BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 860 (Daly) - Sex crimes:  professional services
          
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          |Version: June 2, 2015           |Policy Vote: PUB. S. 7 - 0      |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date: June 29, 2015     |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File. 

          

          Bill Summary:  AB 860 would do the following: 
           Increase the penalty to an alternate felony-misdemeanor for  
            the crime of sexual battery involving a person who performs  
            professional services that entail having access to another  
            person's body, who touches an intimate part of that person  
            while performing those services, and the touching is against  
            the will of the person touched and for the specific purpose of  
            sexual arousal, sexual gratification, or sexual abuse.
           Expand the definitions of the crimes of rape, sodomy, oral  
            copulation, and sexual penetration to include when any of  
            those acts are performed against a victim's will by a person  
            while that person is performing professional services that  
            entail having access to the victim's body.


          Fiscal  
          Impact:  
           Future increase in state costs, potentially in excess of  
            $200,000 (General Fund) per year for new commitments to state  
            prison for felony convictions for sexual battery. The impact  







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            to state prison costs related to the changes to the  
            definitions of other sex crimes is estimated to be minor.
           Potential increase in non-reimbursable local incarceration  
            costs (General Fund*) for additional cases charged under the  
            wobbler vs. misdemeanor offense of sexual battery, resulting  
            in extended jail terms.

          *Proposition 30 (2012) provides that legislation enacted after  
          September 30, 2012, that has an overall effect of increasing the  
          costs already borne by a local agency for public safety  
          services, as defined, are not subject to mandate reimbursement,  
          however, apply to local agencies only to the extent the State  
          provides annual funding for the cost increase. Legislation  
          creating a new crime or changing the definition of an existing  
          crime is exempt from this funding provision, however,  
          legislation changing the penalty for a crime is not similarly  
          exempted. To the extent it is determined that the provisions of  
          this bill change the penalty for the crime of sexual battery  
          under specified conditions, any net increase in costs to local  
          agencies attributable to provisions of this legislation could  
          potentially require annual funding from the State.


          Background:  Existing law provides that a person is guilty of sexual  
          battery 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. Additionally,  
          existing law provides that a 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. Under existing law, the aforementioned crimes  
          are punishable as alternate felony-misdemeanors, punishable by  
          imprisonment in a county jail for up to one year and by a fine  
          of up to $2,000, or by imprisonment in state prison for two,  
          three, or four years, and a fine of up to $10,000. (Penal Code  
          (PC)  243.4(c).)
          In contrast, under existing law, any person who touches an  
          intimate part of another person, if the touching is against the  
          will of the person touched, and is for the specific purpose of  
          sexual arousal, sexual gratification, or sexual abuse, is guilty  








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          of misdemeanor sexual battery, punishable by a fine not  
          exceeding $2,000, or by imprisonment in a county jail not  
          exceeding six months, or by both that fine and imprisonment. (PC  
           243.4(e).)


          As explained in the Senate Committee on Public Safety analysis  
          of this bill:


          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?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.  


          Proposed Law:  This bill:
           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 that  
            person while performing those services, and the touching is  
            against the will of the person touched and for the specific  
            purpose of sexual arousal, sexual gratification, or sexual  
            abuse.
           Expands the definitions of the crimes of rape, sodomy, oral  
            copulation, and sexual penetration to include when any of  
            those acts are performed against a victim's will by a person  
            while that person is performing professional services that  
            entail having access to the victim's body. 


          Related  
          Legislation:  None applicable.










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          Staff  
          Comments:  By expanding the circumstances under which a  
          defendant would be in violation of the alternate  
          felony-misdemeanor offense of sexual battery, this bill will  
          potentially result in new commitments to state prison and an  
          increase in annual General Fund costs. The magnitude of costs  
          would be dependent on various factors including the charging  
          decisions of prosecutors, the details of each case, and the  
          prison term imposed on each defendant. While the number of  
          defendants to be impacted is unknown, to the extent even two  
          cases per year are impacted statewide, cumulative costs for new  
          commitments to state prison could exceed $200,000 annually. This  
          estimate is based on an in-state contract bed cost of $34,000  
          per year.  
          While data from the CDCR indicate that only 40 individuals per  
          year have been committed to state prison on average over the  
          past three years (2012-2014) for felony sexual battery, arrest  
          and conviction data from the Department of Justice (DOJ)  
          indicate nearly 1,000 arrests and 175 convictions per year for  
          misdemeanor sexual battery (PC  243.4(e)). While it is unknown  
          how many additional individuals will be charged with a felony as  
          provided under the provisions of this bill instead of the  
          existing misdemeanor sexual battery offense, future costs could  
          potentially be significant. 

          Similarly, local jails could potentially incur increases in  
          costs for lengthier jail terms under the provisions of this  
          measure. Commitments to county jail that otherwise would have  
          been subject to a misdemeanor jail term of up to six months  
          could instead be charged under the wobbler offense which is  
          punishable by up to one year in jail.

          Under 2011 Realignment Legislation, the state provided funding  
          to the counties to place offenders in county jail for specified  
          felonies that previously would have required a state prison  
          sentence. Pursuant to Proposition 30 (2012), legislation enacted  
          after September 30, 2012, that has an overall effect of  
          increasing the costs already borne by a local agency for  
          programs or levels of service mandated by the 2011 Realignment  
          Legislation apply to local agencies only to the extent that the  
          state provides annual funding for the cost increase. Proposition  
          30 specifies that legislation defining a new crime or changing  
          the definition of an existing crime is not subject to this  
          provision, however, legislation changing the penalty for a crime  








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          is not similarly exempted. To the extent it is determined that  
          the provisions of this bill change the penalty for the specified  
          crime of sexual battery under specified circumstances from a  
          misdemeanor to a wobbler, any net increase in costs to local  
          jails could potentially require annual funding from the State  
          (General Fund).

          The Three-Judge Court has ordered the State to reduce its prison  
          population to 137.5 percent of the prison system's design  
          capacity by February 28, 2016. Pursuant to its February 10, 2014  
          order, the Court has ordered the CDCR to implement several  
          population reduction measures, prohibited an increase in the  
          population of inmates housed in out-of-state facilities, and  
          indicated the Court will maintain jurisdiction over the State  
          for as long as necessary to ensure the State's compliance with  
          the 137.5 percent final benchmark is durable, and that such  
          durability is firmly established. Any future increases to the  
          State's prison population challenge the ability of the State to  
          reach and maintain such a "durable solution," and could require  
          the State to pursue one of several options, including  
          contracting-out for additional bed space or releasing current  
          inmates early onto parole.



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