Amended IN Senate June 29, 2017 Amended IN Senate May 18, 2017 Amended IN Assembly March 22, 2017 CALIFORNIA LEGISLATURE 20172018 REGULAR SESSION Assembly Bill No. 1033Introduced by Assembly Member Cristina Garcia(Coauthors: Senators Galgiani and Jackson)February 16, 2017An act to amend Sections 261 and 262 Section 243.4 of the Penal Code, relating to rape. sexual battery.LEGISLATIVE COUNSEL'S DIGESTAB 1033, as amended, Cristina Garcia. Rape: condoms. Sexual battery: condoms.Existing law establishes several species of sexual battery, including among others, a felony in the circumstance of a person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.This bill would establish an additional sexual battery offense when an act of sexual intercourse is accomplished under certain circumstances, including, among others, when the person using a condom intentionally and without consent removes the condom prior to or 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. The bill would provide that the offense is punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000.By creating a new crime, this bill would impose a state-mandated 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.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 persons 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.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 243.4 of the Penal Code is amended to read:243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.(2) As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.(f) An act of sexual intercourse accomplished under any of the following circumstances is a felony punishable by imprisonment in the state prison for two, three, or four years, and a fine not exceeding ten thousand dollars ($10,000): (1) The person using a condom intentionally and without consent removes the condom prior to or during the act.(2) The person using a condom intentionally and without consent tampers with the condom and that condom is used during the act. (3) The person intentionally and without consent uses a condom during the act that the person knows has been tampered with. (4) A person intentionally and without consent tampers with a condom or knows the condom has been tampered with, provides the condom to the other person for use by the other person during the act, and the condom is used by the other person during the act. (5) A person knowingly misrepresents to the other person that the first person is using a form of contraception other than a condom.(g) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).(f)(h) As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.(g)(i) As used in this section, the following terms have the following meanings:(1) Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.(2) Sexual battery does not include the crimes defined in Section 261 or 289.(3) Seriously disabled means a person with severe physical or sensory disabilities.(4) Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.(5) Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.(6) Minor means a person under 18 years of age.(h)(j) This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.(i)(k) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.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 persons 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 perpetrators fraud in fact.(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators 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 victims 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 victims 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 persons 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 perpetrators fraud in fact.(4)Where the act is accomplished against the victims 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 victims 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 womens 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 defendants offense.For any order to pay a fine, make payments to a battered womens shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendants ability to pay. In no event shall any order to make payments to a battered womens 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.
Amended IN Senate June 29, 2017 Amended IN Senate May 18, 2017 Amended IN Assembly March 22, 2017 CALIFORNIA LEGISLATURE 20172018 REGULAR SESSION Assembly Bill No. 1033Introduced by Assembly Member Cristina Garcia(Coauthors: Senators Galgiani and Jackson)February 16, 2017An act to amend Sections 261 and 262 Section 243.4 of the Penal Code, relating to rape. sexual battery.LEGISLATIVE COUNSEL'S DIGESTAB 1033, as amended, Cristina Garcia. Rape: condoms. Sexual battery: condoms.Existing law establishes several species of sexual battery, including among others, a felony in the circumstance of a person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.This bill would establish an additional sexual battery offense when an act of sexual intercourse is accomplished under certain circumstances, including, among others, when the person using a condom intentionally and without consent removes the condom prior to or 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. The bill would provide that the offense is punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000.By creating a new crime, this bill would impose a state-mandated 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.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 persons 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.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES
Amended IN Senate June 29, 2017 Amended IN Senate May 18, 2017 Amended IN Assembly March 22, 2017
Amended IN Senate June 29, 2017
Amended IN Senate May 18, 2017
Amended IN Assembly March 22, 2017
CALIFORNIA LEGISLATURE 20172018 REGULAR SESSION
Assembly Bill No. 1033
Introduced by Assembly Member Cristina Garcia(Coauthors: Senators Galgiani and Jackson)February 16, 2017
Introduced by Assembly Member Cristina Garcia(Coauthors: Senators Galgiani and Jackson)
February 16, 2017
An act to amend Sections 261 and 262 Section 243.4 of the Penal Code, relating to rape. sexual battery.
