BILL ANALYSIS
AB 1771
Page 1
Date of Hearing: April 8, 2008
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1771 (Ma) - As Amended: March 10, 2008
SUMMARY : Requires the Attorney General (AG) to develop an
Internet Web site available to the public that contains
information about persons who are convicted of at least one
felony domestic violence offense or at least two misdemeanor
domestic violence offenses and adds other provisions to the laws
relating to domestic violence. Specifically, this bill :
1)Defines "good cause" for purposes of court orders issued
pursuant to the Family Code.
2)Authorizes an additional penalty assessment, in an unspecified
amount, to be imposed upon a conviction for a crime of
domestic violence and used to fund domestic violence
prevention programs in the counties.
3)Requires the AG to develop an Internet Web site that is
available to the public that contains the name, date of birth,
and date or dates of any conviction(s) for domestic violence
of persons convicted on at least one felony domestic violence
offense or at least two misdemeanor domestic violence
offenses.
4)Requires the AG to update the Web site on a regular basis.
5)Specifies that the information shall be retained on the Web
site until a period of 10 years has passed during which the
offender remains free of any conviction for domestic violence.
6)States that upon request, the superior court of a county shall
provide to any person, without charge, any information
regarding a domestic violence conviction that is currently
available to the public, except that any personal identifying
information about the victim, including name, address and
place of employment, or about any children involved in or
witness to the incident, including names, address, and school
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shall be redacted prior to being provided to the requestor.
EXISTING LAW :
1)Provides that the court may issue an ex parte order enjoining
a party from molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing,
telephoning, including but not limited to annoying telephone
calls, as defined, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, coming
within a specified distance of, or disturbing the peace of the
other party, and, in the discretion of the court, on a showing
of good cause, of other named family or household members.
2)States that any person who willfully inflicts upon a person
who is his or her spouse, former spouse, cohabitant, former
cohabitant, or the mother or father of his or her child,
corporal injury resulting in a traumatic condition, is guilty
of a felony and upon conviction thereof, shall be punished by
imprisonment in the state prison for two, three, or four
years, or in a county jail for not more than one year, or by a
fine of up to $6,000 or by both that fine and imprisonment.
[Penal Code Section 273.5(a).]
3)Defines "traumatic condition" as a condition of the body, such
as a wound or external or internal injury, whether of a minor
or serious nature, caused by physical force. [Penal Code
Section 273.5(c).]
4)Provides that any person convicted of a violation of the
section prohibiting willful infliction of corporal injury for
acts occurring within seven years of a previous conviction of
battery, battery resulting in serious bodily injury, sexual
battery, assault with a taser or stun gun, or assault with a
deadly weapon, shall be punished by imprisonment in a county
jail for not more than one year, or by imprisonment in the
state prison for two, four, or five years, or by both
imprisonment and a fine of up to $10,000. [Penal Code Section
243.5(e)(1).]
5)States that any person convicted of a violation of inflicting
corporal injury, as defined, for acts occurring within seven
years of a previous conviction of battery against a spouse, a
cohabitant, a person who is the parent of the defendant's
child, former spouse, fianc?, or fianc?e, or a person with
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whom the defendant has, or has previously had, a dating or
engagement relationship, shall be punished by imprisonment in
the state prison for two, three, or four years, or in a county
jail for not more than one year, or by a fine of up to
$10,000, or by both that imprisonment and fine. [Penal Code
Section 273.5(e)(2).]
6)Requires the Department of Justice (DOJ) to make available to
the public information regarding persons required to register
as sex offenders via an Internet Web site known as the
"Megan's Law" Web site. [Penal Code Section 290.46.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California can
do more to curb the dangerously high number of domestic
violence incidents through prevention. By providing
information about prior convictions online and providing
potential victims with useful tools to avoid violence or a
potentially violent partner, we can reduce the number of
domestic violence incidents.
"AB 1771 would require the following:
a) "The Attorney General would develop an online database
that would report the name, date of birth, county and date
of conviction for individuals convicted of felony domestic
violence or multiple counts of misdemeanor domestic
violence. The database would keep updated information
available for ten years.
b) "County superior courts would be required, without
charge, to provide additional information to a requestor
about a domestic violence conviction.
c) "A restraining order may be secured based on evidence
that the person against whom the order is to be issued has
previously been convicted of a crime of domestic violence.
d) "A new assessment would be placed on domestic violence
convictions to provide additional domestic violence
programs.
