BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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0
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AB 2078 (Nielsen) 8
As Amended March 21, 2012
Hearing date: June 12, 2012
Penal Code
SM:mc
SEXUAL ACTIVITY WITH DETAINED PERSONS
HISTORY
Source: Author
Prior Legislation: SB 1568 (Solis) - Chap. 499, Stats. of 1994
Support: California District Attorneys Association; California
Probation, Parole, and Correctional Association;
California Police Chiefs Association; California State
Sheriffs' Association
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD IT BE CLARIFIED THAT PEACE OFFICERS ARE PROHIBITED FROM
ENGAGING IN CONSENSUAL SEX WITH A PERSON IN A DETENTION FACILITY OR
BEING TRANSPORTED AFTER ARREST TO A DETENTION FACILITY?
PURPOSE
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The purpose of this bill is to clarify that peace officers are
prohibited from engaging in consensual sex with a person in a
detention facility or being transported after arrest to a
detention facility.
Current law 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 � 289.6(a)(2) and (f).)
Current law defines a detention facility 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; and
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 �
289.6(c).)
Current law 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 � 261(a)(7).)
Current law provides that any person who commits an act of
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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 �
286(k).)
Current law 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 �
288a(k).)
Current law 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 � 289(g).)
Current law 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 � 261(a)(7), 286(k), 288a(k), and
289(g).)
This bill specifies that peace officers are prohibited from
engaging in consenting sexual activity with a confined person.
This bill specifies that a detention facility includes a vehicle
"transporting a person after he or she has been arrested but has
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not been booked."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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
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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
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
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1. Need for This Bill
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, unless they have been
specifically contained in a detention facility. As a
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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.
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While Mr. Nielsen disagrees with how the DA prosecuted
the case, our office recognizes that there is a need
to bring greater clarity to this definition. AB 2078
would specify that transport of a person during
confinement also includes transporting a person after
he or she has been arrested, but has not yet been
booked.
2. What Kind of Vehicle Qualifies as a Detention Facility?
For purposes of section 289.6, 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 of
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
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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
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.)
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. Therefore this bill would clarify existing law,
consistent with the holding in Bojorquez, supra, 183 Cal.App.4th
407.
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