BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
2
7
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AB 2718 (Runner) 8
As Amended June 4, 2008
Hearing date: June 24, 2008
Penal Code
JM:mc
INJUNCTIONS CONCERNING PERSONS WITH SEXUAL INTEREST IN CHILDREN
CONTACT AND DISSEMINATION OF INFORMATION OR PICTURES
HISTORY
Source: Office of the Governor
Prior Legislation: AB 534 (Smyth) - 2008, pending in Senate
Appropriations
Support: Los Angeles County District Attorney
Opposition:Taxpayers for Improving Public Safety; American Civil
Liberties Union
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD A PERSON BE ENJOINED FROM CONTACT WITH A CHILD OR CHILDREN,
OR FROM DISSEMINATING INFORMATION ABOUT A CHILD OR CHILDREN, WHERE
THE FOLLOWING ARE SHOWN: THE PERSON HAS DEMONSTRATED AN UNNATURAL
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SEXUAL INTEREST IN A CHILD OR CHILDREN THROUGH, IN PART,
DISSEMINATION OF INFORMATION OR PICTURES OF THE CHILD OR CHILDREN
WHO ARE THE SUBJECT OF THE PERSON'S SEXUAL INTEREST?
PURPOSE
The purpose of this bill is to provide that a person may be
enjoined from contact with children, or from disseminating
information about or pictures of children where the person has
shown an unnatural sexual interest in children by, in part,
disseminating information about or pictures of a child or
children who are the subject of sexual interest.
Existing law states every person who annoys or molests any child
less than 8 years of age shall be punished by a fine not
exceeding $5,000; by imprisonment in a county jail not exceeding
one year; or by both the fine and imprisonment. (Pen. Code
647.6, subd. (a)(1).) Decisional law provides that the
defendant must be motivated by an unnatural or abnormal sexual
interest in children and that the average person would certainly
find the defendant's conduct to be disturbing or irritating.
(People v. Lopez (1998) 19 Cal.4th 282; People v. McFarland
(1988) 206 Cal.App.3d 459.)
Existing decisional law provides that annoying or molesting a
child can be proved by a single act or a continuous course of
conduct of separate acts. A single act, such as kissing a
child, can constitute a violation of section 647.6. In another
case, a course of conduct might involve acts that would not
amount to a crime, but that would constitute annoying or
molesting a child when considered together. (People v. Moore
(1986) 185 Cal.App.3d 1005, 1014-1016.)
Existing law states any person who willfully and lewdly commits
any lewd or lascivious act, including any of the acts
constituting other crimes provided for in existing law, upon or
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with the body, or any part or member thereof, of a child who is
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 guilty of a felony and
shall be punished by imprisonment in the state prison for three,
six, or eight years. (Pen. Code 288, subd. (a).)
Existing California Supreme Court decisions state that the
"touchstone of the public nuisance doctrine" is the "notion of
the community and its collective values." (People ex. rel Gallo
v. Acuna (1997) 14 Cal.4th 1090, 1109.)
Existing law defines a nuisance thus: "Anything injurious to
health, including illegal sale of controlled substances, or
indecent or offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the comfortable
enjoyment of life or property, or unlawfully obstructs the free
passage or use of any navigable lake, [body of water], or any
public park, square, street, or highway, is a nuisance." (Civ.
Code 3479.)
Existing law provides that a person may obtain a court order for
an injunction - an order that another person or entity not
engage in specified behavior. (Code. Civ. Proc. 595.)
Existing law includes the crime of contempt. One form of
criminal contempt involves willful disobedience of any court
process or order. Criminal contempt is a misdemeanor,
punishable by imprisonment in a county jail for up to six
months, a fine of up to $1,000, or both. (Pen. Code 166,
subd. (a).)
Existing law includes civil contempt. Civil contempt can
involve disobedience of a court order. Trial of civil contempt
is by the court. The maximum penalty for civil contempt is a
fine of up to $1,000, a jail term of up to five days, or both.
(Code Civ. Proc. 1209, 1217-1218.)
