BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 860        Hearing Date:    June 16, 2015    
          
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          |Author:    |Daly                                                 |
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          |Version:   |June 2, 2015                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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                    Subject:  Sex Crimes:  Professional Services



          HISTORY

          Source:   Orange County District Attorney

          Prior Legislation:AB 59 (Evans) -- Ch. 282. Stats. 2013
                         AB 65 (Achadjian) -- Ch. 259, Stats. 2013
                         SB 765 (Achadjian) - Held in Senate Public  
          Safety, 2011
                         AB 2049 (Saldana) -- Amended to become a new  
          bill, 2008
                         SB 1421 (Romero) - Ch. 302, Stats. 2002


          Support:  California District Attorneys Association; California  
                    Police Chiefs; Los Angeles County District Attorney;  
                    San Diego County District Attorney

          Opposition:Legal Services for Prisoners with Children

          Assembly Floor Vote:                 78 - 0


          PURPOSE

          The purposes of this bill are 1) to provide that where a person  








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          is performing a professional service in which the person has  
          access to the body of client or customer and the person touches  
          an intimate part of the body of the client or customer, and the  
          touching is against the will of the client or customer, the  
          person is guilty of the alternate felony-misdemeanor of sexual  
          battery; and 2) to provide that where a person who is performing  
          a professional service under these circumstances engages in  
          sexual intercourse, sodomy oral copulation, or sexual  
          penetration against the will of the victim, the person is guilty  
          of a felony.

          Existing law:

          Provides that rape or another specified sex crime is a sexual  
          act accomplished under any of the following circumstances and is  
          generally punished by a prison term three, six or eight years,  
          unless a higher penalty is specified:

           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:



          o Rape - Pen. Code  261(a)(1) to (6)



          o Sodomy  286, subd. (c)(2)(A)-(C) - sodomy  the penalty is  
            three, six or eight                                          
            unless the victim is a minor.  If the victim is under 14, the  
            prison term is 9, 11 or                                     13  
            year.  If the victim is 14 or older, the penalty is 7, 9 or 11  
            years in prison



          o Oral copulation  - Penal Code  288a (c)(2)(1)-(3).  Prison  
            term is 3, 6, or 8 years unless victim is  a minor.  If victim  
            is under 14, the penalty is 8, 10 or 12 years. If victim is 14  
            or older, the  penalty is 6, 8 or 10 years.  











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          o Sexual penetration - 289 (a)   Three, six or eight year prison  
            term, unless the                                             
            victim is a minor.   Where the victim is under the age of 14,  
            the prison term          is 8, 10 or 12 eyars.  Where the  
            victim is a minor who is at least 14 years of                
            age, the prison term is 6, 8 or 10 years. 


           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.  (Pen. Code  261, subd.  
            (a)(1);  286, subd. (g); 288a, subd. (h); 289, subd. (b).)



           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);  286, subd. (i);  
            288a, subd. (i); 289, subd. (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. Pen. Code  261, subd.  
            (a)(1);  286, subd. (g); 288a, subd. (h); 289, subd. (b).)



          Provides that where an act of sexual intercourse, sodomy, oral  
          copulation or sexual penetration is accomplished against the  
          victim's will by threatening to use the authority of a public  









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          official to incarcerate, arrest, or deport the victim or  
          another, and the victim has a reasonable belief that the  
          perpetrator is a public official, the crime is a felony,  
          punishable by a prison termof three, six or eight years.  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, subd. (a)(7); 286, subd. (k), 288a, subd.  
          (k),  289, subd. (g.))



          States that a sex crime is committed where a person is at the  
          time unconscious of the nature of the sex act, and this is known  
          to the accused.  "Unconscious of the nature of the act" is  
          defined as incapable of resisting because the circumstances of  
          the incident meet one of the following conditions:



                 The victim was unconscious or asleep.



                 The victim was not aware, knowing, perceiving, or  
               cognizant that the act occurred.



                 The victim was not aware, knowing, perceiving, or  
               cognizant of the essential characteristics of the act due  
               to the perpetrator's fraud in fact.



                 The victim 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.  











