BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair S
2005-2006 Regular Session B
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SB 261 (Speier)
As Amended March 29, 2005
Hearing date: April 19, 2005
Penal Code
AA:mc
STATUTE OF LIMITATIONS: SEX CRIMES
HISTORY
Source: The California Coalition Against Sexual Assault
(CALCASA)
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: California Family Alliance; California District Attorneys
Association; Family Services of Tulare County; Plumas
Crisis Intervention & Resource Center's Rape Crisis
Center; San Francisco Women Against Rape; Community
Violence Solutions (Contra Costa and Marin counties);
South Lake Tahoe Women's Center; Tahoe Women's Services;
Center Against Sexual Assault of Southwest Riverside
County; Haven Women's Center of Stanislaus; Alliance
Against Family Violence and Sexual Assault (Bakersfield);
North County Rape Crisis & Child Protection Center (Santa
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Barbara County); Project SISTER (southern California);
SARP Center (San Luis Obispo); Sutter Lakeside Community
Services; Sexual Assault Crisis Agency (southern
California); CSP, Sexual Assault Victim Services - Orange
County; Human Response Network (Weaverville); Volunteer
Center of Napa Valley; San Bernardino County Sexual
Assault Services, Inc.; Tri-Valley Haven (Livermore);
Community Solutions Rape Crisis Center (Morgan Hill and
Gilroy); Monterey Rape Crisis Center; Madera County
Community Action Agency-Victim Services; Women's Crisis
Support - Defensa de Mujeres; California State Sheriffs'
Association; Crime Victims United of CA; several
individuals
Opposition:California Public Defenders Association; ACLU
KEY ISSUE
SHOULD THE STATUTE OF LIMITATIONS BE ELIMINATED FOR SPECIFIED SEX
CRIMES?
PURPOSE
The purpose of this bill is to eliminate the statute of
limitations for the sex crimes of rape, sodomy, child
molestation, oral copulation, continuous sexual abuse of a
child, forcible acts of sexual penetration, and flight of a sex
offender to avoid prosecution.
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
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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
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
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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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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:
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
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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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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 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 eliminate the statute of limitations for the
following sex offenses:
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);
Sexual penetration (Penal Code 289); and
Fleeing the state with the intent to avoid prosecution for a
sex offense, as specified (Penal Code 289.5).
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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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COMMENTS
1. The Author States:
SB 261 would eliminate the current 10 year statute
of limitations for serious sexual assault
offenses, including rape, sodomy, continuous
sexual abuse of a child, and forcible acts of
sexual penetration. Currently, offenses
punishable by death, life imprisonment, or
imprisonment without the possibility of parole,
and embezzlement of public money have no statute
of limitations. California created an exception
to the ten year limitation if DNA evidence
establishes the identity of the suspect, with
certain limitations.
Nationally, the statute of limitation for the
serious crime of rape varies from three years to
no time limit at all. Criminal statutes of
limitation are not mandatory and state
legislatures may change or eliminate these
statutes at their discretion. In recent years,
many states have eliminated or extended their
statutes for cases of sexual assault. Seven
states now have no time limitation for the offense
rape: Alabama, Idaho, Mississippi, North Carolina,
Virginia, West Virginia and Wyoming. Several
states have no statute of limitations for
prosecution of the most serious forms of sexual
assault, including Connecticut, Florida, Indiana,
Michigan, New Jersey and Vermont. . . .
It is time we take a stand and declare that rape
and sexual assault is a heinous crime that attacks
the very essence of a woman's physical and
emotional well-being. As a society, we must
address why rape is such a seriously
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under-reported offense-according to some
estimates, only one in 10 sexual assaults are ever
reported. . . .
Senator Speier was moved to propose this important
change to our outdated law by the tragic story of
a woman, now 49 years old, who was violently raped
when she was 16 years old and on her very first
date. She never reported the assault to anyone.
Why? The humiliation, the embarrassment, a system
that doesn't support or protect the victims.
Sexual assault is primarily a crime against women.
Women have to stand up and unequivocally demand
that this crime be treated with the seriousness it
deserves. . . . We need to create a system that
allows victims of sexual assault to come forward
when they are ready. As long as the evidence is
there, we should not penalize them for a delay
caused by the trauma of the crime itself.
. . .
The current statutes are so complex with many
exceptions and exemptions to the SOL that even
experienced district attorneys disagree about when
the SOL applies or does not apply in rape and
sexual assault cases, for example in one strike
sexual assault cases. This uncertainty just
exacerbates the inconsistent application of the
law and makes it even harder for women to come
forward to report this serious crime.
2. What This Bill Would Do
As explained by the author, this bill would eliminate the
statute of limitations for the sex crimes enumerated above. The
law currently provides four potential statutory "windows" for
commencing prosecutions of sex crimes.
