BILL ANALYSIS Ķ
AB 46
Page 1
Date of Hearing: April 14, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
46 (Lackey) - As Amended April 9, 2015
SUMMARY: Makes the possession of specified controlled
substances with the intent to commit sexual assault a felony
punishable in the state prison for 16 months or two or three
years. Specifically, this bill:
1)Provides that a person who possesses gamma hydroxybutyric acid
(GHB), ketamine or flunitrazepam, also known as Rohypnol, with
the intent to commit sexual assault, as defined, is guilty of
a felony, punishable by imprisonment in state prison for 16
months, or two or three years.
2)Defines "sexual assault" for the purposes of this bill to
include, but is not limited to, violations of specified
provisions related to sexual assault committed against a
victim who is prevented from resisting by an intoxicating or
anesthetic substance, or any controlled substance.
3)States the finding of the Legislature that in order to deter
the possession of Ketamine, GHB, and Rohypnol by sexual
predators and to take steps to prevent the use of these drugs
to incapacitate victims for purposes of sexual exploitation,
it is necessary and appropriate that an individual who
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possesses one of these substances for predatory purposes be
subject to felony penalties.
EXISTING LAW:
1)Provides that the possession of specified controlled
substances including ketamine, flunitrazepam, and GHB, unless
upon the prescription of a physician, dentist, podiatrist, or
veterinarian licensed to practice in this state, is a
misdemeanor punishable by up to one year in a county jail,
except for a person who has one or more prior convictions for
a specified violent felony or has been convicted of a prior
offense requiring the person to register as a sex offender,
then the penalty shall be a felony. (Health & Saf. Code, §§
11350, subd. (a) and 11377, subd. (a).)
2)Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
I controlled substance. (Health & Saf. Code, §§ 11054 to
11058.)
3)States, except as provided, that every person who possesses
for sale or purchases for purposes of sale any of the
specified controlled substances, including cocaine and heroin,
shall be punished by imprisonment in a county jail for two,
three, or four years. (Health & Saf. Code, § 11351.)
4)Provides that every person that transports, imports into the
state, sells, furnishes, administers, or gives away, or offers
to transport, import into the state, sell, furnish, or give
away, or attempts to import into this state or transport
cocaine, cocaine base, or heroin, or other specified
controlled substances listed in the controlled substance
schedule, without a written prescription from a licensed
physician, dentist, podiatrist, or veterinarian shall be
punished by imprisonment for three, four, or five years.
(Health & Saf. Code, § 11352, subd. (a).)
5)States that the possession for sale of methamphetamine, and
other specified controlled substances is punishable by
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imprisonment in a county jail for 16 months, two or three
years. (Health & Saf. Code, § 11378.)
6)Provides that every person that transports, imports into the
state, sells, furnishes, administers, or gives away, or offers
to transport, import into the state, sell, furnish, or give
away, or attempts to import into this state or transport
methamphetamine, or other specified controlled substances
listed in the controlled substance schedule, without a written
prescription from a licensed physician, dentist, podiatrist,
or veterinarian shall be punished by imprisonment for two,
three, or four years. (Health & Saf. Code, § 11379, subd.
(a).)
7)States that every person guilty of administering to another
any chloroform, ether, laudanum, or any controlled substance,
anesthetic, or intoxicating agent, with intent thereby to
enable or assist himself or herself or any other person to
commit a felony, is guilty of a felony punishable by
imprisonment in the state prison for 16 months, or two or
three years. (Pen. Code, § 222.)
8)States that rape is an act of sexual intercourse accomplished
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 accused. (Pen. Code, §§ 261, subd. (a)(3); 262, subd.
(a)(2).)
9)Specifies felony penalties for any person who commits an act
of sodomy, oral copulation or sexual penetration where the
victim 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 accused. (Pen. Code, §§ 286, subd. (i); 288a, subd. (i);
289, subd. (e).)
