BILL ANALYSIS �
SB 59
Page 1
Date of Hearing: June 18, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 59 (Evans) - As Amended: June 12, 2013
SUMMARY : Expands the definition of rape and other sex crimes
committed by fraud or impersonation to include the situation
where the victim submits under the belief that perpetrator is
someone known to the victim other than the perpetrator.
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 known to the victim.
2)Expands the crime of sodomy to include the situation where the
perpetrator fraudulently induces the victim to believe that he
or she is another person known to the victim.
3)Expands the crime of oral copulation to include the situation
where the perpetrator fraudulently induces the victim to
believe that he or she is another person known to the victim.
4)Expands the crime of sexual penetration to include the
situation where the perpetrator fraudulently induces the
victim to believe that he or she is another person known to
the victim.
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).]
SB 59
Page 2
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 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, "SB 59 responds
to a legal anomaly in an outdated rape statute. In People vs
Morales, the 2nd District Court of Appeal overturned the rape
conviction of Julio Morales based on a provision from the
1870's that upholds the rights of a married victim where the
perpetrator pretends to be the victim's spouse.
"In Morales, the victim was unmarried, and the conviction was
overturned. The court acknowledged the archaic statute that
has resulted in an overturned rape conviction and exposed this
anomaly that protects the rights of married individuals, but
not the rights of others.
"SB 59 updates the arcane language contained in various sections
of the California Penal Code by substituting and defining the
new term of "sexual partner in the place of the term 'spouse'.
SB 59
Page 3
Doing so would expand the definition to include single
individuals, domestic partners and individuals currently
excluded by the narrow use of the term 'spouse'. Justice
cannot be conditioned on a victim's marital status and this
bill creates equity within the law."
2)Background : In People v. Morales (2013) 212 Cal.App.4th 583,
the defendant was convicted of rape of an unconscious person
based on entering the dark bedroom of an unmarried woman after
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.
(Id. at p. 589.)
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
Penal Code Section 261(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
SB 59
Page 4
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)Argument in Support : According to the Office of the Attorney
General , "Under current statute, someone who by fraud tricks a
victim into having sex does not commit rape unless he pretends
to be the victim's spouse. Two cases in the last two years,
one in Santa Barbara and one in Los Angeles, involved rapists
who broke into their victims' homes and deceived the victims
into believing the rapists were their boyfriends. Neither
prosecution resulted in conviction for rape. SB 59 updates
arcane language contained in various sections of the
California Penal Code by substituting and defining the new
term 'sexual partner' in the place of the term 'spouse.'
Doing so would expand the definition to include single
individuals, domestic partners and individuals currently
excluded by the term 'spouse.'
"SB 59 would modernize California's rape by fraud laws to
protect all victims of rape by fraud."
4)Related Legislation : AB 65 (Achadjian) is identical to this
bill. AB 65 is pending hearing by the Senate Appropriations
Committee.
5)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
American Federation of State, County, and Municipal Employees
Association for Los Angeles Deputy Sheriffs
Attorney General's Office
Berkeley City Council
California Coalition Against Sexual Assault
California District Attorneys Association
California Legislative Women's Caucus
California Partnership to End Domestic Violence
SB 59
Page 5
California Police Chiefs Association
California Probation, Parole and Correctional Association
California State Sheriffs' Association
California Women Lawyers
Chief Probation Officers of California
City of Glendale
City of West Hollywood
Crime Victims United of California
Humboldt County District Attorney's Office
Junior Leagues of California
Los Angeles Police Protective League
Marin County District Attorney
Napa County District Attorney's Office
Napa Emergency Women's Services
National Association of Social Worker, California Chapter
Peace Officers Research Association of California
Peace Over Violence
Planned Parenthood Affiliates of California
Riverside Sheriffs Association
San Bernardino County Sheriff
Sonoma County Commission on the Status of Women
Opposition
Santa Barbara County District Attorney
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744