BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
9
2
2
SB 922 (Knight)
As Amended April 9, 2014
Hearing date: April 29, 2014
Penal Code
JM:mc
SEX CRIMES AGAINST DEVELOPMENTALLY DISABLED PERSONS - PENALTIES
HISTORY
Source: Author
Prior Legislation: SB 1844 (Fletcher) - Ch. 219, Stats. 2010
SB 663 (Lara) - pending in the Assembly
AB 602 (Yamada) - Ch. 673, Stats. 2013
Support: California Probation, Parole and Correctional
Association; California State Sheriffs' Association;
California Police Chiefs Association; North Los Angeles
County Regional Center; Crime Victims United of
California
Opposition:American Civil Liberties Union of California;
California Attorneys for Criminal Justice; California
Public Defenders Association; Legal Services for
Prisoners with Children; Taxpayers for Improving Public
Safety
(THIS BILL IS ANALYZED AS PROPOSED TO BE AMENDED IN COMMITTEE)
KEY ISSUES
WHERE SPECIFIED SIX CRIMES AGAINST A VICTIM WAS INCAPABLE OF
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CONSENTING BECAUSE OF A MENTAL DISORDER, DEVELOPMENTAL
DISABILITY OR PHYSICAL DISABILITY, SHOULD THE PRISON TERM BE 9,
11 OR 13 YEARS, THE SAME AS THE PENALTIES FOR THOSE CRIMES WHEN
COMMITTED AGAINST A MINOR UNDER THE AGE OF 14 BY FORCE, DURESS
OR THREATS?
(CONTINUED)
WHERE A SPECIFIED SEX CRIME IS COMMITTED IN CONCERT - BY MULTIPLE
PERPETRATORS - AGAINST A PERSON WHO CANNOT CONSENT TO A SEX ACT
BECAUSE HE OR SHE HAS A MENTAL DISORDER, DEVELOPMENTAL DISABILITY OR
PHYSICAL DISABILITY, SHOULD THE PENALTY BE A PRISON TERM OF 10, 12,
OR 14 YEARS - THE PENALTY THAT APPLIES TO A SEX CRIME IN CONCERT
AGAINST A MINOR UNDER THE AGE OF 14 COMMITTED BY FORCE OR VIOLENCE?
PURPOSE
The purpose of this bill IS to 1) provide that where specified
sex crimes are committed against a victim incapable of
consenting due to the victim's mental disorder, developmental
disability or physically disability, the crime shall be punished
by the prison term of 9, 11, or 13 years - the same penalty that
applies to such crimes when committed against a minor under the
age of 14 by force or duress; and 2) provide that where these
crimes are committed in concert - jointly by multiple
perpetrators - against a person who cannot consent because of a
mental disorder, developmental disability or physical disability
person, the punishment shall be a prison term of 10, 12, or 14,
the penalties that apply to such crimes committed in concert by
force or violence against a minor under the age of 14.
Existing law provides that rape is an act of sexual intercourse
accomplished against the will of the victim by force, fear,
duress or threats, or where the victim engaged in the act
through the defendant's fraud, or under circumstances where the
victim is incapable of consenting.
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Existing law provides that a minor cannot consent to a sexual
act, including sexual intercourse, oral copulation, sodomy,
sexual penetration with a foreign or unknown object, or lewd
conduct.
Existing law provides that sexual intercourse with a minor where
no aggravating elements are proved is the crime of "unlawful
sexual intercourse," punishable as follows:
Where the person having intercourse with the minor is no
more than three years older or younger than the minor, the
offense is a misdemeanor, with a maximum jail term is 6
months.
Where the person is at least three years older than the
minor, the offense is an alternate felony-misdemeanor
(wobbler), with a maximum misdemeanor term of one year and
a felony jail term of 16 months, two years or three years.
Where the person is at least 21 and the minor under 16
years of age, the offense is a wobbler, with a felony jail
term of 2, 3 or 4 years.
Existing law provides that in the absence of aggravating
circumstances or elements, sodomy, oral copulation or
penetration with a foreign or unknown object with a minor is
punishable as follows:
Where the defendant is over 21 and the minor under 16
years of age, the offense is a felony, with a prison term
of 16 months, 2 years or 3 years.
