SB 59, as amended, Evans. Crimes: sex crimes.
Existing law provides various circumstances that constitute rape, including an act of sexual intercourse accomplished with an individual who is not the spouse of the perpetrator where the individual submits under the belief that the individual committing the act is the victim’s spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with the intent to induce the belief. Existing law provides various circumstances that constitute sodomy against an individual’s will, oral copulation against an individual’s will, and sexual penetration against an individual’s will, including an act accomplished with an individual who is not the spouse of the perpetrator where the individual submits under the belief that the individual committing the act is the victim’s spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with the intent to induce the belief.
This bill would instead provide that these types of rape, sodomy, oral copulation, and sexual penetration occur where the individual submits under the belief that the individual committing the act is the victim’s sexual partner. This bill would define sexual partner to include any individual with who the victim has had consensual sexual contact, as defined.
By expanding the definition of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2⁄3. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 261 of the Penal Code is amended to
2read:
(a) Rape is an act of sexual intercourse accomplished
4with a person not the spouse of the perpetrator, under any of the
5following circumstances:
6(1) Where a person is incapable, because of a mental disorder
7or developmental or physical disability, of giving legal consent,
8and this is known or reasonably should be known to the person
9committing the act. Notwithstanding the existence of a
10conservatorship pursuant to the provisions of the
11Lanterman-Petris-Short Act (Part 1 (commencing with Section
125000) of Division 5 of the Welfare and Institutions Code), the
13prosecuting attorney shall prove, as an element of the crime, that
14a mental disorder or
developmental or physical disability rendered
15the alleged victim incapable of giving consent.
16(2) Where it is accomplished against a person’s will by means
17of force, violence, duress, menace, or fear of immediate and
18unlawful bodily injury on the person or another.
P3 1(3) Where a person is prevented from resisting by any
2intoxicating or anesthetic substance, or any controlled substance,
3and this condition was known, or reasonably should have been
4known by the accused.
5(4) Where a person is at the time unconscious of the nature of
6the act, and this is known to the accused. As used in this paragraph,
7“unconscious of the nature of the act” means incapable of resisting
8because the victim meetsbegin delete anyend delete
one of the following conditions:
9(A) Was unconscious or asleep.
10(B) Was not aware, knowing, perceiving, or cognizant that the
11act occurred.
12(C) Was not aware, knowing, perceiving, or cognizant of the
13essential characteristics of the act due to the perpetrator’s fraud in
14fact.
15(D) Was not aware, knowing, perceiving, or cognizant of the
16essential characteristics of the act due to the perpetrator’s fraudulent
17representation that the sexual penetration served a professional
18purpose when it served no professional purpose.
19(5) Where a person submits under the belief that the person
20committing
the act is the victim’s sexual partner, as defined in
21Section 261.1, and this belief is induced by any artifice, pretense,
22or concealment practiced by the accused, with intent to induce the
23belief.
24(6) Where the act is accomplished against the victim’s will by
25threatening to retaliate in the future against the victim or any other
26person, and there is a reasonable possibility that the perpetrator
27will execute the threat. As used in this paragraph, “threatening to
28retaliate” means a threat to kidnap or falsely imprison, or to inflict
29extreme pain, serious bodily injury, or death.
30(7) Where the act is accomplished against the victim’s will by
31threatening to use the authority of a public official to incarcerate,
32arrest, or deport the victim or another, and the victim has a
33reasonable
belief that the perpetrator is a public official. As used
34in this paragraph, “public official” means a person employed by
35a governmental agency who has the authority, as part of that
36position, to incarcerate, arrest, or deport another. The perpetrator
37does not actually have to be a public official.
38(b) As used in this section, “duress” means a direct or implied
39threat of force, violence, danger, or retribution sufficient to coerce
40a reasonable person of ordinary susceptibilities to perform an act
P4 1which otherwise would not have been performed, or acquiesce in
2an act to which one otherwise would not have submitted. The total
3circumstances, including the age of the victim, and his or her
4relationship to the defendant, are factors to consider in appraising
5the existence of duress.
