Amended in Senate June 2, 2015

Amended in Assembly March 25, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 860


Introduced by Assembly Member Daly

February 26, 2015


An act to amend Sections 243.4, 261, 286, 288a, and 289 of the Penal Code, relating to sex crimes.

LEGISLATIVE COUNSEL’S DIGEST

AB 860, as amended, Daly. Sex crimes: professional services.

Under existing law, a person is guilty of sexual battery, punishable by imprisonment in a county jail or in the state prison for 2, 3, or 4 years, if he or she touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, while the victim is unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose.begin insert Existing law makes the crime punishable by 2, 3, or 4 years in the state prison if committed against a minor by a person with a prior conviction for sexual battery.end insert

This bill would expand the crime of sexual battery to apply to a person who performs professional services that entail having access to another person’s body, who touches an intimate part of the that person’s body while performing those services and the touching was against the person’s will and for the purpose of sexual arousal, sexual gratification, or sexual abuse.begin delete The bill would make the crime punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000.end delete By expanding the scope ofbegin delete a crime and increasing the punishment for a crimeend deletebegin insert an existing crimeend insert, this bill would impose a state-mandated local program.

Existing law defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under any of several circumstances. Existing law also defines the crimes of sodomy, oral copulation, and sexual penetration.

This bill would expand the definitions of each of those crimes to include when any of those acts are performed against a victim’s will by a professional whose services entail having access to the victim’s body, if the conduct is performed by the professional while performing those services. By expanding the scope ofbegin insert theseend insert crimes, the bill would impose a state-mandated local program.

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 no reimbursement is required by this act for a specified reason.

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

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

P2    1

SECTION 1.  

Section 243.4 of the Penal Code is amended to
2read:

3

243.4.  

(a) Any person who touches an intimate part of another
4person while that person is unlawfully restrained by the accused
5or an accomplice, and if the touching is against the will of the
6person touched and is for the purpose of sexual arousal, sexual
7gratification, or sexual abuse, is guilty of sexual battery. A violation
8of this subdivision is punishable by imprisonment in a county jail
9for not more than one year, and by a fine not exceeding two
10thousand dollars ($2,000); or by imprisonment in the state prison
11for two, three, or four years, and by a fine not exceeding ten
12thousand dollars ($10,000).

13(b) Any person who touches an intimate part of another person
14who is institutionalized for medical treatment and who is seriously
15disabled or medically incapacitated, if the touching is against the
16will of the person touched, and if the touching is for the purpose
17of sexual arousal, sexual gratification, or sexual abuse, is guilty
18of sexual battery. A violation of this subdivision is punishable by
P3    1imprisonment in a county jail for not more than one year, and by
2a fine not exceeding two thousand dollars ($2,000); or by
3imprisonment in the state prison for two, three, or four years, and
4by a fine not exceeding ten thousand dollars ($10,000).

5(c) begin insert(1)end insertbegin insertend insertAny person who touches an intimate part of another
6person for the purpose of sexual arousal, sexual gratification, or
7sexual abuse, and the victim is at the time unconscious of the nature
8of the act because the perpetrator fraudulently represented that the
9touching served a professional purpose, is guilty of sexual battery. begin delete10 A violation of this subdivision is punishable by imprisonment in
11a county jail for not more than one year, and by a fine not
12exceeding two thousand dollars ($2,000); or by imprisonment in
13the state prison for two, three, or four years, and by a fine not
14exceeding ten thousand dollars ($10,000).end delete

begin insert

15(2) Any person who performs professional services that entail
16having access to another person’s body, who touches an intimate
17part of that person while performing those services, and the
18touching is against the will of the person touched and for the
19specific purpose of sexual arousal, sexual gratification, or sexual
20abuse, is guilty of sexual battery.

end insert
begin insert

21(3) A violation of this subdivision is punishable by imprisonment
22in a county jail for not more than one year, and by a fine not
23exceeding two thousand dollars ($2,000); or by imprisonment in
24the state prison for two, three, or four years, and by a fine not
25exceeding ten thousand dollars ($10,000).

end insert

26(d) Any person who, for the purpose of sexual arousal, sexual
27gratification, or sexual abuse, causes another, against that person’s
28will while that person is unlawfully restrained either by the accused
29or an accomplice, or is institutionalized for medical treatment and
30is seriously disabled or medically incapacitated, to masturbate or
31touch an intimate part of either of those persons or a third person,
32is guilty of sexual battery. A violation of this subdivision is
33punishable by imprisonment in a county jail for not more than one
34year, and by a fine not exceeding two thousand dollars ($2,000);
35or by imprisonment in the state prison for two, three, or four years,
36and by a fine not exceeding ten thousand dollars ($10,000).