In other cases, the crime is an alternate
felony-misdemeanor, with a felony prison term of 16 months,
2 years or 3 years. (Pen. Code �� 286, subd. (b), 288a,
subd. (b), 289, subd. (h).)
Existing law provides that where sodomy, oral copulation or
penetration with a foreign or unknown object involves minor
under the age of 14 and the perpetrator is more than 10 years
older than the minor, the offense is a felony, punishable by a
prison term of 3, 6 or 8 years. (Pen. Code �� 286, subd.
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(c)(1), 288a, subd. (c)(1), 289, subd. (j).)
Existing law specifically provides that sexual intercourse
constitutes a form of rape "[w]here [the victim] is incapable,
because of a mental disorder, developmental disability or
physical disability, of giving legal consent, and this is known
or reasonably should be known to the" perpetrator. (Pen. Code �
261, subd. (a)(1).)
Existing law provides that rape is punishable by a term of 3, 6
or 8 years in prison, unless the status of the victim, the prior
record of the defendant or the circumstances of the offense
subject the defendant to a higher penalty. (Pen. Code � 264.)
Existing law provides that rape of a child under the age of 14
by force or duress is punishable by a prison term of 9, 11 or 13
years. Rape of a child who is 14 years or older by force or
duress is punishable by a term of 7, 9, or 11 years. (Pen. Code
� 264, subd. (c).)
Existing law defines rape in concert as rape committed jointly
committed by two or more persons by force or violence. Rape in
concert is punishable by a prison term of 5, 7 or 9 years.
(Pen. Code � 264.1.):
Rape in concert of a child under the age of 14 is
punishable by a prison term of 10, 12 or 14 years.
Rape in concert of a child who is 14 years or older is
punishable by a term of 7, 9, or 11 years. (Pen. Code �
264.1, subd. (c).)
Existing law provides that where specified sexual acts are
accomplished against the will of the victim, or under
circumstances where the victim is unable to or incapable of
giving consent, the sexual acts are crimes. These acts are
defined as follows:
Sodomy is penetration of the anus of one person by the
penis of another.
Oral copulation is contact between the mouth of one
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person and the genitals or anus of another.
Sexual penetration (other than rape)<1> is the
penetration of the anus of one person by any object, device
or body part, or an unknown object. (Pen. Code �� 286,
288a and 289.)
Existing law provides that where sodomy is accomplished against
the will of the victim, or where the victim is unable to
consent, it is a felony, punishable by a prison term of three,
six or eight years, unless the status of the victim, the prior
record of the defendant or the circumstances of the offense
subject the defendant to a higher penalty:
Where the victim of sodomy committed by force or
duress<2> is a child under the age of 14, the crime is
punishable by a prison term of 9, 11 or 13 years.
Where the victim of sodomy committed by force or duress is
a minor at least 14 years old, the crime is punishable by a
prison term of 7, 9 or 11 years. (Pen. Code � 286, subd.
(c)(2)(B)-(C).)
Existing law provides that where oral copulation is accomplished
against the will of the victim, or where the victim is unable to
consent, it is a felony, punishable by a prison term of 3, 6 or
8 years, unless the status of the victim, the prior record of
the defendant or the circumstances of the offense subject the
defendant to a higher penalty:
Where the victim of oral copulation committed by force
or duress is a child under the age of 14, the crime is
punishable by a prison term of 8, 10 or 12 years.
Where the victim of oral copulation committed by force
or fear is a minor at least 14 years old, the crime is
--------------------------
<1>Sexual penetration can involve penetration by a penis if the
object or body used by the perpetrator is unknown. (Pen. Code �
289, subd, (k)(3).)
<2> The full description of this form of a sex crime is
commission of the act by force, violence, duress, menace or fear
of immediate bodily injury. (See, e.g., Pen. Code � 286, subd.
(c)(2)(A).)
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punishable by a prison term of 6, 8 or 10 years. (Pen.
Code � 289, subd. (a)(1)(B)-(C).)
Existing law provides that where sexual penetration with a
foreign or unknown object is accomplished against the will of
the victim, or where the victim is unable to consent, it is a
felony, punishable by a prison term of 3, 6 or 8 years, unless
the status of the victim, the prior record of the defendant or
the circumstances of the offense subject the defendant to a
higher penalty:
Where the victim of sexual penetration by force or
duress is a child under the age of 14, the crime is
punishable by a prison term of 8, 10 or 12 years.
