BILL ANALYSIS
SB 33
Page 1
Date of Hearing: July 5, 2005
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 33 (Battin) - As Amended: June 2, 2005
VOTE ONLY
SUMMARY : Eliminates, in cases involving sexual conduct with a
child under the age of 14, distinctions in probation eligibility
and sentencing between defendants who are family members of the
victim and other defendants, and increases the scope of the
incest laws. Specifically, this bill :
1)Expands the definition of the crime of incest to include
related persons who are 14 years of age or older to the list
of persons who are subject to imprisonment in the state prison
for specified acts, including the commission of fornication or
adultery with each other.
2)Deletes provisions of existing law that allow prosecutors to
seek deferred entry of judgment in specified child molestation
or sexual abuse cases pending the defendant's successful
completion of a treatment program following his or her plea of
guilty, as specified.
3)Limits the provisions of existing law that allow a prosecutor
to refer a person suspected of committing an act of abuse or
neglect involving a minor child to counseling and
psychological treatment, in lieu of prosecution, to persons
suspected of committing physical abuse or neglect.
4)Removes the court's discretion to impose a sentence including
probation to intra-familial sex offenders upon the court's
making of specified findings on the record.
5)Provide prosecutors with the discretion to preclude probation
in intra-familial child sexual molestation cases by
specifically alleging ineligibility for probation in the
accusatory pleading.
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6)Eliminates "recognized treatment programs", as defined, from
the professionals that may provide reports to the court
regarding suspension of sentence by the court.
EXISTING LAW :
1)States that persons who are within the degrees of
consanguinity within which marriages are declared to be
incestuous and void and who intermarry or who commit
fornication or adultery with each other are punishable by
imprisonment in the state prison. (Penal Code Section 285.)
2)Provides that marriages between parents and children,
ancestors and descendants of every degree, and between
brothers and sisters of the half as well as the whole blood,
and between uncles and nieces or aunts and nephews, are
incestuous and void. (Family Code Section 2200.)
3)Provides that any person who commits a lewd or lascivious act
with a child under the age of 14 years shall be imprisoned in
the state prison for three, six or eight years. (Penal Code
Section 288.)
4)States that any person who commits lewd and lascivious acts
upon the body, or any part thereof, of a child under the age
of 14 years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that
person or the child is punishable by imprisonment in the state
prison for three, six or eight years. [Penal Code Section
288(a).]
5)States that "continuous sexual abuse of a child" is defined as
three or more acts of substantial sexual conduct with a child
under the age of 14 years, or three or more acts of lewd and
lascivious conduct with a child under the age of 14 years,
over a period of not less than three months in duration.
Continuous sexual abuse of a child is punishable by
imprisonment in the state prison for 6, 12, or 16 years.
[Penal Code Section 288.5(a).]
6)Provides for the "one-strike" sex crime sentencing law that
provides sentences of 15-years or 25-years-to-life in certain
sex crimes if specified circumstances in aggravation are found
to be true. (Penal Code Section 667.61.)
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7)Specifies that the qualifying sex crimes under the one-strike
sex law are punishable by imprisonment in the state prison for
life, and the defendant shall not be eligible for release on
parole for 15 years or 25 years, as specified. [Penal Code
Section 667.61(a).] These crimes are forcible rape, forcible
spousal rape, rape by a foreign object, forcible sodomy,
forcible oral copulation, lewd and lascivious acts with a
child under the age of 14 accomplished by force or duress, and
lewd and lascivious acts with a child under the age of 14
accomplished by other than force or duress where the defendant
is not eligible for probation. [Penal Code Section
667.61(c).]
8)Sets forth aggravating factors that determine the date of
parole eligibility. [Penal Code Section 667.61(d)(e).]
9)Provides limited exceptions to the one-strike sex law for
specified persons convicted of specified intra-familial child
molestation offenses. [Penal Code Section
1203.066(a)(7)(8)(9).] Provides that such persons may be
granted probation if the court makes all of the following
findings [Penal Code Section 1203.066(c)]:
a) The defendant is the victim's parent, or member of the
victim's household or relative;
b) Probation for the defendant is in the best interests of
the child;
c) Rehabilitation is feasible and the defendant is placed in
a recognized treatment program immediately after the grant
of probation;
d) The defendant is removed from the household of the victim
until the court determines that the best interests of the
child would be served by returning the defendant to that
household; and,
e) There is no threat of physical harm to the child victim if
probation is granted.
