BILL ANALYSIS �
SB 922
Page 1
Date of Hearing: June 17, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 922 (Knight) - As Amended: May 7, 2014
SUMMARY : Provides that a sex crime against a mentally
disordered, developmentally disabled, or physically disabled
person by force, duress or threats shall be punished by the same
prison sentences that apply to sex crimes accomplished by force,
duress or threats against a child under the age of 14.
Specifically, this bill :
1)Provides that the penalty for the crimes of rape or sodomy
committed by means of force, violence, duress, menace, or fear
of bodily injury upon a person who has a mental disorder or
developmental or physical disability which is known, or
reasonably should be known, to the perpetrator, shall be
imprisonment in the state prison for 9, 11, or 13 years.
2)Provides that the penalty for the crimes of oral copulation or
sexual penetration committed by means of force, violence,
duress, menace, or fear of bodily injury upon a person who has
a mental disorder or developmental or physical disability
which is known, or reasonably should be known, to the
perpetrator shall be imprisonment in the state prison for 8,
10, or 12 years.
3)Provides that the penalty for the crimes of rape, sodomy, oral
copulation, or sexual penetration committed in concert and by
means of force or fear of immediate and unlawful bodily injury
upon a person who has a mental disorder or developmental or
physical disability which is known, or reasonably should be
known to the perpetrator, shall be imprisonment in the state
prison for 10, 12, or 14 years.
EXISTING LAW :
1)Provides that a person who commits an act of rape against a
victim who is incapable of giving legal consent due to a
mental disorder or developmental or physical disability, shall
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be punished by imprisonment in the state prison for three,
six, or eight years. (Pen. Code, � 264.)
2)Provides that a person who commits an act of sodomy against a
victim who is incapable of giving legal consent due to a
mental disorder or developmental or physical disability, shall
be punished by imprisonment in the state prison for three,
six, or eight years. (Pen. Code, � 286, subd. (g).)
3)Provides that a person who commits an act of oral copulation
against a victim who is incapable of giving legal consent due
to a mental disorder or developmental or physical disability,
shall be punished by imprisonment in the state prison for a
period of three, six, or eight years. (Pen. Code, � 288a,
subd. (g).)
4)Provides that a person who commits an act of sexual
penetration against a victim who is incapable of giving legal
consent due to a mental disorder or developmental or physical
disability shall be punished by imprisonment in the state
prison for a period of three, six, or eight years. (Pen.
Code, � 289, subd. (b).)
5)Provides that a defendant who acts in concert with another
person and commits specified sex crimes shall be punished in
the state prison for five, seven or nine years. (Pen. Code,
�� 264.1, subd. (a), & 286, subd. (d)(1).)
6)Provides an additional punishment of one year when the
defendant knows or reasonably should know that the victim of
an enumerated offense is 65 years of age or older, blind,
deaf, developmentally disabled, a paraplegic, a quadriplegic,
or under 14 years old. (Pen. Code, � 667.9, subd. (a).)
7)Provides an additional punishment of two years when the
defendant knows or reasonably should know that the victim of
an enumerated offense is 65 years of age or older, blind,
deaf, developmentally disabled, a paraplegic, a quadriplegic,
or under 14 years old, and where the defendant also has a
prior conviction for one of those crimes. (Pen. Code, �
667.9, subd. (b).)
8)Defines "developmentally disabled" for purposes of the
vulnerable victim enhancement as "a severe, chronic disability
of a person, which is all of the following:
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a) Attributable to a mental or physical impairment or a
combination of mental and physical impairments;
b) Likely to continue indefinitely; and,
c) Results in substantial functional limitation in three or
more of the following areas of life activity:
i) Self-care;
ii) Receptive and expressive language;
iii) Learning;
iv) Mobility;
v) Self-direction;
vi) Capacity for independent living; or,
vii) Economic self-sufficiency." (Pen. Code, � 667.9,
subd. (d).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Senate Bill 922
takes one step toward correcting a loophole that allows
criminals who commit particularly despicable crimes against
one of our most vulnerable populations to walk away with
shockingly light sentences. Under SB 922 the forcible rape,
sexual penetration, oral copulation or sodomy of a
developmentally disabled victim, is punishable by the rate
already set forth when that victim is a minor younger than 14.