Where the victim sexual penetration by force, duress or
threats is a minor at least 14 years old, the applicable
prison term is 6, 8, or 10 years.
Existing law provides that where multiple perpetrators jointly
commit rape, sodomy or oral copulation by force or violence,
these crimes are separately defined as being committed "in
concert." Rape, sodomy, oral copulation in concert is
punishable by a prison term of 5, 7 or 9 years. (Pen. Code �
264.1, 288, 286, subd. (d)(2), 288a, subd. (d)(2).)
Rape, sodomy or oral copulation in concert of a child under
the age of 14 is punishable by a prison term of 10, 12 or 14
years.
Rape, sodomy or oral copulation in concert of a child who is
14 years or older is punishable by a term of 7, 9, or 11
years. (Pen. Code � 264.1, subd. (c).)
Existing law provides that the touching of a minor under the age
of 14 for purposes of sexual arousal or gratification
constitutes lewd conduct, punishable by a prison term of 3, 6 or
8 years. The touching need not be of an intimate body part or
on bare skin. Where the crime is accomplished through the use
of force or duress, the prison term is 5, 8 or 10 years. (Pen.
Code � 288, subds. (a)-(b).) Where the child suffers bodily
harm (substantial physical injury) the penalty is a prison term
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of 7-years-to-life. (Pen. Code � 288, subd. (i).)
Existing law provides that where lewd conduct involves a minor
who is 14 or 15 years of age and the perpetrator is at least 10
years older than the minor, the offense is an alternate
felon-misdemeanor, punishable by a jail term of up to one year
or a prison term of 1, 2 or 3 years. (Pen. Code � 288, subds.
(c).)
Existing law provides that where a caretaker commits a lewd act
(sexually motivated touching) of a dependent person by use of
force or duress the person is guilty of a felony and shall be
punished by imprisonment in the state prison for 5, 8 or 10
years. Where the perpetrator did not use force or duress, the
offense is an alternate felony misdemeanor, with a jail term of
up to 1 year, or a prison term of 1, 2 or 3 years. (Penal Code
� 288, subds. (b)(2) and (c)(2).)
Existing law generally provides that where the defendant is
convicted of multiple crimes in one case, the court selects one
crime as the principle term, imposes a full term sentence from
the lower, middle or upper term and then imposes the additional
"subordinate" terms as one-third the middle term for each
subordinate count. (Pen. Code � 1170.1, subd. (a).)
Existing provides that where a defendant is convicted of
multiple sex crimes, the court must impose full, consecutive
terms if the crimes occurred on separate occasions or involved
different victims. The court may impose full, consecutive terms
is the crimes occurred on one occasion against the same victim.
(Pen. Code � 667, subds. (c)-(d).)
This bill , as proposed to be amended by the author is committee,
provides that where sexual intercourse or sodomy is a felony
because the victim is incapable of consenting because of a
mental disorder, developmental disability or physical
disability, the offense is punishable by a prison term of 9, 11
or 13 years. Where the crime is committed jointly by two or
more perpetrators (in concert), the offense is punishable by a
prison term of 10, 12 or 14 years.
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This bill provides, as proposed to be amended in committee by
the author, that oral copulation committed in concert against a
person who is unable to consent because of a mental a mental
disorder, developmental disability or physical disability, is
punishable by a prison term of 10, 12 or 14 years.
This bill provides, as proposed to be amended in committee by
the author, in that where sexual penetration or oral copulation
is a felony because the victim is incapable of consenting
because of a mental disorder, or developmental or physical
disability, the offense is punishable by a prison term of 8, 10,
or 12 years.
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 that created a new
felony, expanded the 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.
In January of 2013, just over a year after the enactment of the
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historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
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141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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
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According to the author:
The developmentally disabled are particularly
vulnerable to sexual victimization because they cannot
defend themselves and may be unable to report abuse to
caregivers, much less testify in a courtroom.
According to the California District Attorneys
Association Journal, "crime against people with
substantial disabilities is similar to violence
against women, elder abuse and child abuse, but
remains largely unaddressed. The level of major
crimes, including sex crimes, against disabled
children and adults is from four to ten times higher
than against the general public, and they are often
sexually assaulted repeatedly."