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e) "AB 1771, as amended on March 10, strengthens the
privacy protections for domestic violence survivors, as
well as for minor children who may be in a household when
domestic violence strikes.
"I truly believe that knowledge is power. By creating a
resource of convicted domestic violence abusers, Californians
will be able to easily identify a potentially violent partner
and avoid danger. California has the opportunity to help save
millions of lives. After introducing AB 1771 my office
received numerous calls from individuals, many of them
victims, stating that if they had known about their partner's
prior domestic violence convictions, they would have thought
twice about getting involved in the relationship."
2)Background : According to background information provided by
the author, in 2006 134 murders were the result of intimate
partner violence in California. In 2006, 110 women in
California were killed by their husbands, ex-husbands or
boyfriends; 24 men were killed by their wives, ex-wives, or
girlfriends. California law enforcement received 176,299
domestic violence calls in 2006; 80,946 calls involved
weapons, including firearms, knives, hands, fists, or feet.
Domestic violence arrests dropped from 52,392 in 2001 to
43,911 in 2006. Every year, almost 6% of California's women
suffer physical injuries from domestic violence.
A fact sheet provided by the author states that this bill will
provide Californians with an online database of convicted
domestic violence offenders, require a court to provide
information regarding domestic violence convictions to
requestors free of charge, and allow individuals to use prior
convictions as a basis for securing restraining orders.
"Information about previous domestic violence convictions is
already available to the public but difficult to obtain. One
must have both the time and the resources to obtain such
information. AB 1771 will remedy this." (Fact Sheet, AB
1771, "Nadga's Law".)
3)" Wary Daters May Get Help," by Jim Sanders, Sacramento Bee :
According to the article, "Here's a new twist to the dating
game - instant background checks. Asked out? Not so fast.
Before saying yes or no, you could do a quick push-button
check of domestic violence records under a new bill being
considered by California lawmakers. The measure, believed to
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be the first of its kind, would set the stage for mixing high
tech gadgetry with crime prevention to create a different kind
of sexual revolution.
"A woman who meets someone interesting in a nightclub, for
example, could adjourn to the rest room and use a text
messager to determine instantly whether her suitor ahs a
history of dating violence. Parents or friends of a loved one
could confirm or ease their suspicions, at no cost, with the
push of a few buttons.
"The goal is to provide a resource similar to the state's
existing Megan's Law Web site, which identifies sex offenders.
[O]thers fear that AB 1771 might produce some unintended
consequences by unfairly tainting someone whose name was
posted by mistake or by providing a false sense of security if
a violent person were left off the database because past
offenses went unreported or victims recanted.
" 'There might also be a privacy risk' said Lisa Ikemoto, a law
professor at the University of California, Davis. 'If you
identify the person who was the perpetrator, then you can
infer who the victim was. I think that is a serious problem.'
"
4)How Is the AG Required to Update the Database ? This bill
provides that the AG shall update the database on a regular
basis. Since this bill only requires that the convicted
abusers' name, date of birth, and date or dates of conviction
be included in the database and because there is no
requirement that the persons contained in the database
register at any regular intervals with law enforcement (as is
required for sex offenders in Megan's Law), it is assumed that
the AG would be required to develop a system to track the
specified felony and misdemeanor convictions that require
inclusion in the online database. Is the requirement that the
database be updated on a regular basis sufficiently clear to
assure that significant numbers of convicted offenders do not
remain unlisted for many months or even years? Is the
information required to be listed sufficiently detailed to
avoid confusion regarding persons with similar names?
5)Does This Bill Cause Users of the Database a False Sense of
Security ? As stated by some of the letters of opposition
listed below, there is a concern that the limited crimes
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listed in the bill, together with plea agreements, may give
users of the database a false sense of security as to a person
of interest who is not listed but may have what were, in
effect, convictions of domestic violence. Would the State be
liable for damages caused to a person who relied upon the
accuracy of the database if a person with a violent background
was omitted from the database?
6)Privacy Concerns of Victims and their Children : Are the
concerns expressed by opponents of the bill valid in assuming
that listing of a victim's husband or father effectively
informs users of the database the identity of the victim?
Would most users assume that a victim's husband, who is listed
on the database, had battered his wife, who is not listed but
nevertheless known to be the spouse of the listed party?
