BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair S
2005-2006 Regular Session B
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SB 111 (Alquist)
As Amended April 11, 2005
Hearing date: April 19, 2005
Penal Code
AA:br
STATUTE OF LIMITATIONS
SEX CRIMES AGAINST MINORS UNDER 18
HISTORY
Source: Attorney General's Office; California District
Attorneys Association
Prior Legislation: AB 1667 (Kehoe) - Ch. 368, Stats. 2004
SBX4 2 (Speier) - Ch. 2, Stats. 2003-04 Fourth
Extraordinary Session
AB 78 (Alquist) - Ch. 235, Stats. 2001
AB 1742 (Correa) - Ch. 235, Stats. 2000
AB 25X (Andal) - Ch. 46 Ex., Stats. 1994
AB 290 (Boland) - Ch. 390, Stats. 1993
AB 782 (N. Waters) - Ch. 1312. Stats. 89
Support: Peace Officers Research Association of California;
California Correctional Supervisors Organization;
Sacramento County Sheriff's Department; San Diego
County Sheriff's Department; Los Angeles District
Attorney's Office; Crime Victims United of California
Opposition:California Public Defenders Association
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KEY ISSUE
SHOULD THE STATUTE OF LIMITATIONS FOR FELONY SEX CRIMES AGAINST
CHILDREN UNDER THE AGE OF 18 BE EXTENDED UP TO THE ALLEGED
VICTIM'S 30TH BIRTHDAY, AS SPECIFIED?
PURPOSE
The purpose of this bill is to authorize the commencement of a
prosecution for a felony sex crime against a child under 18 at
any time prior to the victim's 30th birthday, as specified.
Criminal Statute of Limitations Generally
Under current law , statutes of limitations for the commencement
of criminal actions generally are based on the term of the
sentence, the type of offense, or the nature of the victim, as
specified below.
Prosecution for a crime punishable by death, life
imprisonment, life imprisonment without the possibility of
parole, or the embezzlement of public funds may be commenced
at any time.<1> (Penal Code 799.)
Prosecution for crimes punishable by imprisonment in the state
prison for eight years or more and not otherwise covered must
be commenced within six years after commission of the offense.
(Penal Code 800.)
Prosecution for crimes punishable by imprisonment in the state
prison must be commenced within three years after commission
of the offense. (Penal Code 801.)
Prosecution for crimes involving fraud, breach of a fiduciary
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<1> Punishment for murder, attempted premeditated and
deliberate murder, kidnapping for purposes of robbery,
extortion, or certain sex offenses are punishable by life in
prison. (Penal Code 190 and 209.)
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duty, embezzlement of funds from an elder or dependent adult,
or misconduct by a public official must be commenced within
four years after discovery of the crime or within four years
after completion, whichever is later. (Penal Code 801.5.)
Prosecution for crimes involving elder or dependent abuse must
be commenced within five years after commission of the
offense. (Penal Code 801.6.)
Prosecution for misdemeanor crimes involving molesting a child
under the age of 14 years or sexual misconduct with a patient
must be commenced within two years after commission of the
offense. For all other misdemeanors, prosecution must be
commenced within one year after commission of the offense.
(Penal Code 802.)
Statute of Limitations for Sex Crimes
Current law provides that the prosecution for a felony sex
offense subject to mandatory sex offender registration, as
specified, must be commenced within 10 years after commission of
the offense. (Penal Code 801.1.)
Statute of Limitations for Felony Sex Crimes against Minors
In addition to the 10-year statute of limitations applicable
above, current law authorizes a criminal complaint to be filed
in specified child sex crime<2> cases as follows:
A. Within one year of the date a child is under 18 years of
age reports the crime to a responsible adult or agency, as
specified, if both of the following occur:
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<2> The applicable sex crimes are: rape (Penal Code 261);
sodomy (Penal Code 286); child molestation (Penal Code 288);
oral copulation (Penal Code 288a); continuous sexual abuse of
a child (Penal Code 288.5); and forcible sexual penetration
(Penal Code 289 and 289.5 (under prior law), as specified
(Penal Code 289.5).
