BILL ANALYSIS AB 187 Date of Hearing: April 13, 1993 Counsel: Judith M. Garvey ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bob Epple, Chair AB 187 (Solis) - As Amended February 22, 1993 ISSUE: SHOULD THE PROVISIONS OF THE CRIME OF SPOUSAL RAPE MIRROR THE PROVISIONS OF RAPE, WITH SPECIFIED EXCEPTIONS? DIGEST Under current law: 1) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under specified circumstances. Rape is a felony punishable by three, six, or eight years in state prison and a fine up to $10,000. (Penal Code section 261 and 264.) 2) Spousal rape consists of an act of sexual intercourse accomplished against the will of the spouse by means of force or fear of immediate and unlawful bodily injury on the spouse or another, or where the act is accomplished against the victim's will by threatening to retaliate in the future, as defined. Spousal rape is an alternate felony/misdemeanor, punishable by three, six or eight years in state prison and a fine up to $10,000 or by imprisonment in county jail up to one year and a fine up to $1,000. (Penal Code sections 262 and 264.) 3) With the exception of spousal rape, any person convicted of certain enumerated sex offenses, including rape, is required to register with the chief of police in the city in which the person is domiciled, or the sheriff of the county in which the person is domiciled if in an unincorporated area. Failure to register is a misdemeanor. (Penal Code section 290.) This bill: 1) Expands the crime of spousal rape to cover the same types of acts which constitute the commission of rape. 2) Provides that spousal rape is punishable in the state prison for three, six, or eight years and a fine up to $10,000 thereby eliminating the current possible misdemeanor penalty. 3) Provides that persons convicted of spousal rape by force or violence who are sentenced to state prison shall register as sex offenders. - continued - AB 187 Page 1 AB 187 4) Eliminates the duty to report spousal rape within 90 days, thereby treating spousal rape the same as rape for purposes of the statute of limitations. COMMENTS 1) Purpose. According to the author: California has two separate code sections for nonmarital rape and marital rape. Over the last twelve years, Penal Code section 261 has been amended many times to clarify consent and duress and Penal Code section 262 has been left intact. Currently, the two sections are very different, whereas, the actual experience of rape is at least as serious if not more severe for victims of marital rape. In fact, there are many types of marital rape that are not viewed as crimes: (a) When a victim is unable to consent due to a disability; (b) When the victim has been administered intoxicating or controlled substances; (c) When the victim has been threatened by future retaliation, or threatened to use the authority of a public official to arrest or deport the victim. It is my intent to ensure that marital rape be treated as seriously as nonmarital rape. 2) Definition. Under existing law, rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under specified circumstances. AB 187 defines spousal rape as an act of sexual intercourse with a spouse accomplished under the same list of specified circumstances. The list of circumstances are as follows: a) Where a person is incapable, because of a mental disorder or š developmental or physical disability, of giving legal consent; b) Where it is accomplished against a person's will by means of force, š 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 š anesthetic substance, or any controlled substance, administered by or with the knowledge of the accused. d) Where a person is at the time unconscious of the nature of the act, š and this is known to the accused. 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. - continued - AB 187 Page 2 AB 187 f) Where the act is accomplished against the victim's will by š 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. 3) Duty to Report Spousal Rape. Under existing law, spousal rape cannot be prosecuted unless the violation is reported to a peace officer having the power to arrest, or to the district attorney of the county in which the violation occurred, within 90 days after the day of the violation. This reporting requirement would be eliminated under this bill. The statute of limitations for prosecuting both rape and felony spousal rape is currently six years. (Penal Code section 800.) 4) Registration. Rapists are required to register as sex offenders š while spousal rapists are not. Under this bill, any person convicted of spousal rape involving the use of force or violence, and who was sentenced to state prison, would be required to register as a sex offender. This bill was amended to avoid a conflict with AB 191 (Umberg) currently pending in the Senate. 5) Misdemeanor Penalty Eliminated. This bill eliminates a provision š under current law, allowing spousal rape to be filed alternatively as a misdemeanor. Thus, all rape cases, including spousal rape, would be punishable by imprisonment in the state prison for three, six, or eight years and a fine up to $10,000. However, this bill would allow for felony probation in spousal rape cases, unlike cases of rape generally. According to the sponsor, "prosecutors felt this was necessary in order to secure the cooperation of many victims." 6) Incompetent Persons. While rape of an incompetent person who is š not one's spouse is against the law, is it appropriate to make it a felony to have sexual intercourse with a spouse who 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? Is this provision overbroad and problematic? How will this provision impact developmentally disabled persons who are married, persons on specified conservatorships living with spouses, persons with Alzheimer's disease, or other mental disorders or developmental or physical disabilities? 7) Oregon Statutes. According to Peter Sandrock, Jr., District Attorney for Benton County in Oregon, in 1977 Oregon repealed the section of its sex crime statutes that defined a woman as "a female person not married to the actor". Therefore the sex crime laws became silent about the woman's relationship to the defendant. Sex crimes against spouses have identical elements and penalties as similar crimes against nonspouses. - continued - AB 187 Page 3 AB 187 Oregon learned three lessons: a) Victims report very few cases of spousal rape. Benton County (pop. 70,000) has had fewer than six cases since 1977, an experience mirrored by other jurisdictions. b) Cases that are reported tend to be extremely violent in nature-- more violent than the majority of nonspousal rapes. c) There is no evidence the law has been abused. It is the seriousness of the reported cases, not the number, that justifies Oregon's Law. 8) Violent Felony. When rape 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, it is a violent felony. Should spousal rape committed under the same circumstances be designated a violent felony under Penal Code section 667.5(c)? Such a provision is included in SB 59 (McCorquodale). The primary implication of designating a crime as a violent felony is that it may, under certain circumstances, be used as a three-year enhancement for a prior conviction. In addition, the usual five- year and double-the-base-term limitations on enhancements do not apply to violent felonies. Also, they may sometimes be dismissed and refiled one additional time and restrictive bail and probation rules apply. 