Would the public listing of a family member upon whom the
victim may be dependent for economic support for herself and
her children have a chilling effect on future reporting of
domestic violence incidents? According to some of the
opponents, that was the precise effect of a public elder abuse
Web site enacted in Arizona.
7)Is It Good Policy to Pass A Bill Calling for Additional
Penalty Assessments in an Unspecified Amount ? Who is going to
determine the amount of the additional penalty assessment?
Without knowing the amount of the assessment, it is difficult
if not impossible to assess the impact of the penalty
assessment on the likely defendants in domestic violence
cases.
8)Arguments in Support :
a) According to the District Attorney of Sacramento County ,
"This legislation is long overdue. According to the
California Attorney General's Crime and Violence Prevention
Center, California law enforcement received 176,299
domestic violence calls in 2006 - 80,946 of which involved
weapons.
"According to the California Department of Justice and
Criminal Justice Statistics Center, 134 murders were the
result of intimate partner violence in California in 2006
(110 women killed their husbands, ex-husbands, or
boyfriends, and 24 men were killed by their wives, ex-wives
or girlfriends.) With AB 1771, California can do more to
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curb the dangerously high numbers of domestic violence
incidents by providing information about prior convictions
online, and by providing potential victims with useful
tools to avoid violence or a potentially violent partner."
b) According to the Crime Victims United of California ,
"Domestic violence is of great concern to CVUC, as many
victims of abuse may be in greater danger than they
realize. According to the California Department of
Justice, in 2006 134 murders were the result of domestic
violence disputes. Many victims are unaware of their
partner's abusive ways or past. Providing a public
database would be an incredibly useful tool for potential
victims to learn about any potential violence in their
partner's past, thereby helping to inform and reduce the
victimization of unknowing partners."
c) According to the Survivors in Action (sponsor), "This
bill will reduce the numbers of domestic violence incidents
by providing prior conviction records on line. Equally
important, this bill will be a valuable preventive measure
to help potential victims and their family members protect
themselves from violence.
"The present antiquated laws are doing little to prevent or
deter domestic violence. AB 1771 will send a strong
message to domestic abusers and to would-be abusers:
domestic abuse will not be tolerated, and a history of
violence will not go unnoticed by the general public.
Further, this legislation will promote healthy
relationships and help deter violence, which is essential
to alleviating California's rapidly growing prison
populations.
"[A]s well as giving California a golden opportunity to be a
leader in crime prevention, AB 1771 gives another
opportunity to make a difference in the lives of its
citizens. Picking up the pieces after domestic violence is
costly but while prevention will save tax dollars, some
costs cannot be measured in dollars and cents. There are
millions of victims and survivors across California who
have suffered through abuse, of not knowing what horrors
the next days, hours, or even minutes will bring, and they
stand together in support of AB 1771. There are relatives
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who have had to endure identifying their loved ones' bodies
when abuse turns to homicide, who will stand together in
support of AB 1771."
9)Arguments in Opposition :
a) According to the California District Attorneys
Association ,"Making information about domestic violence
offenders available to the public in the form of a web site
will, in almost every case, necessarily give some clues as
to the identity of, if not outright identity, the victims
of the perpetrators listed on the web site. The need for
information to be made widely available must be balanced
against the victims' right to remain anonymous, and this
measure will almost certainly, by nature, overstep that
balance.
"Additionally, we are unclear as to why records of domestic
violence convictions should be made available by the courts
without charge, as this bill requires. These records, just
like those of any other crime, are available and persons
seeking access to them should pay for them, just as they
would for any other crime."
b) According to the California Partnership to End Domestic
Violence (CPEDV), "CPEDV has taken a formal position to
oppose this bill. This decision has been reached after
much discussion, careful deliberation, and more than one
request that the bill be pulled. While we appreciate the
leadership role you have taken on this important issue, and
that you have placed domestic violence in the forefront of
an important policy debate, we believe that AB 1771 would
ultimately not serve the best interests of domestic
violence victims or the general public.
"[A]s we have expressed in several meetings with you and your
staff, we believe that AB 1771, while very well
intentioned, carries risks that far outweigh any potential
benefits of the bill. We have engaged our statewide
membership in a critical dialogue regarding AB 1771, and we
feel that this bill would place victims of domestic
violence at risk. Although we share your view that
technological advancements and the availability of
information is an important tool for individuals who may
not have access or resources to obtain information on their
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own, we believe that the proposed legislation would create
more problems than it would solve.
