BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2078|
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THIRD READING
Bill No: AB 2078
Author: Nielsen (R), et al.
Amended: 3/21/12 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/12/12
AYES: Hancock, Anderson, Harman, Liu, Price, Steinberg
NO VOTE RECORDED: Calderon
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 74-0, 4/26/12 (Consent) - See last page
for vote
SUBJECT : Sexual activity with detained persons
SOURCE : Author
DIGEST : This bill clarifies 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.
ANALYSIS : Existing 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 (PEN) Section 289.6(a)(2) and (f))
Existing law defines a detention facility as:
CONTINUED
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1. A prison, jail, camp, or other correctional facility
used for the confinement of adults or both adults and
minors;
2. A building or facility used for the confinement of
adults or adults and minors pursuant to a contract with
a public entity;
3. 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;
4. A vehicle used to transport confined persons during
their period of confinement; and
5. 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. (PEN
Section 289.6(c))
Existing 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. (PEN Section 261(a)(7))
Existing law 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. (PEN Section 286(k))
Existing 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
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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. (PEN Section 288a(k))
Existing 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. (PEN Section 289(g))
Existing 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." (PEN
Section 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 not been booked."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 6/26/12)
California District Attorneys Association
California Police Chiefs Association
California Probation, Parole, and Correctional Association
California State Sheriffs' Association
ARGUMENTS IN SUPPORT : 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.
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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
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.
ASSEMBLY FLOOR : 74-0, 4/26/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Beth
Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove,
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Hagman, Hall, Hayashi, Roger Hern�ndez, Hill, Huber,
Hueso, Huffman, Jeffries, Knight, Lara, Logue, Bonnie
Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan,
Perea, V. Manuel P�rez, Portantino, Silva, Skinner,
Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski,
Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Cedillo, Furutani, Halderman, Harkey,
Jones, Smyth
RJG:k 6/25/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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