10)Defines "recognized treatment program" as a program with
substantial expertise in the treatment of children who are
victims of sexual abuse, their families, and offenders, that
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demonstrates to the court all of the following [Penal Code
Section 1203.066(e)(1)]:
a) An integrated program of treatment and assistance to
victims and their families;
b) A treatment regimen designed to specifically address the
offense; and,
c) The ability to serve indigent clients.
11)States that "integrated program of treatment and assistance
to victims and their families" means that the program provides
all of the following [Penal Code Section 1203.066(e)(2)]:
a) A full range of services necessary to the recovery of the
victim and any non-offending members of the victim's family,
including individual, group, and family counseling as
necessary;
b) Interaction with the courts, social services, probation,
the district attorney, and other government agencies to
ensure appropriate help to the victim's family; and,
c) Appropriate supervision and treatment, as required by law,
for the offender.
12)States that, in lieu of trial, the prosecutor may make a
motion to the court to defer entry of judgment on any
conviction in which a minor is the victim of molestation or
sexual abuse, provided the defendant pleads guilty to all
crimes and enhancements charged. Provides for the defendant's
referral to a treatment program. States that upon successful
completion of the treatment program, as specified, but no
sooner than five years from the date of the defendant's
referral, the court shall dismiss the charges against the
defendant. [Penal Code Section 100.12(c)(1).]
13)Provides for the following additional requirements for
deferred entry of judgment in a case of sexual abuse of a
child (Penal Code Section 1000.13):
a) Defendant must make a written agreement with the
prosecutor;
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b) Defendant must be related to the victim;
c) Defendant must have no prior felony sex crime or sexual
misdemeanors involving children;
d) Defendant must have no prior violent felony convictions
and prison free during past 10 years;
e) Defendant must have no prior unsuccessful diversion
program, probation or parole within past 10 years; and,
f) Defendant must have no prior referral under this program.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "[As stated on
the PROTECT Web site, describing familial sexual abuse of
children,] 'They were betrayed by an adult who should have
loved and protected them, then they were betrayed again by
California law.'
"In 1981, California lawmakers passed a law that, as one legal
newspaper later said, 'belongs in the Legal Hall of Shame.'
It made raping and molesting children under the age of 14 a
minor offense as long as the victim was a child or family
member of the very person who hurt them. California law
spells out specific sentences for molesting children from 3 to
16 years. But there is an exception: if the perpetrator of
the unthinkable act is a family member, he or she is eligible
to receive probation while he or she attends therapy and he or
she may even be permitted to remain in the home. Furthermore,
once the offender completes his or her mandated therapy, the
conviction against he or she is removed from his or her
record. Then, the offender can be free to simply return to
the home in which the abuse occurred - this is a travesty.
"There are numerous studies documenting the increase of child
molestation today and the numbers are staggering. A 2001
study by Dr. Gene Abel and Nora Harlow estimated that, within
the United States, there are currently over 2,231,000 girls
under age 13 and 1,004,000 boys in that same age group who
have been sexually abused. They also estimated that
27,160,752 adult females and 12,222,388 adult males are
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survivors of childhood sexual abuse. Even if these estimates
are off by half, they are still horrifying statistics. We are
failing miserably at protecting our children!
"That same study also pointed out, 'The overwhelming majority of
molesters (68%) sexually abuse children in their own families
. . . children whom they parent, nieces and nephews, or
grandchildren. As teenagers, they molest much younger
siblings.'
"As stated earlier, under current California law, if a person
molests a stranger, he or she is considered predatory and go
to prison. But if a person harms another person close to him
or her, that person can receive therapy. It is inappropriate,
and harmful to the children involved, for society to pretend
that one offender can be cured while the other must be removed
for our protection.
"Besides the obvious physical abuse, psychologists and
counselors continually point out the amount of emotional
damage inflicted upon children who are abused by a family
member. This is often a person who the child trusts; and when
that trust is destroyed, the emotional foundation of the child
is leveled. One can see a similar example of this in the wake
of the abuse scandals that rocked the Catholic Church, where
children were abused by a person who was in a position of
trust.
