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Redefining What Is A Violent Felony

It’s Time For Change: We Must Redefine Sexual Assault Of Intoxicated Victims As A Violent Felony

In a society where victims of rape are often blamed and shamed, what message are we sending
to the public and our victims when our laws draw hard lines between which sex crimes are deemed violent vs. non-violent?

Right now, in California, perpetrators who drug or intentionally intoxicate their victims to
commit sexual assault are charged with a non-violent crime. But those who rape their
victims while they are conscious but under fear, force, duress, menace, violence, or any other
threat of violent retaliation are charged with violent felonies. Think about it; someone who has been intentionally incapacitated cannot resist, and cannot say no. Is the crime therefore non-violent because the victim was intoxicated or drugged? Rape is rape, period.

According to the Rape, Abuse & Incest National Network (RAINN), 1 out of every 6 women has been the victim of rape – attempted or completed – in her lifetime. A disturbing statistic from the California Department of Justice reveals that in 2022, 14, 346 rape crimes were reported across the state. Of those, only 1,890 rape arrests were reported.

In 1996, Tonja found herself a victim of Luster’s heinous crimes when she was drugged to unconsciousness with GHB, only to discover the horrifying reality of what had been done to her years later. Tonja Balden’s harrowing experience with Andrew Luster, the notorious serial rapist, is a powerful testimony demonstrating the urgent need for legislative action.

Tonja visited me at the Capitol and told me, “He narrated the things he was doing to me for the camera and manipulated my body like a mannequin.”

In the year 2000, Tonja learned Luster had been arrested for raping a young college student. With a restraining order against him at the time, Tonja went down to the Ventura County Sheriff’s Office to speak with detectives. Little did she know at the time, she would be shown a video recorded by Luster of her while she was incapacitated. Tonja recounted the horrifying experience of watching the videotape of her assault, realizing the extent of the violence Luster had inflicted upon her. Married and pregnant with twins, Tonja told me she ended up losing one of them during her pregnancy due to her immense stress after discovering the truth.

Luster was ultimately sentenced to 124 years in prison for his heinous assaults. But then the voters passed Proposition 57 and the laws changed. The stories of two courageous survivors I also spoke with ended differently; they were left with no taste of justice, and their perpetrators walked free.

Anabel Velasquez’s story is one of resilience in the face of unspeakable trauma and suffering endured by survivors of sexual assault. At just 15 years old, she found herself in a nightmare that still haunts her today. Anabel was intentionally drugged, sexually assaulted by several men, and thrown onto a Bay Area freeway in May of 1994. Her survival, gripping onto the guardrail to prevent her death, illustrates the sheer magnitude of her strength as she fought for her life. But the scars from that night run deep, manifesting in enduring guilt, shame, and a tumultuous journey through abusive relationships.

“What was once sacred to me was stripped away,” Anabel recalled. “My sexual assault set me on a downward spiral into toxic, abusive relationships because I felt worthless,” she cried.
The absence of justice and lack of validation for her trauma only compounded her suffering, leaving her feeling isolated and invalidated in her pain. These feelings are all too familiar for Katherine Grayson, who also was drugged and sexually assaulted by a man she had just started dating when she was 21.

“My vision was blurred, and I had moments where I could see him on top of me,” Katherine recalled, adding “I was numb, I was immobilized, and I was totally confused.”

Katherine spent the next two decades blaming herself for what happened and repressed her trauma. It wasn’t until she heard about the Brock Turner case in 2015 that she started hearing sexual assault being spoken about on a more serious front, sparking the beginning of her journey to healing.

“For the first time, I was able to see clearly what had happened. I had been raped. I had been drugged out of my mind and then raped by a person who was willing to risk my very life in order to take his pleasure from my body, unimpeded by my personhood and free will,” Katherine stated.

As a state legislator, it is my responsibility to author and advocate for legislation that
empowers and protects Californians. The rights of survivors who were sexually assaulted while incapacitated must be prioritized and protected, not the other way around. Legislation over the past decade has given offenders in California more rights and protections, essentially “under punishing” them. It is glaringly obvious prison overcrowding is a serious concern in California. Early prison release under Prop 57 was intended to mitigate prison overcrowding, but it fails miserably in its classification of rape of an incapacitated person as a non-violent felony, resulting in offenders convicted of that crime being eligible to walk the streets. This is not how we seek justice for victims of this heinous sex crime, or any sex crime.

Although Tonja’s perpetrator was arrested for his despicable crimes, he now faces the possibility of early release in 2026 – because of Prop 57’s classification of rape of an incapacitated person as non-violent.

“How can anyone look at what he did to us and say it wasn’t violent?” Tonja pleaded.

She fears that Luster, once released, will continue his predatory behavior, as evidenced by his previous attempt to flee the country and evade justice.

I am authoring Senate Bill 268 to close this dangerous loophole and protect sexual assault victims who were incapacitated by keeping their offenders behind bars and serving lengthier sentences. SB 268 sends a clear message: rape by incapacitation is a violent crime and will be punishable to the fullest extent of the law. Justice can no longer be a notion, but a tangible reality. This bill takes it a step further and empowers survivors by validating their experiences through the legal system. Harsher penalties under SB 268 will serve to deter potential offenders and help prevent future victims. In a situation where the victim cannot say “no,” it is imperative we stand up and give the silenced a voice.

SB 268 represents a glimmer of hope for Anabel and Katherine, who wish similar legislation had been in effect at the time of their assaults.

“I felt destroyed emotionally and physically, and had SB 268 been in effect after my brutal assault, I would have sought help and felt validated as a survivor – I would have gotten a piece of myself back,” Anabel said.
“I would have processed the experience in an entirely different and much more empowered way, and if there would be a swift and coordinated response to this crime – every time – we would see a LOT less of it,” said Katherine.
For both Anabel and Katherine, the passage of SB 268 wouldn’t just be about legal reform; it would mean that survivors like them would no longer be burdened by feelings of guilt and self-blame, that they would finally be seen, heard, and acknowledged. We must normalize having a culture where survivors’ voices are heard, their experiences are valued, and their journey towards healing is supported.

The impending early release of Luster serves as a stark reminder of the flaws in the justice system, where survivors including Tonja are left feeling betrayed and vulnerable. Senate Bill 268 is a crucial step forward in the fight against sexual violence, sending a clear message that perpetrators like Luster will no longer be able to hide behind legal technicalities or societal indifference. We must get to a place in society where sexual assault survivors are believed, supported, and empowered to reclaim their dignity and their voices.

Now is the time to fix California’s flawed criminal justice system. Without SB 268, numerous sex crimes, especially those committed on an intentionally intoxicated victim, will continue to slip through the cracks. These offenders know they will receive lenient sentences, and it’s time we get real about tackling this sex crime and treat it like the violent offense it is. We need to crack down on these perpetrators now and make their consequences so uncomfortable they won’t think twice about reoffending.

Written by: Senator Marie Alvarado-Gil, Senate District 4

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