BILL ANALYSIS �
AB 65
Page 1
Date of Hearing: March 12, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 65 (Achadjian) - As Amended: February 25, 2013
As Proposed to be Amended in Committee
SUMMARY : Provides that rape, or felonious oral copulation,
sodomy, or sexual penetration, occurs where the victim submits
to the sexual act under the belief that the perpetrator is
someone other than the accused, and not just the spouse of the
victim. Specifically, this bill :
1)Expands the crime of rape to include the situation where the
perpetrator fraudulently induces the victim to believe that he
or she is another person.
2)Expands the crime of sodomy to include the situation where the
perpetrator fraudulently induces the victim to believe that he
or she was another person.
3)Expands the crime of oral copulation to include the situation
where the perpetrator fraudulently induces the victim to
believe that he or she was another person.
4)Expands the crime of sexual penetration by a foreign object to
include the situation where the perpetrator fraudulently
induces the victim to believe that he or she was another
person.
5)Contains an urgency clause.
EXISTING LAW :
1)Provides that rape by fraud is committed when a person submits
to sexual intercourse 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. [Penal Code
Section 261(a)(5).]
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2)Provides that a person who commits an act of sodomy, where the
victim 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, shall be punished by
imprisonment in the state prison for three, six, or eight
years. [Penal Code Section 286(j).]
3)Provides that a person who commits an act of oral copulation,
where the victim 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, shall be
punished by imprisonment in the state prison for a period of
three, six, or eight years. [Penal Code Section 288a(j).]
4)Provides that a person who commits an act of sexual
penetration by a foreign object when the victim submits under
the belief that the person committing the act or causing the
act to be committed 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, shall be
punished by imprisonment in the state prison for a period of
three, six, or eight years. [Penal Code Section 289(f).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Assembly Bill
65 would protect all victims of rape by making it clear that a
perpetrator who impersonates anyone other than the accused is
guilty of felony rape. This will close an archaic loophole in
current law that says a person is committing felony rape only
if they are impersonating a victim's spouse. This updated
language will better reflect the modern society we live in and
protect all forms of relationship that exist, rather than
prescribing each classification of relationship, with the
possibility of overlooking one. This definition will give the
district attorneys the tools they need to prosecute against
all cases of rape."
2)Background : In People v. Morales (2013) 212 Cal.App.4th 583,
the defendant IS convicted of rape of an unconscious person
based on entering the dark bedroom of an unmarried woman after
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seeing her boyfriend leave and having sexual intercourse with
her by impersonating the boyfriend. (Id. at p. 586.) The
defendant appealed the conviction claiming that the jury
instruction on the crime of rape of an unconscious person
allowed the jury to convict him on an incorrect legal theory.
Rape of an unconscious person occurs when the victim is not
aware of the essential characteristics of the act due to the
perpetrator's fraud in fact. Some courts have characterized
sex crimes involving impersonation as fraud in fact (where the
defendant obtains consent to perform one act, but instead
engages in another), while others have referred to such crimes
as fraud in the inducement (misrepresentations that induce the
victim to consent), which precludes criminal liability.
(People v. Morales, supra, 212 Cal.App.4th at p. 591.) While
a jury could easily conclude that a rape of an unconscious
person occurred in this case based on the statutory definition
set forth in Penal Code section 262(a)(4)(C), the court was
constrained by the tenants of statutory interpretation from
reaching this conclusion. A separate provision of the rape
statute, Penal Code section 261(a)(5), expressly makes sexual
intercourse by impersonating a victim's spouse a rape. The
court was compelled to interpret subdivision (a)(4) in a
manner that did not render subdivision (a)(5) superfluous.
(Id. at p. 594.) Therefore, the court held that a person who
has sexual intercourse with a victim by impersonating someone
other than the victim's spouse does not commit rape under
section 261, subdivision (a)(4). The court reversed the
conviction because the record failed to disclose whether the
jury relied upon a proper theory to convict. (Id. at p. 595.)
The court also urged the Legislature "to reexamine section
261, subdivision (a)(4) and (5), and correct the incongruity
that exists when a man may commit rape by having intercourse
with a woman when impersonating a husband, but not when
impersonating a boyfriend." (People v. Morales, supra, 212
Cal.App.4th at p. 587, fn. 3.)