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This bill creates a new civil injunction action in the section
defining the crimes of "annoying of molesting a child." This
new provision states:
Notwithstanding any other law, any person who, by
clear and convincing evidence, demonstrates an
unnatural or abnormal sexual interest in a child or
children, which includes the dissemination of personal
information or photographs of the child or children
who are the subject of the sexual interest, may be
enjoined pursuant to [] 527 of the Code of Civil
Procedure from further activity that includes direct
or indirect contact with, or the dissemination of any
personal information or photographic representations
of, that child or children.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, 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
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
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
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mid-1980s.<2>
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
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
--------------------
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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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.<3>
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.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
----------------------
<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
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According to the author:
This bill explicitly authorizes a parent of a child
who has been the focus of a person with an unnatural
sexual interest in children to seek a preliminary
injunction against dissemination of information if the
behavior includes the publication of information about
the victim or victims. An injunction would allow law
enforcement to place restrictions on the activities
and whereabouts of this type of offender, similar to
Jack McClellan, affording additional protection for
children.
2. The Strange Case of Jack McClellan
This bill is in response to the behavior of a man named Jack
McClellan. McClellan has made headlines nationwide for
operating a Web site in which he candidly discussed his
attraction to pre-pubescent girls. One article in the New York
Times stated that McClellan describes himself as a pedophile but
claims to have never committed a crime against a child.
Nonetheless, McClellan caused widespread outrage by posting (non
pornographic) photos of young children on his Web site as well
as describing places where children are likely to be found.
Two months ago, Mr. McClellan said, he was more or
less run out of Washington State, where he lived
off and on with his parents, after the news media
there and various Web sites drew attention to his
activities, making him worry about his safety and
that of his family. He had been posting nonsexual
pictures of children on a Web site intended to
promote the acceptance of pedophiles, and to
direct other pedophiles to events and places where
children tended to gather.
So he moved to Los Angeles, where he was born, to
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try to live a Southern California version of his
former life. The climate was one draw but also
"there are so many world-class children's
attractions here."
Mr. McClellan has refrained from posting pictures
of children on his Web site, which was shut down
by its host several weeks ago but which he intends
to start again, he said, with a Dutch host. On
the site, he has described fairs, festivals and
other spots that he hits at least three days a
week, all to the fury of parents.
It is both his actions and inactions that vex law
enforcement officials here, who, while suggesting
that they keep an eye on Mr. McClellan when they
can, say they have no legal recourse against him.
(Parents' Ire Grows at Pedophile's Unabashed Blog,
New York Times, July 28, 2007.)
While McClellan's behavior has caused considerable alarm among
parents wherever he is rumored to be residing, law enforcement
officials have stated that he does not appear to have broken any
laws. Another media report stated the following:
"There is no law against someone making you feel
uncomfortable," said Laurie Levenson, a former federal
prosecutor and a Loyola Law School professor.
"There's a line to cross and I don't think he has yet.
He's tiptoeing around the law."
Some child advocacy groups worry that it's only a
matter of time before McClellan acts on his thoughts.
"Even the most outrageous thoughts are protected (by
law) but it appears Mr. McClellan is doing more than
expressing them," said Ernie Allen, president and CEO
of the National Center for Missing & Exploited
Children. "It's a question if he crosses the line
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into illegal activity or encourages others to do so."
It's not a crime to be a pedophile -- by definition an
adult who fixates on children as sexual objects. It's
only a crime for pedophiles to act on their desires
and molest a child. And while California has tough
penalties for stalking and harassment, McClellan's
conduct apparently hasn't risen to a criminal level.
Several law enforcement agencies, both in California
and his former home state of Washington, have
monitored or investigated his activities but not
charged him with a crime.
McClellan, who mostly has lived out of his car since
arriving in California a few months ago, maintained a
Web site for years where he posted pictures of
children he had photographed in public places. It has
since been taken down by the server.
He said earlier this month that running the site,
where he also discussed how he likes to stake out
parks, public libraries and other areas where little
girls congregate, was therapeutic because it allowed
him to share his thoughts.
