Gender based violence and harassment is not tolerated at BART.
While harassment of any kind is improper, California law does not specifically define general harassment as an illegal activity. While harassment is not tolerated within the BART system, a police officer would have to determine if the type of harassment met the specific elements of a crime in order to make an arrest, issue a citation, or hold someone for questioning.
Police officers can use a number of California Penal Code sections to handle various forms of harassment, lewd conduct and indecent exposure type behavior.
Understanding the definitions these crimes can aid a victim/survivor or bystander when requesting police action.
Lewd conduct and indecent exposure
California Penal Code 647(a) - Misdemeanor
An individual who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.
California Penal Code 314.1 - Misdemeanor (Felony on subsequent violations or in certain circumstances)
Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby.
Harassment type behavior
California Penal Code 640(d)(1) - Misdemeanor
Willfully disturbing others on or in a system facility or vehicle by engaging in boisterous or unruly behavior.
Note: This crime is specific to transit vehicles and transit property.
California Penal Code 415 - Misdemeanor
(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight.
(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.
(3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.
California Penal Code 647.6(a)(1) - Misdemeanor
Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.
California Penal Code 646.9 - Felony "Wobbler" (May be charged as a misdemeanor or felony by the District Attorney)
Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.
For the purposes of this section, “harasses” means engaging in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.
For the purposes of this section, “course of conduct” means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.”
For the purposes of this section, “credible threat” means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section. Constitutionally protected activity is not included within the meaning of “credible threat.”
California Penal Code 422 - Felony "Wobbler" (May be charged as a misdemeanor or felony by the District Attorney)
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.
Sexual Battery
California Penal Code 243.4 - Misdemeanor or Felony (depending on circumstances)
(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.
(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.
(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery.
(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery.
(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.