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                 The victim believed that the person committing the act  
               was someone known to the victim other than the accused, and  
               this belief is induced by any artifice, pretense, or  
               concealment practiced by the accused, with intent to induce  
               the belief.  (Rape - Pen. Code  261(a)(4)(A) to (D);  
               Sodomy - 286, subd. (f); Oral Copulation - 288a, subd. (f);  
               Sexual penetration - 289, subd. (d).)

          Provides that any person who touches an intimate part of another  
          person while that person is unlawfully restrained by the accused  
          or an accomplice, and the touching is against the will of the  
          person touched, and the touching is for the purpose of sexual  
          arousal, gratification orl abuse, is guilty of sexual battery.   
          This offense is punishable by imprisonment in a county jail of  
          up to one year, a fine not exceeding $2,000, or both, or by  
          imprisonment in the state prison for two, three, or four years;  
          and by a fine not exceeding $10,000. This form of sexual battery  
          includes an element that the perpetrator touch the victim's bare  
          skin.  (Penal Code Section 243.4, subds. (a) and (f).)

          Provides that where any person touches an intimate part of  
          another person for the purpose of sexual arousal, gratification  
          or abuse, and the touching is against the will of the person  
          touched, the person is guilty of sexual battery.  This offense  
          is a misdemeanor, punishable by imprisonment in a county jail of  
          up to six months, a fine not exceeding $2,000, or both.  The  
          maximum fine is $3,000 if the defendant employs the victim.  For  
          this form of sexual battery, tghe touching need not be on bare  
          skin.  (Penal Code Section 243.4, subd. (e)(1)-(2))


          Provides that sexual battery includes the touching of an  
          intimate body part where the perpetrator fraudulently claimed  
          that it served a professional purpose.  The crime is an  
          alternate felony-misdemeanor, punishable by imprisonment in  
          county jail for up to one year, a fine of up to $1,000, or both,  
          or by imprisonment in state prison for two, three or four year  
          and a fine of up to $10,000.  (Pen. Code  243.4, subd. (c).



          This bill expands the definition of sexual battery to include  









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          the following circumstances:  A professional who performs  
          services that entail having access to another person's body  
          touches an intimate part of a client's or patient's body for the  
          purpose of sexual arousal and against the will of the client or  
          patient.  This form of sexual battery is an alternate  
          felony-misdemeanor, punishable by imprisonment for up to one  
          year, a fine of up to $1,000, or both, or by imprisonment in  
          state prison for two, three or four years and a fine of up to  
          $10,000.



          This bill expands the definition of rape, illegal sodomy, oral  
          copulation and sexual penetration to include the following  
          circumstances:  A professional who performs services that entail  
          having access to another person's body engages in sexual  
          intercourse, sodomy, oral copulation or sexual penetration  for  
          the purpose of sexual arousal and "against the will" of the  
          client or patient.  Rape, sodomy, oral copulation or sexual  
          penetration in this form is a felony, punishable by a prison  
          term of three, six or eight years and a fine of up to $10,000.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 









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          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.



          



          









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          COMMENTS

          1. Need for This Bill

          According to the author:

               Providers of professional treatment services, who  
               sexually assault their clients during the course of a  
               treatment session, are typically charged with felony  
               sex crimes. However, under certain circumstances,  
               California law only allows particular offenders to be  
               charged with misdemeanor sexual battery. As a  
               consequence, some individuals who have clearly crossed  
               the line and committed sexual assaults can only be  
               charged with less serious crimes. 

               AB 860 adds provisions that will correct this  
               oversight and classify the actions of these  
               professional service providers as felonies. 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.

           2.Contrast Between Sexual Battery Where the Victim is  
            Unlawfully Restrained and Sexual Battery by Fraud


          In circumstances other than the provision of professional  
          services, sexual battery includes the elements of a touching of  
          an intimate body part of the victim that is against the will of  
          the victim.  The element that the touching be against the will  
          of the victim is equivalent to the touching being without  
          consent of the victim. The crime is an alternate  
          felony-misdemeanor if the victim of the unwanted touching was  
          "unlawfully restrained." If the victim was not unlawfully  
          restrained, the crime is a misdemeanor.