begin delete

37(e) Any person who performs professional services that entail
38having access to another person’s body, who touches an intimate
39part of that person while performing those services, and the
40touching is against the will of the person touched and for the
P4    1specific purpose of sexual arousal, sexual gratification, or sexual
2abuse, is guilty of sexual battery. A violation of this subdivision
3is punishable by imprisonment in the state prison for two, three,
4or four years, and by a fine not exceeding ten thousand dollars
5($10,000).

end delete
begin delete

6(f)

end delete

7begin insert(e)end insert (1) Any person who touches an intimate part of another
8person, if the touching is against the will of the person touched,
9and is for the specific purpose of sexual arousal, sexual
10gratification, or sexual abuse, is guilty of misdemeanor sexual
11battery, punishable by a fine not exceeding two thousand dollars
12($2,000), or by imprisonment in a county jail not exceeding six
13months, or by both that fine and imprisonment. However, if the
14defendant was an employer and the victim was an employee of
15the defendant, the misdemeanor sexual battery shall be punishable
16by a fine not exceeding three thousand dollars ($3,000), by
17imprisonment in a county jail not exceeding six months, or by both
18that fine and imprisonment. Notwithstanding any other provision
19of law, any amount of a fine above two thousand dollars ($2,000)
20which is collected from a defendant for a violation of this
21subdivision shall be transmitted to the State Treasury and, upon
22appropriation by the Legislature, distributed to the Department of
23Fair Employment and Housing for the purpose of enforcement of
24the California Fair Employment and Housing Act (Part 2.8
25(commencing with Section 12900) of Division 3 of Title 2 of the
26Government Code), including, but not limited to, laws that
27proscribe sexual harassment in places of employment. However,
28in no event shall an amount over two thousand dollars ($2,000)
29be transmitted to the State Treasury until all fines, including any
30restitution fines that may have been imposed upon the defendant,
31have been paid in full.

32(2) As used in this subdivision, “touches” means physical contact
33with another person, whether accomplished directly, through the
34clothing of the person committing the offense, or through the
35clothing of the victim.

begin delete

36(g)

end delete

37begin insert(f)end insert As used in subdivisions (a), (b), (c),begin delete (d), and (e),end deletebegin insert and (d),end insert
38 “touches” means physical contact with the skin of another person
39whether accomplished directly or through the clothing of the person
40committing the offense.

begin delete

P5    1(h)

end delete

2begin insert(g)end insert As used in this section, the following terms have the
3following meanings:

4(1) “Intimate part” means the sexual organ, anus, groin, or
5buttocks of any person, and the breast of a female.

6(2) “Sexual battery” does not include the crimes defined in
7Section 261 or 289.

8(3) “Seriously disabled” means a person with severe physical
9or sensory disabilities.

10(4) “Medically incapacitated” means a person who is
11incapacitated as a result of prescribed sedatives, anesthesia, or
12other medication.

13(5) “Institutionalized” means a person who is located voluntarily
14or involuntarily in a hospital, medical treatment facility, nursing
15home, acute care facility, or mental hospital.

16(6) “Minor” means a person under 18 years of age.

begin delete

17(i)

end delete

18begin insert(h)end insert This section does not limit or prevent prosecution under any
19other law which also proscribes a course of conduct that also is
20proscribed by this section.

begin delete

21(j)

end delete

22begin insert(i)end insert In the case of a felony conviction for a violation of this
23section, the fact that the defendant was an employer and the victim
24was an employee of the defendant shall be a factor in aggravation
25in sentencing.

begin delete

26(k)

end delete

27begin insert(j)end insert A person who commits a violation of subdivision (a), (b),
28(c), or (d) against a minor when the person has a prior felony
29conviction for a violation of this section shall be guilty of a felony,
30punishable by imprisonment in the state prison for two, three, or
31four years and a fine not exceeding ten thousand dollars ($10,000).

32

SEC. 2.  

Section 261 of the Penal Code is amended to read:

33

261.  

(a) Rape is an act of sexual intercourse accomplished
34with a person not the spouse of the perpetrator, under any of the
35following circumstances:

36(1) Where a person is incapable, because of a mental disorder
37or developmental or physical disability, of giving legal consent,
38and this is known or reasonably should be known to the person
39committing the act. Notwithstanding the existence of a
40conservatorship pursuant to the provisions of the
P6    1Lanterman-Petris-Short Act (Part 1 (commencing with Section
25000) of Division 5 of the Welfare and Institutions Code), the
3prosecuting attorney shall prove, as an element of the crime, that
4a mental disorder or developmental or physical disability rendered
5the alleged victim incapable of giving consent.