"While a disability does not make a person 'less than,' it does
make them vulnerable to be a victim. Some criminals knowingly
prey on the severely disabled because the victimization of
someone who is unable to physically defend themselves, or even
speak up, negates the need for perpetrators to use weapons,
bodily harm, drugs, or other means of force. In cases of
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rape, these enhancement a perpetrator's punishment up to a
life sentence.
"A growing body of research indicates that people with
disabilities suffer from crimes - particularly sexual crimes -
at substantially higher rates (often four to ten times higher)
than the general population. In addition to these extremely
high rates of sexual assault, there is also a growing body of
evidence that people with developmental disabilities are often
sexually assaulted repeatedly; and according to the California
District Attorneys Association, they are less protected by the
criminal justice system.
"Rape is a crime against humanity. And prisons exist in
California to house the worst of the worst, shielding the
victims who may be completely defenseless against these acts
from being victimized again. California needs to stand up and
tell people with disabilities that we are willing to grant
them the protections that they so desperately need in times of
grave and despicable circumstances. Given the especially
vulnerable victims that SB 922 seeks to protect, and the
especially heinous crimes that SB 922 addresses, California
needs SB 922 to ensure that our justice system protects some
of our most defenseless members of society."
2)On-Going Concerns for Prison Overcrowding : In January 2010,
a three-judge panel issued a ruling ordering the State of
California to reduce its prison population to 137.5% of design
capacity because overcrowding was the primary reason that
California Department of Corrections and Rehabilitation (CDCR)
was unable to provide inmates with constitutionally adequate
healthcare. (Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United States
Supreme Court upheld the decision, declaring that "without a
reduction in overcrowding, there will be no efficacious remedy
for the unconstitutional care of the sick and mentally ill"
inmates in California's prisons. (Brown v. Plata (2011) 131
S.Ct. 1910, 1939.)
The original deadline to reach the required prison population
reduction was June 2013. In January 2013, the State moved to
vacate or to modify the population reduction order, arguing
that the reductions made were sufficient. But in April 2013,
the three judge panel denied the Governor's motion to vacate
or modify the court's population reduction order. The court
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ordered the state to take all necessary steps to reduce the
prison population to 137.5% by December 31, 2013.
In September 2013, the State submitted a report to the court
advising that the current overcrowding level was 147.1% of
design capacity. The State asked the court for a three-year
extension to comply with the deadline to reduce crowding to
the mandated level. The State also stated that if no
extension was granted, it would comply with the cap by moving
prisoners to private prisons and county jails. Meanwhile,
state officials also filed an appeal to the United States
Supreme Court. In December 2013, the United States Supreme
Court refused to consider the State's appeal.
In February 2014, the three-judge panel issued its final order.
It granted the state a two-year extension to achieve the
ordered reduction in the prison population to 137.5% design
capacity. The State must meet the following interim and final
population reduction benchmarks: 143% of design bed capacity
by June 30, 2014; 141.5% of design bed capacity by February
28, 2015; and 137.5% of design bed capacity by February 28,
2016. During that time, CDCR is prohibited from increasing
the number of inmates housed in out-of-state facilities.
Additionally, the court created the position of a "Compliance
Officer" with the authority to release prisoners if the State
fails to reach one of the benchmarks, with the number of
prisoners released being the number necessary to bring
defendants into compliance with the missed benchmark. Thus,
prison capacity remains a serious concern.
Moreover, once the state has complied with the federal court
order, the prison population will need to be maintained, not
increased. And according to the Legislative Analyst's Office
(LAO), "CDCR is currently projecting that the prison
population will increase by several thousand inmates in the
next few years and will reach the cap by June 2018 and exceed
it by 1,000 inmates by June 2019."
( http://www.lao.ca.gov/reports/2014/budget/criminal-justice/cri
minal-justice-021914.aspx .) The LAO notes that predicting the
prison population is "inherently difficult" and subject to
"considerable uncertainty." (Ibid.) Nevertheless, increasing
the sentences for these crimes without a specified showing of
necessity at a time when the prison population is already
expected to increase seems imprudent.