6(c) As used in this section, “menace” means any threat,
7declaration, or act which shows an intention to inflict an injury
8upon another.
Section 261.1 is added to the Penal Code, to read:
“Sexual partner” means an individual with who the
11victim has had consensual sexual contact, including oral copulation,
12sodomy, sexual penetration, or the touching of an intimate part of
13another person as defined in paragraph (1) of subdivision (g) of
14Section 243.4.
Section 286 of the Penal Code is amended to read:
(a) Sodomy is sexual conduct consisting of contact
17between the penis of one person and the anus of another person.
18Any sexual penetration, however slight, is sufficient to complete
19the crime of sodomy.
20(b) (1) Except as provided in Section 288, any person who
21participates in an act of sodomy with another person who is under
2218 years of age shall be punished by imprisonment in the state
23prison, or in a county jail for not more than one year.
24(2) Except as provided in Section 288, any person over the age
25of 21 years who participates in an act of sodomy with another
26person who is under 16 years of age shall
be guilty of a felony.
27(c) (1) Any person who participates in an act of sodomy with
28another person who is under 14 years of age and more than 10
29years younger than he or she shall be punished by imprisonment
30in the state prison for three, six, or eight years.
31(2) (A) Any person who commits an act of sodomy when the
32act is accomplished against the victim’s will by means of force,
33violence, duress, menace, or fear of immediate and unlawful bodily
34injury on the victim or another person shall be punished by
35imprisonment in the state prison for three, six, or eight years.
36(B) Any person who commits an act of sodomy with another
37person who is under 14 years of age when the act is accomplished
38against
the victim’s will by means of force, violence, duress,
39menace, or fear of immediate and unlawful bodily injury on the
P5 1victim or another person shall be punished by imprisonment in the
2state prison for 9, 11, or 13 years.
3(C) Any person who commits an act of sodomy with another
4person who is a minor 14 years of age or older when the act is
5accomplished against the victim’s will by means of force, violence,
6duress, menace, or fear of immediate and unlawful bodily injury
7on the victim or another person shall be punished by imprisonment
8in the state prison for 7, 9, or 11 years.
9(D) This paragraph does not preclude prosecution under Section
10269, Section 288.7, or any other provision of law.
11(3) Any person who commits an act of
sodomy where the act
12is accomplished against the victim’s will by threatening to retaliate
13in the future against the victim or any other person, and there is a
14reasonable possibility that the perpetrator will execute the threat,
15shall be punished by imprisonment in the state prison for three,
16six, or eight years.
17(d) (1) Any person who, while voluntarily acting in concert
18with another person, either personally or aiding and abetting that
19other person, commits an act of sodomy when the act is
20accomplished against the victim’s will by means of force or fear
21of immediate and unlawful bodily injury on the victim or another
22person or where the act is accomplished against the victim’s will
23by threatening to retaliate in the future against the victim or any
24other person, and there is a reasonable possibility that the
25perpetrator
will execute the threat, shall be punished by
26imprisonment in the state prison for five, seven, or nine years.
27(2) Any person who, while voluntarily acting in concert with
28another person, either personally or aiding and abetting that other
29person, commits an act of sodomy upon a victim who is under 14
30years of age, when the act is accomplished against the victim’s
31will by means of force or fear of immediate and unlawful bodily
32injury on the victim or another person, shall be punished by
33imprisonment in the state prison for 10, 12, or 14 years.
34(3) Any person who, while voluntarily acting in concert with
35another person, either personally or aiding and abetting that other
36person, commits an act of sodomy upon a victim who is a minor
3714 years of age or older, when the act is accomplished
against the
38victim’s will by means of force or fear of immediate and unlawful
39bodily injury on the victim or another person, shall be punished
40by imprisonment in the state prison for 7, 9, or 11 years.
P6 1(4) This subdivision does not preclude prosecution under Section
2269, Section 288.7, or any other provision of law.
3(e) Any person who participates in an act of sodomy with any
4person of any age while confined in any state prison, as defined
5in Section 4504, or in any local detention facility, as defined in
6Section 6031.4, shall be punished by imprisonment in the state
7prison, or in a county jail for not more than one year.
