Bill Text

Bill Information

PDF |Add To My Favorites |Track Bill | print page

AB-1033 Rape: condoms.(2017-2018)

SHARE THIS:share this bill in Facebookshare this bill in Twitter
Date Published: 05/18/2017 09:00 PM
AB1033:v97#DOCUMENT

Amended  IN  Senate  May 18, 2017
Amended  IN  Assembly  March 22, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1033


Introduced by Assembly Member Cristina Garcia

February 16, 2017


An act to amend Sections 19911, 19921, and 19941 of the Business and Professions Code, relating to gaming. 261 and 262 of the Penal Code, relating to rape.


LEGISLATIVE COUNSEL'S DIGEST


AB 1033, as amended, Cristina Garcia. Gambling Control Act: persons under 21 years of age. Rape: condoms.
Existing law establishes the offenses of rape and spousal rape, defined as an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator or who is the spouse of the perpetrator, respectively, under certain circumstances, including where the act 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.
This bill would identify additional circumstances under which rape and spousal rape are accomplished, including when the person using a condom intentionally and without consent removes the condom during the act, when the person using the condom intentionally and without consent tampers with the condom and that condom is used during the act, or when the person intentionally and without consent uses a condom during the act that the person knows has been tampered with.
By changing the definition of existing crimes, this bill would impose a state-mandated local program.
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.

The Gambling Control Act generally provides for the licensure and regulation of certain individuals and establishments involved in various gambling activities by the California Gambling Control Commission and the Department of Justice. The act prohibits a person under 21 years of age from being eligible for a work permit in a gambling establishment or from entering the premises of a gambling establishment, except as provided. The act makes it a crime for a person under 21 years of age to, among other things, be an employee of a licensed gambling establishment where gambling activity or activity directly associated with gambling takes place.

This bill would permit a person between 18 and 21 years of age to work in a gambling establishment in job classifications that entails providing services on and off the gaming floor that are not involved in play of any controlled game, as specified.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NOYES  

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


SECTION 1.

 Section 261 of the Penal Code is amended to read:

261.
 (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(1) Where a person 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. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(2) Where it 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.
(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.
(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(5) Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
(6) 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. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(7) Where the act is accomplished against the victim’s will by 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. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(8) Where the act is accomplished by a person engaging in conduct commonly known as “stealthing,” which for purposes of this section means the act is accomplished under any of the following conditions:
(A) The person using the condom intentionally and without consent removes the condom during the act.
(B) The person using the condom intentionally and without consent tampers with the condom and that condom is used during the act.
(C) The person intentionally and without consent uses a condom during the act that the person knows has been tampered with.
(b) As used in this section, “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
(c) As used in this section, “menace” means any threat, declaration, or act which shows an intention to inflict an injury upon another.

SEC. 2.

 Section 262 of the Penal Code is amended to read:

262.
 (a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
(1) Where it 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.
(2) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.
(3) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.
(4) 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. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(5) Where the act is accomplished against the victim’s will by 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. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(6) Where the act is accomplished by a person engaging in conduct commonly known as “stealthing,” which for purposes of this section means the act is accomplished under any of the following conditions:
(A) The person using the condom intentionally and without consent removes the condom during the act.
(B) The person using the condom intentionally and without consent tampers with the condom and that condom is used during the act.
(C) The person intentionally and without consent uses a condom during the act that the person knows has been tampered with.
(b) As used in this section, “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in apprising the existence of duress.
(c) As used in this section, “menace” means any threat, declaration, or act that shows an intention to inflict an injury upon another.
(d) If probation is granted upon conviction of a violation of this section, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women’s shelter, up to a maximum of one thousand dollars ($1,000).
(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.
For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.

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.
SECTION 1.Section 19911 of the Business and Professions Code is amended to read:
19911.

(a)A person under 21 years of age shall not be eligible for a work permit and a permit shall not be issued to a person under 21 years of age, except as provided in subdivision (b).

(b)A person between 18 and 21 years of age may be employed to work in a gambling establishment, provided that he or she shall not work as a dealer, floor personnel, or any other employment classification that exclusively involves working on the floor of the gambling establishment. A person between 18 and 21 years of age may be employed in job classifications that entail providing services on and off the gaming floor that are not involved in play of any controlled game.

SEC. 2.Section 19921 of the Business and Professions Code is amended to read:
19921.

(a)A person under 21 years of age shall not be permitted to enter upon the premises of a licensed gambling establishment, or any part thereof, except the following:

(1)An area, physically separated from any gambling area, for the exclusive purpose of dining. For purposes of this subdivision, any place wherein food or beverages are dispensed primarily by vending machines shall not constitute a place for dining.

(2)Restrooms.

(3)A supervised room that is physically separated from any gambling area and used primarily for the purpose of entertainment or recreation.

(4)A designated pathway to reach any of the areas described in paragraphs (1) to (3), inclusive. To the extent that the designated pathway requires an individual to enter upon or pass through the gaming floor, all persons under 21 years of age shall be accompanied by a person over 21 years of age or be in the presence of a gambling establishment employee over 21 years of age.

(5)In accordance with subdivision (b) of Section 19911.

(b)A person under 21 years of age shall not be permitted to loiter in a gaming area.

SEC. 3.Section 19941 of the Business and Professions Code is amended to read:
19941.

(a)A person under 21 years of age shall not do any of the following:

(1)Play, be allowed to play, place wagers at, or collect winnings from, whether personally or through an agent, any gambling game.

(2)Be employed as an employee in a licensed gambling establishment, except as authorized in Section 19911.

(3)Present or offer to any licensee, or to an agent of a licensee, any written, printed, or photostatic evidence of age and identity that is false, fraudulent, or not actually his or her own for the purpose of doing any of the things described in paragraphs (1) and (2).

(4)Loiter in or about any room in which any gambling game is operated or conducted.

(b)Any licensee or employee in a gambling establishment who violates or permits the violation of paragraphs (1) to (3), inclusive, of subdivision (a) is guilty of a misdemeanor.

(c)Any person under 21 years of age who violates this section is guilty of a misdemeanor.

(d)Proof that a licensee, or agent or employee of a licensee, demanded, was shown, and acted in reliance upon bona fide evidence of age and identity shall be a defense to any criminal prosecution under this section or to any proceeding for the suspension or revocation of any license or work permit based thereon. For the purposes of this section, “bona fide evidence of age and identity” means a document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operator’s license or an identification card issued to a member of the Armed Forces, that contains the name, date of birth, description, and picture of the person.