BILL ANALYSIS SB 59 Date of Hearing: June 21, 1994 Counsel: Judith M. Garvey ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bob Epple, Chair SB 59 (McCorquodale) - As Amended: June 13, 1994 ISSUE: SHOULD SPOUSAL RAPE BE ADDED TO SECTIONS OF LAW WHERE RAPE IS ALREADY INCLUDED? DIGEST 1) PROBATION. Under current law, among other things, probation shall not be granted to, nor shall the sentence be suspended for, any person convicted of specified violent offenses under specified circumstances. (Penal Code sections 1203.075 and 1203.09.) This bill adds the offense of spousal rape, as specified, to the š list of specified violent offenses to which the above restriction applies. 2) DEFINITIONS. Under current law, "consent" is defined for the purpose of prosecuting designated sex offenses where consent is at issue and provides that a current or previous dating relationship is not sufficient to constitute consent where consent is at issue in those prosecutions. (Penal Code section 261.6.) This bill adds the offense of spousal rape, as defined, to the list of designated sex offenses for this purpose and provides that a current or previous marital relationship is not sufficient to constitute consent where consent is at issue. Under current law, the term "violent felony" is defined for the purpose of enhancing the prison terms for new offenses because of prior prison terms. (Penal Code section 667.5.) This bill adds the offense of spousal rape where it is accomplished š 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 or where it 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 to the list of felonies constituting a violent - continued - SB 59 Page 1 SB 59 felony for this purpose. 3) FELONY SEX OFFENSES. Under current law, it is a felony to voluntarily act in concert with another person, by force or violence and against the will of the victim, and commit specified sex offenses, either personally or by aiding and abetting the other person, punishable by five, seven or nine years in the state prison. (Penal Code section 264.1.) This bill adds the offense of spousal rape, as defined, to the list š of specified sex offenses for the purposes of this provision. Under current law, it is an alternate felony/misdemeanor for any person to induce another person, other than the spouse of the perpetrator, to engage in various sexual activities, including sexual intercourse, when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, under specified circumstances, punishable by two, three or four years in state prison or up to one year in the county jail. (Penal Code section 266c.) This bill deletes the exception with respect to the spouse of the š perpetrator. 4) MISDEMEANOR OFFENSES. Under current law, it is a misdemeanor, to among other things, maliciously publish the location of any domestic violence shelter, as a confidential location which provides emergency housing on a 24-hour basis for victims of sexual assault and spousal abuse. (Penal Code section 273.7.) This bill adds spousal rape to the list of specified offenses š included within sexual assault and spousal abuse. 5) BAIL. Under current law, a person shall be released on bail except with respect to, among other things, felony offenses involving acts of violence, as specified. Specified sexual offenses are deemed to be offenses involving acts of violence for these purposes. (Penal Code section 292.) This bill includes the offense of spousal rape as an offense deemed š to be an offense involving acts of violence for the above-specified purposes. 6) ENHANCEMENTS. Under current law, a one-year to 10-year enhancement exists for - continued - SB 59 Page 2 SB 59 persons convicted of specified sexual or violent offenses under specified circumstances. (Penal Code section 667.6.) This bill includes the offense of spousal rape in the enumerated list of sex offenses in which the above enhancements may be imposed. Under current law, the number of enhancements that may be imposed for any violation of specified violent sex offenses shall not be limited. (Penal Code section 1170.1(i).) This bill adds the offense of spousal rape, as specified, to the š list of specified sex offenses for the purposes of this provision. Under current law, any person who inflicts great bodily injury on any victim of a specified sexual offense, shall receive a five year enhancement for each such violation in addition to the sentence provided for the felony conviction. (Penal Code section 12022.8.) This bill adds spousal rape, as to the list of enumerated felony sex offenses to which this provision applies. 7) SENTENCING CALCULATION. Under current law, the aggregate term of imprisonment that may be imposed when a person is convicted of 2 or more felonies and a consecutive term of imprisonment is imposed, as specified, shall be the sum of the principal term, the subordinate term, and any additional term imposed, as specified. Existing law provides that in lieu of the term imposed pursuant to the above-stated restriction, a full, separate, and consecutive term may, and in some instances shall, be imposed for each violation of enumerated sex offenses, as specified. In those instances, the terms shall be served consecutively to any other term of imprisonment, and other terms shall commence from the time the person would otherwise have been released from imprisonment. (Penal Code section 1170.1.) This bill includes the offense of spousal rape in the enumerated list of sex offenses in which a full, separate, and consecutive term may, or in some instances, shall be imposed. 