"As if the original abuse is not bad enough, we are returning
abusers to live with the victims again, offering them a new
opportunity to hurt the ones they are supposed to be caring
for. And case after case after case demonstrates that they do
strike again. Their actions go beyond a pedophile who seeks
out victims elsewhere. These offenders have broken a sacred
trust with family members who they should be dedicated to
protecting. It is patently absurd and unconscionable to put
the child and their abuser back together.
"It is time to step up and protect our children.
"As written, current California law essentially equates sexual
abuse by a family member with lesser child abuse or neglect,
with the idea being that a parent should still be a part of
the child's life and can change his or her behavior by
attending parenting classes or therapy.
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"However, with decades of research indicating that sexual child
abuse - whether with a stranger or a relative - has extremely
high rates of recidivism and is not a successfully treatable
disease, it seems only reasonable to reassess the thinking
that went into creating these laws. There is a huge
difference between taking an anger-management class to help
with a bad temper and treating a deviant sexual compulsion.
Besides, it is ridiculous to refuse to prosecute a person for
his or her crimes merely based on his or her future potential,
or lack thereof, to recommit that person. We do not do this
with bank robbers and rapists, or a multitude of other
criminals, as well.
"This bill will close this loophole in our law. North Carolina,
Arkansas, and Illinois have all recently closed similar
loopholes in their laws regarding sexual abuse by family
members. We should be at the forefront of the charge to
protect children.
"This bill will stop rewarding child sexual abusers with
preferential treatment for growing their own victims, give
every child victim equal protection under the law, end the
practice of allowing a child molester to avoid a criminal
record through deferred entry of judgments, and send the
message that child sexual abuse is always a serious crime.
"When adults make excuses for child sexual abuse . . . when they
treat incest as a family matter and children as the property
of their parents . . . when they shift the burden of
responsibility onto the shoulders of young victims . . .
children suffer."
2)Background : According to background information supplied by
the author, "The heart of this bill is ending preferential
treatment for in-family molesters and the policy of
encouraging them to be reunited with their victims." The
background information further states that this bill does not
discourage sex offender treatment, but simply removes the
requirement that in order to be a "recognized treatment
program" for purposes of allowing probation, the program must
be an integrated program of treatment or family therapy.
"This current bias toward family therapy has the effect of
creating legal inducements to non-offending parents to put
child abuse victims into sex offender treatment with their
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molesters and pursue a goal of family reunification with the
sex offender.
"This current policy not only harms children and discourages
healthy independence on the part of non-offending parents, but
it is inappropriate from a treatment perspective. No one type
of treatment - whether family therapy, cognitive therapy,
aversion therapy or other approach, fits all offenders in all
cases."
3)Denial of Discretion to Allow Probation : This bill removes a
court's discretion to impose a sentence including probation on
intra-familial sex offenders. Is denial of judicial
discretion in all such cases reasonable and necessary? A
sentencing judge has had the opportunity to hear all of the
evidence, evaluate the witnesses, review the
psychiatrist's/psychologist's report, the probation report,
any victim impact statements, and arguments from both the
prosecutor and the defendant's attorney before imposing
sentence. Arguably, the judge is the person both charged with
the responsibility of imposing the appropriate sentence and in
the best position to determine what that sentence should be.
If a court grants probation in intra-familial sexual molestation
cases, it is required to determine that rehabilitation of the
defendant is feasible; that the defendant is amenable to
treatment and the defendant is placed in a recognized
treatment program. [Penal Code Section 1203.066(c)(3).] The
court must also require that the defendant is removed from the
household of the victim until the court determines that the
best interests of the victim would be served by returning the
defendant to the household of the victim. [Penal Code Section
1203.066(c)(4).] A report from a psychiatrist or psychologist
is required to consider these factors and must be submitted to
the court. [Penal Code Section 1203.066(c)(5).]
It is doubtful that courts routinely impose sentences including
probation without following the mandates of the law requiring
the removal of the offender from the home, the potential for
successful rehabilitation of the defendant, and generally the
best interests of the child. Further, even in cases in which
a state prison term is imposed, the defendant will be released
at some point, having received no treatment while incarcerated
in the state prison. By denying courts discretion to impose a
sentence including probation and appropriate treatment in
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appropriate cases, this bill delays possible rehabilitation
and family reunification, if desired by any particular family.