LEGISLATIVE COUNSEL'S DIGEST
## LEGISLATIVE COUNSEL'S DIGEST
AB 1033, as amended, Cristina Garcia. Rape: condoms. Sexual battery: condoms.
Existing law establishes several species of sexual battery, including among others, a felony in the circumstance of a person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.This bill would establish an additional sexual battery offense when an act of sexual intercourse is accomplished under certain circumstances, including, among others, when the person using a condom intentionally and without consent removes the condom prior to or 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. The bill would provide that the offense is punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000.By creating a new crime, this bill would impose a state-mandated 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.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 persons 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.
Existing law establishes several species of sexual battery, including among others, a felony in the circumstance of a person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.
This bill would establish an additional sexual battery offense when an act of sexual intercourse is accomplished under certain circumstances, including, among others, when the person using a condom intentionally and without consent removes the condom prior to or 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. The bill would provide that the offense is punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000.
By creating a new crime, this bill would impose a state-mandated 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.
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 persons 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.
## Digest Key
## Bill Text
The people of the State of California do enact as follows:SECTION 1. Section 243.4 of the Penal Code is amended to read:243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.(2) As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.(f) An act of sexual intercourse accomplished under any of the following circumstances is a felony punishable by imprisonment in the state prison for two, three, or four years, and a fine not exceeding ten thousand dollars ($10,000): (1) The person using a condom intentionally and without consent removes the condom prior to or during the act.(2) The person using a condom intentionally and without consent tampers with the condom and that condom is used during the act. (3) The person intentionally and without consent uses a condom during the act that the person knows has been tampered with. (4) A person intentionally and without consent tampers with a condom or knows the condom has been tampered with, provides the condom to the other person for use by the other person during the act, and the condom is used by the other person during the act. (5) A person knowingly misrepresents to the other person that the first person is using a form of contraception other than a condom.(g) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).(f)(h) As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.(g)(i) As used in this section, the following terms have the following meanings:(1) Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.(2) Sexual battery does not include the crimes defined in Section 261 or 289.(3) Seriously disabled means a person with severe physical or sensory disabilities.(4) Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.(5) Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.(6) Minor means a person under 18 years of age.(h)(j) This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.(i)(k) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.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 persons 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 perpetrators fraud in fact.(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators 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 victims 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 victims 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 persons 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 perpetrators fraud in fact.(4)Where the act is accomplished against the victims 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 victims 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 womens 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 defendants offense.For any order to pay a fine, make payments to a battered womens shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendants ability to pay. In no event shall any order to make payments to a battered womens 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.
The people of the State of California do enact as follows:
## The people of the State of California do enact as follows:
SECTION 1. Section 243.4 of the Penal Code is amended to read:243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.(2) As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.(f) An act of sexual intercourse accomplished under any of the following circumstances is a felony punishable by imprisonment in the state prison for two, three, or four years, and a fine not exceeding ten thousand dollars ($10,000): (1) The person using a condom intentionally and without consent removes the condom prior to or during the act.(2) The person using a condom intentionally and without consent tampers with the condom and that condom is used during the act. (3) The person intentionally and without consent uses a condom during the act that the person knows has been tampered with. (4) A person intentionally and without consent tampers with a condom or knows the condom has been tampered with, provides the condom to the other person for use by the other person during the act, and the condom is used by the other person during the act. (5) A person knowingly misrepresents to the other person that the first person is using a form of contraception other than a condom.(g) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).(f)(h) As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.(g)(i) As used in this section, the following terms have the following meanings:(1) Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.(2) Sexual battery does not include the crimes defined in Section 261 or 289.(3) Seriously disabled means a person with severe physical or sensory disabilities.(4) Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.(5) Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.(6) Minor means a person under 18 years of age.(h)(j) This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.(i)(k) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
SECTION 1. Section 243.4 of the Penal Code is amended to read:
