BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 860


                                                                    Page  1


          Date of Hearing:  April 7, 2015
          Counsel:               Gabriel Caswell



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                        860 (Daly) - As Amended  March 25, 2015




          SUMMARY:  Expands the definitions of sexual battery, rape,  
          sodomy, forced oral copulation, sodomy, and sexual penetration  
          to include non-consensual sexual contact by a person who has  
          been engaged for a professional purpose. Specifically, this  
          bill:   

          1)Expands 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.   
            Punishes this crime by imprisonment in the state prison for  
            two, three, or four years, and by a fine not exceeding  
            $10,000. 

          2)Expands the definitions of rape, sodomy, oral copulation, and  
            sexual penetration 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 of crimes, this bill  








                                                                     AB 860


                                                                    Page  2


            would impose a state-mandated local program.


          EXISTING LAW:  

          1)States any person who touches an intimate part of another  
            person while that person is unlawfully restrained by the  
            accused or an accomplice, and if the touching is against the  
            will of the person touched and is for the purpose of sexual  
            arousal, sexual gratification, or sexual abuse, is guilty of  
            sexual battery.  A violation of this law is punishable by  
            imprisonment in a county jail for not more than one year, and  
            by a fine not exceeding $2,000; by imprisonment in the state  
            prison for two, three, or four years; and by a fine not  
            exceeding $10,000.  (Pen. Code,  243.4, subd. (a))

          2)Provides rape is an act of sexual intercourse accomplished  
            with a person not the spouse of the perpetrator, under any of  
            the following circumstances:

             a)   Where a person is incapable, because of a mental  
               disorder or developmental or physical disability, of giving  
               legal consent, and this is known or reasonably should be  
               known to the person committing the act.  Notwithstanding  
               the existence of a conservatorship, as specified, the  
               prosecuting attorney shall prove, as an element of the  
               crime, that a mental disorder or developmental or physical  
               disability rendered the alleged victim incapable of giving  
               consent.

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

             c)   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. 

             d)   Where a person submits under the belief that the person  
               committing the act is the victim's spouse, and this belief  








                                                                     AB 860


                                                                    Page  3


               is induced by any artifice, pretense, or concealment  
               practiced by the accused, with intent to induce the belief.

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

             f)   Where the act is accomplished against the victim's will  
               by threatening to use the authority of a public official to  
               incarcerate, arrest, or deport the victim or another, and  
               the victim has a reasonable belief that the perpetrator is  
               a public official.  As used in this paragraph, "public  
               official" is defined as a person employed by a governmental  
               agency who has the authority, as part of that position, to  
               incarcerate, arrest, or deport another. The perpetrator  
               does not actually have to be a public official.  (Pen.  
               Code,  261(a)(1) to (7).)

          3)States where a person is at the time unconscious of the nature  
            of the act, and this is known to the accused.  As used in this  
            paragraph, "unconscious of the nature of the act" is defined  
            as incapable of resisting because the victim meets one of the  
            following conditions:

             a)   Was unconscious or asleep.

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

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

             d)   Was not aware, knowing, perceiving, or cognizant of the  
               essential characteristics of the act due to the  
               perpetrator's fraudulent representation that the sexual  
               penetration served a professional purpose when it served no  
               professional purpose.  (Pen. Code,  261, subds. (a)(4)(A)  








                                                                     AB 860


                                                                    Page  4


               to (D).)

          4)States any person who commits an act of sodomy when the act is  
            accomplished against the victim's will by means of force,  
            violence, duress, menace, or fear of immediate and unlawful  
            bodily injury on the victim or another person shall be  
            punished by imprisonment in the state prison for three, six,  
            or eight years.  (Pen. Code,  286, subd. (c)(2).)

          5)Requires that any person who commits an act of oral copulation  
            when the act is accomplished against the victim's will by  
            means of force, violence, duress, menace, or fear of immediate  
            and unlawful bodily injury on the victim or another person  
            shall be punished by imprisonment in the state prison for  
            three, six, or eight years.  (Pen. Code,  288a, subd.  
            (c)(2).)

          6)States any person who commits an act of sexual penetration  
            when the act is accomplished against the victim's will by  
            means of force, violence, duress, menace, or fear of immediate  
            and unlawful bodily injury on the victim or another person  
            shall be punished by imprisonment in the state prison for  
            three, six, or eight years.  (Pen. Code,  289, subd. (a)(1).)


