BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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AB 1475 (Galgiani) 5
As Amended June 5, 2007
Hearing date: June 19, 2007
Penal Code
AA:br
MANDATORY CHILD ABUSE REPORTING :
COMMERCIAL COMPUTER TECHNICIANS
HISTORY
Source: California State Sheriffs' Association
San Bernardino County Sheriff
Prior Legislation: AB 2304 (Runner) - 2006; failed passage,
Senate Public Safety Committee
Support: AFSCME, AFL-CIO; Child Abuse Prevention Council of
Contra Costa County; California Society for Clinical
Social Work; Junior Leagues of California State Public
Affairs Committee; Sheriffs of the following counties:
Amador, Alameda, Butte, Colusa, Del Norte, El Dorado,
Contra Costa, Fresno, Imperial, Kern, Marin, Mariposa,
Merced, Mono, Nevada, Sacramento, San Diego, San
Joaquin, Santa Barbara, Shasta, Sonoma, Tuolumne, and
Yolo
Opposition:None known
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Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUE
SHOULD COMMERICAL COMPUTER TECHNICIANS, AS SPECIFIED, BE ADDED AS
MANDATED CHILD ABUSE OR NEGLECT REPORTERS, AS SPECIFIED?
PURPOSE
The purpose of this bill is to add "commercial computer
technicians," as specified, as mandated child abuse or neglect
reporters, and to make additional, related changes to this law.
Current law establishes the Child Abuse and Neglect Reporting
Act ("CANRA"), which generally is intended to protect children
from abuse and neglect. (Penal Code 11164.)
Current law requires mandated reporters to make reports of
suspected child abuse or neglect, as specified. (Penal Code
11165.9.)
Current law provides that any mandated reporter who fails to
report an incident of known or reasonably suspected child abuse
or neglect as required by this section is guilty of a
misdemeanor punishable by up to six months confinement in a
county jail or by a fine of $1000 or by both that imprisonment
and fine, as specified. (Penal Code 11166 (c).)
Current law provides that any mandated reporter who
willfully fails to report abuse or neglect, or any person
who impedes or inhibits a report of abuse or neglect where
that abuse or neglect results in death or great bodily
injury, shall be punished by not more than one year in a
county jail, by a fine of not more $5000, or by both that
fine and imprisonment. (Penal Code 11166.01 (b).)
Under current law the term "child abuse or neglect" for purposes
of CANRA "includes physical injury inflicted by other than
accidental means upon a child by another person, sexual abuse as
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defined . . . , neglect as defined . . . , the willful harming
or injuring of a child or the endangering of the person or
health of a child, as defined . . . , and unlawful corporal
punishment or injury as defined . . . . 'Child abuse or
neglect' does not include a mutual affray between minors.
'Child abuse or neglect' does not include an injury caused by
reasonable and necessary force used by a peace officer acting
within the course and scope of his or her employment as a peace
officer." (Penal Code 11165.6.)
Current law enumerates 37 categories of persons who are mandated
child abuse and neglect reporters. (Penal Code 11165.7 (a).)
Included within this list is any commercial film and
photographic print processor, as specified.
This bill would add "commercial computer technician" to the list
of mandatory child abuse or neglect reporters under CANRA.
This bill would provide that as used in CANRA commercial
computer technician "means any person who repairs, installs, or
otherwise services any computer including, but not limited to,
any component part, device, memory storage or recording
mechanism, auxiliary storage recording or memory capacity, or
any other materials relating to the operation and maintenance of
a computer or computer network or system for compensation. The
term also includes any employee of such a person."
Current law applies the mandatory reporting provisions of CANRA
to any commercial film and photographic print processor "who has
knowledge of or observes, within the scope of his or her
professional capacity or employment, any film, photograph,
videotape, negative, or slide depicting a child under the age of
16 years engaged in an act of sexual conduct, . . . ." (See
Penal Code 11166 (e).)
This bill would revise this provision to apply to materials
depicting a child "who appears to be under 16 years of age being
subject to, or involved in, sexual abuse."
This bill additionally would revise the above language to
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include "commercial computer technician," and to add the
following materials to this provision: "any computer file,
recording, CD-ROM, magnetic disk memory, magnetic tape memory,
picture, graphic or image that is intentionally saved,
transmitted or organized on hardware or any other media
including, but not limited to, CD, DVD, and thumbdrive, whether
by digital, analog, or other means and whether directly
viewable, compressed, or encoded, . . . ."
Current law defines "sexual conduct" for purposes of this
subdivision as any of the following:
(1) Sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex or between humans and
animals.
(2) Penetration of the vagina or rectum by any object.
(3) Masturbation for the purpose of sexual stimulation of the
viewer.
(4) Sadomasochistic abuse for the purpose of sexual stimulation
of the viewer.
(5) Exhibition of the genitals, pubic, or rectal areas of any
person for the purpose of sexual stimulation of the viewer.
This bill would delete this language.
Current law requires commercial film and photographic print
processors to report an "instance of suspected child abuse"
"immediately, or as soon as practicably possible, by telephone
and shall prepare and send, fax, or electronically transmit a
written report of it with a copy of the film, photograph,
videotape, negative, or slide attached within 36 hours of
receiving the information concerning the incident."
This bill would recast this language to require these reports to
make their reports "immediately, or as soon as practicably
possible, by telephone, . . . and . . . within 36 hours of
receiving the information concerning the incident, prepare and
send, fax, or electronically transmit a written report of it
with a copy of the material attached."