8(f) Any person who commits an act of sodomy, and the victim
9is at the time unconscious of the nature of
the act and this is known
10to the person committing the act, shall be punished by
11imprisonment in the state prison for three, six, or eight years. As
12used in this subdivision, “unconscious of the nature of the act”
13means incapable of resisting because the victim meets one of the
14following conditions:
15(1) Was unconscious or asleep.
16(2) Was not aware, knowing, perceiving, or cognizant that the
17act occurred.
18(3) Was not aware, knowing, perceiving, or cognizant of the
19essential characteristics of the act due to the perpetrator’s fraud in
20fact.
21(4) Was not aware, knowing, perceiving, or cognizant of the
22essential characteristics of the act due to the
perpetrator’s fraudulent
23representation that the sexual penetration served a professional
24purpose when it served no professional purpose.
25(g) Except as provided in subdivision (h), a person who commits
26an act of sodomy, and the victim is at the time incapable, because
27of a mental disorder or developmental or physical disability, of
28giving legal consent, and this is known or reasonably should be
29known to the person committing the act, shall be punished by
30imprisonment in the state prison for three, six, or eight years.
31Notwithstanding the existence of a conservatorship pursuant to
32the Lanterman-Petris-Short Act (Part 1 (commencing with Section
335000) of Division 5 of the Welfare and Institutions Code), the
34prosecuting attorney shall prove, as an element of the crime, that
35a mental disorder or developmental or physical disability rendered
36the
alleged victim incapable of giving consent.
37(h) Any person who commits an act of sodomy, and the victim
38is at the time incapable, because of a mental disorder or
39developmental or physical disability, of giving legal consent, and
40this is known or reasonably should be known to the person
P7 1committing the act, and both the defendant and the victim are at
2the time confined in a state hospital for the care and treatment of
3the mentally disordered or in any other public or private facility
4for the care and treatment of the mentally disordered approved by
5a county mental health director, shall be punished by imprisonment
6in the state prison, or in a county jail for not more than one year.
7Notwithstanding the existence of a conservatorship pursuant to
8the Lanterman-Petris-Short Act (Part 1 (commencing with Section
95000) of Division 5 of the Welfare and
Institutions Code), the
10prosecuting attorney shall prove, as an element of the crime, that
11a mental disorder or developmental or physical disability rendered
12the alleged victim incapable of giving legal consent.
13(i) Any person who commits an act of sodomy, where the victim
14is prevented from resisting by an intoxicating or anesthetic
15substance, or any controlled substance, and this condition was
16known, or reasonably should have been known by the accused,
17shall be punished by imprisonment in the state prison for three,
18six, or eight years.
19(j) Any person who commits an act of sodomy, where the victim
20submits under the belief that the person committing the act is the
21victim’s sexual partner, as defined in Section 261.1, and this belief
22is induced by any artifice, pretense, or
concealment practiced by
23the accused, with intent to induce the belief, shall be punished by
24imprisonment in the state prison for three, six, or eight years.
25(k) Any person who commits an act of sodomy, where the act
26is accomplished against the victim’s will by threatening to use the
27authority of a public official to incarcerate, arrest, or deport the
28victim or another, and the victim has a reasonable belief that the
29perpetrator is a public official, shall be punished by imprisonment
30in the state prison for three, six, or eight years.
31As used in this subdivision, “public official” means a person
32employed by a governmental agency who has the authority, as part
33of that position, to incarcerate, arrest, or deport another. The
34perpetrator does not actually have to be a public official.
35(l) As used in subdivisions (c) and (d), “threatening to retaliate”
36means a threat to kidnap or falsely imprison, or inflict extreme
37pain, serious bodily injury, or death.
38(m) In addition to any punishment imposed under this section,
39the judge may assess a fine not to exceed seventy dollars ($70)
40against any person who violates this section, with the proceeds of
P8 1this fine to be used in accordance with Section 1463.23. The court,
2however, shall take into consideration the defendant’s ability to
3pay, and no defendant shall be denied probation because of his or
4her inability to pay the fine permitted under this subdivision.