"I thought it was the best therapeutic thing for my
own head to kind of put this out there, what I'm
thinking," he said before his arrest. "I'm determined
not to do anything illegal. I haven't done anything
illegal." (Experts: Pedophile Blogger Tiptoes Around
Law, Associated Press, August 16, 2007.)
This bill would provide that a person such as McClellan, who
states that he has a sexual interest in prepubescent girls, and
who distributes information about children or photos of children
manifesting such interest, could be enjoined from contact with
children or distributing information or photos of children.
An August 24, 2007, Associated Press article described a
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court hearing in which a Los Angeles County Superior Court
judge issued a permanent injunction against McClellan:
A judge Friday ordered self-described pedophile Jack
McClellan to stay at least 10 yards from places where
children congregate, including schools, playgrounds
and child-care centers. Superior Court Judge Melvin
Sandvig issued a permanent injunction narrowing his
initial order earlier this month that had barred
McClellan from coming within 30 feet of any person
under 18 anywhere in California. The new order also
prohibits McClellan from contacting, videotaping, or
photographing children without written consent from
their guardian or parent.
The injunction allows civil action against McClellan
if it is violated. A three-year restraining order
carrying the same restrictions was also issued and
given to all law enforcement agencies in the state.
As he left the hearing, McClellan told reporters: "I
don't know what I'm going to do now."
McClellan, 45, came to the attention of authorities
for a Web site where he posted photos of children in
public places and discussed how he liked to stake out
parks, public libraries, fast-food restaurants and
other areas where little girls congregated. McClellan
maintained he launched the site as a form of therapy
and wouldn't do anything illegal. He has never been
charged with molestation. His Internet service
provider took down his Web site more than a month ago.
The orders issued by Sandvig bar McClellan from
publishing any image of a child without parental
permission. McClellan has been unemployed and living
out of his car since arriving in Southern California
this summer from Washington. He received a police
escort Friday into the courthouse after arriving in
the parking lot and donning a shirt in his car.
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Sandvig did not give specific reasons for revising his
initial order but indicated he was aware of concerns
about its constitutionality given its sweeping nature.
"Minor children are a group that do need extra
protection because they can't be watched 24-seven,"
the judge said.
An Internet search by Committee staff has found no current
information about Jack McClellan. Further, there were no
stories about the legal status of the injunction.
3. Code of Civil Procedure Section 527
This bill states a person may be enjoined pursuant Code of Civil
Procedure (CCP) Section 527 from further disseminating
information about a child if the court finds clear and
convincing evidence that he or she disseminated the information
with an unnatural or abnormal sexual interest. Code of Civil
Procedure Section 527 concerns grants before judgment of a
temporary restraining order and a preliminary injunction and
states, in relevant part, "A preliminary injunction may be
granted at any time before judgment upon a verified complaint,
or upon affidavits if the complaint in the one case, or the
affidavits in the other, show satisfactorily that sufficient
grounds exist therefor." (Code Civ. Proc. 527, subd. (a).)
CCP section 527, subdivision (b), explains the grounds for
granting a temporary restraining order:
No temporary restraining order shall be granted
without notice to the opposing party, unless both of
the following requirements are satisfied: it appears
from facts shown by affidavit or by the verified
complaint that great or irreparable injury will result
to the applicant before the matter can be heard on
notice.
The applicant or the applicant's attorney must certify
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one of the following to the court under oath: that
within a reasonable time prior to the application the
applicant informed the opposing party or the opposing
party's attorney at what time and where the
application would be made; that the applicant in good
faith attempted but was unable to inform the opposing
party and the opposing party's attorney, specifying
the efforts made to contact them, and; that for
reasons specified the applicant should not be required
to so inform the opposing party or the opposing
party's attorney. (Code Civ. Proc. 527, subd.
(c)(1) and (2).)
Presumably, both of these remedies are available under
existing law to a person who can show inappropriate
dissemination of information caused irreparable injury.