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CDCR has informed this Committee that in the last three fiscal
years (FY), there were approximately 25 admissions to prison
for the offenses targeted under this bill, as follows:
------------------------------------------------------------------------------
|FY 2010/11 |
------------------------------------------------------------------------------
---------------------------------------------------------------------------
| Principal| Subordinat| Both |
| | e | |
---------------------------------------------------------------------------
|---------------+-------------------+------------------+------------------------|
|PC � 261(a)(1) |9 |6 |15 |
|---------------+-------------------+------------------+------------------------|
|PC � 286(g) |0 |1 |1 |
|---------------+-------------------+------------------+------------------------|
|PC � 288a(g) |1 |1 |2 |
-------------------------------------------------------------------------------
|PC � 289(b) |2 |5 |7 |
|---------------+-------------------+------------------+------------------------|
|Totals |12 |13 |25 |
| | | | |
-------------------------------------------------------------------------------
------------------------------------------------------------------------------
|FY 2011/12 |
------------------------------------------------------------------------------
------------------------------------------------------------------------------
| Principal| Subordinate| Both |
------------------------------------------------------------------------------
-------------------------------------------------------------------------------
|PC � 261(a)(1) |4 |4 |8 |
-------------------------------------------------------------------------------
|PC � 286(g) |1 |6 |7 |
-------------------------------------------------------------------------------
|PC � 288a(g) |3 |8 |11 |
-------------------------------------------------------------------------------
|PC � 289(b) |1 |0 |1 |
|---------------+-------------------+------------------+------------------------|
|Totals |9 |18 |27 |
| | | | |
-------------------------------------------------------------------------------
------------------------------------------------------------------------------
| |
| |
| |
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| |
| |
|FY 2012/13 |
------------------------------------------------------------------------------
---------------------------------------------------------------------------
| Principal| Subordinate| Both |
| | | |
---------------------------------------------------------------------------
-------------------------------------------------------------------------------
|PC � 261(a)(1) |9 |4 |13 |
-------------------------------------------------------------------------------
|PC � 286(g) |1 |1 |2 |
-------------------------------------------------------------------------------
|PC � 288a(g) |3 |6 |9 |
-------------------------------------------------------------------------------
|PC � 289(b) |1 |0 |1 |
|---------------+-------------------+------------------+------------------------|
|Totals |14 |11 |25 |
-------------------------------------------------------------------------------
Currently, the sentencing range for these crimes is three,
six, or eight years, unless they were committed in concert, in
which case the punishment is five, seven, or nine years. This
bill increases the sentencing range to mirror the punishment
for sex crimes committed against children under 14 years of
age. Oral copulation or sexual penetration of a
developmentally disabled victim would be punished by 8, 10, or
12 years. Rape or sodomy of a developmentally disabled victim
would be punished by 9, 11, or 13 years. Any of these crimes
committed in concert would be punished by 10, 12, or 14 years.
Therefore, this bill raises concerns regarding the issue of
prison overcrowding.
3)Definition of Developmental Disability : One of the elements
the prosecution must prove for the crimes at issue is that the
victim had a mental disorder or developmental or physical
disability which prevented him or her from legally consenting.
(See CALCRIM No. 1004.) But the court does not have a duty
to provide the jury with a definition of the term
"developmental disability." (People v. Mobley (1999) 72
Cal.App.4th 761, 783.) In People v. Mobley, the defendant
argued that the jury should have been instructed with the
legal, medical definition of "developmental disability" as
provided in Welfare and Institutions Code section 4512,
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subdivision (a). The appellate court held that "no technical
legal or medical diagnosis of developmental disability is
necessary for a conviction." (Ibid.) Thus, what constitutes
a developmental disability for purposes of sustaining a
conviction is relatively broad and non-technical. A medical
or psychiatric diagnosis is not required.
Some supporters of this bill argue that a developmentally
disable person should be treated the same as a minor under 14
years of age for purposes of enhancing punishment because
their IQ and mental capacity is the same as a person of that
age. In this respect, it should be noted the increased
penalties proposed by this bill apply whenever the victim has
not only a mental or cognitive disability, but also a physical
disability. And, as noted above, a medical opinion about the
severity of the disability is not required for proof of the
crime. Thus, while some of the developmentally disabled
persons this bill seeks to protect may in fact have the
intellectual development of a person under 14, arguably many
others will not.