6(2) Where it is accomplished against a person’s will by means
7of force, violence, duress, menace, or fear of immediate and
8unlawful bodily injury on the person or another.

9(3) Where a person is prevented from resisting by any
10intoxicating or anesthetic substance, or any controlled substance,
11and this condition was known, or reasonably should have been
12known by the accused.

13(4) Where a person is at the time unconscious of the nature of
14the act, and this is known to the accused. As used in this paragraph,
15“unconscious of the nature of the act” means incapable of resisting
16because the victim meets any one of the following conditions:

17(A) Was unconscious or asleep.

18(B) Was not aware, knowing, perceiving, or cognizant that the
19act occurred.

20(C) Was not aware, knowing, perceiving, or cognizant of the
21essential characteristics of the act due to the perpetrator’s fraud in
22fact.

23(D) Was not aware, knowing, perceiving, or cognizant of the
24essential characteristics of the act due to the perpetrator’s fraudulent
25representation that the sexual penetration served a professional
26purpose when it served no professional purpose.

27(5) Where a person submits under the belief that the person
28committing the act is someone known to the victim other than the
29accused, and this belief is induced by any artifice, pretense, or
30concealment practiced by the accused, with intent to induce the
31belief.

32(6) Where the act is accomplished against the victim’s will by
33 threatening to retaliate in the future against the victim or any other
34person, and there is a reasonable possibility that the perpetrator
35will execute the threat. As used in this paragraph, “threatening to
36retaliate” means a threat to kidnap or falsely imprison, or to inflict
37extreme pain, serious bodily injury, or death.

38(7) Where the act is accomplished against the victim’s will by
39threatening to use the authority of a public official to incarcerate,
40arrest, or deport the victim or another, and the victim has a
P7    1reasonable belief that the perpetrator is a public official. As used
2in this paragraph, “public official” means a person employed by
3a governmental agency who has the authority, as part of that
4position, to incarcerate, arrest, or deport another. The perpetrator
5does not actually have to be a public official.

6(8) Where the act is accomplished against the victim’s will by
7a person while that person is performing professional services that
8entail having access to the victim’s body.

9(b) As used in this section, “duress” means a direct or implied
10threat of force, violence, danger, or retribution sufficient to coerce
11a reasonable person of ordinary susceptibilities to perform an act
12which otherwise would not have been performed, or acquiesce in
13an act to which one otherwise would not have submitted. The total
14circumstances, including the age of the victim, and his or her
15relationship to the defendant, are factors to consider in appraising
16the existence of duress.

17(c) As used in this section, “menace” means any threat,
18declaration, or act which shows an intention to inflict an injury
19 upon another.

20

SEC. 3.  

Section 286 of the Penal Code is amended to read:

21

286.  

(a) Sodomy is sexual conduct consisting of contact
22between the penis of one person and the anus of another person.
23Any sexual penetration, however slight, is sufficient to complete
24the crime of sodomy.

25(b) (1) Except as provided in Section 288, any person who
26participates in an act of sodomy with another person who is under
2718 years of age shall be punished by imprisonment in the state
28prison, or in a county jail for not more than one year.

29(2) Except as provided in Section 288, any person over 21 years
30of age who participates in an act of sodomy with another person
31who is under 16 years of age shall be guilty of a felony.

32(c) (1) Any person who participates in an act of sodomy with
33another person who is under 14 years of age and more than 10
34years younger than he or she shall be punished by imprisonment
35in the state prison for three, six, or eight years.

36(2) (A) Any person who commits an act of sodomy when the
37act is accomplished against the victim’s will by means of force,
38violence, duress, menace, or fear of immediate and unlawful bodily
39injury on the victim or another person shall be punished by
40imprisonment in the state prison for three, six, or eight years.

P8    1(B) Any person who commits an act of sodomy with another
2person who is under 14 years of age when the act is accomplished
3against the victim’s will by means of force, violence, duress,
4menace, or fear of immediate and unlawful bodily injury on the
5victim or another person shall be punished by imprisonment in the
6state prison for 9, 11, or 13 years.

7(C) Any person who commits an act of sodomy with another
8person who is a minor 14 years of age or older when the act is
9accomplished against the victim’s will by means of force, violence,
10duress, menace, or fear of immediate and unlawful bodily injury
11on the victim or another person shall be punished by imprisonment
12in the state prison for 7, 9, or 11 years.