Section 288a of the Penal Code is amended to read:
(a) Oral copulation is the act of copulating the mouth
7of one person with the sexual organ or anus of another person.
8(b) (1) Except as provided in Section 288, any person who
9participates in an act of oral copulation with another person who
10is under 18 years of age shall be punished by imprisonment in the
11state prison, or in a county jail for a period of not more than one
12year.
13(2) Except as provided in Section 288, any person over the age
14of 21 years who participates in an act of oral copulation with
15another person who is under 16 years of age is guilty of a felony.
16(c) (1) Any person who participates in an act of oral copulation
17with another person who is under 14 years of age and more than
1810 years younger than he or she shall be punished by imprisonment
19in the state prison for three, six, or eight years.
20(2) (A) Any person who commits an act of oral copulation when
21the act is accomplished against the victim’s will by means of force,
22violence, duress, menace, or fear of immediate and unlawful bodily
23injury on the victim or another person shall be punished by
24imprisonment in the state prison for three, six, or eight years.
25(B) Any person who commits an act of oral copulation upon a
26person who is under 14 years of age, when the act is accomplished
27against the victim’s will by means of force,
violence, duress,
28menace, or fear of immediate and unlawful bodily injury on the
29victim or another person, shall be punished by imprisonment in
30the state prison for 8, 10, or 12 years.
31(C) Any person who commits an act of oral copulation upon a
32minor who is 14 years of age or older, when the act is accomplished
33against the victim’s will by means of force, violence, duress,
34menace, or fear of immediate and unlawful bodily injury on the
35victim or another person, shall be punished by imprisonment in
36the state prison for 6, 8, or 10 years.
37(D) This paragraph does not preclude prosecution under Section
38269, Section 288.7, or any other provision of law.
39(3) Any person who commits an act of oral copulation where
40the
act is accomplished against the victim’s will by threatening to
P9 1retaliate in the future against the victim or any other person, and
2there is a reasonable possibility that the perpetrator will execute
3the threat, shall be punished by imprisonment in the state prison
4for three, six, or eight years.
5(d) (1) Any person who, while voluntarily acting in concert
6with another person, either personally or by aiding and abetting
7that other person, commits an act of oral copulation (1) when the
8act is accomplished against the victim’s will by means of force or
9fear of immediate and unlawful bodily injury on the victim or
10another person, or (2) where the act is accomplished against the
11victim’s will by threatening to retaliate in the future against the
12victim or any other person, and there is a reasonable possibility
13that the perpetrator
will execute the threat, or (3) where the victim
14is at the time incapable, because of a mental disorder or
15developmental or physical disability, of giving legal consent, and
16this is known or reasonably should be known to the person
17committing the act, shall be punished by imprisonment in the state
18prison for five, seven, or nine years. Notwithstanding the
19appointment of a conservator with respect to the victim pursuant
20to the provisions of the Lanterman-Petris-Short Act (Part 1
21(commencing with Section 5000) of Division 5 of the Welfare and
22Institutions Code), the prosecuting attorney shall prove, as an
23element of the crime described under paragraph (3), that a mental
24disorder or developmental or physical disability rendered the
25alleged victim incapable of giving legal consent.
26(2) Any person who, while voluntarily acting in concert with
27another
person, either personally or aiding and abetting that other
28person, commits an act of oral copulation upon a victim who is
29under 14 years of age, when the act is accomplished against the
30victim’s will by means of force or fear of immediate and unlawful
31bodily injury on the victim or another person, shall be punished
32by imprisonment in the state prison for 10, 12, or 14 years.
33(3) Any person who, while voluntarily acting in concert with
34another person, either personally or aiding and abetting that other
35person, commits an act of oral copulation upon a victim who is a
36minor 14 years of age or older, when the act is accomplished
37against the victim’s will by means of force or fear of immediate
38and unlawful bodily injury on the victim or another person, shall
39be punished by imprisonment in the state prison for 8, 10, or 12
40years.