"As currently drafted, this bill has shortcomings regarding
content of the information t be collected for this website,
the manner in which this information would be gathered and
the potential for error with regard t the type of
information the website would store. In addition, we are
extremely concerned that many of the individuals who, for
various reasons, have been wrongfully arrested and
subsequently convicted of domestic violence. What follows
is a detailed summary of our most pressing concerns:
i) " Domestic Violence Website Offers A False Sense
of Security : One major concern we have is that the
domestic violence website would give individuals a
false sense of security, because not all offenses would
appear on this website. From a practical standpoint,
this also opens the door for liability issues for the
State from individuals who could claim that they relied
on information contained in the database to ensure
their safety. Because this bill fails to consider all
the offenses a batterer could potentially be charged
with, CPEDV believes that this bill does not provide
safeguards for individuals who would rely on
information in the website as a means of conducting
background checks.
ii) " Impact on Wrongfully Arrested and Convicted
Domestic Violence Victims : CPEDV is concerned about
the increasing numbers of victims who are wrongfully
arrested for, and subsequently charged with domestic
violence offenses, and who would now appear on the
domestic violence website. In California, we have seen
an increase in the arrests of domestic violence victims
who are subsequently charged and convicted for a
domestic violence offense. In immigrant communities in
the Bay Area, South Bay and Central Valley, we have
seen the increase in arrests of victims primarily due
to language and cultural barriers, and the failure of
law enforcement to provide adequate interpretation or
proper analysis of who is the dominant aggressor. In
San Francisco for example, one-half of all the women
entering the Asian Women's Shelter were coming out of
local jails.
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"In addition, the increase of wrongful arrests also
impacts individuals in same sex relationships. For
example, the U.S. Department of Justice found that in
26% of female same sex cases and 27% of male same sex
cases, police arrested both parties when responding to
domestic violence calls.
"Although this bill cannot address the injustice that
some domestic violence victims face in being wrongly
arrested and convicted of a domestic violence offense,
this bill should not create another mechanism to
further victimize domestic violence victims. By making
this information public, the identifying information of
a victim would be publicly accessible.
iii) " Database Could Lower Rate of Domestic Violence
Reporting : In Arizona, where an Internet database was
created to list individuals convicted of elder abuse,
many individuals have subsequently failed to report
incidents of abuse for fear of having their family
members appear on this web site. The number of
individuals convicted of elder abuse significantly
dropped after the website was created. CPEDV is
concerned that a domestic violence website would have a
chilling effect on victims who may think twice before
calling law enforcement for help. CPEDV would not want
to see the number of domestic violence reports plummet,
as elder abuse cases did in Arizona.
iv) " Unclear Criteria for Inclusion in the Website :
Regarding the type of information this website would
gather, CPEDV has serious concerns that the current
version of the bill merely lists 'domestic violence
convictions' and does not cross reference appropriate
penal code sections under which a domestic violence
conviction could be charged. This vague reference in
the bill does not provide sufficient guidance to the
Attorney General, who would create the database, to
determine the appropriate category of crimes that could
encompass a conviction for domestic violence.
v) " Bill Does Not Address the Range of Criminal
Offenses that Domestic Violence Encompasses : The
dynamics of domestic violence are highly complex.
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Domestic violence convictions in California can
encompass a range of offenses, depending on the
circumstances of a particular case, which this bill
fails to address. For example, a victim may call the
police on his or her batterer during a domestic
violence incident, but after assessing the information
from both parties, the prosecutor may end up charging
the batterer with 'disturbing the peace' instead of a
domestic violence offense, either because of a plea
agreement or insufficient evidence. Regardless of the
reasons, we have batterers who do not get convicted of
a domestic violence offense, and instead are charged
with a whole host of crimes that the current version of
the bill fails to contemplate.
vi) " Inconsistent Data Collection and Reporting to the
DOJ Database : CPEDV is also concerned about the manner
in which this information would be collected. It is
our understanding that not all criminal databases in
California contain the same information. Because of
this, there is room for error and the potential exists
that not all individuals with a domestic violence
offense would be captured in these databases. In
addition, the bill does not account for quality
control, which is yet another safeguard currently not
addressed in the bill.
