BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair S
2003-2004 Regular Session B
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SB 882 (Denham)
As Introduced February 21, 2003
Hearing date: April 1, 2003
Penal Code
AA:mc
CRIMINAL COMMUNICATION WITH MINORS
WITH INTENT TO ENGAGE IN SPECIFIED UNLAWFUL ACTS
HISTORY
Source: Amber Center for Missing & Exploited Children
Prior Legislation: AB 1141 (La Suer) - 2002 session - held in
Senate Appropriations Committee
AB 1843 (Baldwin) - 1998 - failed Assembly
Committee on Public Safety
AB 2021 (Steinberg) - Ch. 621, Stats. of 2000
Support: Campaign for California Families; Danielle Legacy
Foundation; Traditional Values Coalition; California
District Attorneys Association
Opposition:California Public Defenders Association; California
Attorneys for Criminal Justice
KEY ISSUE
SHOULD A NEW CRIMINAL STATUTE BE CREATED FOR CONTACTING OR
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SB 882 (Denham)
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COMMUNICATING WITH A MINOR WITH THE INTENT TO COMMIT A SEX OFFENSE,
AS SPECIFIED?
PURPOSE
The purpose of this bill is to enact a new criminal statute for
contacting or communicating with a minor with the intent to
commit a sex offense, as specified.
Current law imposes specified criminal penalties for sexual
crimes against children. (See, e.g., Penal Code 273a
(willful harm or injury to a child); 286 (sodomy); 288 (lewd or
lascivious acts); 288a (oral copulation); and 311.11 (possession
or control of child pornography).)
Current law additionally imposes a criminal penalty for any
adult stranger 21 years of age or older to knowingly contact or
communicate with a minor who is 12 years of age or younger,
where the adult knew or reasonably should have known that the
minor is 12 years of age or younger, for the purpose of
persuading and luring, or transporting, or attempting to
persuade and lure, or transport, that minor away from the
minor's home or from any location known by the minor's parent,
legal guardian, or custodian, to be a place where the minor is
located, for any purpose, without the express consent of the
minor's parent or legal guardian, and with the intent to avoid
the consent of the minor's parent or legal guardian. (Penal
Code 272(b).)
Current law imposes a criminal penalty for any person who, with
knowledge that a person is a minor, knowingly distributes,
sends, causes to be sent, exhibits, or offers to distribute or
exhibit by electronic mail, the Internet, or a commercial online
service, any harmful matter, as defined, to a minor with the
intent of arousing, appealing to, or gratifying the lust or
passions or sexual desires of that person or of a minor, and
with the intent, or for the purpose of seducing a minor. (Penal
Code 288.2(b).)
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Current law provides that every person who attempts to commit
any crime, but fails, or is prevented or intercepted in its
perpetration, shall be punished where no provision is made by
law for the punishment of those attempts, generally by a prison
term of one-half the term if imprisonment prescribed upon a
conviction of the offense attempted. (Penal Code 664.)
This bill would create a new crime applicable to every person
who contacts or communicates with a minor, or attempts to
contact or communicate with a minor, where the person knows or
reasonably should know that the person is a minor, with intent
to commit willful injury or harm to a child (Penal Code 273a),
sodomy (Penal Code 286), lewd or lascivious acts on a child
under the age of 14 years (Penal Code 288), oral copulation
(Penal Code 288a), or possession or control of child
pornography (Penal Code 311.11) involving the minor.
This bill would provide that this new crime is punishable as
attempt pursuant to the provisions of Penal Code section 664
(see above).
This bill would require the term "contact or communicates with"
to "include direct and indirect contact or communication that
may be achieved personally or by use of an agent or agency, any
print medium, any postal service, a common carrier or
communications common carrier, any electronic communications
system, or any telecommunications, wire, computer, or radio
communications device or system."