P10 1(4) This paragraph does not preclude prosecution under Section
2269, Section 288.7, or any other provision of law.
3(e) Any person who participates in an act of oral copulation
4while confined in any state prison, as defined in Section 4504 or
5in any local detention facility as defined in Section 6031.4, shall
6be punished by imprisonment in the state prison, or in a county
7jail for a period of not more than one year.
8(f) Any person who commits an act of oral copulation, and the
9victim is at the time unconscious of the nature of the act and this
10is known to the person committing the act, shall be punished by
11imprisonment in the state prison for a period of three, six, or eight
12years. As used in this subdivision, “unconscious of the
nature of
13the act” means incapable of resisting because the victim meets one
14of the following conditions:
15(1) Was unconscious or asleep.
16(2) Was not aware, knowing, perceiving, or cognizant that the
17act occurred.
18(3) Was not aware, knowing, perceiving, or cognizant of the
19essential characteristics of the act due to the perpetrator’s fraud in
20fact.
21(4) Was not aware, knowing, perceiving, or cognizant of the
22essential characteristics of the act due to the perpetrator’s fraudulent
23representation that the oral copulation served a professional purpose
24when it served no professional purpose.
25(g) Except as provided in subdivision (h), any person who
26commits an act of oral copulation, and the victim is at the time
27incapable, because of a mental disorder or developmental or
28physical disability, of giving legal consent, and this is known or
29reasonably should be known to the person committing the act,
30shall be punished by imprisonment in the state prison, for three,
31six, or eight years. Notwithstanding the existence of a
32conservatorship pursuant to the provisions of the
33Lanterman-Petris-Short Act (Part 1 (commencing with Section
345000) of Division 5 of the Welfare and Institutions Code), the
35prosecuting attorney shall prove, as an element of the crime, that
36a mental disorder or developmental or physical disability rendered
37the alleged victim incapable of giving consent.
38(h) Any person who commits an act of oral
copulation, and the
39victim is at the time incapable, because of a mental disorder or
40developmental or physical disability, of giving legal consent, and
P11 1this is known or reasonably should be known to the person
2committing the act, and both the defendant and the victim are at
3the time confined in a state hospital for the care and treatment of
4the mentally disordered or in any other public or private facility
5for the care and treatment of the mentally disordered approved by
6a county mental health director, shall be punished by imprisonment
7in the state prison, or in a county jail for a period of not more than
8one year. Notwithstanding the existence of a conservatorship
9pursuant to the provisions of the Lanterman-Petris-Short Act (Part
101 (commencing with Section 5000) of Division 5 of the Welfare
11and Institutions Code), the prosecuting attorney shall prove, as an
12element of the crime, that a mental disorder or
developmental or
13physical disability rendered the alleged victim incapable of giving
14legal consent.
15(i) Any person who commits an act of oral copulation, where
16the victim is prevented from resisting by any intoxicating or
17anesthetic substance, or any controlled substance, and this condition
18was known, or reasonably should have been known by the accused,
19shall be punished by imprisonment in the state prison for a period
20of three, six, or eight years.
21(j) Any person who commits an act of oral copulation, where
22the victim submits under the belief that the person committing the
23act is the victim’s sexual partner, as defined in Section 261.1, and
24this belief is induced by any artifice, pretense, or concealment
25practiced by the accused, with intent to induce the belief, shall
be
26punished by imprisonment in the state prison for a period of three,
27six, or eight years.
28(k) Any person who commits an act of oral copulation, where
29the act is accomplished against the victim’s will by threatening to
30use the authority of a public official to incarcerate, arrest, or deport
31the victim or another, and the victim has a reasonable belief that
32the perpetrator is a public official, shall be punished by
33imprisonment in the state prison for a period of three, six, or eight
34years.
35As used in this subdivision, “public official” means a person
36employed by a governmental agency who has the authority, as part
37of that position, to incarcerate, arrest, or deport another. The
38perpetrator does not actually have to be a public official.