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          It appears that in cases where a person providing a professional  
          service touches an intimate part of a client's or patient's body  
          without consent, prosecutors have not generally charged the  
          services provider with a sexual battery of a person who is  
          unlawfully restrained.  Despite the fact that an unclothed  
          person receiving a massage or medical examination is in a sense  
          under the control of the service provider, prosecutors  
          apparently believe that they could not prove that the victim was  
          unlawfully restrained.  Prosecutors charge these defendants with  
          a form of sexual battery by fraud, under the theory that the  
          service provider used some sort of deception or ruse to touch  
          the victim for sexual gratification, not a legitimate  
          professional purpose.  


          Unlawful restraint is not limited to the application of physical  
          force. Psychological pressure or an assertion of authority can  
          suffice. A decision of the Court of Appeal has described  
          unlawful restraint as follows:


               A person is unlawfully restrained when his or her  
               liberty is being controlled by words, acts or  
               authority of the perpetrator aimed at depriving the  
               person's liberty, and such restriction is against the  
               person's will; a restraint is not unlawful if it is  
               accomplished by lawful authority and for a lawful  
               purpose, as long as the restraint continues to be for  
               a lawful purpose. The "unlawful restraint required for  
               violation of section 243.4 is something more than the  
               exertion of physical effort required to commit the  
               prohibited sexual act."  (People v. Arnold (1992) 6  
               Cal.App.4th 19, 28, citing and quoting People v. Pahl  
               (1991) 226 Cal.App.3d 1651, 1661.) 



          This bill essentially treats the sexual exploiting of a patient  
          or client's vulnerability during an examination, treatment or  
          massage as being equivalent to non-consensual sexual touching of  
          a person who is unlawfully restrained.  The bill presents the  









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          issue of whether these two situations be punished in an  
          equivalent manner:


           Sexual Battery in Professional Services, other than by Fraud


              o     A person (a) is receiving a professional service;


              o     The professional service provider has access to the  
                person's body, such as during a  medical examination or   
                massage;


              o     The service provider touches an intimate part of the  
                person's body; and


              o     The touching was against the will of the person  
                (without consent).


           Sexual Battery of an Unlawfully Restrained Person


             o    A person is  being unlawfully restrained - stuck in  
               against a wall in a crowded subway car, ordered to remain  
               in her car by a person with apparent authority, severely  
               intoxicated;


             o     The perpetrator touches an intimate part of the  
               person's body;


             o    The touching was against the will of the person/victim.


          It can be argued that where a person is in the care of a  
          professional service provider, and the service provider has  
          relatively easy and open access to intimate parts of the  
          person's body, the person is in a vulnerable position equivalent  









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          to being unlawfully restrained.  A person receiving a massage or  
          a gynecological examination would have to get up from table, put  
          on clothes and leave if they want to get away from the service  
          provider.  However, not all forms of professional services place  
          clients or patients in equivalent vulnerable positions.  A  
          person who is unclothed in a closed massage room is in a more  
          vulnerable position than a person in a dentist chair in a  
          relatively open plan dental office with numerous other patients  
          in and dentists in close proximity.


          SHOULD THE NON-CONSENSUAL TOUCHING OF A PATIENT OR CLIENT DURING  
          THE PROVIDING OF PROFESSIONAL SERVICES BE TREATED AS EQUIVALENT  
          TO NON-CONSENSUAL TOUCHING OF AN UNLAWFULLY RESTRAINED PERSON? 


          3. Existing Law on Fraudulently Obtaining Consent for Sexual  
          Conduct


          Appellate courts have distinguished between "fraud in fact" and  
          "fraud in inducement."  Fraud in fact occurs where the defendant  
          essentially lies about the actual character of the sex act.  For  
          example, in a 1987 case a gynecologist told two patients that he  
          was examining them manually or with a medical device for  
          diagnostic purposes.  In each case, the patient was on the  
          examining table, feet in stirrups and covered by a drape.  She  
          could not see what the doctor was doing.  The doctor, after  
          apparently performing a partial exam using a speculum, placed  
          his penis in the patient's vagina.  Only after the penetration  
          had occurred did each victim understand what had happened.  The  
          appellate court found that the defendant had used fraud in fact  
          to accomplish the intercourse and that each victim had been  
          unconscious of the nature of the act.  (People v. Ogunmola  
          (1987) 193 Cal.App 3rd 274, 279.)


