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AB-2199 Sexual offenses against minors: persons in a position of authority.(2015-2016)

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Amended  IN  Senate  August 01, 2016
Amended  IN  Senate  June 28, 2016
Amended  IN  Assembly  April 25, 2016
Amended  IN  Assembly  April 07, 2016
Amended  IN  Assembly  March 30, 2016

CALIFORNIA LEGISLATURE— 2015–2016 REGULAR SESSION

Assembly Bill
No. 2199

Introduced by Assembly Member Campos
(Coauthor: Assembly Member Lackey)

February 18, 2016

An act to amend Section 261.5 of, and to add Section 287 to, the Penal Code, relating to sexual offenses.


LEGISLATIVE COUNSEL'S DIGEST


AB 2199, as amended, Campos. Sexual offenses against minors: persons in a position of authority.
(1) Existing law provides various circumstances that constitute rape, which are punishable by imprisonment in the state prison for 3, 6, or 8 years, except as specified.
Existing law also prescribes circumstances that constitute unlawful sexual intercourse, some of which involve an adult perpetrator who engages in that unlawful intercourse with a minor, as specified. Unlawful sexual intercourse under those circumstances is punishable by imprisonment for 2, 3, or 4 years, and also may be subject to designated civil penalties or fines. Under existing law, any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to a specified provision of law for 2, 3, or 4 years.
This bill would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age and is convicted of a felony to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse. By changing the penalty for the commission of unlawful sexual intercourse under the above circumstances, the bill would impose a state-mandated local program.
(2) Existing law makes it a crime for a person to engage in specified acts of a sexual nature with a minor, including lewd and lascivious conduct when the victim is a child of 14 or 15 years of age and the person is at least 10 years older, and sodomy, oral copulation, or sexual penetration of a minor under 16 years of age when the person is 21 years of age or older.
This bill would impose an additional term of 2 years when a person who is convicted of a felony violation of the above crimes is a person who holds a position of authority, as defined, over the minor victim. By increasing the penalty for a crime, the bill would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 261.5 of the Penal Code is amended to read:

261.5.
 (a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under 18 years of age and an “adult” is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e) Notwithstanding any other provision of this section, a person who is guilty of a felony pursuant to subdivision (d) who holds a position of authority over the minor with whom he or she has engaged in an act of unlawful sexual intercourse, shall be punished by an additional term of imprisonment in a county jail for two years.
(1) For purposes of this subdivision, a person is in a “position of authority” if he or she, by reason of that position, is able to exercise undue influence over a minor. A “position of authority” includes, but is not limited to, a stepparent, foster parent, partner of the parent, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, or employer of one of those aforementioned persons.
(2) For purposes of this subdivision, “undue influence” includes, but is not limited to, the use of affection, intimidation, coercion, or deceit, the taking, withholding, or bestowing of a reward or benefit, or the promise or threat to take, withhold, or bestow a benefit or reward.
(f) (1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.

SEC. 2.

 Section 287 is added to the Penal Code, to read:

287.
 (a) A person who is guilty of a felony violation of paragraph (2) of subdivision (b) of Section 286, paragraph (1) of subdivision (c) of Section 288, paragraph (2) of subdivision (b) of Section 288a, or subdivision (i) of Section 289, and who holds a position of authority over the minor victim, shall be punished by an additional term of imprisonment for two years.
(b) For purposes of this section, a person is in a “position of authority” if he or she, by reason of that position, is able to exercise undue influence over a minor. A “position of authority” includes, but is not limited to, a stepparent, foster parent, partner of the parent, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employer, or employee of one of those aforementioned persons.
(c) For purposes of this section, “undue influence” includes, but is not limited to, the use of affection, intimidation, coercion, or deceit, the taking, withholding, or bestowing of a reward or benefit, or the promise or threat to take, withhold, or bestow a benefit or reward.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.