          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "Sexual Assault  
            is a serious crime, and perpetrators who use positions of  
            trust to assault their clients should be prosecuted to the  
            fullest extent of the law. AB 860 will ensure that these  
            violators are charged with felony sex crimes."

          2)Background:  According to the background provided by the  
            author, under current law, providers of specified professional  
            services who sexually assault their clients can be charged  
            with a felony sex crime if any of the following conditions  
            occur:

             A)   Fraud in fact (e.g., informing a  client that they will  








                                                                     AB 860


                                                                    Page  5


               be examined by a medical instrument causing penetration,  
               obtaining their consent, and then performing the  
               "examination" using their own body part) 

             B)   Fraud by inducement (e.g., informing a client that  
               sexual penetration served a professional purpose when it  
               did not)

             C)   Or if the victim was unaware, unconscious, restrained,  
               or unable to perceive the essential characteristics of the  
               sexual act.

                                       -However-

            A perpetrator of these types of crimes can only be tried for  
            misdemeanor sexual battery if all of the following occur: 

                           During a session, there is touching which is  
                    clearly not related to the professional service, which  
                    the victim cannot reasonably believe was said service;  
                    and  

                           The victim was conscious of the nature of the  
                    act in terms of its sexual nature; and

                           The victim did not consent to the act under  
                    fraudulent means (fraud in fact or inducement). 

            For example:  An individual receives facial treatments, and  
            the service provider begins to massage other parts of his or  
            her body sexually without asking the victim for consent (or  
            misleading the victim by claiming that the act was part of  
            that service).  If the provider then stops when the victim  
            objects, the provider could only be charged, under current  
            law, with misdemeanor sexual battery. 

            Because these acts are not committed while the person is  
            impaired or unconscious of the actions of the provider, they  
            can object to it and are able to perceive the essential  
            characteristics of the sex act. Their consent is not  
            considered to have been obtained by fraudulent  
            misrepresentation during the course of the treatment.  In this  








                                                                     AB 860


                                                                    Page  6


            instance, the rape by fraud in fact or inducement statutes do  
            not apply. 

            As a consequence, some individuals who have committed a  
            felonious sexual assault can only be charged with less serious  
            crimes.

          1)Penalties Provided in Existing Law:  This bill provides any  
            massage therapist, physical therapist, holistic healer,  
            chiropractor, or other professional service provider who  
            touches an intimate part of another's body against his or her  
            will for sexual gratification while in the practice of the  
            profession is guilty of one of the enumerated sex crimes.   
            Lack of consent is the foundation of most prosecutions for  
            sexual assault and may be proven many ways.  The victim  
            objects to the conduct and the defendant disregards the  
            objection by force, duress, threat of force, or threat of  
            future retaliation.  (See Pen. Code  261(a)(2), 286(c)(2),  
            and 288a(c)(2).)  The penalty for most forcible sex offenses  
            is three, six or eight years in state prison.  However, there  
            are instances in which the defendant may be guilty of a sex  
            offense even where the victim did not specifically object.   
            Lack of consent is implied if the victim is not able to object  
            because he or she is unconscious, unaware the act occurred, or  
            was not aware of the essential characteristics of the act  
            because of fraud.  (See Pen. Code  261(a)(4) and 288a(f)(1)  
            to (4).)  This includes a perpetrator who fraudulently claims  
            the act is necessary for some professional purpose or  
            otherwise convinces the victim to consent to one act but then  
            does another.  The courts have distinguished between "fraud in  
            fact" and "fraud in inducement."  Fraud in fact "appears to be  
            limited to those narrow situations in which the victim  
            consented to the defendant's act, but because the victim  
            believed the essential characteristics of the act consented to  
            were different from the characteristics of the act the  
            defendant actually committed, the victim was incapable of  
            resisting the act actually committed because the victim was  
            ignorant of the true nature of the act permitted.  In  
            contrast, when the victim consents to the defendant's act with  
            the full knowledge of the essential characteristics of the  
            act, a conviction was induced the  
            unconscious-due-to-fraud-in-fact concept cannot stand even  








                                                                     AB 860


                                                                    Page  7


            though the victim was induced to consent by fraudulent  
            representations as to the benefits resulting from the act."   
            (People v. Stuedemann (2007) 156 Cal.App. 4th 1, 7; People v.  
            Cook (1964) 228 Cal.App. 2nd 716, 718; People v. Harris  
            (hereinafter Harris) (1979) 93 Cal. App. 3rd 103, 114.)  In  
            People v. Harris, the defendant's conviction for rape was  
            overturned under a "fraud in fact" theory.  In that case, the  
            victim agreed to sexual intercourse with the defendant if she  
            lost a bet, but was unaware the bet was rigged to ensure she  
            lost.  (Harris at 111). 