Criminals may know that the developmentally disabled
likely cannot defend themselves or speak up, negating
the perpetrator's need to use weapons or drugs, or
inflict injury on a victim. Criminals who must resort
to such means to commit sex crimes against victims who
are not disabled can be sentenced to a life term.
Yet, perpetrators who have repeatedly sexually
assaulted developmentally disabled victims often walk
away with remarkably light sentences, if they are
apprehended and prosecuted at all.
Adult Intellectual disability is associated with an IQ
of 70 or below, comparable to the intellectual
development of a 7-year-old child. The current
penalty for rape of a developmentally disabled person
is 3, 6 or 8 years in prison, while the penalty for
rape of a child under the age of 14 is 9, 11 or 13
years. SB 922 would make the penalty for rape, and
other specified sex crimes, against a developmentally
disabled person the same as that for such crimes
against a child.
In August 2013 Carlos Guadalupe Mesinas received the
maximum sentence allowed by California law for raping
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his severely disabled stepdaughter: a mere 11 years.
His 14-year-old victim has cerebral palsy, rendering
her unable to defend herself or speak up. This awful
case brought to light the fact California should do
more to protect this defenseless population and to see
that justice is served to the hardened criminals who
prey on the disabled.
As individuals with disabilities grow older, the
chance that they will be victims of violent crime
increases relative to the general population. This is
likely true because they remain vulnerable through
their lives while others become less vulnerable as
they grow in age and experience. Infants and toddlers
have similar degrees of vulnerability, regardless of
whether they are disabled or not. However the gap
grows wider by adolescence and into adulthood. It is
particularly disturbing that crime rates against the
developmentally disabled are even higher at
institutions where they are supposed to be cared-for
and safe. A 1990 study concluded that the risk of
being sexually abused is two to four times higher in
an institutional setting than in the community.
Criminals who take advantage of the vulnerable and the
unprotected are especially culpable. The punishment
for their crimes should reflect their culpability.
2. This Bill Applies to Non-Consent Sex Crimes against any
Person who is Mentally Disordered, or Physically or
Developmentally Disordered, not only Developmentally
Disordered Persons
The author's statement and numerous letters in support
refer only to sex crimes against a person who cannot
consent to sex because of a developmental disability.
However, the bill also applies to non-consent sex acts with
or against mentally disordered and physically disordered
persons. It appears that one of the main arguments
supporting this bill is that developmentally disabled
persons generally have the intellectual development of
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young children. According to the author, the I.Q. of a
developmentally disabled person is around 70 - essentially
equivalent to the I.Q. of an average 7-year-old. As such,
the bill makes the penalty for sex crimes against the
developmentally disabled the same as the penalties for sex
crimes committed by force or duress.
A mentally disordered or physically disabled person may, or
may not, be able to consent to sexual acts. The lack of
ability of mentally disordered or physically disabled
person is a fact that a prosecutor must prove to the jury
or court. As with developmentally disabled persons, the
mentally disordered of physically disabled person is
incapable of given consent if he or she is "unable to
understand the act, its nature, and possible consequences"
of the act. (CALCRIM 1004.) The bill thus presents the
issue of whether non-consent sex crimes involving mentally
disordered or physically disabled persons are equivalent to
sex crimes through force or duress against children.
3. Penalties in this Bill for Sex Crimes against Disabled or
Mentally Disordered Persons are the Same as Existing Penalties
for Crimes against Minors by Force or Duress, but this Bill
does not Generally Require Force, Duress or other Aggravating
Elements
Base Terms for Sex Crimes against the Developmentally Disabled
The base<3> prison "triad" for most sex crimes is three, six or
eight years. This triad applies where there are no aggravating
factors or special elements attendant to the crime. Where the
defendant has prior convictions, or the crime involved
aggravating factors such as the use of a weapon, infliction of
great bodily injury, kidnapping and others, the defendant is
---------------------------
<3>_____________________
A term is a "base term" because that is the foundation for a
sentence that involves multiple counts of convictions or
enhancements, or both. The sentencing court picks a base term
and constructs the full sentence on or in reference to the base.
