California Must Restore Tools For Prosecuting Sexual Assault Crimes

Assemblyman Tom Lackey
California State Assembly, 36th District

The unfortunate nature of sexual assault crimes makes prosecuting them notoriously difficult. Too often it is the victim’s word against the accused’s. Other types of evidence tend to be ambiguous at best. When the victim has been incapacitated due to the use of date rape drugs, the challenge for obtaining a conviction becomes exponentially more challenging.

Despite this reality, California sexual assault laws have been substantially weakened due to Proposition 47 because one of its overlooked provisions will likely add further burdens when prosecuting sexual assault cases.

The campaign surrounding Proposition 47 was largely overshadowed by other issues and races on the ballot. Most Californians when making a decision on the measure considered whether low-level crimes like simple drug possession should only result in a misdemeanor instead of a felony. With the state’s prisons facing a mandate from the U.S. Supreme Court to reduce their total inmate population, voters clearly spoke in favor of reducing the penalties for low-level crimes.

However, what voters may not have known was that Proposition 47 would weaken sexual assault laws. This is because state law now equates the possession of recreational drugs with the drugs that are commonly used as tools of sexual assault. Before Proposition 47, district attorneys had the discretion to bring felony or misdemeanor charges against individuals caught in possession of frequently used date rape drugs such as Rohypnol or GHB. Depending on the circumstances of the case, a prosecutor could decide whether a felony charge was warranted to ensure a fair punishment proportionate to the crime.

That discretion is now gone. Any person found in possession of these date rape drugs will likely lead to little, if any, jail time for those convicted. It is understandable why Proposition 47 was aimed at reducing incarcerations for simple recreational drug possession. However, there is a clear distinction between drugs used for personal consumption and date rape drugs which are almost always going to be used to inflict harm on another person.

In criminal cases where the only fact beyond a reasonable doubt is that a defendant was in possession of these drugs, prosecutors are now only able to inflict a slap on the wrist—even if all signs point towards an attempted sexual assault.

Fortunately, lawmakers and the people have the power to solve this problem. I introduced Assembly Bill 46 with bipartisan support to allow Californians an opportunity to vote to restore prosecutors’ discretion to bring felony charges for date rape drug possession. Senator Cathleen Galgiani has introduced an identical measure in Senate Bill 333 that will also address the problem. If the bills successfully pass the Legislature, they will go before the voters in the 2016 election.

Given how much attention has been paid to sexual assault crimes this past year, we must ensure that our laws allow for justice to be served for these terrible crimes. I am optimistic our bipartisan coalition will be successful in ensuring California takes a zero-tolerance approach to sexual assault.

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