### SECTION 1.
243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.(2) As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.(f) An act of sexual intercourse accomplished under any of the following circumstances is a felony punishable by imprisonment in the state prison for two, three, or four years, and a fine not exceeding ten thousand dollars ($10,000): (1) The person using a condom intentionally and without consent removes the condom prior to or during the act.(2) The person using a condom intentionally and without consent tampers with the condom and that condom is used during the act. (3) The person intentionally and without consent uses a condom during the act that the person knows has been tampered with. (4) A person intentionally and without consent tampers with a condom or knows the condom has been tampered with, provides the condom to the other person for use by the other person during the act, and the condom is used by the other person during the act. (5) A person knowingly misrepresents to the other person that the first person is using a form of contraception other than a condom.(g) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).(f)(h) As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.(g)(i) As used in this section, the following terms have the following meanings:(1) Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.(2) Sexual battery does not include the crimes defined in Section 261 or 289.(3) Seriously disabled means a person with severe physical or sensory disabilities.(4) Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.(5) Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.(6) Minor means a person under 18 years of age.(h)(j) This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.(i)(k) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.(2) As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.(f) An act of sexual intercourse accomplished under any of the following circumstances is a felony punishable by imprisonment in the state prison for two, three, or four years, and a fine not exceeding ten thousand dollars ($10,000): (1) The person using a condom intentionally and without consent removes the condom prior to or during the act.(2) The person using a condom intentionally and without consent tampers with the condom and that condom is used during the act. (3) The person intentionally and without consent uses a condom during the act that the person knows has been tampered with. (4) A person intentionally and without consent tampers with a condom or knows the condom has been tampered with, provides the condom to the other person for use by the other person during the act, and the condom is used by the other person during the act. (5) A person knowingly misrepresents to the other person that the first person is using a form of contraception other than a condom.(g) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).(f)(h) As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.(g)(i) As used in this section, the following terms have the following meanings:(1) Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.(2) Sexual battery does not include the crimes defined in Section 261 or 289.(3) Seriously disabled means a person with severe physical or sensory disabilities.(4) Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.(5) Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.(6) Minor means a person under 18 years of age.(h)(j) This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.(i)(k) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.(2) As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.(f) An act of sexual intercourse accomplished under any of the following circumstances is a felony punishable by imprisonment in the state prison for two, three, or four years, and a fine not exceeding ten thousand dollars ($10,000): (1) The person using a condom intentionally and without consent removes the condom prior to or during the act.(2) The person using a condom intentionally and without consent tampers with the condom and that condom is used during the act. (3) The person intentionally and without consent uses a condom during the act that the person knows has been tampered with. (4) A person intentionally and without consent tampers with a condom or knows the condom has been tampered with, provides the condom to the other person for use by the other person during the act, and the condom is used by the other person during the act. (5) A person knowingly misrepresents to the other person that the first person is using a form of contraception other than a condom.(g) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).(f)(h) As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.(g)(i) As used in this section, the following terms have the following meanings:(1) Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.(2) Sexual battery does not include the crimes defined in Section 261 or 289.(3) Seriously disabled means a person with severe physical or sensory disabilities.(4) Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.(5) Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.(6) Minor means a person under 18 years of age.(h)(j) This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.(i)(k) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.
(2) As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.
(f) An act of sexual intercourse accomplished under any of the following circumstances is a felony punishable by imprisonment in the state prison for two, three, or four years, and a fine not exceeding ten thousand dollars ($10,000):
(1) The person using a condom intentionally and without consent removes the condom prior to or during the act.
(2) The person using a condom intentionally and without consent tampers with the condom and that condom is used during the act.
(3) The person intentionally and without consent uses a condom during the act that the person knows has been tampered with.
(4) A person intentionally and without consent tampers with a condom or knows the condom has been tampered with, provides the condom to the other person for use by the other person during the act, and the condom is used by the other person during the act.
(5) A person knowingly misrepresents to the other person that the first person is using a form of contraception other than a condom.
(g) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
(f)
(h) As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.
(g)
(i) As used in this section, the following terms have the following meanings:
(1) Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
(2) Sexual battery does not include the crimes defined in Section 261 or 289.
(3) Seriously disabled means a person with severe physical or sensory disabilities.
(4) Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.
(5) Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.
(6) Minor means a person under 18 years of age.
(h)
(j) This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.
(i)
(k) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.
(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.
SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.
SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.
### SEC. 2.
(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 persons 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 perpetrators fraud in fact.
(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators 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 victims 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 victims 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.
(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 persons 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 perpetrators fraud in fact.
(4)Where the act is accomplished against the victims 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 victims 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 womens 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 defendants offense.
For any order to pay a fine, make payments to a battered womens shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendants ability to pay. In no event shall any order to make payments to a battered womens 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.
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.