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1. The statute of limitations has otherwise
expired; and
2. The defendant has committed at least one sex
crime violation against the same victim within
the limitations period otherwise applicable
(i.e., within 10 years). (Penal Code 803(f).)
B. Within one year of the date a person any age reports to
a California law enforcement agency that he or she, while under
the age of 18 years, was a victim of a sex crime, as specified,
if all of the following occur:
1. The limitation period specified in
Section 800, 801, or 801.1, whichever is later,
has expired.
2. The crime involved substantial sexual
conduct, as specified, excluding masturbation
that is not mutual.
3. There is independent evidence that
corroborates the victim's allegation.<3> If the
victim was 21 years of age or older at the time
of the report, the independent evidence shall
clearly and convincingly corroborate the victim's
allegation. (Penal Code 803(g).)
C. Within one year of the date on which the identity of the
suspect is conclusively established by DNA testing, if both of
the following conditions are met:
1. The crime is one that is subject to
mandatory sex offender registration, as
specified; and
2. The offense was committed prior to
January 1, 2001, and biological evidence
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<3> Current law provides that no "evidence may be used to
corroborate the victim's allegation that otherwise would be
inadmissible during trial. Independent evidence does not
include the opinions of mental health professionals." (Penal
Code 803(g)(3).)
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collected in connection with the offense is
analyzed for DNA type no later than January 1,
2004, or the offense was committed on or after
January 1, 2001, and biological evidence
collected in connection with the offense is
analyzed for DNA type no later than two years
from the date of the offense. (Penal Code
803(h).)
This bill would revise the statute of limitations for sex
offenses against children under the age of 18 to provide that
prosecution for rape, sodomy, child molestation, oral
copulation, continuous sexual abuse of a child, or forcible
sexual penetration, as specified, alleged to have been
committed when the victim was under the age of 18 years old,
may be commenced any time prior to the victim's 30th birthday.
This bill would delete from current law the extended
limitations period that applies when a minor under the age of
18 reports abuse to a responsible adult or agency, as specified
(Penal Code 803(f)).
This bill makes additional technical, non-substantive changes
to the law.
COMMENTS
1. Stated Need for This Bill
The author states in part:
This bill would increase the normally-applicable
statute of limitations in child sexual abuses from
the current 10-years-from-the-date-of-the-crime,
after which time section 803(g) applies, to the
victim's 30th birthday, after which time section
803(g) would apply. Subdivision (f) would be
deleted as unnecessary.
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Generally, it makes sense to have a statute of
limitations be a set number of years from the date
of the crime. In the context of child sexual abuse,
however, it does not make sense; the statute of
limitations should be based on the victim's ability
to report the crime, thus giving the state a fair
opportunity to prosecute the offender.
As recently explained by the American Psychological
Association, "For a variety of reasons . . . victims
often are shamed, intimidated, or otherwise compelled
to keep childhood sexual abuse a secret their whole
lives. Although silent about their abuse, many
victims continue to suffer from high rates of medical,
psychological, and social problems throughout their
adulthood. Those few who ever disclose the abuse
frequently do so years after it has occurred, often in
an effort to protect other children from the pedophile
who abused them." (Brief of Amici Curiae American
Psychological Association, National Association of
Counsel for Children, American Professional Society on
the Abuse of Children, and California Professional
Society on the Abuse of Children in Support of
Respondent, in Stogner v. California (2003) 539
U.S.607, at p. 4.) Further, "Child molesters remain
at serious risk of reoffending throughout their lives"
(Id., at p. 5); "[u]nlike most violent offenders,
child molesters do not 'age out' of criminality" (Id.,
at p. 23).
Under existing law, the normally-applicable statute of
limitations for prosecuting the sexual abuse of a
7-year-old child expires before the child even reaches
the age of majority. The normally-applicable statute
of limitations for prosecuting the sexual abuse of a
14-year-old child expires at a time when he or she may
well still be under the perpetrator's physical,
financial, or psychological control. Unless there is
independent corroboration of the crime - one known to
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be committed in secret (People v. Falsetta (1999) 21
Cal.App.4th 903, 911-912) - the crime cannot be
prosecuted. . . .