          In People v. Minkowski (1962) 202 Cal.App.2d 832 the defendant  
          was a doctor who treated the two young victims (16 and 19 years  
          old) for menstrual cramps.  He directed each patient to turn  
          away from him and bend over at the waist.  He then placed a cold  
          metal instrument in her vagina, but then inserted something that  
          was not cold.  In fact, the doctor had inserted his penis into  









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          their vaginas.  This occurred on numerous occasions.  The  
          defendant was convicted of numerous counts of rape.  The  
          convictions were proper because each patient could not have  
          consented to the Minkowski's insertion of his penis into her  
          vagina because she was not conscious of the nature of the  
          defendant's acts.


          In many, if not most, circumstances, fraud in the inducement is  
          not a crime.  Essentially, fraud in the inducement occurs where  
          one person lies to the other about why he or she should engage  
          in a sex act.  Nevertheless, the person who is persuaded to  
          engage in the act knows that he or she is engaging in a sex act.  
           For example, in one published case, a woman had intercourse  
          with a man because she lost in a game of chance.  The game was  
          fixed, but no crime was committed because she was fully aware of  
          the character of the sex acts and thus her consent was legally  
          valid.  (People v. Harris (1979) 93 Cal. App. 3rd 103, 114.)


          There are a number of statutory exceptions to the rule that  
          fraud in the inducement cannot support a criminal conviction.   
          One exception is the crime defined in Penal Code section 266c,  
          where the fraud in the inducement caused the victim to agree to  
          engage in a sex act with the defendant because the defendant  
          falsely induced her to be afraid.  Penal Code section 266c was  
          enacted in response to the reversal of the defendant's  
          conviction in Boro v. Superior Court (1985) 163 Cal.App.3d 1224,  
          1226.  In Boro, the defendant -- a purported doctor -- convinced  
          a patient that she must engage in sexual intercourse with a  
          "donor" who had been previously injected with a special serum.   
                                                         Contrary to the defendant's assertion, the patient's life was  
          not in danger and the so-called donor was the defendant.  Boro's  
          conviction for rape was overturned on appeal because the woman's  
          consent was obtained through fraudulent inducement, which did  
          not nullify ("vitiate") consent.  In response to the decision in  
          Boro, the Legislature amended the law, as described above,  
          effective in 1986.














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          In 2002, SB 1421 (Romero) <1> amended various sex crime statutes  
          to cover cases where a physician or other professional obtained  
          consent for intercourse or another sexual act through persuading  
          the victim that the intercourse or other act served a  
          professional purpose, although it did no such thing.  (See, Pen.  
          Code  261, subd. (a)(4)(D); 289 (d)(4), and other sex crime  
          statutes.)  These new crimes did not require proof that the  
          defendant obtained consent by fear.  In the incident that  
          prompted introduction of SB 1421 of 2002, an X-ray technician  
          digitally penetrated patients during the course of obtaining  
          X-ray images.  The technician informed the women that the  
          digital penetrations were necessary for the procedure, although  
          the facts of the case are not discussed in any analysis of the  
          bill.  


          In 2013, new forms of sex crimes by fraud were enacted by SB 59  
          (Evans) and AB 65 (Achadjian), Chapters 282 and 259  
          respectively.  The two bills covered circumstances where the  
          victim consented to engage in sexual acts with the defendant  
          because the victim incorrectly believed the other person to be  
          someone known to him or her.  In these cases, the prosecution  
          must prove that the defendant induced the victim's mistaken  
          belief or "by any artifice, pretense, or concealment practiced  
          by the accused, with intent to induce the belief."


          In one case addressed by the 2013 legislation, a woman was  
          asleep in her apartment bedroom when a man she believed was her  
          live-in boyfriend began having sex with her.  In fact, the  
          defendant had entered the apartment through a window and the  
          victim's boyfriend was in the living room.  In another case -  
          Morales - a woman had been to a party with some others.  She  
          went to bed when she got home.  Her boyfriend left, but her  
          brother's friend came into her room and engaged in intercourse  
          with her until she realized that the defendant was not her  
          boyfriend.  Prior to enactment of SB 59 and AB 65, the crime of  
          fraudulently obtained consent for a sex act through  
          impersonation only applied to cases where the victim was induced  
          to believe the perpetrator was her spouse.  

