Sex offenses: second degree rape.

(1) Under existing law, rape is an act of sexual intercourse accomplished under specified circumstances, including, among others, where the act was accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. Under existing law, rape is a felony. Under existing law, sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another. Under existing law, oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. Under existing law, an act of sodomy, oral copulation, or sexual penetration accomplished against a victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person is a felony. Existing law defines consent for purposes of the above crimes to mean positive cooperation in act or attitude pursuant to an exercise of free will. This bill would define an act of sexual intercourse, sodomy, oral copulation, or sexual penetration which is accomplished without the affirmative and freely given consent of the victim as rape in the 2nd degree. The bill would make rape in the 2nd degree a felony punishable by imprisonment in the state prison for 2, 3, or 4 years for the first offense, and by imprisonment in the state prison for 3, 6, or 8 years for a 2nd or subsequent violation. The bill could make the defendant ineligible for probation for a 2nd or subsequent violation, and if probation is granted for a first offense, the bill would allow the conditions of probation to include a requirement to make payments to a rape victim counseling center or to reimburse the victim for the reasonable costs of counseling, as provided. The bill would define consent for these purposes, and for purposes of the above existing crimes, to mean positive cooperation in act or attitude pursuant to an exercise of free will, which is affirmatively and freely given. By creating a new crime, this bill would impose a state-mandated local program. (2) Existing law requires persons convicted of specified sex offenses, or attempts to commit those offenses, to register with local law enforcement agencies while residing in the state or while attending school or working in the state. This bill would require a person convicted of rape in the 2nd degree to register with local law enforcement agencies as a sex offender. By imposing additional duties on local authorities, and by creating a new crime by requiring additional persons to be registered as sex offenders, this bill would create a state-mandated local program. (3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason. With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.