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subject to higher terms, sentence enhancements or a life-term
sentence. (See, �� 667.51 667.61, 667.71,12022.8.)<4>
The most common charge in a sex crime involving a victim who is
under the age of 14 is lewd conduct, defined in Section 288 as
any touching of the child with lewd intent. Where no force
duress or coercion is used, the crime carries a prison term of
3, 6 or 8 years. If force, duress or coercion is used, the
prison term is 5, 8 or 10 years. Lewd conduct does not include
an element that the touching be of an intimate body part or
constitute a sex act. However, any defined sex act with a minor
under the age 14 constitutes lewd conduct, in addition to a
specific crime for the sexual intercourse, oral copulation,
non-rape penetration or sodomy.
Other sex crimes against children follow the pattern of Section
288 - higher for crimes committed by force or duress if the
victim is a minor. The standard triad for rape is 3, 6 or 8
years, regardless of whether committed by force, duress or
threats, accomplished against an unconscious person, or because
the person could not consent. These are different forms of the
same basic crime. Where rape is committed by force or duress,
and the victim is a minor, the penalty is 9, 11 or 13 years if
the minor is under the age of 14 and 7, 9 or 11 years where the
minor is at least 14. The penalties for most illegal forms of
sodomy mirror those for rape.
The sentence for most illegal forms of sexual penetration by a
foreign object and oral copulation is 3, 6 or 8 years, again,
regardless of whether committed by force, duress or threats,
accomplished against an unconscious person, or because the
person could not consent. Where sexual penetration or oral
copulation is committed by force or duress, and the victim is a
minor, the penalty is 8, 10 or 12 years if the minor is under 14
and 6, 8 or 10 if the minor is at least 14.
Unlike most sex crimes against minors with higher sentences than
---------------------------
<4> Prosecutors have myriad options for charging sex offenses.
Pen. Code �� 667.51, 667.61 and 667.71 each provides for
life-term sentences.
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the usual penalty,<5> this bill would not require proof of any
element beyond the status of the victim as developmentally
disabled. The element of the offense that makes a sex act
criminal - the inability of the victim to consent because he or
she is developmentally disabled, is also essentially the
aggravating factor that subjects the defendant to a higher
penalty than in other sex crimes, including cases where the
factor or element making the sex act criminal is the use of
force or duress or the fact that the victim was unconscious.
Further, under existing law a defendant who, with one or more
other perpetrators, jointly commits a sex against a minor by
force or violence, the crime is punishable by a greater prison
term than if the offense was committed against an adult. This
bill provides that a sex crime committed in concert against a
mental disordered, physically disabled, or developmentally
disabled is punished by the term that applies if the crime is
committed in concert against a minor under the age of 14 by
force or violence. This bill does not include an element of
force or violence in a crime committed in concert against a
disabled or mentally disordered victim.
DOES THIS BILL EFFECTIVELY MAKE THE BASIC ELEMENT OF THE CRIME -
THE INABILITY OF A DEVELOPMENTALLY DISABLED PERSON TO CONSENT TO
A SEXUAL ACT - AN AGGRAVATING FACTOR THAT INCREASES THE
DEFENDANT'S SENTENCE?
WHERE A SEX CRIME - INCLUDING A SEX CRIME COMMITTED IN CONCERT -
IS COMMITTED AGAINST A MENTALLY DISORERED, PHYSICALLY DISABLED
OR DEVELOPMENTALLY DISABLED PERSON BECAUSE THE VICTIM WAS
INCAPABLE OF CONSENTING, SHOULD HIGHER PENALTIES APPLY WHERE THE
CRIME INVOLVED FORCE OR DURESS, AS IS THE CASE WITH INCREASED
PENALTIES FOR CRIMES COMMITTED AGAINST MINORS?
WHERE A SEX CRIME IS COMMITTED JOINTLY BY TWO OR MORE
PERPETRATORS (IN CONCERT), AGAINST A MENTALLY DISORERED,
PHYSICALLY DISABLED OR DEVELOPMENTALLY DISABLED PERSON BECAUSE
THE VICTIM WAS INCAPABLE OF CONSENTING, SHOULD HIGHER PENALTIES
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<5>
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APPLY WHERE THE CRIME INVOLVED FORCE OR VIOLENCE, AS IS THE
CASE WITH INCREASED PENALTIES FOR CRIMES COMMITTED AGAINST
MINORS?