          ---------------------------


          <1> SB 1421 (Romero) Ch. 392, Stats. 2002








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           4.  People v. Stuedemann (2007) 156 Cal.App.4th 1 and People v.  
            Robinson (2014) 227 Cal. App.4th 387


          This bill appears, in large part, to address the reversal of  
          convictions and attendant issues in People v. Stuedemann (2007)  
          156 Cal.App. 4th 1, and People v. Robinson<2> (2014) 227 Cal.  
          App.4th 387.  


          Stuedemann


          In Stuedemann, the defendant, a massage therapist, was charged  
          with sexual penetration of an unconscious person and oral  
          copulation of an unconscious person.  In particular, the  
          prosecutor alleged that the victim was "unconscious of the  
          nature of the act" due to the perpetrator's fraud in fact.   
          (Pen. Code 288a, subd. (f)(3) and 289, subd. (d)(3).)


          Defendant Stuedemann met victim Griselda while he was giving  
          sample massages at a swap meet.  Griselda made an appointment  
          for a full massage at defendant's business.  The scheduled  
          one-hour massage had gone on for two hours before the conduct  
          forming the basis for the charges occurred.  The court in  
          Stuedemann described the facts:


               The massage began with Stuedemann instructing Griselda  
               to lie face down on a table.  He covered her with a  
               sheet and began massaging her back.  At one point,  
               ----------------------
          <2> Robinson has been accepted for review by the California  
          Supreme Court on an issue that is only marginally relevant to  
          this bill.  Robinson cannot be cited as authority for the  
          opinions and findings expressed in the case, although those  
          opinions and findings may be correct.  Robinson is described in  
          this analysis to illustrate the issues presented by the bill,  
          not as a statement or reflection of existing law.










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               Stuedemann moved her panties to one side to massage  
               her buttocks.  When he was finished massaging her  
               back, he instructed Griselda to lie on her back and,  
               when she was face up, he put a mask over her eyes  
               [ostensibly as part of aromatherapy].  While Griselda  
               was on her back, Stuedemann initially kept the sheet  
               in place to cover her while he massaged her.  However,  
               as the massage progressed, Stuedemann lowered the  
               sheet and, without saying anything, massaged her  
               breasts and nipples. She said nothing to him about it.  
                 He then lowered the sheet further and began  
               massaging her abdomen.  He pulled down her panties and  
               twice inserted his finger into her vagina.  He then  
               orally copulated her, at which point Griselda sat up  
               quickly and told him to stop.  Stuedemann stopped,  
               said "I'm sorry," and left the room.  He did not tell  
               her that he was going to digitally penetrate or orally  
               copulate her.  (Id., at pp. 4-5.) 

          The court rejected the fraud in fact theory and stated:  "There  
          is no evidence Griselda 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."  (Id., at p. 8.)   


          The court distinguished the Ogunmola case in which a doctor  
          raped patients who initially believed he was performing a  
          clinical examination, but actually inserted his penis into each  
          victim's vagina:


               Unlike Ogunmola ? there was no evidence Griselda  
               consented to anything resembling the [sexual] acts  
               undertaken by Stuedemann.  Although Griselda consented  
               to a massage, the result of which made her vulnerable  
               to Stuedemann's [sexual] acts? the evidence showed she  
               was fully aware of the nature of Stuedemann's [sexual]  
               acts ? and was capable of (and did) express her  









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               non-consent and resistance to the conduct.  ?  
               Stuedemann's 'conduct, reprehensible though it was,  
               did not [constitute criminal 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]. (Id., at p.  
               14.)  

          Robinson


          In Robinson, Lee Hoang Robinson induced two girls - sisters  
          Dianna and Christine - to come to his beauty salon after  
          business hours for free facials.  Two other charged incidents  
          involved adult women.  In one, Robinson promised to pay  
          37-year-old Trang T. $40 if she modeled for him while he  
          demonstrated a facial for students.  In the other, heoffered a  
          free facial to Odette M.