Additionally, by requiring a lengthy prison term, there may be
dire financial as well as emotional consequences to the
victim. Does this bill unnecessarily place a child victim of
sexual abuse by a parent at risk of losing the wage-earning
parent to a state prison term, to re-victimization through
further humiliation due to having an incarcerated parent,
suffering caused by the loss of that parent's financial
resources, and potentially becoming impoverished?
By taking options of deferred entry of judgment and probation
away from prosecutors, does this bill have the unintended
consequence that fewer child molestation cases will be
prosecuted? In such cases, especially with particularly young
victims, there are often unique problems of proof and
prosecutors may be reluctant to proceed to trial. Under
existing law, prosecutors could seek deferred entry of
judgment, which at least provides extensive treatment to
offenders; under this bill, that option is not available. In
cases with proof problems due to the age of the victim, will
cases be routinely dismissed in the absence of the
availability of less drastic recourse?
4)Court May Sentence the Defendant to Jail or Prison : The court
is not precluded from sentencing the defendant to jail or
prison and under existing law retains the discretion not to do
so. The court is required to state its reasons on the record
for whatever sentence it imposes. [Penal Code Section
1203.066(c)(5).]
Existing law allows persons required to register as sex
offenders for specified intra-familial offenses to apply for,
and be granted, exclusion from the Megan's Law Web site in
specified cases. [Penal Code Section 290.46(e).] Inasmuch as
California has been registering sex offenders for over 40
years, the relatively small number of approved exclusions is
indicative of the infrequency of sentences including probation
in intra-familial child molestation cases
Available data indicates that sentences including probation are
unusual and certainly not the norm. According to data
furnished by the Department of Justice (DOJ), as of June 22,
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2005, DOJ had granted only 340 applications for exclusion from
the Megan's Law Internet Web site for eligible sex offender
registrants who were granted and successfully completed
probation following a conviction of specified intra-familial
child sexual molestation cases. DOJ has received
approximately 500 applications for such exclusion.
Pursuant to the provisions of the law regarding exclusions from
the Megan's Law Web site, DOJ notified 18,000 offenders
convicted of lewd or lascivious acts with a child or
continuous sexual abuse of a child that they were eligible to
apply for the exclusion if they had been granted probation
under Penal Code Section 1203.066. Of these 18,000 persons so
notified, only 500 applied and only 340 applications for
exclusion have been granted.
Is there any evidence that courts are abusing their discretion
in imposing sentence in such cases? If either the prosecutor
or the defendant is of the opinion that the court has abused
its discretion in sentencing, existing law provides remedies
for challenging the alleged abuse of discretion. A prosecutor
has specific statutory authority to challenge an improper
grant of probation by a writ of prohibition or mandate.
(Penal Code Section 1238.) While a reviewing court would
review the challenge under an abuse of discretion standard,
the court's discretion must be exercised within the framework
of the existing law.
Under Penal Code Section 1203.066, a prison sentence is presumed
to be the correct sentence. Penal Code Section 1203.066
states that, notwithstanding any other provision of law,
"probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for [specified child
sexual offenders.]" Thus, a grant of probation must be
consistent with that presumption. Therefore, it appears that
it is more difficult for a defendant to successfully challenge
denial of probation under Penal Code Section 1203.066 than it
is for a prosecutor to successfully challenge a court's
granting of probation. In any appeal from denial of
probation, the defendant is compelled to overcome the
presumption that in cases of child molestation or continuous
sexual abuse of a child imprisonment in the state prison is
the appropriate sentence. [Penal Code Section 1203.066(a).]
A 1993 case held that prison is presumed to be the correct
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sentence for lewd conduct regardless of the probation
provisions in Penal Code Section 1203.066(c): "[T]he
Legislature has declared that imprisonment is the normal
sentence if a defendant has engaged in substantial sexual
conduct with a child under the age of 14 years . . . Only
when a defendant can establish he or she meets all the
criteria of . . . of Section 1203.066 can probation be
ordered. This court has previously held that a defendant has
the burden to present evidence showing that he is entitled to
consideration for probation under subdivision (c) of Section
1203.066." [ People v. Groomes (1993) 14 Cal. App. 4th 84, 89
(citations omitted).]