vii) " Privacy Concerns : Another major concern for
CPEDV is that AB 1771 could potentially violate certain
provisions of the federal Violence against Women Act
(VAWA.) VAWA prohibits the disclosure of 'personally
identifying information or personal information' of
victims of domestic violence, dating violence, sexual
assault, or stalking ( 40002,) 'Personally
identifying information' is defined as individually
identifying information and information likely to
disclose the victim. It includes names, addresses,
contact information, social security numbers and 'any
other information, including date of birth, racial or
ethnic background , or religious affiliation that, in
combination with any of [the above] would serve to
identify the individual. [40002(a)(E).] VAWA
specifically limits the ability to 'make available
publicly on the Internet any information regarding
protection orders, restraining orders, or injunctions,
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'if such publication would be likely to publicly reveal
the identity or location of the party protected under
such order.' [106(c)(3).] Although the current
version of the bill does not propose internet
publication of protective order information, there
could be a situation in which the violation of a
restraining order or a violation of a mutual
restraining order could list the victim, and therefore
be in direct violation of VAWA.
viii) " Unintended Consequences : Finally, CPEDV is
concerned about two major unintended consequences of
this proposed public website. The first is that some
individuals may use the website as a screening tool for
employment, housing or other matters not directly
related to domestic violence background checks. The
second is that this registry could further victimize
children and other family members through the public
dissemination of private family information, which
could cause them distress and harm.
"Members of CPEDV are approaching this bill with hundreds
of years of combined experience in the delivery of
direct services, the provision of prevention programs,
and collaboration with the criminal justice and other
social service systems. Our vision for ending domestic
violence in California includes a responsive
prevention, intervention and offender accountability
system that prioritizes victim safety and well-being,
while ultimately seeking to end violence against women
and their children. Over time, legislation and every
word of a statute can prove important, and we feel that
AB 1771 fails to address the issues and concerns that
we have enumerated."
c) According to the American Civil Liberties Union ,
"Because victims are increasingly being arrested in
domestic violence situations (due to language and cultural
misunderstandings by law enforcement agencies), many
victims will appear on the website. In addition,
landlords, employers and others may use the database to
discriminate against batterers (and the victims mistakenly
convicted), affecting victims and the potential chilling
effect on reporting domestic violence.
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"In addition, this bill also makes it possible for a criminal
court judge to issue a Family Code-authorized protective
order based on the respondent's past conviction for a crime
of domestic violence. As the law currently stands, a
criminal court judge must have a good cause belief that
intimidation of a victim/witness has occurred or is
reasonably likely to occur in the future in order to issue
such orders. This bill states that 'good cause' may be
satisfied by a past domestic violence conviction. Thus,
anytime there is a pending criminal case, the judge to be
authorized to issue a restraining order based on a past
conviction, even if the to-be-protected person is just a
witness who may not want the defendant to be restrained.
There does not seem to be any requirement that the
victim/witness who is to be protected by the order also be
the victim in the past domestic violence conviction.
"In addition, because AB 1771 expands the 'good cause'
standard for getting a domestic violence restraining order
to individuals who have previously been convicted of
domestic violence, another unintended consequence will be
that restraining orders will be issued against domestic
violence survivors and therefore it might result in their
having troubles maintaining custody of their children.
"Finally, we are concerned about [the section that would
allow anyone to get free copies of domestic violence
conviction information] from the courts that would be
otherwise available to the public. Though the bill tries
to protect information about the identities of the victim
and children, it does not appear that the language 'any
minor children involved in or witness to the incident'
adequately protects all children of the victim, who may not
have been 'involved' per se and whose identifying
information could lead to the victim's identity. Also,
there may have been other witnesses identified in the court
papers that would suggest the identity of the victim. We
are concerned that this provision seems to contemplate the
potential release of much more specific information about
incidents than a victim may want out there, even if her
name and address are redacted."
d) According to the Cooperative Restraining Order Clinic ,
"In San Francisco, the Bay Area and across the nation, we
have seen an increase in the arrest of actual victims of
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domestic violence. Non-English speaking survivors of
domestic violence bear the brunt of these wrongful arrests .
The increase in the arrest of actual domestic violence
victims is often due in part to language or cultural
barriers, as well as the inability of law enforcement first
responders to provide adequate interpretation or conduct
proper analyses to determine who is the dominant aggressor.
