BILL ANALYSIS
AB 3339
Page 1
Date of Hearing: April 23, 1996
Counsel: Martin Gonzalez
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Paula L. Boland, Chair
AB 3339 (Hoge) - As Amended: April 17, 1996
Majority vote.
SUMMARY: Provides that any person guilty of a third conviction of
a specified sex offense shall be punished by chemical castration,
in addition to any other punishment. The person shall be
chemically castrated one week prior to his or her release from
confinement.
FISCAL EFFECT: Unknown
EXISTING LAW:
1) Provides that a person who is convicted of a specified sex
offense under specified circumstances shall be punished by
imprisonment in the state prison for 15 years to life or 25
years to life depending upon the individual circumstances.
(Penal Code Section 667.61.)
2) Provides that any person convicted of a felony in which the
person inflicted great bodily injury or personally used force
which was likely to produce great bodily injury, who has
served two or more prior separate prison terms for specified
crimes, including, but not limited to, oral copulation by
force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person; sodomy
by force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person; lewd
acts on a child under the age of 14 years by use of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person; and a violation
of penetration by a foreign object (Section 289(a)) where the
act is accomplished 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; is a
habitual offender and shall be punished as follows:
a) A person who served two prior separate prison terms shall
be punished by imprisonment in the state prison for life
and shall not be eligible for release on parole for 20
years.
b) Any person convicted of a felony, as specified, who has
served three or more prior separate prison terms for the
crimes specified above, shall be punished by imprisonment
in the state prison for life without the possibility of
parole. (Penal Code Section 667.7.)
AB 3339
Page 2
3) Provides that a habitual sex offender is a person who has been
previously convicted of one or more specified sex offenses and
who is convicted in the present proceeding of one of several
enumerated offenses. Included among those offenses are Penal
Code Section 288(b), Section 289(a), or of
sodomy or oral copulation in violation of Section 286 or 288a
where it is committed by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person. A habitual sexual offender shall be punished by
imprisonment in the state prison for 25 years to life. (Penal
Code Section 667.71.)
4) Provides that a habitual child molester is a person who has
previously served at least one prison term for a violation of
Penal Code Section 286(c), Section 288(b), or Section 288a(c),
who, for the purpose of committing that sexual offense,
kidnaped the victim, who was under the age of 14 at the time
of the offense, in violation of Penal Code Section 207, and is
convicted in the present proceeding of the same offense
against at least two separate victims. A habitual child
molester shall be punished by 25 years in the state prison.
(Penal Code Section 667.72.)
5) The current punishment for a defendant convicted of any felony
after having previously been convicted of two or more violent
or serious felonies is life imprisonment with a possibility of
parole after serving a minimum of 25 years (less 20% possible
goodtime/worktime credit). (Penal Code Section 1170.)
6) Various enhancements are imposed on those who are convicted of
specified sex crimes. The enhancements range from 1 to 10
years. (See various provisions of the Penal Code.)
7) Provides that sodomy is sexual conduct consisting of contact
between the penis of one person and the anus of another
person. Any sexual penetration, however slight, is sufficient
to complete the crime of sodomy. (Penal Code Section 286(a).)
8) Provides that any person who participates in an act of sodomy
with another person who is under 18 years of age shall be
punished by imprisonment in the state prison, or in a county
jail for not more than one year. (Penal Code Section
286(b)(1).)
9) Provides that any person over the age of 21 years who
participates in an act of sodomy with another person who is
under 16 years of age shall be guilty of a felony. (Penal
Code Section 286(b)(2).)
10) Provides that any person who participates in an act of sodomy
with another person who is under 14 years of age and more than
10 years younger than he or she, or when the act is
accomplished 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
AB 3339
Page 3
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 shall be punished by
imprisonment in the state prison for three, six, or eight
years. (Penal Code Section 286(c).)
11) Provides that any person who, while voluntarily acting in
concert with another person, either personally or aiding and
abetting that other person, commits an act of sodomy when the
act is accomplished against the victim's will by means of
force or fear of immediate and unlawful bodily injury on the
victim or another person or 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 shall be
punished by imprisonment in the state prison for five, seven, or
nine years. (Penal Code Section 286(d).)
12) Provides that any person who willfully and lewdly commits any
lewd or lascivious act, including any of the acts constituting
other crimes upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the
intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child, is
guilty of a felony and shall be punished by imprisonment in
the state prison for three, six, or eight years. (Penal Code
Section 288(a).)
13) Provides that a person who commits the act described above by
use of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person, is
guilty of a felony and shall be punished by imprisonment in
the state prison for three, six, or eight years. (Penal Code
Section 288(b)(1).)
14) Provides that any person who commits an act described in
number thirteen above, with the intent to arouse the sexual
desires of that person, and the victim is a child of 14 or 15
years, and the defendant is at least 10 years older than the
child, is guilty of a public offense and shall be punished by
imprisonment in the state prison for one, two, or three years,
or by imprisonment in a county jail for not more than one
year. (Penal Code Section 288(c)(1).)
15) Provides that Oral copulation is the act of copulating the
mouth of one person with the sexual organ or anus of another
person. (Penal Code Section 288a(a).)
16) Provides that any person who participates in an act of oral
copulation with another person who is under 18 years of age
shall be punished by imprisonment in the state prison, or in a
county jail for a period of not more than one year. (Penal
Code Section 288a(b)(1).)
AB 3339
Page 4
17) Provides that any person over the age of 21 years who
participates in an act of oral copulation with another person
who is under 16 years of age is guilty of a felony. (Penal
Code Section 288a(b)(2).)