There is no fair opportunity for prosecution until the
victim has a fair opportunity to report the crime,
meaning he or she is out of the perpetrator's home or
control, has started living independently, and has the
psychological strength to confront his or her abuser.
Under the law as it currently exists, most
perpetrators of child sexual abuse are insulated from
prosecution because of the dynamics of their crimes.
(Brief of Amici Curiae, supra, at p. 10.) As a
consequence, the crimes go unpunished, and the
perpetrators remain free to victimize additional
children. (Id., at pp. 3-25.)
2. Author's Amendment
The author intends to offer technical amendments in Committee to
replace, at page 8 line 23, the word "subdivision" with the word
"paragraph."
3. What This Bill Would Do; How It Compares to Current Law
This bill would change the criminal statute of limitations in
child sex abuse cases. Specifically, the bill would authorize
the prosecution of child sex abuse cases - that is, specified
sex crimes committed when a victim was under the age of 18 years
- at any time prior to the victim's 30th birthday.
Currently, in child sex abuse cases reported after a victim has
turned 18 where the general 10-year limitations period has
expired, the prosecution must satisfy two elements to extend the
limitations period in child sex crime cases: 1) show the crime
involved "substantial sexual conduct," and 2) show there is
independent evidence that corroborates the victim's allegation.
If the victim is 21 or older when the crime is reported, that
evidence must clearly and convincingly corroborate the victim's
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allegation. This bill essentially would eliminate these
requirements for cases where a victim is under 30 years of age
at the time the case is commenced.
The law currently provides four potential statutory "windows"
for commencing prosecutions of sex crimes against minors.
The first window is the general limitations period for
prosecuting sex crimes, which is 10 years. (Penal Code
801.1.)
The second window opens when the first closes: when
the 10-year limitations period has lapsed, a criminal
complaint may be filed within 1 year of the date a child
under 18 reports the crime, as specified, and at least one
of the alleged sex crime violations has occurred within a
limitations period that has not yet lapsed. (Penal Code
803(f).)
A third window also opens when the first closes: when
the 10-year limitations period has lapsed, a criminal
complaint may be filed within 1 year of the date a person
of any age reports to law enforcement that they were a
victim of a child sex crime, if a) the crime involved
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"substantial sexual conduct", as specified;<4> and b)
there is independent evidence that corroborates the
victim's allegation, which must be proved by clear and
convincing evidence if the victim is 21 years of age or
older at the time of the report. (Penal Code 803(g).)
A fourth window is available at all times, although as
a practical, evidentiary matter it may apply infrequently
in old child sex crime cases: a criminal complaint may be
filed within one year of the date on which the identity of
a suspect is conclusively established by DNA testing in
sex crime cases if the DNA is analyzed in a timely manner,
as specified. (Penal Code 803(h).)
This bill would provide a broader timeframe for prosecuting sex
crimes committed against a minor under the age of 18 years by
increasing the statute of limitations up to the victim's 30th
birthday. This bill also would remove the provision in current
law described in the second bullet above, since the bill's
provisions would render this option unnecessary. This bill also
would alter current law described in the third bullet above,
with respect to cases where victims are under the age of 30.
These provisions, proponents argue, can impose difficult and
unnecessarily inflexible hurdles which in some instances prevent
cases otherwise appropriate, in their view, for prosecution.
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<4> "Substantial sexual conduct" for purposes of this section
cross-references Penal Code Section 1203.066(b), excluding
"masturbation that is not mutual." "Substantial sexual conduct"
is penetration of the vagina or rectum of either the victim or
the offender by the penis of the other or by any foreign object,
oral copulation, or masturbation of either the victim or the
offender. ( 1203.066(b).) "Masturbation of either the victim
or the offender" means "any touching or contact, however slight,
of the genitals of either the victim or the offender." ( People
v. Chambless (1999) 74 Cal.App.4th 773 [defendant touched girl's
vagina and made her touch his penis].) Mutual masturbation
shown where defendant rubbed Vaseline on a boy's penis. ( People
v. Lamb (1999) 76 Cal.App.4th 664, 678-679.)