"The increase of wrongful arrests also has a disparate impact
on domestic violence survivors in same-sex relationships.
[W]e are further concerned for the health, safety and
well-being of our domestic violence survivor clients
because if this information were posted on a website, the
identifying information of a victim would be publicly and
readily available.
"[W]e worry further that this legislation will give a false
sense of security to individuals who search it to see of
their prospective dating partners are on it, because most
batterers are never convicted of domestic violence.
Furthermore, the range of criminal offenses that a batterer
can be charged with is not currently contemplated in this
bill. We have seen that many perpetrators of domestic
violence homicide in the Bay Area did not have domestic
violence convictions. This bill will not be an effective
deterrent to or ultimately prevent domestic violence."
e) According to the Interface, California Family Services ,
"Interface Children Family Services has been a leading
non-profit in Ventura County and throughout California
providing quality services to families since 1973.
"The bill in its current form has several shortcomings and as
an organization that represents domestic violence victims
in California, we are extremely concerned that many of the
individuals listed on this website will be primary victims
of domestic violence. In California and across the nation,
we have seen an increase in the arrest of domestic violence
victims. The increase in the arrests of domestic violence
victims is due in part to language or cultural barriers,
and the inability of law enforcement or other first
responders to provide adequate interpretation or proper
analysis of who is the dominant aggressor. In San
Francisco, for example, one half of all the women entering
the Asian Women's Shelter were coming out of local jails.
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"In addition, the increase of wrongful arrests also impacts
individuals in same sex relationships. For example, the
U.S. Department of Justice found that in 26% of female
same-sex cases and 27% of male same-sex cases, police
arrested both parties when responding to domestic violence
calls.
"As such, we believe this bill creates another mechanism to
further victimize domestic violence victims. By posting
this information on a website, the identifying information
of a victim would be publicly accessible.
"[B]ecause this bill fails to consider all the offenses a
batterer could potentially be charged with, we believe that
it does not provide safeguards for individuals who would
rely on information in this website as a means of
conducting background checks. Overall, this bill will not
be an effective deterrent to or ultimately prevent domestic
violence.
"Finally, we are concerned about two major unintended
consequences of this proposed public website. The first is
that some individuals may use the website as a screening
tool for employment, housing, or other matters not directly
related to domestic violence background checks. The second
is that this website could further victimize children and
other family members through the public dissemination of
private family information, which could cause them distress
and harm. Although this information is publicly
accessible, posting the information on a state-sanctioned
website exposes these offenders, their families and wrongly
arrested victims to a whole different level of public
scrutiny."
f) According to Peace Over Violence , it is "in strong
opposition to AB 1771, which would create a domestic
violence offender website to ease public access to
information about individuals who have at least two
misdemeanor convictions or at least one felony conviction
for domestic violence.
"The California Partnership to End Domestic Violence (CPEDV)
has submitted a letter of opposition to AB 1771 which
provides a detailed description of the bill's shortcomings.
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As a member of CPEDV, we share the concerns raised in the
CPEDV opposition letter. Victims of domestic violence face
multiple barriers to coming forward and reporting abuse.
The proposed Internet database will only add barriers to
victims and further chill the reporting of domestic
violence.
"Also, the proposed database will fail to fulfill its purpose
of providing useful information to the public that can help
prevent future acts of domestic violence. Most domestic
violence incidents are never reported to the authorities.
Of those cases that are reported to and prosecuted by our
criminal justice system, many are pled down to nonviolence
crimes that would not be captured in the database.
"Ultimately, we feel that designating funding to the creation
of a database is an irresponsible use of funds given the
current budget crisis. We need funding for intervention
and prevention services, not a flawed database."
g) According to Free Battered Women , "We believe AB 1771
would compromise the safety, privacy, economic security and
child custody status of domestic violence
victims-particularly victims who themselves have been
convicted of crimes related to their victimization.
Therefore, we strongly oppose this bill.