18) Provides that any person who participates in an act of oral
copulation with another person who is under 14 years of age
and more than 10 years younger than he or she, or when the act
is accomplished 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 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 shall be punished by
imprisonment in the state prison for three, six, or eight
years. (Penal Code Section 288a(c).)
19) Provides that any person who, while voluntarily acting in
concert with another person, either personally or by aiding
and abetting that other person, commits an act of oral
copulation when the act is accomplished against the victim's
will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, or 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, or where the victim is at the time 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 shall be punished by imprisonment in
the state prison for five, seven, or nine years. (Penal Code
Section 288a(d).)
20) Provides that every person who causes the penetration, however
slight, of the genital or anal openings of any person or
causes another person to so penetrate the defendant's or
another person's genital or anal openings for the purpose of
sexual arousal, gratification, or abuse by any foreign object,
substance, instrument, or device, or by any unknown object
when the act is accomplished 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 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, shall be punished by
imprisonment in the state prison for three, six, or eight
years. (Penal Code Section 289(a).)
21) Provides that any person who participates in an act of
penetration of the genital or anal openings with a foreign
object, instrument, or device, or by any unknown object of
another person who is under 14 years of age and who is more
than 10 years younger than he or she or causes another person
AB 3339
Page 5
who is under 14 years of age and who is more than 10 years
younger than the defendant to so penetrate the defendant's or
another person's genital or anal openings for the purpose of
sexual arousal, gratification, or abuse, shall be punished by
imprisonment in the state prison for three, six, or eight
years. (Penal Code Section 289(j).)
BACKGROUND:
1) According to the author, "Chemical castration has proved to be
the most effective treatment available to treat sex offenders,
a group that traditionally has a high recidivism rate. In
European countries that have utilized castration, recidivism
rates have dropped to as low as 2% from the otherwise high
50%. In the United States, about half of all sex offenders
are rearrested. The actual offense rate is probably higher
since sex crimes are often unreported by victims."
2) Eligibility. The provisions of this bill will only apply to
those persons who have three prior convictions of the
following crimes:
a) Penal Code Section 286(c);
b) Penal Code Section 288;
c) Penal Code Section 288a(b) and (c); or
d) Penal Code Section 289(j).
The author may want to make the following technical changes:
a) Include reference to Penal Code Section 286(d);
b) Specify Penal Code Section 288(b)(1) rather than Section
288;
c) Delete reference to Penal Code Section 288(d); and
d) Include reference to Penal Code Section 289(a).
The author may want to consider the number of conviction
necessary to make a person eligible under the provisions of
this bill. As noted above in the "Existing Law" section,
current sentencing schemes make it quite possible that very
few people would be candidates for chemical castration.
3) Chemical Castration: Depo-Provera. Depo-Provera is a
medroxyprogesterone acetate manufactured by the Upjohn
Company. The drug is similar to the progesterone hormones
produced by the body naturally. Although the drug is used as
a birth control agent in foreign countries, its only licensed
use in the United States is for the adjunctive therapy and
palliative treatment of certain inoperable, recurrent and
metastatic uterine and kidney cancers. (Physicians Desk
Reference, page 1765, 34th Edition, 1980.)
AB 3339
Page 6
When administered to males, Depo-Provera lowers the level of
testosterone, reduces the sex drive, and in most instances
cause temporary impotence.
Should the "chemical" to be used be specified?
4) Cruel and Unusual Punishment. The Federal Eighth Amendment
prohibits the infliction of "cruel and unusual punishments."
The California Constitution includes two provisions that
specifically address cruel and unusual punishment. Article I,
Section 17 provides, "Cruel and unusual punishment may not be
inflicted or excessive fines imposed."
The present California approach, and the analytical method to
be used in its application, were decided in In re Lynch (1972)
8 C.3d 410. In Lynch, the court held that "a punishment may
violate [Article I, Section 17] of the Constitution if,
although not cruel or unusual in its method, it is so
disproportionate to the crime for which it is inflicted that
it shocks the conscience and offends fundamental notions of
human dignity." (Supra, page 424.)
Certain guidelines are appropriate in measuring the
relationship between the crime and the punishment. A
three-prong approach developed in Lynch is as follows: The
first is the nature of the offense and/or the offender, with
particular regard to the degree of danger both present to
society. Second is a comparison of the challenged penalty
with the punishments prescribed in the same jurisdiction for
different offenses which are more serious. Third is a
comparison of the challenged penalty with punishments
prescribed for the same offense in other jurisdictions with
similar constitutional restraints.
According to Lynch, "A defendant has a considerable burden to
overcome when he challenges a penalty as cruel or unusual.
The doctrine of separation of powers is firmly entrenched in
the law of California and the court should not lightly
encroach on matters which are uniquely in the domain of the
Legislature." ( People. v. Bestelmeyer (1985) 166 Cal.App.3d
520,529.)
The provisions of this bill may or may not be adjudged "cruel
and unusual punishment" by a court. However, it is the domain
of the Legislature to
craft laws that punish criminal behavior.
5) Prior Legislation. AB 189 (Collins), of the 1993-1994
Legislative session, provided for the chemical castration of
repeat rapist. AB 189 was assigned to the Committee on Public
Safety, but was never heard.
ARGUMENTS IN SUPPORT: None on file
ARGUMENTS IN OPPOSITION: None on file
AB 3339
Page 7
REGISTERED SUPPORT/OPPOSITION:
Support
None on file
Opposition
None on file
Analysis prepared by: Martin Gonzalez / apubs / 445-3268