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ARE THE CURRENT LIMITATIONS PERIODS APPLICABLE TO CHILD SEX
ABUSE FLAWED?
WHAT CASES COULD BE PROSECUTED UNDER THIS BILL THAT CANNOT NOW
BE PROSECUTED?
WHAT WOULD BE THE IMPACT OF THIS BILL ON DEFENDING CHILD SEXUAL
ABUSE CHARGES WHERE THE ALLEGED OFFENSE OCCURRED MORE THAN 10
YEARS BEFORE THE PROSECUTION BUT WHERE THERE MAY BE NO
INDEPENDENT, CORROBORATING EVIDENCE OF THE CRIME, AS IS NOW
REQUIRED?
4. Disparate Effect of Limitations Period Based on Victim's Age
Up until 2001, the general statute of limitations for
prosecuting most sex offenses was six years. In 2000, the
Legislature enacted legislation to increase this limitations
period to 10 years. This measure also provided a basis for
prosecuting these cases up to many years in the future where
there is DNA evidence, as specified.<5>
This bill would alter California's statute of limitations for
child sex offenses by basing the limitations period on the
victim's age, rather than a set period of time extending from
the offense. This approach would extend the time for commencing
these prosecutions beyond 10 years without the prosecution
having to prove independent, corroborating evidence of
substantial sexual conduct, as is now required under Penal Code
Section 803(g). This also would set up, in effect, a
limitations period that would vary in length depending upon the
age of the victim at the time of the offense.
SHOULD THE STATUTE OF LIMITATIONS IN CHILD SEX ABUSE CASES BE
BASED ON THE AGE OF A VICTIM INSTEAD OF A SET PERIOD OF TIME?
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<5> AB 1742 (Correa) (Ch. 235, Stats. 2000), codified in Penal
Code 803(i).)
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WOULD A STATUTE OF LIMITATIONS THAT VARIES IN DURATION DEPENDING
UPON THE AGE OF A VICTIM ADDRESS THE PROBLEMS OF DELAYS IN
REPORTING WITHOUT UNDERMINING THE PRINCIPALS UNDERPINNING THE
STATUTE OF LIMITATIONS IN CRIMINAL ACTIONS?
5. Rationale for Age-Based Statute of Limitations Period
The Department of Justice, which is a co-sponsor of this bill,
submits that tying the statute of limitations in child sex abuse
cases to victim age reflects the most recent understanding of
child sexual abuse, and how victims respond to their abuse.
If one looks at the surveys of adults . . . , one
finds that a large percentage had never disclosed
abuse before being surveyed, and the average age of
the respondents is 40. On the other hand, there is
evidence that when 18-21 year olds are surveyed, they
are quite likely to continue denying abuse. . . .
(T)hese surveys (can) show how common it is for
reporting to occur much later than the current
ten-year cutoff requires.
The department cites the research set forth in an amicus brief
submitted to the U.S. Supreme Court by the American
Psychological Association and others in a 2003 case involving
the prosecution of a child sex abuse case<6>:
Most childhood sexual abuse is never reported.
Only 12% of the child sexual assaults in a
nationally representative survey of 4,008
American women were ever reported to authorities.
All of the incidents consisted of substantial
sexual conduct between the molester and the
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<6> The case was Stogner v. California (2003) 123 S.Ct. 2446,
in which the Court struck down California statute which intended
to revive otherwise time-barred child sex abuse prosecutions
based on ex post facto grounds. See Comment 7, infra. The
Stogner decision itself is unrelated to the issues presented by
this bill.
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victim . . . that involved the use of force, or
the threat of force or coercion. This low rate
of reporting is similar to that found in earlier
studies of the general population. . . .
One reason few cases of sexual abuse are reported
to law enforcement is that large percentages of
victims never disclose the abuse to anyone.
Another national survey . . . questioned 3,220
American women, and found that 28% of women who
had been sexually assaulted as children had never
told anyone about the assault prior to the
survey, "not mothers, best friends, or husbands."
These women had kept their abuse a secret for an
average of over twenty-five years. Among all
women who disclosed their abuse, nearly half
waited more than eight years to do so.