COMMENTS
1. Stated Need for This Bill
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The author states:
The Internet has opened up a whole new world and
can be a valuable teaching resource for our
children. Unfortunately, predators have quickly
discovered using the Internet can get you closer
than ever to our children. Worse yet, California
statutes have not caught up with the use of this
new criminal tool. Why should we wait for a child
to be physically victimized before being able to
charge someone with the attempt to commit the
sexual abuse? Currently, courts and law
enforcement have been operating without clear
guidance as to what constitutes a sexual crime
when it comes to luring children on the Internet.
This bill will significantly assist law
enforcement to take a proactive role in the
investigation and prosecution of preferential
child molesters and sexual exploiters.
Preferential child molesters through Internet and
on-line computer email and 'chatroom' connections
are stalking children. Preferential child
molesters operating on the Internet no longer need
to loiter around schools and parks in order to
contact children. They have the electronic means
to enter the homes of unsuspecting children
without the knowledge of parents. These sexual
predators use various pretenses to lure children
into face-to-face meetings. The predators pretend
to be something they are not in order to get a
meeting with the child (i.e. someone interested in
soccer, meet at the park). There have been
numerous instances where such molesters have flown
across the country with the intent of having sex
with a child. Many of these encounters have
resulted in rape and other sexual assaults on
children.
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2. This Bill Compared to Current Law: Proscribed Conduct
As explained above, sexual acts committed upon minors are
criminal under current law. Additionally, any attempt to commit
a crime is itself a crime, even if the criminal act is not
completed:
To constitute an attempt, there must be (a) the
specific intent to commit the crime, and (b) a
direct ineffectual act done towards its
commission.<1>
Contacting or communicating with a minor with the intent to
commit the sex crimes specified by this bill would constitute a
direct act towards the commission of the crime, which already is
an attempted crime under current law. For example, a conviction
for attempted child molestation has been upheld on appeal where
it was committed by telephone conversation with the victim.<2>
Similarly, a conviction for attempted sharing of harmful matter
with a minor with the intent to arouse has been upheld where it
was committed by Internet communications.<3> In light of
existing case law it is unclear why this bill is necessary. As
stated above, the conduct this bill would proscribe already is
criminal attempt under current law.
IS NOT THE CONDUCT PROSCRIBED BY THIS BILL ALREADY CRIMINAL
UNDER CURRENT LAW?
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<1> 1 California Criminal Law (3d Ed., 2000) Elements 53.
<2> People v. Imler (1992) 9 Cal.App.4th 1178; see also People
v. Burns (1992) 8 Cal.App.4th 715.
<3> Hatch v. Superior Court (2000) 80 Cal. App. 4th 170.
("There was clear evidence Hatch intended to commit a lewd or
lascivious act on a child under 14 years old. His Internet
communications with Lisa, whom he believed to be 13, described
several forms of sexual conduct in which they could engage when
they had the opportunity. . . . These acts went beyond mere
preparation for sexual molestation and constituted immediate
steps in the present execution of the criminal design." (Id. at
188 (emphasis added).)
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IN LIGHT OF THE EXISTING CRIMINAL ATTEMPT LAW, WHY IS THIS BILL
NECESSARY?
3. Three-Strikes
This bill would create a new crime. This punishment potentially
would trigger the Three Strikes law.
Under the Three Strikes law (Pen. Code 667, subds. (b)-(i) and
1170.12), where a defendant has two prior serious or violent
felonies, he or she shall receive a term of at least 25 years to
life in the sentence for the commission of any new felony,
including any felony created by this bill if the bill is
enacted. Where the defendant has a single prior serious or
violent felony, he or she shall receive a doubled term in the
sentence for the commission of any new felony.
A court has discretion to dismiss one or more prior "strikes,"
but only where the defendant's record and the current conviction
establish that the defendant should be treated as though he or
she does not fall under the terms of the Three Strikes law.
(People v. Superior Court (Romero) (1996) 13 Cal.4th
497-530-531; People v. Williams (1998) 17 Cal.4th 198.)
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