          In affirming the rape conviction of a physician, the California  
            Appellate Court stated, "It is settled that a victim need not  
            be totally and physically unconscious in order for the statute  
            defining rape as an act of sexual intercourse accomplished  
            with a person who is at the time 'unconscious of the nature of  
            the act' to apply (citation omitted).  In this context,  
            unconsciousness is related to the issue of consent, which, in  
            prosecution under Penal Code Section 261 (rape) is 'defined to  
            mean positive cooperation in act or attitude pursuant to an  
            exercise of free will.  The person must act freely and  
            voluntarily and have knowledge of the nature of the act or  
            transaction."  (Penal Code Section 261.6).  (People v.  
            Ogunmola (hereinafter Ogunmola) (1987) 193 Cal.App 3rd 274,  
            279; see also People v. Minkowski (1962) 204 Cal.App. 2nd  
            832.)  In Ogunmola, the defendant was a gynecologist who raped  
            patients while performing examinations.  Neither of the two  
            victims knew the defendant was engaged in the criminal conduct  
            until he committed the act of penetration.  Neither victim  
            objected at the time of the examination.  The Appellate Court  
            held:

          "Similarly, in the present case, the trier of fact could  
            reasonably conclude from the testimony of the victim  
            gynecological patients, who reposed great trust in their  
            physician in placing themselves in positions of great  
            vulnerability from which they could not readily perceive his  
            conduct toward them, that neither was aware of the nature of  
            the act, i.e., neither consciously perceived or recognized  
            that defendant was not engaged in an examination, but rather  
            in an act of sexual intercourse, until he had accomplished  
            sexual penetration, and the crime had occurred.  Each of the  








                                                                     AB 860


                                                                    Page  8


            victims, who had consented to a pathological examination, with  
            its concomitant manual and instrumental intrusions, was  
            'unconscious of the nature of the act' of sexual intercourse  
            committed upon her by defendant, until the same was  
            accomplished, and cannot be said to have consented thereto.   
            Defendant's conduct on each occasion was clearly within the  
            scope of Penal Code Section 261(a)(4) (rape of an unconscious  
            person), and constituted rape."  (Ogunmola at 280, 281.)  The  
            Ogunmola case likely proceeded under a theory that the victims  
            were not aware or cognizant of the act when it occurred and  
            does not seem to deal with fraud in fact.  (Penal Code Section  
            261(a)(4)(B).) 

          Penal Code Section 263 states, "The essential guilt of rape  
            consists in the outrage to the person and feelings of the  
            victim of the rape.  Any sexual penetration, however, slight,  
            is sufficient to complete the crime".  It is unclear how this  
            bill will provide more protection to the victims because it  
            requires the specified sex offense be committed against the  
            will of the victim.  In instances where the victim objects or  
            there is no opportunity for consent because he or she is  
            "unconscious", as specified, the offender is guilty of the  
            substantive offense (rape, sodomy, oral copulation, rape with  
            a foreign object or sexual battery). 

          2)People v. Stuedemann:  The sponsor points to People v.  
            Stuedemann (hereinafter Stuedemann) (2007) 156 Cal.App. 4th 1  
            as evidence of infirmity in the law that must be remedied.  In  
            Stuedemann, the People charged the defendant, a massage  
            therapist, with sexual penetration of an unconscious person  
            and oral copulation of an unconscious person, as specified.   
            Penal Code Section 288a(f)(3) is oral copulation of a person  
            who is "unconscious of the nature of the act" because the  
            victim was not aware of the essential characteristics of the  
            act due to the perpetrator's fraud in fact.  Penal Code  
            Section 289(d)(3) is sexual penetration under the same  
            circumstances.  The defendant was convicted of both charges at  
            trial and appealed.  The theory presented by the People was  
            that the defendant was guilty oral copulation and sexual  
            penetration because the victim was unconscious of the  
            essential characteristics of the act due to the defendant's  
            fraud in fact.  (Stuedemann at 6.)  Therefore, the appellate  








