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. SB 33 Page 2 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.) SB 33 Page 3 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 SB 33 Page 4 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; SB 33 Page 5 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 SB 33 Page 6 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. SB 33 Page 7 "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 SB 33 Page 8 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 SB 33 Page 9 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, SB 33 Page 10 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 SB 33 Page 11 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 SB 33 Page 12 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 SB 33 Page 13 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 SB 33 Page 14 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 SB 33 Page 15 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." SB 33 Page 16 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 Page 18 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