Other surveys find similarly high rates of
secrecy, and men are just as likely as women - if
not more likely - to keep childhood sexual
assault a secret. Moreover, surveys
underestimate long-term secrecy because many
abuse victims who have not disclosed abuse to
loved ones also fail to disclose to a surveyor.
Unfortunately, even when children muster the
courage to tell trusted adults about sexual abuse,
or adults otherwise learn of the abuse, the adults
often fail to report the offenses to law
enforcement. For instance, mothers hearing their
children's complaints of sexual abuse often feel
ambivalent about contacting authorities; they
often feel inadequate, they may doubt the child,
and they may fear or distrust the police and
social services. They also may feel pressure from
family members, friends, and the abuser to keep
the abuse a secret. . . .
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The reasons victims delay reporting childhood
sexual abuse to authorities, if they report the
abuse at all, are numerous: (1) offenders often
threaten their victims to remain silent, including
threatening to harm or kill the victims or their
loved ones; (2) children may not appreciate the
wrongfulness of the conduct, particularly when
victimized by a trusted adult; (3) victims often
are ashamed of what has transpired; and (4)
victims often fear that they will not be believed,
and are afraid of the consequence of disclosing
the abuse. These factors are not exclusive and,
in many cases, a combination of factors will
influence the victim's decision not to reveal the
abuse.<7>
DOES THE UNIQUE NATURE OF CHILDHOOD SEXUAL ABUSE, AND THE UNIQUE
VULNERABILITY OF CHILD SEX ABUSE VICTIMS, WARRANT AN EXTENDED
STATUTE OF LIMITATIONS AS PROPOSED BY THIS BILL?
6. Background: Operation and Public Policy of the Statute of
Limitations
The statute of limitations requires commencement of a
prosecution within a certain period of time after the commission
of a crime. A prosecution is initiated by filing an indictment
or information, filing a complaint, certifying a case to
superior court, or issuing an arrest or bench warrant. (Penal
Code 804.) The failure of a prosecution to be commenced
within the applicable period of limitation is a complete defense
to the charge. The statute of limitations is jurisdictional and
may be raised as a defense at any time, before or after
judgment. People v. Morris (1988) 46 Cal.3d 1, 13. The defense
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<7> Brief of amici curiae American Psychological Association,
National Association of Counsel for Children, American
Professional Society on the Abuse of Children, and California
Professional Society on the Abuse of Children in Support of
Respondent in Stogner v. California, supra, dated February 19,
2003 (citations omitted).
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may only be waived under limited circumstances. (See Cowan v.
Superior Court (1996) 14 Cal.4th 367.)
In 1984, the California Law Revision Commission published a
series of recommendations to revise the statute of limitations.
The impetus for reform derived from numerous changes made to the
statute by the Legislature - there were 11 legislative
enactments amending the felony statute of limitations in 14
years. The Commission commented, "[t]his simple scheme has been
made complex by numerous modifications . . . the result of this
development is that the California law is complex and filled
with inconsistencies." The Commission described the rationale
of the statute:
The statute of limitations is simply a societal
declaration that it will no longer pursue a criminal
after a certain period of time. The period selected
may be somewhat arbitrary but still achieves
society's purpose of imposing an outside limit that
recognizes the staleness problem, that requires that
crime must come to light and be investigated within a
reasonable time, and that represents the point after
which society declares it no longer has an interest
in prosecution and seeks repose.
The three principal policy reasons for felony limitations
statutes may be summarized as follows:
Staleness: The statute of limitations protects persons
accused of crime: (i) from having to face charges based on
evidence that may be unreliable and (ii) from losing access to
the evidentiary means to defend against the accusation. With
the passage of time, memory fades, witnesses die or otherwise
become unavailable, and physical evidence becomes unobtainable
or contaminated.
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Repose: The statute of limitations reflect society's lack of
desire to prosecute for crimes committed in the distant past.
The interest in repose represents a societal evaluation of the
time after which it is neither profitable nor desirable to
commence a prosecution.