5)Determination of Eligibility for Probation : Should a person's
ineligibility for probation in cases of lewd and lascivious
acts against a minor be determined by the mere pleading of the
statutory provisions concerning ineligibility or should the
sentencing court determine ineligibility on the basis of the
nature of the offense of which the defendant was convicted,
the facts of the individual case, and other relevant
circumstances? It is arguable that a sentencing judge - who
has heard all of the evidence in the case, evaluated the
witnesses, including the child victim, and has the benefit of
reports from psychiatrists or psychologists prior to
sentencing - is in a better position to determine the
appropriateness of probation than is a prosecutor at the
charging phase of the case before any testimony has been heard
and before psychological or psychiatric reports are available.
Is there any documentation that sentencing judges are abusing
their discretion in imposing sentences in intra-familial child
molestation cases? From the numbers provided by the DOJ, it
would appear that very few intra-familial child molesters are
granted probation.
6)The Incest Provision : This bill changes existing law
regarding incest (Penal Code Section 285), which was enacted
in 1872 and amended only as to the term of imprisonment for
incest. One amendment was in 1921 and the other in 1976.
This bill adds persons who are 14 years of age or older to the
statutory definition of incest.
The existing law states that "persons being within the degrees
of consanguinity within which marriages are declared to be
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incestuous and void, who intermarry with each other, or who
commit fornication or adultery with each other, are punishable
by imprisonment in the state prison." (Penal Code Section
285.) Marriages between parents and children, ancestors and
descendants of every degree, and between brothers and sisters
of the half as well as the whole blood, and between uncles and
nieces, or aunts and nephews are incestuous and void. (Family
Code Section 2200.)
This bill adds minors 14 years of age or older who commit
fornication or adultery with each other to the list of persons
punishable in the state prison for incest.
According to the Circle of Trust Campaign, this change to the
incest law "removes children under the age 14 from it, leaving
everything else unchanged. The purpose of this change is to
prevent serious sex crimes (sexual intercourse) against
children under the age 14 from being prosecuted as 'incest,'
which carries much lighter penalties than child rape or other
sex crimes against children. The age 14 cutoff was necessary
to make this law conform to other existing child sexual abuse
laws."
Although the National Association to Protect Children states
that this bill makes no attempt to criminalize incest by
minors and further states that "we would not support further
criminalizing 'consensual' sexual conduct between teens close
in age," this bill in fact does criminalize "consensual"
sexual conduct between minors over the age of 14 years to the
extent the minors are related as specified by the whole or
half blood and precluded by law from marrying. Although the
intent of this portion of the bill may have been to preclude
prosecution of child molestation cases by adults against
children under the incest law, an unintended consequence
appears to be to also criminalize "consensual" sexual conduct
between minors over the age of 14 years who are related by the
full or half blood as specified in Penal Code Section 285.
Such cases may involve sexual experimentation by young teens
with half-siblings of the same age. Should such activities
subject these young people to the felony of incest and the
resultant stigmatization, including sex offender registration
that such a crime carries?
Although there appear to be few published cases in California
dealing with the crime of incest, the California Supreme Court
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in 2001 discussed the issue of minors as victims of incest,
even in cases of consensual sexual activity. [ People v.
Tobias , (2001) 25 Cal. 4th 327.]
The Tobias court stated that "incest is qualitatively different
from other sex crimes in that the act itself is unlawful,
whether or not it is consensual or a minor is involved.
Therefore, nothing in [the incest statute] expressly
establishes one of the participants as the victim.
Nevertheless, the crime very often involves a minor, and the
protection of minors is without a doubt one of the important
purposes of the law." ( Id. at page 335.) The court also
noted that a party to incest may be a victim. ( Id. at page
336, citing clear legislative intent that minors who have
incestuous sexual intercourse with adults are victims, not
accomplices.) The court did not address the issue of minors
who have incestuous relations with other minors.
Does this bill create the unintended consequence of further
criminalizing sexual conduct between minors over the age of 14
years who are prohibited by law from marrying one another,
thereby being inconsistent with the Tobias court's statement
that the protection of minors is one of the important purposes
of the incest statute?