3)Incomplete Categorization of Impersonated Person in Cases of
Sex Offenses Committed by Fraud : Under current law, rape by
fraud or impersonation can only be committed where the
perpetrator holds him or herself out to be the spouse of the
victim. This same provision applies to specified crimes
involving unlawful oral copulation, sodomy, or sexual
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penetration by a foreign object. Because of this exclusive
listing, there is a discrepancy in current law with respect to
the protection of a victim who chooses not to be married but
nevertheless has an intimate relationship with another. Where
the victim believed the person with whom she or he was having
intercourse was not the spouse, but rather, was a cohabitant,
boyfriend, or girlfriend, no crime was committed.
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., Penal Code Section 273.5.]
The misdemeanor domestic violence statute is even broader and
includes a fianc� and a person with whom the perpetrator has
or had a dating relationship. [Penal Code Section 243(e) and
(f).] This bill corrects this inconsistent treatment by
expanding the definition of sexual offenses committed by
impersonation to include submission under the mistaken belief
that that the perpetrator was someone else.
4)Argument in Support : According to the California District
Attorneys Association , one of the sponsors of this bill,
"Since this law was created, social norms have evolved greatly
vis-�-vis sexual activity, but the statute has gone largely
unaltered. It is no longer uncommon for persons who are not
married but are involved in an intimate relationship to engage
in sexual behavior. As such, it is appropriate to update PC
261(a)(5) so that criminals may not shield themselves from
prosecution and punishment with the words of this arcane
statute.
"As you know, the limitations of existing law have been exposed
by at least two recent cases. In 2011, CDAA supported your AB
765, which arose out of a case in Santa Barbara County wherein
a victim submitted to sexual intercourse thinking the
perpetrator was the victim's live-in boyfriend. Because the
victim in this case was not asleep when the act commenced,
believed the assailant to be her boyfriend, and withdrew
consent as soon as she realized the perpetrator was not her
boyfriend, the offender could not be appropriately charged
under any of the existing theories of rape.
"Additional light was shined upon this statutory deficiency when
the Second District Court of Appeals overturned a rape
conviction just weeks ago in the case of People v. Morales
(2013) Cal. App. LEXIS 2. Though this particular case was not
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charged as a violation of PC 261(a)(5), had that section
recognized the ubiquity of non-marital intimate relationships,
it is likely that the case might have been charged differently
and the conviction not ultimately overturned. In fact, the
court 'urge[d] the Legislature to reexamine section 261,
subdivisions (a)(4) and (a)(5), and correct the incongruity
that exists when a man may commit rape by having intercourse
with a woman when impersonating a husband, but not when
impersonating a boyfriend.'
"Both of these cases and a simple understanding of cultural
evolution highlight the reality that PC 261(a)(5) needs to be
amended so that future acts of rape may be appropriately
charged and prosecuted."
5)Related Legislation : SB 59 (Evans) provides that rape,
sodomy, oral copulation, or sexual penetration by fraud occurs
where the individual submits under the belief that the
individual committing the act is the victim's sexual partner.
SB 59 is pending hearing by the Senate Appropriations
Committee.
6)Prior Legislation : AB 765 (Achadjian), of the 2011-12
Legislative Session, would have expanded the definition of
"rape by fraud" to include submission of the victim to sexual
intercourse under the belief that the perpetrator was a
cohabitant. AB 765 was held in the Senate Public Safety
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Co-Sponsor)
Los Angeles County District Attorney (Co-Sponsor)
Santa Barbara County District Attorney (Co-Sponsor)
Alameda County Board of Supervisors
American Federation of State, County, and Municipal Employees
California Coalition Against Sexual Assault
California Communities United Institute
California National Organization for Women
California Partnership to End Domestic Violence
California Police Chiefs Association
California Probation, Parole and Correctional Association
California State Sheriffs' Association
AB 65
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Chief Probation Officers of California
City of West Hollywood
Japanese American Citizens League - Northern California-Western
Nevada-Pacific District
Japanese American Citizens League - Watsonville-Santa Cruz
Chapter
North County Women's Shelter and Resources Center
Peace Officers Research Association of California
UC Santa Barbara Campus Advocacy, Resources and Education
Program
Yolo County District Attorney
Six private individuals
Opposition
None submitted
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744