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Sexual Abuse and The California Penal Code
California Penal Code
To ensure a broader context for addressing issues and needs related to sexual abuse of consumers, clinical professionals need to be aware of the specific provisions the state has articulated within the California Penal Code. Review of this criminal justice foundation should prove useful to clinicians when responding to the needs and rights of consumers who have been victimized.
- Reports of suspected child abuse and neglect must be made to local law enforcement or the county welfare department (Child Protective Services). (Section 11165.9)
- Child abuse includes sexual abuse. Sexual abuse is defined as sexual assault or sexual exploitation. (Section 11165.1)
- Sexual assault includes rape, statutory rape, rape in concert, incest, sodomy, lewd or lascivious acts upon a child, oral copulation, sexual penetration, or child molestation. Conduct described as 'sexual assault' includes, but is not limited to, all of the following:
- Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.
- Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
- Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.
- The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose;
- The intentional masturbation of the perpetrator's genitals in the presence of a child.
- Sexual exploitation refers to any of the following:
- Conduct involving matter depicting a minor engaged in obscene acts in violation of law; preparing, selling, or distributing obscene matter that depicts minors; employment of minor to perform obscene acts.
- Any person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or coerces a child, or any person responsible for a child's welfare, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct.
- Any person who depicts a child in, or who knowingly develops, duplicates, prints, or exchanges, any film, photograph, video tape, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons.
- There are various sexual offenses concerning adults in the California Penal Code. These offenses are briefly described below. (Refer to the California Penal Code for a complete reading and further details of the offenses.)
- Rape (Section 261) is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator*, under any of the following circumstances:
- 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 known to the person committing the act.
- Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
- Where it is accomplished against the person's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable probability the perpetrator will execute the threat.
- Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known by the accused.
- Where a person is at the time unconscious of the nature of the act and this is known to the accused.
- Sodomy (Section 286) is contact between the penis of one person and the anus of another person, under any of the circumstances as described above (for rape).
- Oral Copulation (Section 288a) is the act of copulating the mouth of one person with the sexual organ or anus of another person, under any of the circumstances as described above (for rape).
- Sexual penetration (Section 289) is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object, under any of the circumstances as described above (for rape).
- Sexual battery (Section 243.4) is touching an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse while that person is unlawfully restrained, and if the touching is against the will of the person touched.
- Lewd and lascivious act (Section 288) involves a person who is a caretaker who willfully and lewdly commits any lewd or lascivious act, upon or with the body, or any part or member thereof, of a dependent adult, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person.
The California Penal Code includes special requirements related to the examination and treatment of victims of sexual assault or attempted sexual assault. Clinical professionals providing supports and services to consumers should be aware of the following provisions:
- Special training. Health care professionals conducting medical examinations must have special training relating to the examination and treatment of victims of sexual assault (Section 13823.13). Each county must designate at least one general acute care hospital to perform examinations on victims of sexual assault, including child molestation (Section 13823.8). In some cases, a team of professionals referred to as the Sexual Assault Response Team (SART) or a Sexual Assault Nurse Examiner (SANE) is used.
- Established protocol. Health care professionals must follow an established protocol for the examination and treatment of victims of sexual assault or attempted sexual assault, including child molestation. The protocol includes provisions for (Section 13823.7):
- notification requirements.
- obtaining consent for the examination, treatment of injuries, collection of evidence, and photographing of injuries.
- taking a history of sexual assault and other relevant medical history.
- performance of the physical examination for evidence.
- collection of physical evidence and medical specimens.
- preserving and handling physical evidence.
- Supports during medical examination. A victim of an alleged sexual assault has the right to have a sexual assault victim counselor and a support person of the victim's choosing present at any medical or physical examination (Section 264.2). The law enforcement officer is required to notify the local rape victim counseling center whenever a victim of a sexual assault is transported to a hospital for any medical or physical examination.
- Physical examination. A victim of an alleged sexual assault who consents to a medical examination for collection of evidentiary material shall have a physical examination that includes: inspection of the clothing, body, and external genitalia for injuries and foreign materials; examination of the mouth, vagina, cervix, penis, anus, and rectum, as indicated; and documentation of injuries and evidence collected (Section 13823.11).
- Evidence collected. A victim of an alleged sexual assault who consents to an examination for collection of evidence shall have the following items of evidence collected: clothing worn during the assault; foreign materials revealed by an examination of the clothing, body, external genitalia, and pubic hair combings; swabs and slides from the mouth, vagina, rectum, and penis, as indicated; if indicated by the history of contact, the victim's urine and blood sample, testing for sexually transmitted diseases, and pregnancy (Section 13823.11) .
The California Attorney General's Office has published the Women's Rights Handbook, a comprehensive review of women's rights issues, including spousal rape and other aspects of sexual violence. To view the handbook in its entirety, go to:
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