4. Concerns over the Extent of Victimization of Developmentally
Disabled Persons
There have been numerous recent reports and studies documenting
that developmentally disabled persons are at substantially
greater risk of victimization than others. For example, "people
with disabilities may ... misinterpret social cues and believe
everyone is their friend." Even when incidents of abuse are
brought to law enforcement, officers may not be trained to
effectively investigate a case in which a developmentally
disabled person is the victim. (Petersilia, Crime Victims with
Developmental Disabilities, Criminal Justice and Behavior, Dec.
2000.)<6>
A 2012 report by California Watch on abuse of residents of
developmental centers was extremely critical. The report noted
that increasing incidents of unexplained injuries and deaths
have raised questions about lack of protection for residents of
developmental centers. Inspection data from the Department of
Public Health showed that "developmental centers have been the
scene of 327 patient abuse cases since 2006 . . . . Patients
have suffered an additional 762 injuries of 'unknown origin' -
often a signal of abuse that under state policy should be
investigated as a potential crime. At the state's five centers,
the list of unexplained injuries includes patients who suffered
deep cuts on the head; a fractured pelvis; a broken jaw; busted
ribs, shins and wrists; bruises and tears to male genitalia; and
burns on the skin the size and shape of a cigarette butt."
(Gabrielson, Police Force's Sloppy Investigations Leave Abuse of
Disabled Unsolved, California Watch (Feb. 23, 2012).) Hospital
police "often learns about potential abuse hours or days after
the fact - if they find out at all. Of the hundreds of abuse
cases reported at the centers since 2006, California Watch could
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<6>
https://s3.amazonaws.com/s3.documentcloud.org/documents/325971/cr
ime-victims-with-dd.pdf, quote at p. 672.
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find just two cases where the department made an arrest." (Id.)
5. Higher Penalties for Sex Crimes against Children under the Age
of 14 in Existing Law - Application to Persons with
Developmental Disabilities
This bill applies the base-term penalties for forced or coerced
sex crimes against minors to such crimes committed against
developmentally disabled adults. As discussed in Comment # 4
above, recent studies have reported that developmentally
disabled persons are at much higher risk of sexual abuse than
the general population. A developmentally disabled person
likely has the cognitive abilities of a young child. They can
be overly trusting and easy to manipulate. Further, because
developmentally disabled persons may have difficulty
communicating, perpetrators of sex acts against them could
conclude that they can act with impunity. The author's
statement largely argues that perpetrators who take advantage of
developmentally disable persons deserve harsher punishment than
crimes against adults who are not disabled. This is described
by criminologists as the "just desserts" theory of criminal
sanctions. "The central precept of just deserts theory is that
the punishment be proportionate to the harm."<7>
The author's statement does not include a specific argument that
increased penalties would deter possible perpetrators of crimes
against the developmentally disabled. Criminologists generally
accept the general deterrence of criminal statutes - the
tendency of people to avoid doing acts that would subject them
to criminal penalties. Criminologists have, however, long been
skeptical of the value of special deterrence - deterring
commission of a particular crime through the specific penalty
---------------------------
<7>
http://www.law.asu.edu/files/!NoTemplate/why%20do%20we%20punish%2
0-%20Robinson.pdf, Why do we Punish? Carlsmith, Darley and
Robinson, 2002, The Journal of Personality and Social
Psychology, p.285.
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for that crime.<8> Research appears to clearly establish that
certainty of punishment is a much more effective deterrent than
the severity of punishment.<9> The penalties in this bill would
not change the likelihood that a perpetrator would be
apprehended for sexually abusing a mentally disordered,
developmentally or physically disabled person.
6. The Need for Awareness of Risks faced by the Developmentally
Disabled and More Training for those who Work with this
Population
The limited research on crimes against developmentally disabled
persons indicates that improved awareness about the risks and
extent of abuse of the developmentally disabled would result in
more reporting of these crimes. Training of law enforcement
officers and prosecutors is likely necessary to increase the
number of successful prosecutions. <10>
Perhaps most important, caretakers, social worker and others who
work or live with the developmentally disabled could prevent
sexual abuse by learning how remove developmentally disabled
persons from circumstances that put them at risk. Professor
Petersilia's<11> essay about the risks faced by the
developmentally disabled largely concerned the need for
awareness and training, not higher penalties:
We need to better understand the various risk factors
that are associated with victimization and criminal
offending. We specifically want to understand more
about the personal and developmental characteristics
of victims and perpetrators, the situational context
and setting in which the crime took place, and the
----------------------
<8> http://bjc.oxfordjournals.org/content/21/2/136.extract.
