Senate Bill No. 991

Introduced by Senator Jackson

February 12, 2014

An act to amend Sections 261, 261.6, 264, and 290 of the Penal Code, relating to sex offenses.

LEGISLATIVE COUNSEL’S DIGEST

SB 991, as introduced, Jackson. Sex offenses: second degree rape.

(1) Under existing law, rape is an act of sexual intercourse accomplished under specified circumstances, including, among others, where the act was accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. Under existing law, rape is a felony. Under existing law, sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another. Under existing law, oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. Under existing law, an act of sodomy, oral copulation, or sexual penetration accomplished against a victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person is a felony.

Existing law defines consent for purposes of the above crimes to mean positive cooperation in act or attitude pursuant to an exercise of free will.

This bill would define an act of sexual intercourse, sodomy, oral copulation, or sexual penetration which is accomplished without the affirmative and freely given consent of the victim as rape in the 2nd degree. The bill would make rape in the 2nd degree a felony punishable by imprisonment in the state prison for 2, 3, or 4 years for the first offense, and by imprisonment in the state prison for 3, 6, or 8 years for a 2nd or subsequent violation. The bill could make the defendant ineligible for probation for a 2nd or subsequent violation, and if probation is granted for a first offense, the bill would allow the conditions of probation to include a requirement to make payments to a rape victim counseling center or to reimburse the victim for the reasonable costs of counseling, as provided.

The bill would define consent for these purposes, and for purposes of the above existing crimes, to mean positive cooperation in act or attitude pursuant to an exercise of free will, which is affirmatively and freely given.

By creating a new crime, this bill would impose a state-mandated local program.

(2) Existing law requires persons convicted of specified sex offenses, or attempts to commit those offenses, to register with local law enforcement agencies while residing in the state or while attending school or working in the state.

This bill would require a person convicted of rape in the 2nd degree to register with local law enforcement agencies as a sex offender. By imposing additional duties on local authorities, and by creating a new crime by requiring additional persons to be registered as sex offenders, this bill would create a state-mandated local program.

(3) 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 261 of the Penal Code is amended to
read:

261.  

(a) Rape begin insert in the first degree end insert is an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator, under
any of the following circumstances:

(1) Where a person is incapable, because of a mental disorder
or developmental or physical disability, of giving legal consent,
and this is known or reasonably should be known to the person
committing the act. Notwithstanding the existence of a
conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving consent.

(2) Where it is accomplished against a person’s will by means
of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person or another.

(3) Where a person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled substance,
and this condition was known, or reasonably should have been
known by the begin delete accused end delete begin insert perpetrator end insert .

(4) Where a person is at the time unconscious of the nature of
the act, and this is known to the begin delete accused end delete begin insert perpetrator end insert . As used in
this paragraph, “unconscious of the nature of the act” means
incapable of resisting because the victim meets any one of the
following conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the
act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

(D) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.

(5) Where a person submits under the belief that the person
committing the act is someone known to the victim other than the
accused, and this belief is induced by any artifice, pretense, or
concealment practiced by the accused, with intent to induce the
belief.

(6) Where the act is accomplished against the victim’s will by
threatening to retaliate in the future against the victim or any other
person, and there is a reasonable possibility that the perpetrator
will execute the threat. As used in this paragraph, “threatening to
retaliate” means a threat to kidnap or falsely imprison, or to inflict
extreme pain, serious bodily injury, or death.

(7) Where the act is accomplished against the victim’s will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, “public official” means a person employed by
a governmental agency who has the authority, as part of that
position, to incarcerate, arrest, or deport another. The perpetrator
does not actually have to be a public official.

begin insert

(b) (1) Rape in the second degree is an act of sexual intercourse,
an act of sodomy as described in subdivision (a) of Section 286,
an act of oral copulation as described in subdivision (a) of Section
288a, or an act of sexual penetration as described in paragraph
(1) of subdivision (k) of Section 289, which is accomplished without
the affirmative and freely given consent of the victim, and a
reasonable person would not have believed there was affirmatively
and freely given consent. In a prosecution made pursuant to this
subdivision, the prosecutor is required to demonstrate that the
defendant did not reasonably believe that affirmative consent had
been freely given.

end insert begin insert

(2) In determining whether consent was affirmatively and freely
given, the totality of the circumstances, including the age of the
victim, his or her relationship to the defendant, and any handicap
or disability of the victim, and any threats of hardship not
amounting to duress, shall be considered.

end insert begin delete

(b)

end delete

begin insert (c) end insert  As used in this section, “duress” means a direct or implied
threat of force, violence, danger, or retribution sufficient to coerce
a reasonable person of ordinary susceptibilities to perform an act
which otherwise would not have been performed, or acquiesce in
an act to which one otherwise would not have submitted. The total
circumstances, including the age of the victim, and his or her
relationship to the defendant, are factors to consider in appraising
the existence of duress.

begin delete

(c)

end delete

begin insert (d) end insert  As used in this section, “menace” means any threat,
declaration, or act which shows an intention to inflict an injury
upon another.