          After Dianna and Christine came to Robinson's spa, they took off  
          their tops and bras, but left their pants on, and put on robes.   
          Robinson applied a heavy cream on their faces as the girls lay  
          on massage tables in the same room.  Robinson then told them he  
          would give them a "European massage," but did not explain what  
          that was.  In succession, he massaged each girl's arms and  
          breasts and then unbuttoned her pants.  Dianna became  
          frightened, but said nothing to Robinson as he lowered her pants  
          several inches, slipped his hand beneath her underwear and  
          rubbed her vaginal area.  Christine put her hands on the button  
          of her pants when Robinson tried to unbutton them.  She relented  
          when Robinson told her this was simply part of a European  
          massage and that he did "this all the time for other girls."  He  
          lowered Christine's pants to mid-thigh, folded back her  
          underwear and rubbed her thighs near her vagina.  When Robinson  
          attempted to place his finger in her vagina, Christine pushed  
          his hand away and pulled up her underwear.  Robinson then  
          massaged Christine's arms, stomach and breasts.  (People v.  
          Robinson, supra, 227 Cal.App.4th 387, 390-392.)











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          Soon after Trang came to Robinson's salon, they were left alone.  
           He told her that the students had not yet arrived, but he was  
          going to start the facial.  Robinson put some lotion on Trang's  
          face, but quickly began massaging her arms, legs and feet with  
          oil. Trang objected to the massage, but Robinson opened her robe  
          and placed his hands on her breasts.  When Trang objected again,  
          Robinson told he to relax because it was standard procedure.  He  
          then began rubbing her breasts and tried to put his hands  
          beneath her underwear.  When she objected, Robinson turned her  
          over on her stomach and massaged her back and buttocks.  She  
          said nothing because she did not want him to become angry.  
          Robinson then reached between her legs, touched her clitoris and  
          digitally penetrated her vagina.  When Trang told Robinson that  
          she had to leave, Robinson began wiping her with a towel, and  
          then digitally penetrated her with his hand and finger.  She  
          then grabbed her clothes and ran to the police.  (Id., at pp.  
          392-393.)


          An incident involving 24-year-old Odette was very similar to the  
          incident involving Trang T. After putting some cream on Odette's  
          face, Robinson rubbed or squeezed her stomach, vaginal area and  
          breasts.  She protested each action. Robinson then wiped a towel  
          over her body as she told him to stop.  He left the room after  
          telling her to leave the cream on for 10 minutes.  She did so  
          because she was afraid.  When she left the salon a few minutes  
          later she angrily confronted Robinson in the parking lot.  She  
          reported the incident to the police a week thereafter.  (Id., at  
          pp. 393-394.)


          The court in Robinson upheld the convictions as to Dianna and  
          Christine for sexual battery by fraud, as based on an inducement  
          that the sexual touching was for a professional purpose.  The  
          court found that the girls had relied on Robinson's assurances  
          that his acts were a legitimate and normal part of a "European  
          massage."  The fact that neither girl objected until Robinson  
          put his finger in Christine's vagina showed that they believed  
          Robinson's conduct was legitimate.  Thus, the girls were unaware  
          that the touching did not serve a professional purpose. 


          The court reversed the sexual battery and digital penetration  









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          convictions as to Odette and Trang, however.  The objections  
          voiced by Trang and Odette clearly showed that they did not  
          believe that Robinson's rubbing of their breast and vaginal  
          areas, and the digital penetrations of Trang, served any  
          legitimate professional purpose.


          The reversal of the sexual battery by fraud as to victims Trang  
          and Odette does not mean that Robinson could not have been  
          convicted of sexual battery and sexual penetration by force had  
          he been charged with those offenses.  He was only charged with  
          crimes committed by fraud.  Once the trial began, jeopardy  
          attached and he could not be charged with other crimes in these  
          incidents.  


          However, had Robinson been charged with and convicted of sex  
          crimes committed by force, those convictions would almost  
          certainly have been upheld on appeal.  Both victims told  
          Robinson to stop his sexual touching.  Yet, he persisted.  That  
          certainly appears to establish that the acts were accomplished  
          without the consent - and against the will - of the victims.  
          There was clearly sufficient evidence to support convictions, as  
          convictions will be upheld against a claim of insufficient  
          evidence only if no reasonable jury could have convicted the  
          defendant upon the evidence at trial. 


