BILL ANALYSIS ABX1 114 Date of Hearing: April 5, 1994 Counsel: Judith M. Garvey ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bob Epple, Chair ABX1 114 (Epple) - As Proposed to be Amended in Committee ISSUE: SHOULD THE NEW SEXUAL ASSAULT CRIME CREATED FOR INSTANCES WHERE THE OBJECT OF PENETRATION CANNOT BE DETERMINED BE MERGED WITHIN THE FOREIGN OBJECT RAPE STATUTE? DIGEST Under current law: 1) Various statutes prohibit the nonconsensual penetration of the genital or anal openings with a penis or any foreign object. In order for there to be sufficient evidence to sustain a conviction for one of these crimes, there must be some evidence regarding whether the penetrating object was a penis or a foreign object. (Penal Code section 289.) 2) It is a felony if the genital or anal openings are nonconsensually penetrated and it cannot be established whether the penetration was by a penis or foreign object, substance, instrument or device, generally punishable by three, six or eight years in state prison and a fine up to $10,000. (Penal Code section 289.5.) This bill: 1) Includes rape by an unknown object within the foreign object rape šstatute. 2) Contains a savings clause, as specified. COMMENTS 1) Purpose. According to the author: This bill simplifies prosecutorial charging decisions in situations in which the rapist probably used an object, and would also bring needed conformity into the law by allowing the same enhancements to apply to prosecutions in which the victim was uncertain as to whether the perpetrator used his penis or a foreign object. This bill accomplishes this by repealing section 289.5 and incorporates its concept into section 289. It would include rape by an unknown object within the prohibitions of section 289 (object rape). - continued - ABX1 114 Page 1 ABX1 114 2) Background - Penal Code Section 289. In 1978, the Legislature enacted section 289 to the Penal Code. This section supplemented the rape š statutes, and provided for the same penalty when the rape was perpetrated by a foreign object. A problem arose, however, when the victim was unsure whether the perpetrator used his penis or some foreign object. This issue arose on appeal. In an unpublished opinion issued in 1990, the Third District Court of Appeal stated: " I!f the evidence is such that penetration of the anus is š established, but there is no evidence as to whether the penetration is by a penis or a finger, there is insufficient evidence to convict... of either sodomy or foreign object rape.! We find it š inconceivable the Legislature intended a defendant to escape... punishment where he has committed one of the two crimes but the evidence simply does not identify the penetrating object. However, ...that is the result we must reach." (People v. Keim, N. C002898.) 3) Background - Penal Code Section 289.5. In response to this, the š Legislature in 1991 enacted section 289.5, to apply when "it cannot be established" whether the perpetrator used his penis or some foreign object. This clarification was the result of AB 418 (Hunter, Ch. 293/91). Prosecutions under sections 289 (object rape) are subject to numerous enhancements. The Senate Judiciary analysis lists the Attorney General in support of AB 418. The offense created by AB 418 was not properly cross-referenced to existing enhancements. Enhancements, to name a few, include where kidnaping was involved (Penal Code section 667.8(a), where the defendant used a firearm or deadly weapon (Penal Code section 12022.3(a), where the defendant was armed with a firearm or deadly weapon (Penal Code section 12022.3(b), where the defendant inflicted great bodily injury on the victim (Penal Code section 12022.8), as well as other enhancements. However, none of these enhancements were amended so as to apply to a prosecution under section 289.5. This results in a great disparity of treatment between prosecutions under section 289 and 289.5, which disparity is not justified by any difference in the conduct involved. 4) Legislative Intent. This bill declares that it is the intent of the š Legislature by this amendment to section 289 and this repeal of section 289.5 to describe the offense now included in section 289.5 as being an offense within section 289. It is not the intent of the Legislature to remove the criminal sanction for the behavior now described in section 289.5, or to affect any judgment of conviction based upon that section. The California District Attorney Association believes this savings clause is essential in the event that there was a prosecution under section 289.5. Otherwise, prosecuting attorneys would face the argument on appeal that the conduct is no longer criminal, and - continued - ABX1 114 Page 2 ABX1 114 therefore the conviction cannot stand. 5) Cross-References. Penal Code section 289.5 is cross-referenced in š only two sections within the Penal Code: 863 and 11160. Section 289 is cross-referenced in both of those sections. Therefore, there are no cross-reference omissions by repealing Penal Code section 289.5. SOURCE: The California District Attorney Association SUPPORT: None on File OPPOSITION: None on File - continued - ABX1 114 Page 3