13(D) This paragraph does not preclude prosecution under Section
14269, Section 288.7, or any other provision of law.

15(3) Any person who commits an act of sodomy where the act
16is accomplished against the victim’s will by threatening to retaliate
17in the future against the victim or any other person, and there is a
18reasonable possibility that the perpetrator will execute the threat,
19shall be punished by imprisonment in the state prison for three,
20six, or eight years.

21(d) (1) Any person who, while voluntarily acting in concert
22with another person, either personally or aiding and abetting that
23other person, commits an act of sodomy when the act is
24accomplished against the victim’s will by means of force or fear
25of immediate and unlawful bodily injury on the victim or another
26person or where the act is accomplished against the victim’s will
27by threatening to retaliate in the future against the victim or any
28other person, and there is a reasonable possibility that the
29perpetrator will execute the threat, shall be punished by
30imprisonment in the state prison for five, seven, or nine years.

31(2) Any person who, while voluntarily acting in concert with
32another person, either personally or aiding and abetting that other
33person, commits an act of sodomy upon a victim who is under 14
34years of age, when the act is accomplished against the victim’s
35will by means of force or fear of immediate and unlawful bodily
36injury on the victim or another person, shall be punished by
37imprisonment in the state prison for 10, 12, or 14 years.

38(3) Any person who, while voluntarily acting in concert with
39another person, either personally or aiding and abetting that other
40person, commits an act of sodomy upon a victim who is a minor
P9    114 years of age or older, when the act is accomplished against the
2victim’s will by means of force or fear of immediate and unlawful
3bodily injury on the victim or another person, shall be punished
4by imprisonment in the state prison for 7, 9, or 11 years.

5(4) This subdivision does not preclude prosecution under Section
6269, Section 288.7, or any other provision of law.

7(e) Any person who participates in an act of sodomy with any
8person of any age while confined in any state prison, as defined
9in Section 4504, or in any local detention facility, as defined in
10Section 6031.4, shall be punished by imprisonment in the state
11prison, or in a county jail for not more than one year.

12(f) (1) Any person who commits an act of sodomy, and the
13victim is at the time unconscious of the nature of the act and this
14is known to the person committing the act, shall be punished by
15imprisonment in the state prison for three, six, or eight years. As
16used in this subdivision, “unconscious of the nature of the act”
17means incapable of resisting because the victim meets one of the
18 following conditions:

19(A) Was unconscious or asleep.

20(B) Was not aware, knowing, perceiving, or cognizant that the
21act occurred.

22(C) Was not aware, knowing, perceiving, or cognizant of the
23essential characteristics of the act due to the perpetrator’s fraud in
24fact.

25(D) Was not aware, knowing, perceiving, or cognizant of the
26essential characteristics of the act due to the perpetrator’s fraudulent
27representation that the sexual penetration served a professional
28purpose when it served no professional purpose.

29(2) A person who performs professional services that entail
30having access to the victim’s body, who commits an act of sodomy
31upon the victim while performing those services, and the act is
32against the victim’s will, shall be punished by imprisonment in
33the state prison for three, six, or eight years.

34(g) Except as provided in subdivision (h), a person who commits
35an act of sodomy, and the victim is at the time incapable, because
36of a mental disorder or developmental or physical disability, of
37giving legal consent, and this is known or reasonably should be
38known to the person committing the act, shall be punished by
39imprisonment in the state prison for three, six, or eight years.
40Notwithstanding the existence of a conservatorship pursuant to
P10   1the Lanterman-Petris-Short Act (Part 1 (commencing with Section
25000) of Division 5 of the Welfare and Institutions Code), the
3prosecuting attorney shall prove, as an element of the crime, that
4a mental disorder or developmental or physical disability rendered
5the alleged victim incapable of giving consent.

6(h) Any person who commits an act of sodomy, and the victim
7is at the time incapable, because of a mental disorder or
8developmental or physical disability, of giving legal consent, and
9this is known or reasonably should be known to the person
10committing the act, and both the defendant and the victim are at
11the time confined in a state hospital for the care and treatment of
12the mentally disordered or in any other public or private facility
13for the care and treatment of the mentally disordered approved by
14a county mental health director, shall be punished by imprisonment
15in the state prison, or in a county jail for not more than one year.
16Notwithstanding the existence of a conservatorship pursuant to
17the Lanterman-Petris-Short Act (Part 1 (commencing with Section
185000) of Division 5 of the Welfare and Institutions Code), the
19prosecuting attorney shall prove, as an element of the crime, that
20a mental disorder or developmental or physical disability rendered
21the alleged victim incapable of giving legal consent.