Incest does not appear to be a heavily prosecuted crime or a
crime widely subject to plea bargain guilty pleas, which is
the stated concern of the sponsor. According to data received
from the California Department of Corrections, since 2001
there have been 21 new admissions to state prison for
violations of the incest statute, Penal Code Section 285.
7)Arguments in Support :
a) The Solano County Board of Supervisors states that the
Board of Supervisors "supports therapy for the perpetrators
of [heinous sexual acts.] However, these same perpetrators
must not simply be granted probation due to consanguinity.
Criminals who sexually molest children in their own homes
are the most able to abuse the trust of these children; and
when they betray that trust, they must be put in prison."
b) The California Alliance Against Domestic Violence
states, "This bill would change a law that has existed in
California since 1981, which gave parents and other
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relatives special treatment when they sexually molest
children in their own families. Just as spousal battery
and domestic violence were matters reserved 'for the
family' a mere two or three decades ago, in California
incest also appears to be a family matter - or so it is
under current law. Penal Code Section 1203.066 established
this preferential treatment for child sexual abusers who
victimize children in their own households; this law
mandates prison time for adults who molest children, yet
offers probation and therapy if the victim is a minor in
the household. It is a sentencing loophole for family
members. This bill would eliminate the incest exception.
This bill would protect children from predators where
predators would least be expected to exist, in their own
families."
c) Crime Victims United of California states, "This bill
would remove current provisions allowing a [prosecutor] in
lieu of trial to defer entry of judgment where the crime
charged involves a minor who is a victim of an act of
molestation or sexual abuse. Specifically, this bill would
remove the special treatment of an offender who is a family
member."
d) The National Association to Protect Children states "The
real reason children victimized by their own family members
are accorded less protection is politics. Tough laws
against abuse by strangers [exist] because parents demand
them. But who insists on protection for children against
abuse by their own parents? [L]ast year, a similar bill,
SB 1803 was defeated in committee, failing to garner any
Democratic support.
"It is impossible to say how many children have been denied
equal protection and justice since this family
reunification policy became law in 1981. What we do know
is that about 60% of all convicted child molesters under
[the laws prohibiting child molestation and continuous
sexual abuse of a child] avoid serving a single day in
state prison."
e) The California Women's Law Center states, "This bill
represents an important reform in the way California
responds to child sexual abuse in the home. Current law
emphasizes family preservation over the safety and best
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interests of children. By providing more lenient
sentencing for in-family molesters - conditioned strictly
upon their participating in family therapy - the law
provides a strong incentive for family reunification.
While this idea may [have] reflected the well-intentioned
thinking of some two or three decades ago, we now
understand much more about the devastating harm that sexual
abuse does to children.
"By removing preferential sentencing for intra-familial
abusers, along with provisions for diverting perpetrators
from prison to family therapy, [this] bill offers equal
protection for child sexual abuse victims without regard to
the familial relation of the offender and the victim. It
will also send an important message that child sexual abuse
is a crime and that the safety and protection of children
should be the foremost goal of California law."
f) The Child Trauma Academy states, "From a purely
developmental (mental health) perspective, if the law were
to impose penalties to reflect the actual harm inflicted by
sexual abuse, the law would make it a greater offense to
violate one's own child. Unfortunately, the current laws
reflect an ill-informed understanding of children and the
impact of incestuous abuse. If a person seduces or rapes a
neighbor's little girl, that person goes to jail but if a
person seduces and rapes his or her own little girl, that
person will not go to jail.
"This is, of course, outrageous. It is outrageous because we
know being abused by a parent is more destructive than
being abused by a stranger. The very core of what it means
to trust, to associate power with safety, to form the
fundamental healthy relational skills required to be
successful as a friend, peer, employee, spouse, and parent
are undermined by childhood sexual abuse within the family.
One of the most powerful, dominant role models in a
person's life has exploited his or her power, violated you,
and poisoned your relational well. We know that children
violated by parents have the core elements of their
capacity to form and maintain all relationships eroded.
Traumatic incest can lead to life-long damage to persisting
and chronic emotional, behavioral, cognitive and physical
problems."