EXISTING FEDERAL LAW: States that whoever, with intent to
commit a crime of violence, including rape, against an
individual, distributes a controlled substance to that
individual without that individual's knowledge, shall be
imprisoned not more than 20 years and fined in accordance with
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relevant provisions of federal law. (110 Stat. 3807, 21 U.S.C. §
801.)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, " In November
2014, Proposition 47 was approved by voters and reclassified
many crimes that were previously eligible to be charged as
either as a felony, or a misdemeanor, to solely misdemeanor
charges. This included reducing the penalties for illegal
possession of the drugs Rohypnol and GHB -commonly known as
'date rape' drugs.
"The law enforcement community and sexual assault survivor
advocate organizations expressed concern over this change and
how it would weaken current sexual assault laws.
"In order to respond to this concern and ensure that
prosecutors have adequate tools to bring justice in sexual
assault cases, I have worked with the Public Safety Committee
to amend AB 46 from its original version. The bill will now
create a new felony crime of possession with intent to commit
sexual assault for the commonly known date rape drugs of
Rohypnol, GHB and ketamine.
"This will allow prosecutors to bring felony charges against a
perpetrator who has been found in possession of these drugs
and has taken steps to use them to facilitate a sexual
assault. In cases where the assault was fortunately prevented,
this new crime created by AB 46 will allow serious punishment
for the perpetrator.
"AB 46 in its original version raised questions about whether
individuals who possessed these drugs for personal use would
now be facing felony charges. My work on amendments with the
Public Safety Committee should allow these concerns to be
alleviated and also avoids the need for AB 46 to be approved
by voters.
"Given to the difficult nature of prosecuting sexual assault
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crimes, California should embrace this opportunity to provide
stiff consequences for criminals looking to use date rape
drugs to facilitate a heinous crime. AB 46 recognizes that
date rape drugs can be a tool for sexual predators and if they
are used for this purpose, there must be a tool available for
prosecutors to charge them accordingly."
2)Proposition 47: On November 4, 2014, California voters
approved Proposition 47, also known as the Safe Neighborhoods
and Schools Act, which reduced penalties for certain offenders
convicted of nonserious and nonviolent property and drug
crimes. Proposition 47 also allows inmates serving sentences
for crimes affected by the reduced penalties to apply to be
resentenced.
According to the California Secretary of State's web site, 59.6
percent of voters approved Proposition 47. (See
< http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-comp
lete-sov.pdf > [as of Mar. 14, 2015].) The purpose of the
measure was "to maximize alternatives for nonserious,
nonviolent crime, and to invest the savings generated from
this act into prevention and support programs in K-12 schools,
victim services, and mental health and drug treatment."
(Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed
Laws, p. 70.) One of the ways the measure created savings was
by requiring misdemeanor penalties instead of felonies for
nonserious, nonviolent crimes like petty theft and drug
possession for personal use, unless the defendant has prior
convictions for specified violent crimes. (Ibid.)
Four months into its implementation, Proposition 47 has resulted
in fewer inmates in state prisons and county jails. According
to the Legislative Analysts' Office (LAO), "As of January 28,
2015, the inmate population in the state's prisons was about
113,500, or 3,600
inmates below the February 2015 cap, and slightly below the
final February 2016 cap. The expected impact of Proposition 47
on the prison population will make it easier for the state to
remain below the population cap." (LAO, The 2015-16 Budget:
Implementation of Proposition 47 (Feb. 2015), p. 10.) The LAO
report also found that Proposition 47 will likely reduce the
costs of criminal justice for counties, by freeing up jail
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beds and reducing the time probation departments need to
follow prisoners after they are released. (Id. at p. 17.)
3)California Constitutional Limitations on Amending a Voter
Initiative: Because Proposition 47 was a voter initiative,
the Legislature may not amend the statute without subsequent
voter approval unless the initiative permits such amendment,
and then only upon whatever conditions the voters attached to
the Legislature's amendatory powers. (People v. Superior
Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal.