22(i) Any person who commits an act of sodomy, where the victim
23is prevented from resisting by an intoxicating or anesthetic
24substance, or any controlled substance, and this condition was
25known, or reasonably should have been known by the accused,
26shall be punished by imprisonment in the state prison for three,
27six, or eight years.

28(j) Any person who commits an act of sodomy, where the victim
29submits under the belief that the person committing the act is
30someone known to the victim other than the accused, and this
31belief is induced by any artifice, pretense, or concealment practiced
32by the accused, with intent to induce the belief, shall be punished
33by imprisonment in the state prison for three, six, or eight years.

34(k) (1) Any person who commits an act of sodomy, where the
35act is accomplished against the victim’s will by threatening to use
36the authority of a public official to incarcerate, arrest, or deport
37the victim or another, and the victim has a reasonable belief that
38the perpetrator is a public official, shall be punished by
39imprisonment in the state prison for three, six, or eight years.

P11   1(2) As used in this subdivision, “public official” means a person
2employed by a governmental agency who has the authority, as part
3of that position, to incarcerate, arrest, or deport another. The
4perpetrator does not actually have to be a public official.

5(l) As used in subdivisions (c) and (d), “threatening to retaliate”
6means a threat to kidnap or falsely imprison, or inflict extreme
7pain, serious bodily injury, or death.

8(m) In addition to any punishment imposed under this section,
9the judge may assess a fine not to exceed seventy dollars ($70)
10against any person who violates this section, with the proceeds of
11this fine to be used in accordance with Section 1463.23. The court,
12however, shall take into consideration the defendant’s ability to
13pay, and no defendant shall be denied probation because of his or
14her inability to pay the fine permitted under this subdivision.

15

SEC. 4.  

Section 288a of the Penal Code is amended to read:

16

288a.  

(a) Oral copulation is the act of copulating the mouth
17of one person with the sexual organ or anus of another person.

18(b) (1) Except as provided in Section 288, any person who
19participates in an act of oral copulation with another person who
20is under 18 years of age shall be punished by imprisonment in the
21state prison, or in a county jail for a period of not more than one
22year.

23(2) Except as provided in Section 288, any person over 21 years
24of age who participates in an act of oral copulation with another
25person who is under 16 years of age is guilty of a felony.

26(c) (1) Any person who participates in an act of oral copulation
27with another person who is under 14 years of age and more than
2810 years younger than he or she shall be punished by imprisonment
29in the state prison for three, six, or eight years.

30(2) (A) Any person who commits an act of oral copulation when
31the act is accomplished against the victim’s will by means of force,
32violence, duress, menace, or fear of immediate and unlawful bodily
33injury on the victim or another person shall be punished by
34imprisonment in the state prison for three, six, or eight years.

35(B) Any person who commits an act of oral copulation upon a
36person who is under 14 years of age, when the act is accomplished
37against the victim’s will by means of force, violence, duress,
38menace, or fear of immediate and unlawful bodily injury on the
39victim or another person, shall be punished by imprisonment in
40the state prison for 8, 10, or 12 years.

P12   1(C) Any person who commits an act of oral copulation upon a
2minor who is 14 years of age or older, when the act is accomplished
3against the victim’s will by means of force, violence, duress,
4menace, or fear of immediate and unlawful bodily injury on the
5victim or another person, shall be punished by imprisonment in
6the state prison for 6, 8, or 10 years.

7(D) This paragraph does not preclude prosecution under Section
8269, Section 288.7, or any other provision of law.

9(3) Any person who commits an act of oral copulation where
10the act is accomplished against the victim’s will by threatening to
11retaliate in the future against the victim or any other person, and
12there is a reasonable possibility that the perpetrator will execute
13the threat, shall be punished by imprisonment in the state prison
14for three, six, or eight years.

15(d) (1) Any person who, while voluntarily acting in concert
16with another person, either personally or by aiding and abetting
17that other person, commits an act of oral copulation (A) when the
18act is accomplished against the victim’s will by means of force or
19fear of immediate and unlawful bodily injury on the victim or
20another person, or (B) where the act is accomplished against the
21victim’s will by threatening to retaliate in the future against the
22victim or any other person, and there is a reasonable possibility
23that the perpetrator will execute the threat, or (C) where the victim
24is at the time incapable, because of a mental disorder or
25developmental or physical disability, of giving legal consent, and
26this is known or reasonably should be known to the person
27committing the act, shall be punished by imprisonment in the state
28prison for five, seven, or nine years. Notwithstanding the
29 appointment of a conservator with respect to the victim pursuant
30to the provisions of the Lanterman-Petris-Short Act (Part 1
31(commencing with Section 5000) of Division 5 of the Welfare and
32Institutions Code), the prosecuting attorney shall prove, as an
33element of the crime described under paragraph (3), that a mental
34disorder or developmental or physical disability rendered the
35alleged victim incapable of giving legal consent.

