California's 2011 Legislative Changes for Sex Offenses

California's 2011 Legislative Changes for Sex Offenses

Posted By Mark Raymond McDonald || 6-May-2011

Penalties for Sex Offenses Continue Increase in 2011

The penalties for sex crimes are severe. The legislative trend continues to increase prison sentences for sex crimes. In 2011 penalties for many sex crimes have increased again. Often these increases are due to aggravating factors, such as the age of the victim or the circumstances of the crime. The following examples illustrate the latest legislation reflecting this trend.

§ 220

Under previous law an assault with intent to commit mayhem, rape, sodomy, oral copulation, or intent to forcibly commit rape, spousal rape, or sexual penetration in concert with another, was punishable by 2, 4 or 6 years in the state prison. Under the new law the penalty for the same crimes where the victim is under the age of 18 is increased to 5, 7, or 9 years. (Cal. Pen. Code §220(b))

§236.1

Previously the penalty for any type of human trafficking where the victim was under 18 years old at the time of the offense was punishable by 4, 6, or 8 years in state prison. Under the new law, if the human trafficking involves a commercial sex act and a victim under 18, the offender will be subject to a fine of $100,000 (one hundred thousand dollar) in addition to any prison term. (Cal. Pen. Code §236.1(g))

§§ 264, 264.1, 286

The former penalty for sodomy, oral copulation, or sexual penetration against the victim's will, and rape, was 3, 6, or 8 years imprisonment, or if those crimes were committed in concert with another they are punishable by 5, 7, or 9 years in state prison. The new law increases the penalties for these specified crimes depending on the age of the victim. The prescribed penalties are as follows:

AGE OF VICTIM ACTED ALONE ACTED IN CONCERT
18 and over 3, 6, or 8 years 5, 7, or 9 years
14 to 18 years-old 7, 9, or 11 years 7, 9, or 11 years
Under 14 9, 11, or 13 years 10, 12 or 14 years

(Cal. Pen. Code §§264(c), 264.1(b), 286(c)(2) and (d)(2)).

§ 288(a) and (b)(2)

The penalty for committing a lewd or lascivious act upon a child under 14 years of age or upon a dependant person (such as physically or mentally incompetent or infirm) by use of force or fear has increased from 3, 6, or 8 years in state prison to 5, 8 or 10 years state imprisonment. (Cal. Pen. Code §288(b)(1) and (2))

§ 667.61

The California Penal Code specifies certain factors and circumstances that can increase a prescribed penalty to and aggravated statutory penalty of 25 years to life in prison or life without parole. The new law carves out an additional distinction based upon the age of the victim and the age of the offender. Under this law where the victim is a minor (under 18 years old), and the facts and circumstances require aggravation of the sentence, if the offender is over 18 years old the penalty is life without parole but if the offender is under 18 years old the penalty is 25 years to life.

For an offender who is over 18 years old, the penalty will be 25 years to life if the crime was committed under only one aggravating circumstance and the victim was over 14 years of age.

Generally speaking a person convicted of certain sexual offenses under § 667.61 will be imprisoned for a term of 15 years to life if during the commission of the felony the defendant inflicted great bodily injury on the victim. However, where the victim is under 14 years old, "infliction of bodily harm" will increase that sentence to 25 years to life.

 

+ 2 Aggravating Circumstances

+ 1 Aggravating Circumstance

AGE of Victim

Offender under 18

Offender over 18

Great bodily injury

Offender over 18

Under 18

25 years to life

Life without Parole

   

Under 14

   

25 years to life

Life without Parole

Over 14

   

15 years to life

25 years to life


Post Conviction Considerations and Probation Conditions Related to Sex Crimes

In addition to increasingly severe prison terms for sex offenses, the legislature has created an intricate system of rules and regulations that need to be followed in order to avoid further penalties. While some of the rules are straightforward, others can be difficult to navigate.

§ 1201.3 Communication Prohibitions in Sex Crimes With Minors

A court may issue an order prohibiting, for up to 10 years, a person convicted of a sexual offense involving a minor victim from harassing, intimidating, or threatening the victim or the victim's family members. Violations of such orders are punishable as criminal contempt.

§ 1203.066 Limitations on residential choices

Certain defendants convicted of lewd or lascivious acts upon a child or of continuous sexual abuse of a child are ineligible for probation. However, where persons who are convicted of such crimes are eligible for probation, probation may only be granted if certain terms and conditions are met.

One of these conditions may be a limitation on where the defendant is allowed to live. For example, if the defendant is not a member of the child victim's household, the defendant will be prohibited from being or residing within ½ mile of the child victim's residence for the term of probation, unless the court states on the record reasons why the residency restriction would not serve the best interests of the victim.

"Chelsea's Law"

SARATSO & Sex Offender Registration:

Chelsea's Law uses the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) to assess the likelihood that a convicted defendant will re-offend. The tool used for making this assessment among adult male defendants is called STATIC-99. STATIC-99 balances numerous factors in determining the likelihood of re-offending.

Persons convicted of certain sex crimes must register with the Department of Justice. The Department of Justice will post certain information about the convicted persons on the Internet. In addition to personal information such as name, address, and type of crime, the DOJ's website will also contain the SARATSO score and risk of future sexual violence attributed to each registered sex offender.

Extended Parole Terms and Conditions for Sex Offenders

After serving a period term of imprisonment a defendant may be paroled. Parole is an early release subject to certain terms and conditions. Under Chelsea's Law, a person released on parole for an offense that requires registration as a sex offender must, as a condition of parole, participate in an approved sex offender management program. (Stats. 2010, Ch. 291, § 17 [A.B. 1844].)

Additionally, a person convicted of certain felony sex crimes may be subject to extended terms of probation. For example lifetime parole may be applied to a person deemed a habitual sex offender whose victims were under 14 years old, or a person convicted of certain sexual conduct with a child 10 years or younger, or convicted of other specified crimes. That means that such a defendant would be subject to the attendant parole conditions for the rest of his or her life.