SEC. 2.  

Section 261.6 of the Penal Code is amended to read:

261.6.  

In prosecutions under Section 261, 262, 286, 288a, or
289, in which consent is at issue, “consent” shall be defined to
mean positive cooperation in act or attitude pursuant to an exercise
of free will begin insert , which is affirmatively and freely given end insert . The person
must act begin delete freely and end delete voluntarily and have knowledge of the nature
of the act or transaction involved.

A current or previous dating or marital relationship shall not be
sufficient to constitute consent where consent is at issue in a
prosecution under Section 261, 262, 286, 288a, or 289.

Nothing in this section shall affect the admissibility of evidence
or the burden of proof on the issue of consent.

SEC. 3.  

Section 264 of the Penal Code is amended to read:

264.  

(a) Except as provided in subdivision (c), rape, as defined
in begin insert subdivision (a) of end insert Section 261 or begin insert Section end insert 262, is punishable by
imprisonment in the state prison for three, six, or eight years.

(b) In addition to any punishment imposed under this section
the judge may assess a fine not to exceed seventy dollars ($70)
against any person who violates Section 261 or 262 with the
proceeds of this fine to be used in accordance with Section 1463.23.
The court shall, however, take into consideration the defendant’s
ability to pay, and no defendant shall be denied probation because
of his or her inability to pay the fine permitted under this
subdivision.

(c) (1) Any person who commits rape in violation of paragraph
(2) of subdivision (a) of Section 261 upon a child who is under 14
years of age shall be punished by imprisonment in the state prison
for 9, 11, or 13 years.

(2) Any person who commits rape in violation of paragraph (2)
of subdivision (a) of Section 261 upon a minor who is 14 years of
age or older shall be punished by imprisonment in the state prison
for 7, 9, or 11 years.

begin insert

(3) Rape in the second degree, as defined in subdivision (b) of
Section 261, is punishable by imprisonment in the state prison for
two, three, or four years. A second or subsequent act of rape in
the second degree, brought and tried separately, is punishable by
imprisonment in the state prison for three, six, or eight years and
the defendant shall not be eligible for probation.

end insert begin insert

(4) (A) If probation is granted upon conviction for a first
violation of subdivision (b) of Section 261, the conditions of
probation may include, in lieu of a fine, one or both of the
following:

end insert begin insert

(i) That the defendant make payments to a rape victim
counseling center of not more than one thousand dollars ($1,000).

end insert begin insert

(ii) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds
are a direct result of the offense.

end insert begin insert

(B) The court shall make a determination of the defendant’s
ability to pay, and in no event shall any order to make payments
to a rape victim counseling center be made if it would impair the
ability of the defendant to pay direct restitution to the victim.

end insert begin delete

(3)

end delete

begin insert (5) end insert  This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

SEC. 4.  

Section 290 of the Penal Code is amended to read:

290.  

(a) Sections 290 to 290.024, inclusive, shall be known
and may be cited as the Sex Offender Registration Act. All
references to “the Act” in those sections are to the Sex Offender
Registration Act.

(b) Every person described in subdivision (c), for the rest of his
or her life while residing in California, or while attending school
or working in California, as described in Sections 290.002 and
290.01, shall be required to register with the chief of police of the
city in which he or she is residing, or the sheriff of the county if
he or she is residing in an unincorporated area or city that has no
police department, and, additionally, with the chief of police of a
campus of the University of California, the California State
University, or community college if he or she is residing upon the
campus or in any of its facilities, within five working days of
coming into, or changing his or her residence within, any city,
county, or city and county, or campus in which he or she
temporarily resides, and shall be required to register thereafter in
accordance with the Act.

(c) The following persons shall be required to register:

Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military
court of a violation of Section 187 committed in the perpetration,
or an attempt to perpetrate, rape or any act punishable under
Section 286, 288, 288a, or 289, Section 207 or 209 committed
with intent to violate Section 261, 286, 288, 288a, or 289, Section
220, except assault to commit mayhem, subdivision (b) and (c) of
Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of
subdivision (a) of begin insert , and subdivision (b) of, end insert Section 261, paragraph
(1) of subdivision (a) of Section 262 involving the use of force or
violence for which the person is sentenced to the state prison,
Section 264.1, 266, or 266c, subdivision (b) of Section 266h,
subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286,
288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision
(b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10,
311.11, or 647.6, former Section 647a, subdivision (c) of Section
653f, subdivision 1 or 2 of Section 314, any offense involving
lewd or lascivious conduct under Section 272, or any felony
violation of Section 288.2; any statutory predecessor that includes
all elements of one of the above-mentioned offenses; or any person
who since that date has been or is hereafter convicted of the attempt
or conspiracy to commit any of the above-mentioned offenses.

SEC. 5.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.

However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.