Prompt Investigation: The statute of limitations imposes a
priority among crimes for investigation and prosecution. The
deadline serves to motivate the police and to ensure against
bureaucratic delays in investigating crimes.
These principals are reflected in court decisions. The United
States Supreme Court has stated that statutes of limitations are
the primary guarantee against bringing overly stale criminal
charges. (United States v. Ewell (1966) 383 U.S. 116, 122.)
There is a measure of predictability provided by specifying a
limit beyond which there is an irrebutable presumption that a
defendant's right to a fair trial would be prejudiced. Such
laws reflect legislative assessments of relative interests of
the State and the defendant in administering and receiving
justice. More recently, in Stogner v. California (2003) 123
S.Ct. 2446, the Court underscored the basis for statutes of
limitations:
Significantly, a statute of limitations reflects a
legislative judgment that, after a certain time, no
quantum of evidence is sufficient to convict. And
that judgment typically rests, in large part, upon
evidentiary concerns - for example, concern that the
passage of time has eroded memories or made witnesses
or other evidence unavailable. Indeed, this Court
once described statutes of limitations as creating "a
presumption which renders proof unnecessary."<8>
7. Background: Changes to the Statute of Limitations for Sex
Crimes against Children
In the late 1980's, lawmakers across the country became
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<8> Stogner, supra, 123 S.Ct. at 2452 (citations omitted).
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increasingly aware of the issue of child sex abuse. "The
problem of sexual abuse of children has, over the past two
decades, increasingly preoccupied our nation's pundits,
academics, and parents, and communities have begun to turn to
legislation to assuage their fears and protect their children.
As laws requiring registration by sex offenders have become
commonplace, some legislatures have also sought to redress
sexual crimes that have long gone unprosecuted, either because
the victims had repressed their memories of the abuse or because
the victims had been afraid to come forward."<9>
The California Legislature reflected the national concern. In
1989, AB 782 (N. Waters) enacted Penal Code Section 803(f),
which established a new maximum limitation period for criminal
complaints by a child under the age of 18 for specified sex
offenses. In 1993, AB 290 (Boland, Ch. 390, Stats. 1993) was
enacted to provide that a criminal complaint may be filed within
one year of the date of a report to a law enforcement agency by
a person of any age alleging that he or she, while under the age
of 18 years, was the victim of sex abuse under specified
circumstances. Subsequent legislation expanded these
provisions.<10>
In addition, California enacted legislation in the 1990s to
revive otherwise expired child sexual abuse cases to apply the
newly extended limitations periods to these old cases.<11>
These revival provisions, however, were struck down in 2003 by
the United States Supreme Court in Stogner v. United States,
supra. In Stogner, the Court ruled that a law enacted after
expiration of a previously applicable limitations period
violates the Ex Post Facto Clause when it is applied to revive a
previously time-barred prosecution. The Court concluded that
Section 803(g) threatened the very kind of harm that the Ex Post
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<9> 117 Harv. L. Rev. 268 (November 2003), The Supreme
Court, 2002Tterm: Leading Cases: 1. Constitutional Law: 2.
Ex Post Facto Clause.
<10> See AB 25X (Andal) (Ch. Ex. 46, Stats. 1994).
<11> AB 2014 (Boland) (Ch. 130, Stats. 1996); AB 700 (Alby)
(Ch. 29, Stats. 1997)
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Facto Clause seeks to avoid. The Court noted that the statute
deprived the defendant of the "'fair warning' that might have
led him to preserve exculpatory evidence," and warned that "a
Constitution that permits such an extension, by allowing
legislatures to pick and choose when to act retroactively, risks
both 'arbitrary and potentially vindictive legislation. . .
.'"<12>
8. Related Legislation
SB 261 (Speier) would add specified sex offenses, including
rape, sodomy, lewd or lascivious acts, oral copulation,
continuous sexual abuse of a child, forcible acts of sexual
penetration, and flight of a sex offender to avoid prosecution,
to the list of crimes for which there is no statute of
limitation for prosecution. This measure is set to be heard by
this Committee on April 19, 2005.
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<12> Stogner, supra, at 2449-2450 (citations omitted).