P12 1(l) As used in subdivisions (c) and (d), “threatening to retaliate”
2means a threat to kidnap or falsely imprison, or to inflict extreme
3pain, serious bodily injury, or death.
4(m) In addition to any punishment imposed under this section,
5the judge may assess a fine not to exceed seventy dollars ($70)
6against any person who violates this section, with the proceeds of
7this fine to be used in accordance with Section 1463.23. The court
8shall, however, take into consideration the defendant’s ability to
9pay, and no defendant shall be denied probation because of his or
10her inability to pay the fine permitted under this subdivision.
Section 289 of the Penal Code is amended to read:
(a) (1) (A) Any person who commits an act of sexual
13penetration when the act is accomplished against the victim’s will
14by means of force, violence, duress, menace, or fear of immediate
15and unlawful bodily injury on the victim or another person shall
16be punished by imprisonment in the state prison for three, six, or
17eight years.
18(B) Any person who commits an act of sexual penetration upon
19a child who is under 14 years of age, when the act is accomplished
20against the victim’s will by means of force, violence, duress,
21menace, or fear of immediate and unlawful bodily injury on the
22victim or another person, shall be punished by imprisonment in
23the
state prison for 8, 10, or 12 years.
24(C) Any person who commits an act of sexual penetration upon
25a minor who is 14 years of age or older, when the act is
26accomplished against the victim’s will by means of force, violence,
27duress, menace, or fear of immediate and unlawful bodily injury
28on the victim or another person, shall be punished by imprisonment
29in the state prison for 6, 8, or 10 years.
30(D) This paragraph does not preclude prosecution under Section
31269, Section 288.7, or any other provision of law.
32(2) Any person who commits an act of sexual penetration when
33the act is accomplished against the victim’s will by threatening to
34retaliate in the future against the victim or any other person, and
35there is a reasonable
possibility that the perpetrator will execute
36the threat, shall be punished by imprisonment in the state prison
37for three, six, or eight years.
38(b) Except as provided in subdivision (c), any person who
39commits an act of sexual penetration, and the victim is at the time
40incapable, because of a mental disorder or developmental or
P13 1physical disability, of giving legal consent, and this is known or
2reasonably should be known to the person committing the act or
3causing the act to be committed, shall be punished by imprisonment
4in the state prison for three, six, or eight years. Notwithstanding
5the appointment of a conservator with respect to the victim pursuant
6to the provisions of the Lanterman-Petris-Short Act (Part 1
7(commencing with Section 5000) of Division 5 of the Welfare and
8Institutions Code), the prosecuting attorney shall prove, as an
9element
of the crime, that a mental disorder or developmental or
10physical disability rendered the alleged victim incapable of giving
11legal consent.
12(c) Any person who commits an act of sexual penetration, and
13the victim is at the time incapable, because of a mental disorder
14or developmental or physical disability, of giving legal consent,
15and this is known or reasonably should be known to the person
16committing the act or causing the act to be committed and both
17the defendant and the victim are at the time confined in a state
18hospital for the care and treatment of the mentally disordered or
19in any other public or private facility for the care and treatment of
20the mentally disordered approved by a county mental health
21director, shall be punished by imprisonment in the state prison, or
22in a county jail for a period of not more than one year.
23Notwithstanding
the existence of a conservatorship pursuant to
24the provisions of the Lanterman-Petris-Short Act (Part 1
25(commencing with Section 5000) of Division 5 of the Welfare and
26Institutions Code), the prosecuting attorney shall prove, as an
27element of the crime, that a mental disorder or developmental or
28physical disability rendered the alleged victim incapable of giving
29legal consent.
30(d) Any person who commits an act of sexual penetration, and
31the victim is at the time unconscious of the nature of the act and
32this is known to the person committing the act or causing the act
33to be committed, shall be punished by imprisonment in the state
34prison for three, six, or eight years. As used in this subdivision,
35“unconscious of the nature of the act” means incapable of resisting
36because the victim meets one of the following conditions:
37(1) Was unconscious or asleep.
38(2) Was not aware, knowing, perceiving, or cognizant that the
39act occurred.