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g) The City Attorney of Los Angeles states, "This bill
closes this intentional loophole for aggravated offenses by
family members while still maintaining some prosecutorial
discretion. This bill also maintains the treatment and
removal from the home provisions of current law, but
applies them now to those perpetrators who previously were
eligible for probation without these conditions. [A]buse
victims need more protection than the law currently
provides. [This bill] seeks to shelter these victims from
any further damage while simultaneously advancing the goal
of eliminating the cycle of abuse in our society."
h) The City of West Hollywood's Mayor states, "This bill
seeks to close an intentional loophole in California law
that gives preferential treatment to perpetrators of child
rape and molestation if they are the parent or legal
guardian of the victim. Under current law, perpetrators of
continuous sexual abuse of a child face a penalty of 3 to
16 years in prison. If the perpetrator is a parent or
legal guardian of the child, however, he or she is eligible
for preferential treatment that can reduce the penalty to
probation and therapy instead of prison time.
"[T]he sexual abuse of a child is a horrendous crime that can
greatly debilitate the emotional well-being of the victim.
Perpetrators who engage in this type of abuse should not
get preferential treatment under the law for their crimes
because they are members of their victims' households.
This bill will close this loophole and punish child
molesters to the fullest extent of the law."
7)Arguments in Opposition :
a) The California Judges Association (CJA) states, "This
bill revises the current definition of incest as involving
sexual conduct between persons 14 years of age or older.
Existing law does not refer to the age of the participants.
'This bill also restricts the discretion of prosecutors to
refer a person suspected of committing an act of
molestation, abuse or neglect involving a minor victim to
counseling and psychological treatment by limiting the
provisions to cases physical abuse or neglect.
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"This bill eliminates both prosecutorial and judicial
discretion by repealing provisions of existing law that
permit the deferred entry of judgment in cases involving
molestation or sexual abuse.
"While CJA appreciates concern for the victims of child abuse
and their families, we believe this bill is an unnecessary
infringement upon the traditional discretionary functions
of public prosecutors and the courts. It has been the
experience of our members that the provisions [this bill]
seeks to amend are used judiciously and only in those rare
cases where some additional alternatives to incarceration
are in the best interest of the victim, the community, and
the offender. We are unaware of any evidence to suggest
that either prosecutors or judicial officers are abusing
their discretion or abdicating their responsibility to
guarantee public safety. By eliminating or restricting the
discretion of district attorneys and judges, the courts
will be less able to fashion appropriate dispositions in
often complex cases of intra-familial abuse."
b) The American Civil Liberties Union states, "It is our
view that the court should retain discretion to grant
probation in [intra-familial child molestation cases.] The
numbers of defendants who actually qualify for this
probation/treatment option are few; but if the facts and
circumstances show that a defendant has the potential for
rehabilitation, the court should have the option to impose
this alternative punishment."
c) The California Attorneys for Criminal Justice state,
"This bill ends the long-standing California practice of
permitting judges, in the exercise of their discretion, and
under very limited and specified circumstances, to grant
probation for certain family member defendants who have
been convicted of child molestation. For those defendants
convicted of enumerated in Penal Code Section
1203.066(a)(7)(8)(9), probation has been available when,
and only when, they meet the stringent standards of Penal
Code Section 1203.066(c).
"The court is required to make a finding that the accused has
a familial or similar relationship that a probation grant
is in the best interest of the victim, that rehabilitation
is feasible, that the defendant must be removed from the
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household and that there is no threat of physical harm from
granting probation. Under these extremely limited
circumstances, offenders can be placed in treatment and
maintained on probation in the community.
"The overwhelming experience is that such recognized
treatment programs are imposed upon defendants for a period
of five to eight years with meaningful rehabilitation being
accomplished. Experience . . . with such long-term
treatment programs has been extremely favorable.
Defendants, after an appropriate period of time in county
jail, are required to participate in appropriate treatment
and are supervised by the probation department.
"Such an approach is vastly less costly than housing in the
state prison. In addition, the social cost of avoiding
imprisonment and maintaining the citizen as a participant
in daily life, family support, paying taxes and other
socially responsible conduct is highly important.
"No legitimate arguments exist to deprive trial courts of the
discretion to allow family members to be treated in the
community. No rational justification exists for
categorically insisting that all sex offenders be sentenced
to prison. An overwhelming experience of courts, probation
officers, prosecutors, and defense attorneys is that the
vast majority of family molests lead to successful
treatment and favorable community management. [This bill]
would destroy decades of favorable community treatment
experience.