Const., art. II, § 10, subd. (c).) The California
Constitution states, "The Legislature may amend or repeal
referendum statutes. It may amend or repeal an initiative
statute by another statute that becomes effective only when
approved by the electors unless the initiative statute permits
amendment or repeal without their approval." (Cal. Const.,
art. II, § 10, subd. (c).) Therefore, unless the initiative
expressly authorizes the Legislature to amend, only the voters
may alter statutes created by initiative.
The purpose of California's constitutional limitation on the
Legislature's power to amend initiative statutes is to protect
the people's initiative powers by precluding the Legislature
from undoing what the people have done, without the
electorate's consent. Courts have a duty to jealously guard
the people's initiative power and, hence, to apply a liberal
construction to this power wherever it is challenged in order
that the right to resort to the initiative process is not
improperly annulled by a legislative body. (Proposition 103
Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th
1473.) Yet, despite the strict bar on the Legislature's
authority to amend initiative statutes, judicial decisions
have recognized that the Legislature is not thereby precluded
from enacting laws addressing the general subject matter of an
initiative. The Legislature remains free to address a
"related but distinct area" or a matter that an initiative
measure "does not specifically authorize or prohibit." (People
v. Kelly (2010) 47 Cal.4th 1008, 1025-1026.)
As to the Legislature's authority to amend the initiative,
Proposition 47 states: "This act shall be broadly construed
to accomplish its purposes. The provisions of this measure
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may be amended by a two-thirds vote of the members of each
house of the Legislature and signed by the Governor so long as
the amendments are consistent with and further the intent of
this act. The Legislature may by majority vote amend, add, or
repeal provisions to further reduce the penalties for any of
the offenses addressed by this act." (Ballot Pamp., Gen.
Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 74.)
This bill in its original form would have amended Proposition
47's provisions that require misdemeanor penalties for the
crime of drug possession for personal use, by allowing felony
penalties for the drugs covered by this bill. As amended,
this bill does not affect Proposition 47 because this bill no
longer deals with simple possession of drug use. Similar to
the statutes that require specific intent to sell controlled
substances which remain felonies, this bill will require
specific intent to commit sexual assault in order to charge a
defendant with a felony. Because the bill as amended does not
affect Proposition 47, this bill will no longer have to go
before the voters.
4)"Club Drugs": Ketamine, GHB, and flunitrazepam are commonly
designated as "club drugs" due to their association with
raves, nightclubs, concerts, and parties. Other drugs included
in this designation are MDMA (ecstasy), methamphetamine, and
cocaine.
Club drugs became popular in the 1990s and tend to be used by
youth and young adults to heighten mood, increase extraversion
and physical energy, and intensify the senses.
(National Inst. on Drug Abuse, Drug Facts: Club Drugs (GHB,
Ketamine, and Rohypnol) (December 2014)
< http://www.drugabuse.gov/publications/drugfacts/club-drugs-ghb
-ketamine-rohypnol > [as of Mar. 18, 2015].) Studies also show
that these drugs are commonly used by members in the LGBT
community. (Palamar and Halkitis, A Qualitative Analysis of
GHB Use Among Gay Men: Reasons for Use Despite Potential
Adverse Outcomes (Jan. 2006); Mansergh, et al., The Circuit
Party Men's Health Survey: Findings and Implications for Gay
and Bisexual Men, American Journal of Public Health (June
2001).)
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GHB: According to the National Institute on Drug Abuse, GHB is
a central nervous system (CNS) depressant that was approved by
the Food and Drug Administration (FDA) in 2002 for use in the
treatment of narcolepsy, which is a sleep disorder. This
approval came with severe restrictions, including its use only
for the treatment of narcolepsy, and the requirement for a
patient registry monitored by the FDA. GHB is also a
metabolite of the inhibitory neurotransmitter
gamma-aminobutyric acid (GABA). It exists naturally in the
brain, but at much lower concentrations than those found when
GHB is abused.
Rohypnol (flunitrazepam): According to the National Institute
on Drug Abuse, Rohypnol is a benzodiazepine (chemically
similar to sedative-hypnotic drugs such as Valium or Xanax),
but it is not approved for medical use in this country, and
its importation is banned.