"[B]ased on our years of experience working with domestic
violence victims, we anticipate the following negative
outcomes of AB 1771 for domestic violence victims:
i) " Compromised safety, privacy, child custody status,
and access to community resources for domestic violence
victims convicted of domestic violence crimes : From 1987
to 2000, arrests rates of women for domestic violence in
California increased more than 500%. By 2004, women
comprised nearly 20% of all domestic violence arrests in
California (State of California, Office of the Attorney
General.) Research suggests that this rise in arrests in
not due to increased use of violence by women, but rather
is due to changes in policies favoring arrest. Many of
these arrested women are likely domestic violence victims
charged with crimes relating to being abused, who often
are convicted of crimes even if they are not batterers
(i.e., they plead guilty to get out of jail to return to
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their children, have limited access to defense counsel,
and/or experience language barriers in the criminal court
system.)
"Also, the 'good cause' provision of this proposed bill
could be used in civil and family court contexts against
domestic violence victims convicted of crimes, making it
more difficult for victims to maintain custody of their
children. This 'good cause' section of the bill is
generally unclear regarding whether it pertains to civil
or criminal protective orders, which could lead to
considerable confusion and unfair rulings for many
parents.
ii) " Negative Consequences for Domestic Violence
Victims, Which Further Limits Their Safety : Because
there is no way to control who would use the database or
for what purpose, domestic violence victims' safety and
economic stability could be restricted if the database
were used by potential employers, landlords, banks,
higher education institutions, child custody evaluators
or community-based programs to discriminate against
people who are in the database.
"Given that many domestic violence victims are tied
economically to their abusive partners, any practices
that negatively affect their abusive partners' economic
situation - such as being listed in an internet database
or being assessed fines also will adversely affect
domestic violence victims, thereby limiting their options
for attaining safety. Domestic violence victims
convicted of crimes may experience these negative
economic consequences directly if listed in the database.
Further, because people who are arrested, charged with, and
convicted of crimes are disproportionately people of
color (although people of color are not more likely to
commit crimes) the database could reinforce the effects
of racial discrimination if used to restrict people's
access to housing, employment, higher education or
financial loans.
iii) " The High Costs of this Bill May Divert Resources
from Victims and Community-Based Resources: It is very
difficult for local jurisdictions to collect fees
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relating to domestic violence convictions. Criminal
violations of the Penal Code are not among the top ten
categories that generate penalty assessments. Defendants
often are poor and cannot afford to pay fines, or opt for
jail time in lieu of paying the fines. Any additional
fines imposed upon defendants would likely take resources
away from defendants' families, including domestic
violence victims.
"Also, the database would be costly to maintain. The
resources that would be dedicated toward developing and
maintaining the database would be more effectively
invested into existing domestic violence intervention
programs, which are facing significant budget cuts this
year.
"Additionally, there is a risk of litigation against the
State if someone is killed or harmed by someone who was
convicted of domestic violence crimes but whose name was
not listed in the database because of backlogs in the
Attorney General's Office, or if people are inaccurately
listed in the database, as sometimes occurs with the
Megan's Law Sex Offender Registry."
h) According to Rainbow Services , "The proposed Internet
database adds another significant barrier for victims who
do not want to be publicly identified as being in an
abusive relationship or who fear that the database
information will be used to detrimentally affect their or
their batterer's immigration status and/or ability to
access or maintain housing and employment. The threat of
public exposure also provides batterers with an added
incentive to prevent victims from contacting law
enforcement.
"Moreover, given the complex nature of domestic violence
cases and how these cases are addressed by our criminal
justice system, the proposed database will fail to fulfill
its purpose of providing useful information to the public
that can help prevent future acts of domestic violence.
Most domestic violence incidents are never reported to the
authorities. Of those cases that are reported to and
prosecuted by our criminal justice system, many are pled
down to nonviolence crimes that would not appear on
proposed database. In addition, a significant number of
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victims are wrongfully arrested and prosecuted for domestic
violence. Therefore, the information contained in the
proposed database is likely to provide a skewed and
inaccurate picture of an offender's criminal history and
level of dangerousness, which can have harmful
repercussions should members of the public rely on the
database information for personal or other reasons.
"Finally, we believe that designating funding to the creation
of an offender database is irresponsible in light of the
current status of state and federal funding for domestic
violence services. Significant cuts have been made to
funding that supports critical services for victims and
their families, such as emergency shelter and counseling
services. The Legislature should not use existing or newly
established funding to support the creation of an offender
database when there are so many other, more critical
domestic violence related-programs and services that
desperately need additional funding.