36(2) Any person who, while voluntarily acting in concert with
37another person, either personally or aiding and abetting that other
38person, commits an act of oral copulation upon a victim who is
39under 14 years of age, when the act is accomplished against the
40victim’s will by means of force or fear of immediate and unlawful
P13   1bodily injury on the victim or another person, shall be punished
2by imprisonment in the state prison for 10, 12, or 14 years.

3(3) Any person who, while voluntarily acting in concert with
4another person, either personally or aiding and abetting that other
5person, commits an act of oral copulation upon a victim who is a
6minor 14 years of age or older, when the act is accomplished
7against the victim’s will by means of force or fear of immediate
8and unlawful bodily injury on the victim or another person, shall
9be punished by imprisonment in the state prison for 8, 10, or 12
10years.

11(4) This paragraph does not preclude prosecution under Section
12269, Section 288.7, or any other provision of law.

13(e) Any person who participates in an act of oral copulation
14while confined in any state prison, as defined in Section 4504 or
15in any local detention facility as defined in Section 6031.4, shall
16be punished by imprisonment in the state prison, or in a county
17jail for a period of not more than one year.

18(f) (1) Any person who commits an act of oral copulation, and
19the victim is at the time unconscious of the nature of the act and
20this is known to the person committing the act, shall be punished
21by imprisonment in the state prison for a period of three, six, or
22eight years. As used in this subdivision, “unconscious of the nature
23of the act” means incapable of resisting because the victim meets
24one of the following conditions:

25(A) Was unconscious or asleep.

26(B) Was not aware, knowing, perceiving, or cognizant that the
27act occurred.

28(C) Was not aware, knowing, perceiving, or cognizant of the
29essential characteristics of the act due to the perpetrator’s fraud in
30fact.

31(D) Was not aware, knowing, perceiving, or cognizant of the
32essential characteristics of the act due to the perpetrator’s fraudulent
33representation that the oral copulation served a professional purpose
34when it served no professional purpose.

35(2) A person who performs professional services that entail
36having access to the victim’s body, who commits an act of oral
37copulation upon the victim while performing those services, and
38the act is against the victim’s will, shall be punished by
39imprisonment in the state prison for three, six, or eight years.

P14   1(g) Except as provided in subdivision (h), any person who
2commits an act of oral copulation, and the victim is at the time
3incapable, because of a mental disorder or developmental or
4physical disability, of giving legal consent, and this is known or
5reasonably should be known to the person committing the act,
6shall be punished by imprisonment in the state prison, for three,
7six, or eight years. Notwithstanding the existence of a
8conservatorship pursuant to the provisions of the
9Lanterman-Petris-Short Act (Part 1 (commencing with Section
105000) of Division 5 of the Welfare and Institutions Code), the
11prosecuting attorney shall prove, as an element of the crime, that
12a mental disorder or developmental or physical disability rendered
13the alleged victim incapable of giving consent.

14(h) Any person who commits an act of oral copulation, and the
15victim is at the time incapable, because of a mental disorder or
16developmental or physical disability, of giving legal consent, and
17 this is known or reasonably should be known to the person
18committing the act, and both the defendant and the victim are at
19the time confined in a state hospital for the care and treatment of
20the mentally disordered or in any other public or private facility
21for the care and treatment of the mentally disordered approved by
22a county mental health director, shall be punished by imprisonment
23in the state prison, or in a county jail for a period of not more than
24one year. Notwithstanding the existence of a conservatorship
25pursuant to the provisions of the Lanterman-Petris-Short Act (Part
261 (commencing with Section 5000) of Division 5 of the Welfare
27and Institutions Code), the prosecuting attorney shall prove, as an
28element of the crime, that a mental disorder or developmental or
29physical disability rendered the alleged victim incapable of giving
30legal consent.

31(i) Any person who commits an act of oral copulation, where
32the victim is prevented from resisting by any intoxicating or
33anesthetic substance, or any controlled substance, and this condition
34was known, or reasonably should have been known by the accused,
35shall be punished by imprisonment in the state prison for a period
36of three, six, or eight years.