Ketamine: According to the National Institute on Drug Abuse,
ketamine is a dissociative anesthetic, mostly used in
veterinary practice. (National Inst. on Drug Abuse, Drug
Facts: Club Drugs (GHB, Ketamine, and Rohypnol) (December
2014)
< http://www.drugabuse.gov/publications/drugfacts/club-drugs-ghb
-ketamine-rohypnol > [as of Mar. 18, 2015].) Recently, small
studies at prestigious medical centers like Yale, Mount Sinai
and the National Institute of Mental Health suggest ketamine
can relieve depression in many people who are not helped by
widely used conventional antidepressants like Prozac or
Lexapro. (Pollack, Special K, a Hallucinogen, Raises Hopes and
Concerns as a Treatment for Depression, New York Times (Dec.
9, 2014).)
5)Drug-Facilitated Sexual Assault Statistics: Although a person
may be surreptitiously drugged with Rohypnol, GHB, or ketamine
in order to incapacitate that person, it is much more common
for a person to consume these drugs voluntarily for its
intoxicating effects.
One study, funded by the National Institute of Justice, examined
the prevalence, nature, and reporting of various types of
sexual assault experienced by college students. (Krebs, et
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al., The Campus Sexual Assault Study, National Institute of
Justice (Oct. 2007).) The researchers worked with two large,
public universities to collect data from over 6,800
undergraduate students (5,466 women and 1,375 men). The data
indicated that 7.8% of women were sexually assaulted when they
were incapacitated after voluntarily consuming drugs and/or
alcohol and 0.6% were sexually assaulted when they were
incapacitated after having been given a drug without their
knowledge. (Id. at p. iv; see also Section 6-1.) The study
found that the majority of the sexual assault victims that
were incapacitated reported having consumed alcohol (89%) or
being intoxicated prior to being assaulted (82%). (Id. at
Section 5.1.3.)
Another study conducted by the University of Illinois at
Chicago, funded by the U.S. Department of Justice, worked with
four clinics (Texas, California, Minnesota, and Washington
State) to study the prevalence of drugs in sexual assault
cases received by these clinics. (Negruz, et al., Estimate of
the Incidence of Drug-Facilitated Sexual Assault in the U.S,
Univ. of Illinois, Chicago (Nov. 2005).) The study used
self-reporting surveys as well as toxicological analyses of
the subjects. The drugs inquired about in the self-reporting
survey included marijuana, cocaine, and amphetamines. These
three drugs were chosen because they are not normally given
surreptitiously. (Id. at pp. 7-8.) The toxicological analyses
tested for those three drugs, as well as other drugs that are
often considered "date rape drugs" which include Rohypnol,
GHB, ketamine, clonazepam and scopolamine. (Id. at p. 112.)
Testing positive for one of these drugs could be due to
several different reasons: valid prescription use by the
subject, recreational drug use by the subject, surreptitious
drug administration by a potential assailant, or, in the case
of GHB, endogenous levels because GHB exists naturally in the
human body. (Id. at pp. 112-113.)
Among the 144 participants, 61.8% tested positive for one of
the drugs being analyzed in the study. (Negruz, Estimate of
the Incidence of Drug-Facilitated Sexual Assault in the U.S,
supra, at p. 2.) The drugs separated out as "date rape" drugs
were found in seven subjects (4.86%), of which three had a
prescription. No one admitted to having a prescription for
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GHB, or using it recreationally, and GHB was only found in
levels considered to be endogenous. (Id. at p. 113.)
However, the study does note that GHB has a short detection
time of 10-12 hours and because only four subjects reported to
the clinic within 12 hours, if any of the subjects had been
given GHB, the levels would have been undetectable. (Id. at
p. 121.) Ketamine and scopolamine were not reported to by any
of the subjects in the surveys, and were not found.