          5. Prosecutions in Cases Similar to Stuedemann and Robinson if  
               This Bill is Enacted


          It is likely that many cases prosecuted under this bill would  
          turn on the interpretation by the jury of ambiguous conduct by  
          the parties during a professional service appointment, or an  
          ostensible professional appointment.  In such cases, the  
          defendant would have touched the alleged victim's body and then  
          went on to engage in some sort of sexual touching or conduct.   
          The essential issue will be whether or not the defendant  
          reasonably believed that the alleged victim was receptive to his  
          conduct and thus consented.  (People v. Mayberry (1975) 15  
          Cal.3d 143, 153-158; CALCRIM. 1000.)  In a case where the  
          defendant sought consent and the victim refused, a sex act would  









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          be prosecuted as forced rape or another sex crime. As a  
          practical matter, many cases will likely turn on whether jurors  
          would find that a person in the place of the alleged victim  
          would not expect the service provider to act as did the  
          defendant.  If so, jurors will likely convict.  If the jurors  
          find that the defendants acts would have been expected, jurors  
          are likely to acquit. 


          In Stuedemann, the victim did not express an objection when the  
          defendant twice digitally penetrated her vagina.  Rather, she  
          did not object until the defendant orally copulated her.  Had  
          she objected upon the first vaginal penetration, the second  
          penetration and the oral copulation would very likely have  
          produced convictions for forced sexual penetration and forced  
          oral copulation.  The same can be said about the Robinson  
          incidents involving Dianna and Christine.  A different jury  
          could well have found that the touching was not against their  
          wills - essentially finding that they consented through their  
          conduct.  


          6.  Issue of Whether or not the Rape Provisions in this Bill  
            Would Apply to Non-Professionals Who Offer a Professional  
            Service or Purport to Offer a Professional Service


          The sex crime provisions of this bill are defined in terms of  
          the defendant performing professional services that entail  
          having access to another person's body.  The bill does not  
          define a professional service.  That raises the following  
          question:  Must the service be a legitimate or recognized  
          professional service, or is a purported, but fraudulent,  
          professional service covered by the bill?  This issue could  
          determine the outcome in many cases.  For example, it appears  
          that the defendant in Stuedemann truly was a massage therapist.   
          He sexually touched and orally copulated the victim during what  
          was otherwise a legitimate or standard massage.  In contrast, it  
          appears that the defendant in Robinson employed a ruse in  
          claiming to perform a European massage, when he was actually  
          just touching and digitally penetrating the victims for sexual  
          gratification.










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          The court in Robinson held that the defendant need not be  
          qualified or certified to perform the service he or she offer,  
          just that the defendant claimed his actions served a  
          "professional purpose," as stated in the governing statute. <3>   
          The Robinson, court would affirm a conviction for sexual acts  
          committed during counterfeit services, if the victim believed  
          the defendant's claims.  The court found that "even though he  
          was not a medical professional, the jury could reasonably  
          conclude he had a purported 'professional purpose' for his  
          actions."  The court further explained: [T]he precise nature of  
          the perpetrator's employment is less important? that the  
          appearance of authority and of a legitimate purpose that allows  
          the perpetrator to [sexually exploit]the victim without the  
          victim's understanding of the true nature of the act.   (People  
          v. Robinson, supra, 227 Cal.App.4th at pp. 394-395; quoting and  
          citing People v. Bautista (2008) 163 CalApp.4th 762, citations  
          and internal quote marks omitted.)


          WITHIN THE MEANING OF THIS BILL, WHAT IS A PROFESSIONAL SERVICE?


          IF THE DEFENDANT CLAIMS TO OFFER A PROFESSIONAL SERVICE, BUT THE  
          SERVICE IS NOT LEGITIMATE OR RECOGNIZED, COULD THE DEFENDANT BE  
          CONVICTED UNDER THIS BILL?


          SHOULD THE BILL BE AMENDED TO SPECIFY THAT THE PROFESSIONAL  
          SERVICE NEED NOT BE LEGITIMATE OR RECOGNIZED, BUT THAT THE  
          VICTIM MUST REASONABLY RELY ON THE DEFENDANT'S ASSERTION THAT HE  
          OR SHE IS PERFORMING A TRUE PROFESSIONAL SERVICE?


                                          


                                      -- END -
                             ---------------------------


          <3> Robinson claimed on appeal that the Dianna and Christine  
          could not have reasonably believed that Robinson was actually  
          performing a true professional service.  








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