8) CRIMINAL PROCEDURE. Under current law, all criminal actions in which any person is a victim of an alleged violation of specified sexual offenses committed by the use of force, violence, or threat of violence, shall be given precedence in the order of trial. (Penal Code section 1048.) This bill adds spousal rape to the list of specified sex offenses š for the purposes of this provision. - continued - SB 59 Page 3 SB 59 9) JURY INSTRUCTION. Under current law, the use of the term "unchaste character" by any court in any instruction to the jury in any criminal case in which the defendant is charged with rape or statutory rape is prohibited. (Penal Code section 1127e.) This bill adds spousal rape to the list of specified sex offenses š for the purposes of this provision. 10) PLEA. Under current law, upon a plea of guilty or no contest to a felony charge, other than specified violent sex offenses, the plea may specify the punishment to the same extent as it may be specified by the jury or fixed by the court, as specified. (Penal Code section 1192.5.) This bill adds the offense of spousal rape, as specified, to the š list of specified violent sex offenses excepted from this provision. 11) OUTPATIENT STATUS. Under current law, outpatient status shall not be granted to any person found not guilty by reason of insanity of specified violent offenses including, among others, murder, until that person has actually been confined for 180 days or more. (Penal Code section 1601.) This bill adds spousal rape, as specified, to the list of specified š violent felonies for purposes of this provision. 12) CREDITS. Under current law, any person convicted of a specified felony š offense including, among others, murder or voluntary manslaughter, and who has been previously convicted 2 or more times and served 2 or more prior prison terms, as specified, is ineligible to earn credit on his or her term of imprisonment. (Penal Code section 2933.5.) This bill adds spousal rape, as specified, to the enumerated list of š felony offenses to which this provision applies. Under current law, any confinement imposed pursuant to a revocation š of parole shall not exceed 12 months in the absence of a conviction and commitment pursuant to other provisions of law. Any revocation period of confinement may be reduced by worktime credits, as specified, except specified parolees shall not be eligible for credit. (Penal Code section 3057.) - continued - SB 59 Page 4 SB 59 This bill provides that parolees whose parole was revoked for š conduct that could be prosecuted as spousal rape, as specified, shall not be eligible for credit pursuant to this provision. COMMENTS 1) Purpose. According to the author: SB 59 intends to eliminate the remaining spousal exemptions for sexual assault crimes by adding spousal rape to sections of law where rape is already included. Without this bill, we perpetuate the archaic view that sexual assault of a spouse is not real sexual assault. 2) Foreign Object Rape. An issue arises because of the nature of the changes made by this bill to the application of various statutes as they pertain to foreign object rape. At the time of its enactment in 1979, foreign object rape could only be done by forcible means. Subdivision (a) of Section 289 of the Penal Code refers to foreign object rape 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 or where the act is accomplished by threatening to retaliate in the future. Subsequent legislation expanded the crime to include: subdivision (b) (victim is incapable because of a mental disorder or developmental or physical disability of giving legal consent); subdivision (c) (victim is incapable and confined for care and treatment); and, subdivision (d) (victim is unconscious). Only forcible sex offenses are on the Penal Code section 667.6 and other lists. It has been committee policy that wherever forcible sex offenses are mentioned and Section 289 is mentioned as well, to limit the conduct only to Section 289(a), the subdivision pertaining to forcible foreign object rape. In People v. Kirk 217 Cal.App.3d 1488, the Court of Appeal held that Section 667.6 referred only to Section 289(a). Kirk was premised on it being an absurdity (and a probable constitutional problem) associated with making all forms of foreign object rape potentially a 667.6 crime when every other crime then on the list was done by coercive means. The Supreme Court concurred with this view in In re Jovan B. (1993) 6 Cal.4th 801, 817 footnote 10. As such, it is possible that by changing the nature of various statutes to cover arguably non forcible forms of spousal rape, this will have the effect of indicating legislative intent to overrule Kirk and Jovan as to non forcible foreign object rape where only foreign object rape (in its original forcible form) was originally mentioned. - continued - SB 59 Page 5 SB 59 Similar concerns about the effect of re-amendment of existing statutes lead to prior committee actions to require a reference only to forcible foreign object rape where only forcible crimes are mentioned. The author's staff states the author does not want to address the foreign object rape issue as he regards it as not being germane to this bill. However, it may well be given the effect on an indication of legislative intent. In such circumstances, the following two options exist for the Committee: a) Option 1 Insert the following references to subdivision (a) of Section 289 in Penal Code Sections 667.6, 12022.8 and other sections in the bill where this issue arises. b) Option 2 State that the bill does not overrule Kirk and Jovan in so far as those decisions held that only conduct referred in Section 289(a) is covered under the terms of Section 667.6 and 12022.8 and the other sections in the bill. 3) Section 667.8 issue. Earlier this year, this committee approved AB 19X (Valerie Brown). AB 19X increased the enhancement for kidnap-sex offense from 3 to 5 years and 9 to 15 years. In addition, AB 19X also codified various case law as to the imposition of this enhancement. Specifically, Section 667.8(c) was added to provide: a) Only one enhancement shall be imposed for a victim per incident. b) If there are two or more victims, than an enhancement can be imposed for each victim. c) The enhancement may be in addition to either but not both of the following: a kidnaping violation; or a violation of the sexual offense(s) enumerated in Section 667.8. Similar language was inserted in SB 1281 (Kelley) as a condition of that bill clearing the Senate Judiciary Committee. The failure to address this issue creates a further conflict with AB 18X (Johnson) on the Assembly floor. Should not the 667.8(c) amendments be moved as committee amendments? The author's staff would like SB 59 to remain single focused (spousal rape) rather than amending in kidnaping language or language from the Kirk decision. 