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The first window is the general limitations period for
prosecuting sex crimes, which is 10 years from when the
crime was committed. (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
"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: a criminal
complaint may be filed within one year of the date on which
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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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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 revise the law to provide that for the sex
crimes of rape, sodomy, child molestation, oral copulation,
continuous sexual abuse of a child, forcible acts of sexual
penetration, and flight of a sex offender to avoid prosecution,
there would be no criminal statute of limitations.
This bill also would revise current law to delete those sections
described above that apply when the 10-year limitation period
lapses.
3. Operation and Public Policy of the Statute of Limitations;
Policy Questions Raised by This Bill
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
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
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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.
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
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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."<5>
Proponents of this bill argue that eliminating the statute of
limitations for sex crimes is critical to addressing the crime
of sexual assault in California.
As we remove the shameful atmosphere of being a
victim of sexual assault, these cases deserve to
be tried. It is a fact that rapists and sexual
offenders repeat their crimes. Removal of the
statute of limitations will allow those who step
forward to seek justice and to prevent further
sexual assaults.<6>
At least one commentator has cautioned against eliminating the
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<5> Stogner, supra, 123 S.Ct. at 2452 (citations omitted).
<6> Letter from the California Coalition Against Sexual
Assault (CALCASA), sponsor of this bill, to the chair, dated
March 18, 2005, on file with the Committee.
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statute of limitations entirely in sex cases:
The gravity of sex offenses combined with many
victims' inability to report them . . . call for
alterations to existing statutes of limitations on
sex crimes. . . .
Some states have decided that the best way to deal
with this problem is to throw out statutes of
limitations on sex crimes altogether. This is an
impulsive and overbroad reaction that could cause
serious problems in the future.
Our criminal justice system has relied upon
statutes of limitations for over three and a half
centuries. In effect, they are the only practical
protection a defendant has against pre-accusation
delay. Moreover, the main problem with discarding
these statutes in cases of rape and sexual abuse
is that justification for doing so would
necessarily rest on the gravity of these crimes.
This will inevitably lead to a comparison between
the seriousness of rape and other types of crimes.
For example, one may argue that kidnapping is as
grave as rape; that armed robbery is as serious as
sexual assault, etc. It would be difficult to
imagine a more slippery slope than the one that
would result from eliminating statutes of
limitations on sex crimes altogether.
. . .
Although eliminating statutes of limitations on
sex crimes is an understandable reaction to the
problem, in the long run it could lead to the
obliteration of all criminal statutes of
limitations, which ultimately would jeopardize the
defense of innocent suspects. Such a shift in the
balance between defendants' rights and the
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administration of justice could result in dire
consequences, including a forceful pendulum swing
in the opposite direction.<7>
WOULD ELIMINATING THE LIMITATION PERIOD FOR SEX OFFENSES ENHANCE
THE ADMINISTRATION OF CRIMINAL JUSTICE IN THESE CASES?
HOW WOULD ELIMINATING THE STATUTE OF LIMITATIONS IN SEX CRIMES
IMPACT THE ABILITY OF DEFENDANTS TO DEFEND THEMSELVES?
TO THE EXTENT memories fade, witnesses die or leave the area,
and physical evidence becomes more difficult to obtain,
identify, or preserve, TO WHAT EXTENT, IF ANY, WOULD ELIMINATING
THE STATUTE OF LIMITATIONS IN SEX CASES INCREASE THE possibility
of erroneous convictionS IN CASES WHERE prosecution HAS NOT BEEN
prompt?
iF the statute of limitations IS the only practical protection
against pre-accusation delay, AS SOME SUGGEST, IS IT POSSIBLE
THAT PRE-ACCUSATION DELAY COULD BECOME PREVALENT AS A STRATEGY?
TO WHAT EXTENT, IF ANY, WOULD ELIMINATING THE LIMITATIONS PERIOD
FOR SEX OFFENSES HAVE INADVERTENT ADVERSE CONSEQUENCES, SUCH AS
ENGENDERING BUREAUCRATIC DELAYS IN INVESTIGATING SEX CRIMES?
4. Background: Changes to the Statute of Limitations for Sex
Crimes Against Children
In the late 1980s, lawmakers across the country became
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
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<7> Lauren Kearns, Incorporating Tolling Provisions into Sex
Crimes Statutes of Limitations 13 Temp. Pol. & Civ. Rts. L. Rev.
325 (Fall 2003)(citations omitted).
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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."<8>
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<8> 117 Harv. L. Rev. 268 (November 2003), THE SUPREME
COURT, 2002 TERM: LEADING CASES: I. CONSTITUTIONAL LAW: 2.
EX POST FACTO CLAUSE.
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, Chapter 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.<9>
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.<10>
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
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. . .
.'"<11>
5. Related Legislation
SB 111 (Alquist) 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
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<9> See AB 25X (Andal) (Ch. Ex. 46, Stats. 1994).
<10> AB 2014 (Boland) (Ch. 130, Stats. 1996); AB 700 (Alby)
(Ch. 29, Stats. 1997)
<11> Stogner, supra, at 2449-2450 (citations omitted).
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victim's 30th birthday. This bill is set to be heard by the
Committee on April 19, 2005.
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