BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
6
5
AB 65 (Achadjian)
As Amended May 8, 2013
Hearing date: May 14, 2013
Penal Code
JM:mc
SEX CRIMES COMMITTED BY FRAUD
HISTORY
Source: Santa Barbara District Attorney; California District
Attorneys Association; Los Angeles County District
Attorney
Prior Legislation: SB 59 (Evans) - pending at the Assembly Desk
SB 765 (Achadjian) - 2011, held in Senate Public
Safety
SB 1421 (Romero) - Ch. 302, Stats. 2002
Support: Attorney General Kamala Harris; American Federation of
State County and Municipal Employees; Alameda County
Board of Supervisors; Berkeley City Council;
California Coalition Against Sexual Assault;
California Partnership to End Domestic Violence;
California Police Chiefs Association; California
Probation Officers; California Probation, Parole and
Correctional Association; California State Sheriffs'
Association; Peace Officers Research Association of
California; City of West Hollywood; District Attorney
of Yolo County; University of California, Santa
Barbara; Santa Barbara Rape Crisis Center; North
County Women's Shelter & Resource Center; Japanese
American Citizens League; Watsonville-Santa Cruz
Japanese American Citizens League; California
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Communities United Institute; California Crime Victims
Assistance Association; Planned Parenthood Affiliates
of California
Opposition:Unknown
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD RAPE AND OTHER SEX CRIMES COMMITTED BY IMPERSONATION INCLUDE
CIRCUMSTANCES WHERE THE PERPETRATOR INDUCES THE VICTIM TO BELIEVE
THAT HE<1> IS SOMEONE KNOWN TO THE VICTIM OTHER THAN THE
PERPETRATOR?
PURPOSE
The purpose of this bill is to define rape and other sex crimes
committed by fraud concerning the identity of the perpetrator to
include any case where the perpetrator induced the victim to
believe he or she was someone known to the victim other than the
perpetrator.
Existing law provides that rape is an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator.
As relevant to this bill, some of the circumstances establishing
rape are the following:
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<1> The vast majority of sex crimes are committed by males. A
2007 report by the U.S. Department of Justice on female sex
offenders stated: "Arrests of women represent only 1% of all
adult arrests for forcible rape and 6% of all adult arrests for
other sex offenses."
http://www.csom.org/pubs/female_sex_offenders_brief.pdf.
References to male perpetrators in this analysis are made to
reflect this fact and for brevity.
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Where it is accomplished against a person's will by
means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or
another.
Where a person 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.
Where the victim is unconscious of the nature of the
act, and this is known to the accused. As used in this
paragraph, "unconscious of the nature of the act" is
defined as incapable of resisting because the victim meets
one of the following conditions:
o was unconscious or asleep;
o was not aware, knowing, perceiving, or
cognizant that the act occurred;
o was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act
due to the perpetrator's fraud in fact; and
o was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act
due to the perpetrator's fraudulent representation
that the sexual penetration served a professional
purpose when it served no professional purpose. (Pen.
Code � 261(a)(1)-(7).)
Existing law includes numerous felony sex crimes that are
committed where the perpetrator engaged in oral copulation,
sodomy, or sexual penetration in a prohibited manner. The
statutes are largely equivalent to the rape statute and involve
the following conduct:
The perpetrator used force or compulsion.
The perpetrator engaged the act while the victim was
unconscious of the nature of the act, as specified.
The perpetrator fraudulently induced the victim to
believe that he or she was the spouse of the victim. (Pen.
Code �� 286 (sodomy); 288a (oral copulation); 289 (sexual
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penetration).<2>
Existing law provides that where sodomy, sexual penetration or
oral copulation is committed by force or compulsion, or where
the victim is unconscious of the nature of the act, the crime is
punishable by imprisonment in the state prison for three, six,
or eight years. (Pen. Code �� 268, 288a, and 289.)
This bill provides that rape and other specified sex crimes
occur where the victim submits to sexual intercourse because she
or he believes that the person committing the act is a person
known to the victim other than the accused, and this belief is
induced by any artifice, pretense or concealment by the
perpetrator, with the intent to induce the victim's belief.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
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<2> Sodomy is defined as any penetration of the anus of one
person by the penis another person. Oral copulation is the
copulation of the mouth of one person with the sexual organ or
anus of another person. Sexual penetration is the penetration
of the genital opening or anus of one person with an object,
device, body part other than a penis, or an unknown object. An
unknown object can include a penis, where the victim is unaware
of the actual nature of the object. (Pen. Code �� 286, subd.
(a), 288a, subd. (a), 289, subd. (k).)
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scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
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questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Assembly Bill 65 would close an archaic loophole in
current law that has denied justice to victims simply
because they were not married. By removing the
reference to spouse in the definition of rape, the
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. This new definition
will give district attorneys the tools they need to
prosecute against all cases of rape.
2. Sex Crimes Committed by Fraud as to the Identity of the
Perpetrator - Current Law refers only to the Victim's Spouse
Under current law, sex crimes committed by fraud concerning the
identity of the perpetrator can only be committed where the
perpetrator holds himself out to be the spouse of the victim.
This bill would broaden the reach of these statutes to include
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any situation where the victim engaged in a sexual act because
the perpetrator induced the victim to believe that he was
someone known to the victim. In such cases the victim would not
have agreed to engage in sexual conduct if she or he had known
the actual identity of the other person. This bill would
provide that the defendant's fraud negated any apparent consent
given by the victim. That is, any agreement to engage in sexual
conduct was not valid, as it was not knowingly or voluntarily
given.