Flunitrazepam (Rohypnol) was not admitted to by anyone, but
was found in four subjects. (Id. at p. 113.) However, when
tested a second time a week later, some of these subjects
tested positive for flunitrazepam again, indicating that the
subjects are likely recreational users of the drug but did not
report it in the survey. (Id. at pp. 89, 189.) Based on
these results, the study concluded that most of the subjects
positive for these drugs had taken them by their own accord
and not received them surreptitiously. (Id. at p. 189.)
The study also evaluated whether participants truthfully
reported their drug use. The number of subjects who admitted
to taking drugs voluntarily was 40%, as compared to the 61.8%
of subjects who tested positive for one of the analyzed drugs.
(Negruz, Estimate of the Incidence of Drug-Facilitated Sexual
Assault in the U.S, supra, at p. 190.) Researchers
hypothesized that the subjects' under-reporting of their drug
usage may be attributed to the fact that the drugs being
analyzed are illegal and a person may face prosecution for its
use, or that the subjects may have felt that that their
recreational use of illegal drugs could negatively affect the
course of a sexual assault prosecution. (Id. at pp. 16, 190.)
While drug-facilitated sexual assault is a serious problem,
these studies confirm that it occurs most often after an
individual's own recreational use of drugs, rather than
surreptitious drugging by another person. Drugs such as
Rohypnol, ketamine and GHB may be used to facilitate sexual
assault of an incapacitated person, but these are not the only
drugs that can be used, nor are they the most commonly used.
The substance that is most commonly found in sexual assault
victims is alcohol. (Krebs, The Campus Sexual Assault Study,
supra at p. 89; also see Grimes, Alcohol is by far the most
dangerous "date rape drug" (Sept. 22, 2014) The Guardian,
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< http://www.theguardian.com/science/blog/2014/sep/22/alcohol-da
te-rape-drug-facilitated-sexual-assault-dfsa > [as of Mar. 19,
2015].)
This bill targets persons who possess these drugs for
predatory purposes, rather than those who merely possess these
drugs for personal use. This will ensure that victims of these
crimes who may have consumed these drugs voluntarily prior to
being assaulted will not have to fear prosecution of a felony
when deciding to whether to report the incident.
6)Related Legislation: SB 333 (Galgiani) would make possession
of GHB, ketamine or flunitrazepam an alternate
felony-misdemeanor. SB 333 is pending hearing by the Senate
Committee on Public Safety.
7)Prior Legislation:
a) SB 649 (Leno), of the 2013-2014 Legislative Session,
would have made the simple possession for personal use of
cocaine, cocaine base, heroin, opium, and other specified
narcotics, opiates and hallucinogens listed in the
controlled substance schedule an alternate
felony/misdemeanor, rather than a straight felony. SB 649
was vetoed.
b) SB 1506 (Leno), of the 2011-2012 Legislative Session,
would have made the unlawful possession of specified
controlled substances a misdemeanor. SB 1506 failed
passage on the Senate floor.
c) SB 1067 (Horton), of the 2003-2004 Legislative session,
would have excluded the drugs GHB, rohypnol, and ketamine
from coverage by the term "nonviolent drug possession
offense" thereby making possession of these drugs
ineligible for probation and drug treatment under
Proposition 36, approved by the voters on November 7, 2000.
SB 1067 failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
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Alameda County District Attorney's Office
California College and University Police Chiefs Association
California District Attorneys Association
California Peace Officers' Association
California Police Chiefs Association
California Probation , Parole and Correctional Association
California Reserve Peace Officers Association
California State Lodge, Fraternal Order of Police
City of California City
City of Lancaster
City of Murieta
City of Palmdale
California College and University Police Chiefs Association
Crime Victims United
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles County Sheriff's Department
Phelan Piņon Hills Community Services District
Sacramento County Deputy Sheriffs' Association
San Bernardino County Sheriffs' Office
Santa Ana Police Officers Association
WEAVE, Inc.
Two private individuals
Opposition
California Attorneys for Criminal Justice
Californians for Safety and Justice
Drug Policy Alliance
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744
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