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.  









                                                                  SB 33
                                                                  Page  17

             "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  








                                                                  SB 33
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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  








                                                                  SB 33
                                                                  Page  19

               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  








                                                                  SB 33
                                                                  Page  20

               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








                                                                  SB 33
                                                                  Page  21

          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