<9>
http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf
.
<10> Comment Nos. 5 and 6 discuss law enforcement training on
developmentally disabled victims.
<11> Ms. Petersilia wrote the essay while she was at UC Ivine.
She is now at Stanford.
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impact (e.g., physical, psychological) on both victims
and perpetrators. We also need to know the extent to
which crimes of different types get reported; who they
get reported to; how the judicial system handles the
report; what barriers exist to effective
identification, prosecution, and sentencing of
offenders; and how those barriers can be overcome.
Finally, we need to develop and evaluate programs to
prevent victimization and assist those who are
victimized to cope with the effects of victimization.
Victims with cognitive disabilities are truly
invisible, often being unable to advocate on their own
behalf for services and equal justice. With better
information, the issue should become more visible to
the public, policy makers, and those who can fund
training and education programs. (Petersilia, Crime
Victims with Developmental Disabilities, Criminal
Justice and Behavior, Dec. 2000, pp. 689-690.)
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7. Standard for Establishing the Victim's Developmental
Disability in Criminal Trials
A defendant is guilty of a sex crime against a developmentally
disabled person if the victim is "unable to understand the act,
its nature, and possible consequences." (CALCRIM 1004.)
What constitutes a developmental disability in this context is
relatively broad and non-technical. A medical or psychiatric
diagnosis is not required. Appellate courts have found that
jurors can determine if the victim has a developmental
disability. While the prosecution or the defense could call an
expert witness on the issue of the victim's alleged disability,
expert testimony is not required. Further, the judge is not
required to instruct the jury on the technical, legal definition
of the term developmental disability without a defense or
prosecution request for a "pinpoint instruction." A pinpoint
instruction explains a party's legal theory of the case in light
of the facts of the incident. (People v. Mobley (1999) 72
Cal.App.4th 761, 781-783.)
8. Recent and Pending Bills Concerning Law Enforcement Training
on Issues of Crimes against the Developmentally Disabled
AB 602 (Yamada) Ch. 673, Stats. 2013, requires the Commission on
Peace Officer Standards and Training (POST) to develop and make
available a course for law enforcement officers on interactions
with residents of state mental hospitals and state developmental
centers. The bill was enacted in response to reports of serious
abuse and neglect of developmentally disabled patients in state
institutions. Many instances of serious abuse were not properly
investigated and patterns of abuse and neglect continued. SB
663 (Lara) - currently pending in the Assembly -would
effectively expand the reach of the training course statewide,
well beyond the small number of law enforcement agencies that
are likely to handle abuse and neglect investigations in state
facilities. SB 663 also considers training of law enforcement
officers for handling abuse of the developmentally disabled that
occurs in private facilities.
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9. Specialized Law Enforcement Units to Handle Cases Involving
Developmentally Disabled Persons
Research has documented that persons with developmental
disabilities are at "disproportionately high risk for violent
victimization." Unfortunately, research also indicates that the
criminal justice system has been the last societal institution
to respond to and accommodate the needs of people with
developmental disabilities. (Petersilia, supra, pp. 655, 680.)
Specific and recurring issues arise in the investigation of
crimes in which the victims are developmentally disabled. For
example, an officer asking a person with Down syndrome repeated
questions may simply be trying to assemble the facts of the case
as accurately as possible. However, people with Down syndrome
may often perceive repeated questioning as threatening and try
to appease the questioner to limit the questions. This may
result in inaccurate police reports that impair the viability of
a case.
As persons with developmental disabilities are at high risk for
victimization, it may be helpful for law enforcement agencies to
establish units in which officers have training and experience
in interacting with people with developmental disabilities.
These units could also handle cases involving other persons with
special needs, such as the autistic and the mentally ill. For
example, specialized officers could perform the formal
interviews with sexual assault and felony assault victims who
have developmental disabilities. Specialized officers could
also be dispatched to assist patrol officers who encounter
persons with special needs. Communication and trust problems
could be limited or eliminated before the investigation is
harmed.
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