9) Bail. This bill would not treat spousal rape accomplished by force š or violence (enumerated under 262(a)(2)) the same as certain types of rape for purposes of bail and own recognizance release because spousal rape is not a violent felony under 667.5(c) or cross referenced under Penal Code section 292. Penal Code section 1270.1 provides that, before any person charged with a violent felony as defined in Penal Code section 667.5(c) is released on bail in an amount different from the countywide bail schedule (either higher or lower), a hearing must be held in open court on two day's notice to the prosecutor. The magistrate, if he or she deviates from the countywide bail schedule, must state the reasons therefore and "shall address the issue of threats made against the victim or witness." 10) Support. The American College of Obstetricians and Gynecologists "supports this legislation based first on fairness. The penalty for spousal rape should be the same as rape by strangers. Second, domestic violence is a major cause of medical services for women of reproductive age. Every 12 seconds in the United States a woman is a victim of violence, most often by a member of her family." - continued - AB 187 Page 4 AB 187 11) Related Legislation. Double-joining with the following bills to š avoid chaptering problem will be required: a) Section 667.5 (violent felony) o AB 6 (Burton). Among other things, AB 6 makes "carjacking" as defined a violent felony. AB 6 is pending in Ways and Means. o AB 31 (Connolly). AB 31 makes kidnapping a child under 14 a violent felony. AB 31 is pending in the Senate. o AB 41 (Peace). Among other provisions AB 41 make kidnapping with intent to commit a sex offense a violent felony. AB 41 is pending in the Senate. o AB 112 (Bronshvag). Among other provisions, AB 112 makes all forms of residential robbery wherein a dangerous or deadly weapon is used a violent felony. AB 112 is pending in the Senate. b) Section 290 (sex offender registration) o AB 191 (Umberg). This bill clarifies the list of registerable sex offenses. AB 191 is pending in the Senate. 12) Previous Legislation. AB 187 is identical to AB 2220 (Roybal- š Allard, Ch. 925/92) which did not become operative because it was joined to SB 25 (Lockyer). SB 25 was vetoed by Governor Wilson. 13) Opposition. a) The American Civil Liberties Union (ACLU). The ACLU opposes this bill because "it would prohibit sexual relations between persons who are married where one person is legally incompetent. It would apply for example, to persons who are married where one spouse is suffering from Alzheimer's disease and is lucid at times and other times is not. It would also impact developmentally disabled persons and others under certain conservatorships. AB 187 would make felons out of persons who have sexual relations with their spouses who may be suffering from one of the above. This result is not appropriate and we request that this provision be deleted from the bill." b) The California Public Defenders Association (CPDA). CPDA opposes this bill "because spousal rape should not be generalized in the same category as rape by a stranger or date rape. This bill would also make it mandatory for defendants convicted of spousal rape to register with the law enforcement department where they live. Unfortunately, this registration - continued - AB 187 Page 5 AB 187 would lead to a number of problems. First, if any rapes occurred in the vicinity, law enforcement would be entitled to contact this individual. CPDA believes that judges should be allowed discretion to view each case as unique, responding to the facts of that case and not what might be imagined in the Halls of the State Capitol. AB 187 would take away the judge's discretion with regard to the penalties associated with rape." c) The California Attorneys for Criminal Justice (CACJ). CACJ opposes this bill because "Penal Code section 262 already allows the same sentence for spousal rape as for the rape of a non-spouse in an appropriate case. What it also allows is the discretion to charge and punish an appropriate case as a misdemeanor. This is intended to recognize the fact that there is a difference between some cases of spousal rape, which generally occur in the domestic violence context, and rape by a stranger. Appropriate cases may, in a prosecutor's discretion, be charged as a misdemeanor. For example, a prosecutor might make this choice where a spouse will not cooperate in a prosecution and the case would otherwise have to be dismissed. Or, it might be appropriate where the spouse will not cooperate if it means her husband could be sent to state prison. We think that it it counterproductive to remove prosecutorial discretion in these kinds of cases." SOURCE: California Alliance Against Domestic Violence SUPPORT: Peace Officers Research Association of California (PORAC) Los Angeles District Attorney's Office California Peace Officers' Association California Police Chiefs' Association The American College of Obstetricians and Gynecologists, Dist. IX Commission on the Status of Women, State of California Hispanic American Police command Officers Association Laura X World Institute on Disability San Diego Domestic Violence Council Northern California Coalition for Battered Women and their Children Marin Abused Women's Services California Women's Law Center The Los Angeles City Attorney's Office Los Angeles Commission on Assaults Against Women City of West Hollywood North County Rape Crisis and Child Protection Center League of Women Prosecutors Tri-Valley Haven for Women YWCA of Sonoma County Coalition for Family Equity Los Angeles Women's Leadership Network AB 187 Page 6 AB 187 Junior League of California, State Public Affairs Committee Haven Women's Center Mountain View School District, Board of Education Vera Valdiviez, Vice Mayor of City of South El Monte Wayne Clayton, Chief of Police, City of El Monte Eugene Moses, City of Azusa Men Evolving Nonviolently Sandra Blair, Family Law Specialist Humboldt Women for Shelter 4 private citizens OPPOSITION: The American Civil Liberties Union California Attorneys for Criminal Justice California Public Defender Association AB 187 Page 7