37(j) Any person who commits an act of oral copulation, where
38the victim submits under the belief that the person committing the
39act is someone known to the victim other than the accused, and
40this belief is induced by any artifice, pretense, or concealment
P15   1practiced by the accused, with intent to induce the belief, shall be
2punished by imprisonment in the state prison for a period of three,
3six, or eight years.

4(k) (1) Any person who commits an act of oral copulation,
5where the act is accomplished against the victim’s will by
6threatening to use the authority of a public official to incarcerate,
7arrest, or deport the victim or another, and the victim has a
8reasonable belief that the perpetrator is a public official, shall be
9punished by imprisonment in the state prison for a period of three,
10six, or eight years.

11(2) As used in this subdivision, “public official” means a person
12employed by a governmental agency who has the authority, as part
13of that position, to incarcerate, arrest, or deport another. The
14perpetrator does not actually have to be a public official.

15(l) As used in subdivisions (c) and (d), “threatening to retaliate”
16means a threat to kidnap or falsely imprison, or to inflict extreme
17pain, serious bodily injury, or death.

18(m) In addition to any punishment imposed under this section,
19the judge may assess a fine not to exceed seventy dollars ($70)
20against any person who violates this section, with the proceeds of
21this fine to be used in accordance with Section 1463.23. The court
22shall, however, take into consideration the defendant’s ability to
23pay, and no defendant shall be denied probation because of his or
24her inability to pay the fine permitted under this subdivision.

25

SEC. 5.  

Section 289 of the Penal Code is amended to read:

26

289.  

(a) (1) (A) Any person who commits an act of sexual
27penetration when the act is accomplished against the victim’s will
28by means of force, violence, duress, menace, or fear of immediate
29and unlawful bodily injury on the victim or another person shall
30be punished by imprisonment in the state prison for three, six, or
31eight years.

32(B) Any person who commits an act of sexual penetration upon
33a child who is under 14 years of age, when the act is accomplished
34against the victim’s will by means of force, violence, duress,
35menace, or fear of immediate and unlawful bodily injury on the
36victim or another person, shall be punished by imprisonment in
37the state prison for 8, 10, or 12 years.

38(C) Any person who commits an act of sexual penetration upon
39a minor who is 14 years of age or older, when the act is
40accomplished against the victim’s will by means of force, violence,
P16   1duress, menace, or fear of immediate and unlawful bodily injury
2on the victim or another person, shall be punished by imprisonment
3in the state prison for 6, 8, or 10 years.

4(D) This paragraph does not preclude prosecution under Section
5269, Section 288.7, or any other provision of law.

6(2) Any person who commits an act of sexual penetration when
7the act is accomplished against the victim’s will by threatening to
8retaliate in the future against the victim or any other person, and
9there is a reasonable possibility that the perpetrator will execute
10the threat, shall be punished by imprisonment in the state prison
11for three, six, or eight years.

12(b) Except as provided in subdivision (c), any person who
13commits an act of sexual penetration, and the victim is at the time
14incapable, because of a mental disorder or developmental or
15physical disability, of giving legal consent, and this is known or
16reasonably should be known to the person committing the act or
17causing the act to be committed, shall be punished by imprisonment
18in the state prison for three, six, or eight years. Notwithstanding
19the appointment of a conservator with respect to the victim pursuant
20to the provisions of the Lanterman-Petris-Short Act (Part 1
21(commencing with Section 5000) of Division 5 of the Welfare and
22Institutions Code), the prosecuting attorney shall prove, as an
23element of the crime, that a mental disorder or developmental or
24physical disability rendered the alleged victim incapable of giving
25legal consent.

26(c) Any person who commits an act of sexual penetration, and
27the victim is at the time incapable, because of a mental disorder
28or developmental or physical disability, of giving legal consent,
29and this is known or reasonably should be known to the person
30committing the act or causing the act to be committed and both
31the defendant and the victim are at the time confined in a state
32hospital for the care and treatment of the mentally disordered or
33in any other public or private facility for the care and treatment of
34the mentally disordered approved by a county mental health
35director, shall be punished by imprisonment in the state prison, or
36in a county jail for a period of not more than one year.
37Notwithstanding the existence of a conservatorship pursuant to
38the provisions of the Lanterman-Petris-Short Act (Part 1
39(commencing with Section 5000) of Division 5 of the Welfare and
40Institutions Code), the prosecuting attorney shall prove, as an
P17   1element of the crime, that a mental disorder or developmental or
2physical disability rendered the alleged victim incapable of giving
3legal consent.