"We are not opposed to the portion of the bill that enables a
court to issue a criminal protective order based on
evidence that the person against whom the order is issued
has previously been convicted of a crime of domestic
violence. However, aside from these provisions, we believe
that AB 1771 will have harmful consequences for domestic
violence victims and their families that far outweigh any
potential benefits to the public from being able to access
offender information."
i) According to Legal Services for Prisoners with Children
(LSPC), "LSPC advocates for the human rights and
empowerment of incarcerated parents, children, family
members and people at risk for incarceration. Our focus is
on women prisoners and we emphasize that issues of race are
central to any discussion of incarceration.
"We believe that AB 177 would compromise the safety, privacy,
economic security, and child custody status of domestic
violence victims, particularly victims who themselves have
been convicted of crimes relating to their victimization.
We also believe there are some serious civil rights issues
involved in this bill that may interfere with some people's
ability to succeed in our society while failing to increase
safety for the public at large."
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j) According to Domestic Violence Education and Services ,
"Although AB 1771 may be well-meaning in its intention to
make publicly available information that would otherwise be
difficult to obtain, we believe that AB 1771 would
ultimately not serve the best interests of domestic
violence victims or our community in general.
"[W]e are extremely concerned that many of the individuals
listed on this [proposed] website will be primary victims
of domestic violence. In California and across the nation,
we have seen an increase in the arrest of domestic violence
victims. The increase in arrests of domestic violence
victims is due in part to language or cultural barriers,
and the inability of law enforcement or other first
responders to provide adequate interpretation or proper
analysis of who is the dominant aggressor. In San
Francisco, for example, one-half of all the women entering
the Asian Women's Shelter were coming out of local jails.
"In addition, the increase of wrongful arrests also impacts
individuals in same sex relationships. For example, the
U.S. Department of Justice found that in 26% of female same
sex cases and 27% of male same sex cases, police arrested
both parties when responding to domestic violence calls.
As such, we believe that his bill creates another mechanism
to further victimize domestic violence victims. By posting
this information on a website, the identifying information
of a victim would be publicly accessible.
In Arizona, where an Internet database was created to list
individuals convicted of elder abuse, many individuals have
subsequently failed to report incidents of abuse for fear
of having their family members appear on this web site.
The number of individuals convicted of elder abuse
significantly dropped after the website was created. We
are concerned that a domestic violence website would have a
chilling effect on victims who may think twice before
calling law enforcement for help. Our organization would
not want to see the number of domestic violence reports
plummet, as elder abuse cases did in Arizona.
"[W]e believe that the dynamics of domestic violence are
highly complex, and domestic violence intervention and
prevention requires a multi-pronged and coordinated
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approach. In domestic violence relationships, the batterer
uses power and control to exert complete control over his
or her victim. The power and control exerted in these
relationships can encompass a range of behaviors that the
bill fails to contemplate. As a result, the bill gives
individuals a false sense of security, because not all
batterers are actually ever convicted, and the range of
offenses that a batterer can be charged with is not
currently contemplated in this bill. Because this bill
fails to consider all of the offenses a batterer could
potentially be charged with, we believe that it does not
provide safeguards for individuals who would rely on
information in the website as a means of conducting
background checks. Overall, this bill will not be an
effective deterrent to or ultimately prevent domestic
violence.
"Finally, we are concerned about two unintended consequences
of this proposed public website. The first is that some
individuals may use the website as a screening tool for
employment, housing or other matters not directly related
to domestic violence background checks. The second is that
this website could further victimize children and other
family members through the public dissemination of private
family information, which could cause them distress and
harm. Although this information is publicly accessible,
posting the information on a state-sanctioned website
exposes these offenders, their families, and
wrongly-arrested victims to a whole different level of
public scrutiny."
REGISTERED SUPPORT / OPPOSITION :
Support
Survivors in Action (Sponsor)
Crime Victims United of California
District Attorney, Sacramento County
54 private individuals
Opposition
American Civil Liberties Union
California District Attorneys Association
California Partnership to End Domestic Violence
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California Protective Parents Association
Cooperative Restraining Order Clinic
Domestic Violence Education and Services
Free Battered Women
Humboldt Domestic Violence Services
Interface Children Family Services
Legal Services for Prisoners with Children
Maitri
Peace Over Violence
Rainbow Services
Santa Clara County Domestic Violence Advocacy Consortium
Su Casa
2 private citizens
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744