3. Incident That Prompted Introduction of This Bill
The background information for AB 765 in 2011 included the
following description by the Santa Barbara County District
Attorney's Office<3> of the facts of the incident that prompted
introduction of this bill and AB 765:
A recent attempt by the Santa Barbara County District
Attorney to prosecute a rape case clearly demonstrates
the deficiency in existing law. The case involved a
male suspect who entered a residence during the night
and had intercourse with the female occupant. The
victim believed that the suspect was her boyfriend
with whom she shared the residence. Although she was
awake during the encounter, the victim did not
immediately realize that the person with whom she was
engaged in an act of intercourse was not her
boyfriend. When the victim realized that the man was
not her boyfriend, she resisted and the perpetrator
fled.
Although the perpetrator was arrested, the District
Attorney could not prosecute him for felony rape, due
to the fact that the victim and her boyfriend of 10
years lived together but were not married. Had the
couple been married, the crime could have been
prosecuted as a felony rape. The District Attorney's
only option was to prosecute the perpetrator for
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<3> The Santa Barbara District Attorney was the sponsor of AB
765 in 2011 and is the sponsor of this bill.
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misdemeanor sexual battery and trespass, and the case
was settled when the defendant pled guilty to the
lesser charges.
4. Background on Why a Forcible Rape Charge Was Not Possible in
the Santa Barbara Incident Underlying Introduction of the Bill
Where a rape victim initially engages in consensual intercourse,
but then withdraws her consent and communicates that to the man
with whom she is having intercourse, the man is guilty of rape
if he forcibly continues having intercourse with the victim.
(In re John Z. (2003) 29 Cal.4th 756, 758.) In the Santa
Barbara incident described above in Comment # 3, the victim did
resist or object when she realized that the man with whom she
was having intercourse was not her boyfriend. However, the man
then immediately ceased having intercourse with her. As such,
it appears likely that the man could not have been convicted of
forcible rape under existing law. (Id., at pp. 756, 758 and
762.)
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5. SB 59 (Evans) and Rape Incident That Prompted Introduction of
that Bill
The Morales Rape Conviction Reversal
SB 59 (Evans) - pending in the Assembly - also considers sex
crimes committed through impersonation. SB 59 was prompted by
the well-publicized reversal of a rape conviction in People v.
Morales (2013) 212 Cal.App.4th 583. In that case, Julio Morales
was convicted of rape of an unconscious person. The
prosecution's theory was that Morales had intercourse with the
victim while she was asleep. The appellate court reversed
Morales' conviction because the instructions allowed the jury to
convict him on the legally invalid theory that he had induced
the victim to believe that he was her boyfriend. The appellate
court found that there was ample evidence to convict Morales of
rape of an unconscious (sleeping) person and ordered that
Morales retried on that basis. (People v. Morales, supra, 212
Cal.App.4th 583, 586-597.)
SB 59 (Evans) - Fraudulently Inducing the Victim to believe that
the Perpetrator is the Victim's Sexual Partner
SB 59 (Evans) defines rape and other sex crimes by fraud as
occurring where the perpetrator fraudulently induced the victim
to believe that the perpetrator was the "sexual partner" of the
victim. The bill defines sexual partner as an individual with
who the victim has had consensual sexual contact, including oral
copulation, sodomy, sexual penetration, or the touching of an
intimate part of another person.
SB 59 is narrower than this bill, as it would not apply in cases
where the victim and the perpetrator have never previously
engaged in sexual conduct, including intimate touching. Such
cases would appear to be relatively rare, as the incidents that
prompted introduction of this bill and SB 59 occurred under
circumstances where the victim was particularly likely to trust
that the person with whom she was having sex was her intimate
partner. In the Santa Barbara incident, the victim had gone to
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sleep in the bed she shared with her boyfriend of 10 years, whom
she believed was in another room of the apartment. Although she
was awake during the incident, she would not have expected
someone other than her boyfriend to enter her bedroom. In the
case that prompted introduction of SB 59, victim "Jane Doe"<4>
and her boyfriend Victor lay down on Jane's bed together after
returning from a party. Jane asked Victor to spend the night,
but he had plans for the morning. They talked about having
intercourse, but Victor did not have a condom and they never had
unprotected sex. Victor left sometime after Jane fell asleep.
Morales, a friend of Jane's brother, had attended the party and
returned to Jane's residence with some others. He was at Jane's
house when Victor left.
6. Sentencing Considerations
Under existing law, a rape or other sex crime by impersonation
is committed only where the perpetrator pretended to be the
spouse of the victim. These statutes are anachronistic, as they
do not reflect the wide range of relationships and acceptable
sexual behavior in society today. This bill extends the
existing penalties for a sex crime by fraudulent impersonation
to include cases where the perpetrator induced the victim to
engage in sexual activity by impersonating any person known to
the victim.
The base sentence for a sex crime is a triad of three, six, or
eight years in prison. Each sexual act in a sex offense
incident constitutes a separately punishable crime. Unlike most
felonies where consecutive (additional) terms are imposed as 1/3
of the middle term, consecutive sex crime sentences can, and
often must, be for the full term. Numerous enhancements and
special sentencing schemes for recidivists and particularly
egregious offenders apply in sex crime cases. Under numerous
circumstances, a defendant either can or must be sentenced to a
life term.
SHOULD SEX CRIMES COMMITTED WHERE THE PERPETRATOR INDUCED THE
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<4> The appellate opinion in Morales referred to the victim as
Jane Doe to protect her privacy.
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VICTIM TO BELIEVE THAT HE<5> WAS THE VICTIM'S SPOUSE BE EXPANDED
TO INCLUDE ANY CASE WHERE THE PERPETRATOR FRAUDULENTLY INDUCED
THE VICTIM TO BELIEVE THAT HE WAS ANOTHER PERSON KNOWN TO THE
VICTIM?
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<5> As noted in footnote 3, the vast majority of sex crimes are
committed by males.