It should be noted that in contrast to the broad categories of
disabilities that would receive additional punishment under
the language of this bill, a developmental disability
necessary to prove a vulnerable victim enhancement under Penal
Code section 667.9, does have a specific and technical
meaning. For purposes of the enhancement, "developmental
disability" means a severe, chronic disability of a person
that is attributable to a mental or physical impairment or a
combination of mental and physical impairments which is likely
to continue indefinitely and which results in substantial
functional limitation in three or more abilities including,
the ability to care for one's self, to understand and express
language, to learn, to be independently mobile, to engage in
self-direction, to live independently, or to be economically
self-sufficient. (See CALCRIM No. 3222.)
4)Argument in Support : According to the Special Needs Network ,
"In 2013, a comprehensive national study of sexual abuse
reported that children with disabilities are three times more
likely to be abused than their typical peers. The risk of
sexual assault abuse for children with special needs is
exacerbated and heightened because of the unique
vulnerability, dependence, and communication difficulties
these children often experience. As a result, they are
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targeted by predators more frequently and these offenders are
less likely to be caught.
"By creating expanded sentences for these crimes against
children younger than 14, current California law has
established that crimes against this vulnerable population are
especially heinous. The same weight and consideration should
be given to developmentally disabled persons, as their IQ and
mental capacity emulates that of a typically-developing minor
younger than 14."
5)Argument in Opposition : The California Attorneys for Criminal
Justice write, "The implication of the bill is that the
mentally disabled are incapable of consenting to sexual acts
just like children. A well-established principle in law is
that children are not capable of legally consenting to certain
acts, including sexual consent. Because they cannot consent
to sexual acts the laws in place to punish those acts against
children contain very severe penalties. To say that persons
with a developmental disability or an IQ of less than 70
cannot legally consent would essentially categorize this
population as children. ?
"There are countless examples of developmentally disabled
individuals living productive, independent lives. While your
sentiment is to protect vulnerable individuals, as drafted, it
is overly broad, and fails to recognize a wide spectrum of
functionality and developmentally disabled. ?
"Certainly those who commit crimes of a sexual nature against
the disabled must be punished and often times severely, with
long prison sentences. The answer is not to equate
developmentally disabled adults with children. SB 922 is
unnecessary; it extends punishment and expands crimes without
clear statistical evidence that there is a need or demand to
do so. Are current laws not deterrent enough?"
6)Related Legislation :
a) AB 1335 (Maienschein) makes specified sex crimes
committed against victims with mental disorders or physical
or developmental disabilities qualifying crimes for the
"One Strike Sex Law" and the vulnerable victim enhancement.
AB 1335 is pending hearing in the Senate Appropriations
Committee.
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b) SB 838 (Beall) establishes enhanced penalties for
juveniles who have committed, or who are alleged to have
committed, specified sex crimes involving an unconscious or
disabled victim, as specified. SB 838 will be heard in
this Committee today.
7)Prior Legislation :
a) AB 1844 (Fletcher), Chapter 219, Statutes of 2010,
enacted "Chelsea's Law", which increased the punishment for
rape, sodomy, oral copulation, or sexual penetration upon a
child who is under 14 years of age to imprisonment in state
prison for 9, 11, or 13 years, and if committed upon a
minor who is 14 years of age or older, to imprisonment in
state prison for 7, 9, or 11 years.
b) AB 313 (Zettel), Chapter 569, Statutes of 1999, added
deaf and developmentally disabled persons as qualifying
victims to the existing enhancement statute for serious
crimes committed against the elderly, children under age
14, and persons who are either blind, a paraplegic, or
quadriplegic.
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
Association of Regional Center Agencies
California Fraternal Order of Police
California Police Chiefs Association
California Probation, Parole, and Correctional Association
California State Sheriff's Association
Crime Victims United of California
Developmental Disabilities Area Board 3
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
New Horizons
North Los Angeles County Regional Center
Riverside Sheriffs' Association
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Sacramento County Deputy Sheriffs Association
Santa Ana Police Officers Association
Special Needs Network
Opposition
All of Us or None
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744