: 
          Yes    Reimbursable:              No

           SUMMARY  

          This bill clarifies that peace officers are in the category of 
          employees and officers subject to criminal penalties for 
          engaging in consensual sexual activity with confined persons, 
          and explicitly specifies a detention facility includes a vehicle 
          transporting an arrestee before booking.

           FISCAL EFFECT  

          Unknown, likely minor local law enforcement costs as this bill 
          merely clarifies what most courts, law enforcement officials, 
          and criminal attorneys would interpret as current law. 

           COMMENTS  

           1)Rationale  . The author contends this bill addresses an anomaly 
            in which an Anderson (Shasta County, population of about 
            10,000) police officer avoided a rape charge for allegedly 
            raping a woman he was transporting to the Shasta County jail 
            in his vehicle. 

            According to the author's office and the Redding Record 
            Searchlight, the victim immediately reported the offense once 
            booked into jail. After investigation, the officer was charged 
            with rape and kidnapping. During a 2010 press conference, then 
            District Attorney Jerry Benito stated that a person in police 
            custody cannot consent to sex with an officer. "She's in 
            custody, there is no consensual sex." 

            In 2011, under a new district attorney, charges were reduced 
            to a misdemeanor because of what the new district attorney 








                                                                  AB 2078
                                                                  Page  2

            claimed was a loophole regarding the definition of 
            confinement. The officer was convicted of assault and 
            soliciting a lewd act, and was fired.

           2)The actual need for this bill is not clear, though the 
            clarifications do not cause problems  . The Penal Code section 
            this bill amends makes consensual sexual activity between a 
            confined person and an employee, officer, or agent of the 
            detention facility an alternate felony/misdemeanor. The 
            section includes a vehicle used to transport confined persons 
            during their period of confinement within the definition of 
            detention facility. Moreover, current law provides several 
            prosecutorial avenues related to rape and other sexual 
            offenses accomplished by using the authority of a public 
            official. 

           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081