P14 1(3) Was not aware, knowing, perceiving, or cognizant of the
2essential characteristics of the act due to the perpetrator’s fraud in
3fact.
4(4) Was not aware, knowing, perceiving, or cognizant of the
5essential characteristics of the act due to the perpetrator’s fraudulent
6representation that the sexual penetration served a professional
7purpose when it served no professional purpose.
8(e) Any person who commits an act of sexual penetration when
9the victim is prevented from resisting by any
intoxicating or
10anesthetic substance, or any controlled substance, and this condition
11was known, or reasonably should have been known by the accused,
12shall be punished by imprisonment in the state prison for a period
13of three, six, or eight years.
14(f) Any person who commits an act of sexual penetration when
15the victim submits under the belief that the person committing the
16act or causing the act to be committed is the victim’s sexual partner,
17as defined in Section 261.1, and this belief is induced by any
18artifice, pretense, or concealment practiced by the accused, with
19intent to induce the belief, shall be punished by imprisonment in
20the state prison for a period of three, six, or eight years.
21(g) Any person who commits an act of sexual penetration when
22the act is accomplished
against the victim’s will by threatening to
23use the authority of a public official to incarcerate, arrest, or deport
24the victim or another, and the victim has a reasonable belief that
25the perpetrator is a public official, shall be punished by
26imprisonment in the state prison for a period of three, six, or eight
27years.
28As used in this subdivision, “public official” means a person
29employed by a governmental agency who has the authority, as part
30of that position, to incarcerate, arrest, or deport another. The
31perpetrator does not actually have to be a public official.
32(h) Except as provided in Section 288, any person who
33participates in an act of sexual penetration with another person
34who is under 18 years of age shall be punished by imprisonment
35in the state prison or in the county jail for a period of
not more
36than one year.
37(i) Except as provided in Section 288, any person over the age
38of 21 years who participates in an act of sexual penetration with
39another person who is under 16 years of age shall be guilty of a
40felony.
P15 1(j) Any person who participates in an act of sexual penetration
2with another person who is under 14 years of age and who is more
3than 10 years younger than he or she shall be punished by
4imprisonment in the state prison for three, six, or eight years.
5(k) As used in this section:
6(1) “Sexual penetration” is the act of causing the penetration,
7however slight, of the genital or anal opening of any person or
8causing another person to
so penetrate the defendant’s or another
9person’s genital or anal opening for the purpose of sexual arousal,
10gratification, or abuse by any foreign object, substance, instrument,
11or device, or by any unknown object.
12(2) “Foreign object, substance, instrument, or device” shall
13include any part of the body, except a sexual organ.
14(3) “Unknown object” shall include any foreign object,
15substance, instrument, or device, or any part of the body, including
16a penis, when it is not known whether penetration was by a penis
17or by a foreign object, substance, instrument, or device, or by any
18other part of the body.
19(l) As used in subdivision (a), “threatening to retaliate” means
20a threat to kidnap or falsely imprison, or inflict
extreme pain,
21serious bodily injury or death.
22(m) As used in this section, “victim” includes any person who
23the defendant causes to penetrate the genital or anal opening of
24the defendant or another person or whose genital or anal opening
25is caused to be penetrated by the defendant or another person and
26who otherwise qualifies as a victim under the requirements of this
27section.
No reimbursement is required by this act pursuant to
29Section 6 of Article XIII B of the California Constitution because
30the only costs that may be incurred by a local agency or school
31district will be incurred because this act creates a new crime or
32infraction, eliminates a crime or infraction, or changes the penalty
33for a crime or infraction, within the meaning of Section 17556 of
34the Government Code, or changes the definition of a crime within
35the meaning of Section 6 of Article XIII B of the California
36Constitution.
This act is an urgency statute necessary for the
38immediate preservation of the public peace, health, or safety within
39the meaning of Article IV of the Constitution and shall go into
40immediate effect. The facts constituting the necessity are:
P16 1In order to protect the public safety by minimizing the threat
2posed by sexual predators at the earliest possible time, it is
3necessary that this act take effect immediately.
O
97