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Spotlight on AB 2888: Considerations, questions in sex crimes cases

Many people strongly believed that legislative changes would follow in the wake of the massively reported sex crimes case of an ex-Stanford student athlete that recently culminated in his release from custody after a three-month incarceration period.

The sentencing judge in the case was roundly excoriated in the media and ultimately removed from criminal cases.

The court's ruling "was unjustifiable and morally wrong, however, under current state law it was within his discretion," stated one California Assembly member recently.

That legislator's comment came in the context of a new law that took legal effect on the last day of September. Gov. Jerry Brown signed Assembly Bill 2888 on that day, which materially revised state law that was in effect until that date.

Prior law accorded judges considerable discretion in their sentencing determinations regarding sexual assault committed in cases involving intoxicated and/or unconscious victims.

With a stroke of his pen, the governor removed that discretion by imposing minimum sentencing outcomes in defendants in such cases.

"As a general matter," noted Brown, "I am opposed to adding more mandatory minimum sentences." Notwithstanding his reluctance to do so, though, the governor signed AB 2888 out of a belief that "it brings a measure of parity to sentencing for criminal acts that are substantially similar."

What that means going forward is no differentiation in cases where victims are deemed incapable of giving consent because they are unconscious or intoxicated.

Legions of proponents laud the new law, but some commentators will undoubtedly note the uncertainty and complexity that can arise with issues surrounding consent in a sexual context. A judge in a given case who believes that serious questions exist regarding consent and that there is reasonable cause to exercise discretion to mete out a lesser sentence to a defendant will no longer have that discretion.

We will keep readers duly informed of any material developments or relevant news stories that emerge regarding AB 2888 in the wake of its recent passage.

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