"No evidence or indication exists that judicial abuse of
discretion has been recognized or established. Those
people holding judicial office get to their positions by
demonstrated responsibility over the long span of a legal
career. No categorical limitation [on this discretion] is
warranted.
"This bill likewise takes from prosecutors the discretion to
divert under Penal Code 1000.12, under circumstances which
fail to demonstrate the need for this restriction.
Precious few, if any, diversions are granted under [this
authority] for sex offenses. In the limited and rare cases
where a prosecutor deems it appropriate, it must be
inferred that this judgment is granted after due
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consideration. [This provision of the bill] is a further
sign of distrusting not only judges but prosecutors as
well.
"Finally, this bill proposes to amend Penal Code Section 285,
a rarely used section prohibiting incest. This section is
an infrequently utilized tool which serves its legitimate
and narrow purpose on rare occasions. The categorical
adjustment serves no purpose and should be rejected."
d) The California Public Defenders Association states "By
taking away prosecutorial discretion to offer alternatives
such as counseling, deferred entry of judgment, and
probation, we are concerned that several unintended
consequences are likely to occur. Examples of this might
be that prosecutors will be less likely to charge cases in
which there is a strong suspicion of child abuse but the
evidence does not ensure a conviction; child victims will
be less likely to report sexual abuse if they understand
that they will be sending a family member to prison; other
family members will be more likely to pressure children to
not report or to recant when they learn that instead of
getting counseling for the offending family member they are
sending the individual to prison.
"Less reporting will mean less counseling for the victims who
are more likely to replicate their abuser's behavior as
adults. Some studies have found that high percentages of
the inmates on California's death row were physically or
sexually abused as children.
"Without the option of probation, more defendants are likely
to go to trial with the dual consequences of increasing
costs and the child victim's trauma. Individuals who could
have benefited from counseling or deferred entry of
judgment will get no supervision or intervention because if
the district attorney has problems of proof, they will have
no recourse but to dismiss."
e) Voters Corrections Reform Coalition states, "Current law
appropriately provides judges with the opportunity - after
hearing all of the evidence, evaluating the witnesses, and
reviewing the pertinent psychological reports - to
determine suitable placement, treatments, and
characteristics of probation. Under this bill, this would
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be removed and left up to a district attorney to decide,
prior to having access to the aforementioned information,
while filing the charges. Such changes would result in
uninformed public safety decisions."
8)Prior Legislation : SB 1803 (Battin), of the Legislative
Session of 2003-04, was similar to this bill. SB 1803 failed
passage in the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Circle of Trust Campaign (Sponsor)
A Minor Consideration
Bikers Against Child Abuse
California Alliance Against Domestic Violence
California Association for Nurse Practitioners
California Coalition Against Sexual Assault
California Correctional Supervisors Organization
California District Attorneys Association
California Judicial Investigative Task Force
California Protective Parents Association
California State Sheriffs' Association
California Women's Law Center
Chief of Police, City of Oxnard
Child Abuse Solutions, Inc.
Child Trauma Academy
City of El Cerrito
City of Santa Monica
City of West Hollywood
County of Los Angeles Inter-Agency Council on Child Abuse and
Neglect
Courageous Kids Network
Crime Victims United of California
Feminist Majority
Incest Survivors Speakers Bureau
Inter-Agency Council on Child Abuse and Neglect
Kamala Harris, San Francisco City and County District Attorney
Los Angeles County District Attorney's Office
Mothers Against Predators
Mothers of Lost Children
National Association to Protect Children
Office of the City Attorney of Los Angeles
Oxnard Police Department
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Peace Officers Research Association of California
Prevent Child Abuse California
PROTECT-California
Rainbow Community Center of Contra Costa County
Rape Treatment Center at Santa Monica -
Responsible Citizens, Inc.
Rockard Delgadillo, Los Angeles City Attorney
Santa Monica Rape Treatment Center
Sexual Assault Recovery and Prevention Center
Solano County Board of Supervisors
Survivor's Network of Those Abused by Priests
University of California, Los Angeles Medical Center
United for Justice
Valencia Pediatric Associates
171 Private Citizens
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Judges Association
Voters Corrections Reform Coalition
One Private Citizen
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744