                                                                     AB 860


                                                                    Page  9


            court reviewed the case pursuant to a fraud in fact claim.   
            However, the court was not persuaded by the fraud in fact  
            theory and stated, "Applying this framework here [defining  
            fraud in fact], the evidence does not support a conviction  
            under the unconsciousness provisions of oral copulation and  
            sexual penetration.  There is no evidence Griselda [the  
            victim] consented or cooperated (was 'incapable of resisting')  
            because of her ignorance of the true nature of the acts  
            performed by Stuedemann.  To the contrary, she did not permit  
            Stuedemann to orally copulate or digitally penetrate her  
            believing the copulation or penetration was something other  
            than a sexual copulation or penetration; instead, she  
            immediately recognized the acts for what they were and  
            expressed her non-consent."  (Stuedemann at 11.)   

          The court distinguished the Ogunmola case explained above  
            because the victim in this case was not consenting to a full  
            on medical examination where penetration for some legitimate  
            purpose might occur.  The court concluded, "Unlike Ogunmola  
            and its predecessors, there was no evidence Griselda consented  
            to anything resembling the acts undertaken by Stuedemann.   
            Although Griselda consented to a massage, the result of which  
            made her vulnerable to Stuedemann's acts that overstepped the  
            boundaries of her consent, the evidence showed she was fully  
            aware of the nature of Stuedemann's acts when those acts  
            transgressed the boundaries and was capable of (and did)  
            express her non-consent and resistance to the conduct.  We  
            conclude that Stuedemann's 'conduct, reprehensible though it  
            was', did not violate [sections on oral copulation and sexual  
            penetration] because Griselda was not unconscious due to  
            Stuedemann's fraud in fact, the only theory asserted by the  
            prosecution.] If there is a statutory oversight in this area  
            of the penal law, the Legislature may address it (citation  
            omitted)."  (Stuedemann at 14.)  

          Additionally, the court offers under existing law to re-sentence  
            the defendant for battery, as specified; however, the parties  
            reject the court's invitation.  It is unclear if charging the  
            defendant under a different statute - one not based on fraud -  
            would have resulted in a different outcome.  Although, as the  
            court points out, this case is somewhat troubling, there are  
            factual issues of consent.  The only remedy is to craft a  








                                                                     AB 860


                                                                    Page  10


            statute that would remove the consent element where the victim  
            is in a state of undress or is otherwise in a semi-vulnerable  
            position.  However, this may inadvertently punish consensual  
            conduct or fail to protect persons who are fully clothed or  
            not necessarily in a semi-vulnerable position.  As noted  
            above, this bill's language still requires the action be  
            committed against the person's will.  If that were the case in  
            Stuedemann if the defendant had disregarded the victim's  
            objections, the defendant would be guilty of oral copulation  
            and sexual penetration and no discussion of consent would have  
            been necessary. 

          3)Argument in Support:  According to The Orange County District  
            Attorney, "The Orange County District Attorney's Office is  
            pleased to support AB 860, which would close a loophole in the  
            law to address sexual predators who provide professional  
            services (such as doctors, chiropractors, massage therapists  
            and others in positions of trust/power) and prey on vulnerable  
            victims.

          "Currently, there is no provision in the law to address a sexual  
            assault committed without a victims' consent in the context of  
            professional services, other than misdemeanor sexual battery.  
            AB 860 addresses this gap in the law by providing that a  
            sexual assault committed against these vulnerable victims will  
            be punished similarly to offenses where their consent was  
            obtained fraudulently.

          "My office strongly supports this legislation that will protect  
            the public from sexual predators. Thank you for your  
            leadership on this important issue."

          4)Prior Legislation:  AB 2049 (Saldana), of the 2007-2008  
            Legislative Session, was identical to this bill.  AB 2049 was  
            never heard in Senate Public Safety.  


          REGISTERED SUPPORT / OPPOSITION:

          Support

          California District Attorneys' Association 








                                                                     AB 860


                                                                    Page  11


          Orange County District Attorney's Office 


          Opposition


          None


          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744