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This bill additionally would provide that "(a) report submitted
to the National Center for Missing and Exploited Children
pursuant to Section 13032 of Title 42 of the United States Code
shall fulfill the requirement for a commercial computer
technician to make a report pursuant to this section."
Current law requires commercial film and photographic print
processors to report an "instance of suspected child abuse to
the law enforcement agency having jurisdiction over the case .
. . " (Penal Code 11166 (e).)
This bill would revise this language to require these persons,
and commercial computer technicians, as added by this bill, to
report an instance of suspected abuse "to a local, state, or
federal law enforcement agency located in the county in which
the images are seen . . . ."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
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percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
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<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are pending before three federal court
judges in which plaintiffs are seeking a court-ordered limit on
the prison population pursuant to the federal Prison Litigation
Reform Act. Medical, mental health and dental care programs at
CDCR each are "currently under varying levels of federal court
supervision based on court rulings that the state has failed to
provide inmates with adequate care as required under the Eighth
Amendment to the U.S. Constitution. The courts found key
deficiencies in the state's correctional programs, including:
(1) an inadequate number of staff to deliver health care
services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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coordination between health care staff and custody staff."<5>
This bill would appear to aggravate the overcrowding crisis
outlined above by expanding the scope of an existing
misdemeanor.
COMMENTS
1. Stated Need for This Bill
The author states:
Current California law does not provide for
commercial computer technicians to be a mandated
reporter of child abuse and pornography. Every time
someone commits an act of creating child pornography,
a child is sexually abused. Every day children are
sexually exploited through the Internet. With
today's digital technology, perpetrators are able to
easily photograph children in lewd positions, and
then download their collection onto their computers
where it is stored. Laws are needed to aid law
enforcement in their efforts to arrest and prosecute
offenders who store child pornography on the Internet
and on their computers. AB 1475 will add commercial
technicians to the list of mandated reporters of
child pornography, and this will be an important tool
in helping to stop the sexual exploitation of
children.
2. What This Bill Would Do
As explained above, this bill would add "commercial computer
technicians" to the mandatory child abuse or neglect reporting
laws. These persons would be defined to essentially include
persons who service anything related to the operation or
maintenance of a computer, computer network or system for
compensation, as specified. The bill also revises the
description of materials currently applicable to commercial
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<5> Primer, supra, fn. 4.
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film and photographic print processors to include materials
applicable to computer technicians, as specified. It
currently is a misdemeanor punishable by up to six months in
jail and/or a $1000 fine for a mandatory reporter to fail to
report an incident of known or reasonably suspected child
abuse or neglect; this measure would not change this penalty,
but would extend it to apply to this new category of mandated
reporter.
The bill deletes the existing definition of "sexual conduct"
for purposes of depictions that might be viewed by print
processors or computer technicians, and instead applies their
mandatory reporting obligations to materials depicting a child
"who appears to be under 16 years of age being subject to, or
involved in, sexual abuse." (Sexual abuse is defined in other
parts of CANRA.)
SHOULD "COMMERCIAL COMPUTER TECHNICIANS" BE ADDED TO THE
MANDATORY CHILDABUSE OR NEGLECT REPORTING LAWS?
ARE EXISTING IMMUNITIES FOR NON-MANDATED PERSONS WHO MAKE
REPORTS UNDER THE ACT SUFFICIENT TO ENCOURAGE REPORTING FROM
COMPUTER TECHNICIANS, OR DO THEY NEED TO BE MANDATED TO REPORT,
AND SUBJECT TO MISDEMEANOR PENALTIES IF THEY FAIL TO REPORT?
3. Reports to the National Center for Mission and Exploited
Children
This bill would provide that "(a) report submitted to the
National Center for Missing and Exploited Children pursuant to
Section 13032 of Title 42 of the United States Code shall
fulfill the requirement for a commercial computer technician to
make a report pursuant to this section."
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According to its website, the National Center for Mission and
Exploited Children was established in 1984 as a private,
nonprofit 501(c)(3) organization to provide services nationwide
for families and professionals in the prevention of abducted,
endangered, and sexually exploited children. Pursuant to its
mission and its congressional mandates (see 42 U.S.C. 5771 et
seq.; 42 U.S.C. 11606; 22 C.F.R. 94.6), NCMEC
Serves as a clearinghouse of information about missing
and exploited children
Operates a CyberTipline that the public may use to
report Internet-related child sexual exploitation
Provides technical assistance to individuals and
law-enforcement agencies in the prevention, investigation,
prosecution, and treatment of cases involving missing and
exploited children
Assists the U.S. Department of State in certain cases of
international child abduction in accordance with the Hague
Convention on the Civil Aspects of International Child
Abduction
Offers training programs to law-enforcement and
social-service professionals
Distributes photographs and descriptions of missing
children worldwide
Coordinates child-protection efforts with the private
sector
Networks with nonprofit service providers and state
clearinghouses about missing-persons cases
Provides information about effective state legislation
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to help ensure the protection of children.<6>
Members may wish to inquire how reports made to this national
entity will be communicated to California law enforcement
agencies, including the Department of Justice ("DOJ") pursuant
to Section 11169. Current law requires the Department of
Justice to compile an index of all reports of child abuse
pursuant to Section 11170. It is not clear whether reports
submitted to a national non-profit entity would be included in
the index maintained by DOJ.
4. Previous Legislation
Last session this Committee considered AB 2304 (Runner), which
was virtually identical to this measure. AB 2304 failed passage
in this committee, 2-3.
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<6>6 See
http://www.missingkids.com/missingkids/servlet/PageServlet?Langua
geCountry=en_US&PageId=1866.