4(d) (1) Any person who commits an act of sexual penetration,
5and the victim is at the time unconscious of the nature of the act
6and this is known to the person committing the act or causing the
7act to be committed, shall be punished by imprisonment in the
8state prison for three, six, or eight years. As used in this
9subdivision, “unconscious of the nature of the act” means incapable
10of resisting because the victim meets one of the following
11conditions:

12(A) Was unconscious or asleep.

13(B) Was not aware, knowing, perceiving, or cognizant that the
14act occurred.

15(C) Was not aware, knowing, perceiving, or cognizant of the
16essential characteristics of the act due to the perpetrator’s fraud in
17fact.

18(D) Was not aware, knowing, perceiving, or cognizant of the
19essential characteristics of the act due to the perpetrator’s fraudulent
20representation that the sexual penetration served a professional
21purpose when it served no professional purpose.

22(2) A person who performs professional services that entail
23having access to the victim’s body, who commits an act of sexual
24penetration upon the victim while performing those services, and
25the act is against the victim’s will, shall be punished by
26imprisonment in the state prison for three, six, or eight years.

27(e) Any person who commits an act of sexual penetration when
28the victim is prevented from resisting by any intoxicating or
29anesthetic substance, or any controlled substance, and this condition
30was known, or reasonably should have been known by the accused,
31shall be punished by imprisonment in the state prison for a period
32of three, six, or eight years.

33(f) Any person who commits an act of sexual penetration when
34the victim submits under the belief that the person committing the
35act or causing the act to be committed is someone known to the
36victim other than the accused, and this belief is induced by any
37artifice, pretense, or concealment practiced by the accused, with
38intent to induce the belief, shall be punished by imprisonment in
39the state prison for a period of three, six, or eight years.

P18   1(g) (1) Any person who commits an act of sexual penetration
2when the act is accomplished against the victim’s will by
3threatening to use the authority of a public official to incarcerate,
4arrest, or deport the victim or another, and the victim has a
5reasonable belief that the perpetrator is a public official, shall be
6punished by imprisonment in the state prison for a period of three,
7six, or eight years.

8(2) As used in this subdivision, “public official” means a person
9employed by a governmental agency who has the authority, as part
10of that position, to incarcerate, arrest, or deport another. The
11perpetrator does not actually have to be a public official.

12(h) Except as provided in Section 288, any person who
13participates in an act of sexual penetration with another person
14who is under 18 years of age shall be punished by imprisonment
15in the state prison or in a county jail for a period of not more than
16one year.

17(i) Except as provided in Section 288, any person over 21 years
18of age who participates in an act of sexual penetration with another
19person who is under 16 years of age shall be guilty of a felony.

20(j) Any person who participates in an act of sexual penetration
21with another person who is under 14 years of age and who is more
22than 10 years younger than he or she shall be punished by
23imprisonment in the state prison for three, six, or eight years.

24(k) As used in this section:

25(1) “Sexual penetration” is the act of causing the penetration,
26however slight, of the genital or anal opening of any person or
27causing another person to so penetrate the defendant’s or another
28person’s genital or anal opening for the purpose of sexual arousal,
29gratification, or abuse by any foreign object, substance, instrument,
30or device, or by any unknown object.

31(2) “Foreign object, substance, instrument, or device” shall
32include any part of the body, except a sexual organ.

33(3) “Unknown object” shall include any foreign object,
34substance, instrument, or device, or any part of the body, including
35a penis, when it is not known whether penetration was by a penis
36or by a foreign object, substance, instrument, or device, or by any
37other part of the body.

38(l) As used in subdivision (a), “threatening to retaliate” means
39a threat to kidnap or falsely imprison, or inflict extreme pain,
40serious bodilybegin delete injuryend deletebegin insert injury,end insert or death.

P19   1(m) As used in this section, “victim” includes any person who
2the defendant causes to penetrate the genital or anal opening of
3the defendant or another person or whose genital or anal opening
4is caused to be penetrated by the defendant or another person and
5who otherwise qualifies as a victim under the requirements of this
6section.

7

SEC. 6.  

No reimbursement is required by this act pursuant to
8Section 6 of Article XIII B of the California Constitution because
9the only costs that may be incurred by a local agency or school
10district will be incurred because this act creates a new crime or
11infraction, eliminates a crime or infraction, or changes the penalty
12for a crime or infraction, within the meaning of Section 17556 of
13the Government Code, or changes the definition of a crime within
14the meaning of Section 6 of Article XIII B of the California
15Constitution.



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