4) Double joining issues. There are major chaptering issues with this bill by virtue of the number of sections amended with a number of bills approved by this committee. These conflicts are with the following bills, among others: AB 2654 (Connolly) (additions to violent felony list), AB 3191 (Murray)(enhancement cross referencing - habitual child molesters), and SB 1436 (Peace) (kidnap-carjack life offense cross - continued - SB 59 Page 6 SB 59 reference cleanup). A joining issue was eliminated as to AB 779 (Burton-Costa) by virtue of major amendments to that bill in the Senate Judiciary Committee. The author's staff has agreed to double-join with other bills when the time is appropriate. 5) Support. a) WEAVE. WEAVE supports this bill because "through our work with battered women, we hear countless accounts of spousal rape and other forced sexual acts. We know the devastating effect of sexual assault on the victims and know that, regardless of who their perpetrators are, strangers, acquaintances or husbands, their lives are forever changed by the rape. It is only just that we eliminate the long-standing double standard that minimizes spousal rape in comparison to other forms or rape." b) The Commission on the Status of Women. The Commission supports this bill. "The primary purpose of this measure is to align the offense of spousal rape more closely with other sexual assault offenses. Diana Russell estimates in her study of "Rape in Marriage", that one in seven women who have ever been married have been raped by their husbands or ex-husbands. In one-third of these relationships, the rape was repeated 2 to 20 times; and in another third, the wives were raped over twenty times. The Commission believes that the impact of spousal rape is just as devastating as any other rape, if not more so because it violates a relationship that is based on trust between the parties involved." c) State Bar Criminal Law Section. The Criminal Law Executive Committee recommends this bill be supported because "we as a society, are now recognizing the impact of domestic violence. The price paid by individuals who come from homes where violence is prevalent can be enormous. The price paid by society may be greater in that it is now recognized that people who commit violent crimes against others are more likely than not to come from families where violence was a component. The time has come to recognize that committing violent crimes of a sexual nature against one's spouse is part and parcel of the domestic violence which is attacking the family foundation of America. Victims of sexual assault deserve the projections of the law, whether that person is the spouse of the perpetrator or not. All perpetrators of violent crimes of a sexual nature, deserve punishment and the marriage license should not be a shield against the reaches of law." SOURCE: California Alliance Against Domestic Violence SUPPORT: Commission on the Status of Women The Doris Tate Crime Victims Bureau The California State Coalition of Rape Crisis Centers Women Lawyers Association of Los Angeles Los Angeles Commission on Assaults Against Women - continued - SB 59 Page 7 SB 59 Center Against Sexual Assault, Hemet Interval House Shelters Rape Crisis Center, San Luis Obispo County YWCA of Fresno North County Counseling Associates California Peace Officers' Association California Police Chiefs' Association Los Angeles District Attorney's Office Peace Officers Research Association of California El Dorado Women's Center State Bar of California, Criminal Law Section Placer Women's Center, Inc. Human Response Network WEAVE Sexual Assault and Domestic Violence Center Les Weidman, Sheriff-Coroner of Stanislaus County Family Services of Tulare County Valley Psychotherapy & Counseling Center Family Violence Law Center Marsena Buck, Director, Dept. of Social Services, Modesto The Trauma Foundation California NOW Men Evolving Nonviolently California Correctional Peace Officers Association California Alliance Against Domestic Violence Laura X, National Clearinghouse for Marital and Date Rape George Kennedy, District Attorney, Santa Clara County Legal Aid Society of Santa Clara County Stanislaus Medical Center Lt. Keneller, Cmdr., Sexual Assaults Unit, San Jose Haven Women's Center Central California Coalition on Domestic Violence Queen's Bench McHenry Medical Group, Inc. Lynne Yates-Carter, Esq. Elizabeth Hess, LCSW Santa Clara Victim Witness Assistance Center Mildred Daley Pagelow, Ph.D. Family Specialist Bethlehem House Project, Inc. Hon. Jeremy Fogel, Judge of the Superior Court, Santa Clara Next Door, Solutions to Domestic Violence Northern California Coalition for Battered Women & their Children Rebecca Toporek, Acting Assoc. Dean, Counseling, De Anza College A Safe Place Marin Abused Women's Services Lt. Don Stefani, City of Campbell Police Department Shelter Against Violent Environments 7 private citizens OPPOSITION: None on File - continued - SB 59 Page 8