4. Conduct Beyond Speech Described in This Injunction May be a
Crime Under Current Law
As noted in Comment #5, below, this bill may illegally prohibit
protected speech. A person's statement that he is a pedophile
is protected speech, regardless of how much that statement
disturbs others. Where the bill can be applied to not violate
the First Amendment, the defendant's conduct already could be a
crime, making an injunction unnecessary.
This bill provides that a person can be enjoined from either
direct or indirect contact with a specific child or children, or
enjoined from dissemination of information about such child or
children, where the person demonstrates an unnatural sexual
interest in children, including through the dissemination of
personal information about the child or children.
Penal Code Section 647.6 provides that a person who demonstrates
an unnatural sexual interest in children through conduct towards
a child that a reasonable person would find to be disturbing or
irritating. Where a defendant demonstrates an unnatural sexual
interest in children by posting photographs or information about
children, it is quite likely that a reasonable person would find
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the defendant's conduct objectively disturbing. However, if the
information or photographs were not conveyed or displayed to a
child, the defendant did not annoy or molest a child, but rather
disturbed or irritated an adult, and the defendant has not
violated Section 647.6. However, the child at whom the conduct
was directed need not be disturbed or irritated. (People v.
Lopez, supra, 19 Cal.4th 282, 290.) A person could be guilty of
violating Section 647.6 by photographing or videotaping
adolescent boys in a disturbing manner. (Ecker v. Raging Waters
(2001)87 Cal.App.4th 1320, 1330-1331.)
The child pornography crime laws prohibit a person from
possessing or distributing images of a child or children engaged
in actual or simulated sexual conduct. Sexual conduct is
broadly defined to include posing done or directed with the
purpose of sexual stimulation of the viewer. (Pen. Code
311.4, subd. (d).) (As noted above, Mr. McClellan did not
violate child pornography laws.)
McClellan's website and other speech or conduct were not
directed at nor displayed to children. It appears that
McClellan communicated with adults. Because the images
displayed on his Web site were not pornographic, and because his
disturbing statements, photographs and conduct were not directed
toward children, he did not violate Section 647.6.
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IF THE CONDUCT THIS BILL ADDRESSES IS EITHER PROTECTED SPEECH OR
A CRIME UNDER CURRENT LAW, WHAT IS THE PRACTICAL EFFECT OF THIS
BILL?
5. First Amendment Issues
The United States Supreme Court has recently issued important
rulings concerning free speech in the Internet age. These cases
include (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234,
245-246.) The Court in Ashcroft ruled:
As a general principle, the First Amendment bars the
government from dictating what we see or read or speak
or hear. The freedom of speech has its limits; it
does not embrace certain categories of speech,
including defamation, incitement, obscenity, and
pornography produced with real children.
Furthermore, the mere tendency of speech to encourage
unlawful acts is not a sufficient reason for banning
it. The government "cannot constitutionally premise
legislation on the desirability of controlling a
person's private thoughts." (Citation.) First
Amendment freedoms are most in danger when the
government seeks to control thought or to justify its
laws for that impermissible end. The right to think
is the beginning of freedom, and speech must be
protected from the government because speech is the
beginning of thought.
To preserve these freedoms, and to protect speech for
its own sake, the Court's First Amendment cases draw
vital distinctions between words and deeds, between
ideas and conduct. (Citations.) ("The normal method
of deterring unlawful conduct is to impose an
appropriate punishment on the person who engages in
it.") The government may not prohibit speech because
it increases the chance an unlawful act will be
committed "at some indefinite future time."
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(Citation.) The government may suppress speech for
advocating the use of force or a violation of law only
if "such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or
produce such action." (Ashcroft, supra, 535 U.S. 234,
253, citations omitted.)
Speech that is intended to be used to incite a crime against
children would appear to be protected under the First Amendment
unless it is both intended to incite or produce imminent lawless
action and is likely to produce such action. This bill contains
neither of these features.
DOES THIS BILL VIOLATE THE FIRST AMENDMENT RIGHT TO FREE SPEECH?
6. This Bill in Contrast with AB 534 (Smyth)
AB 534 (Smyth) was also introduced in response to the McClellan
matter. AB 534, which passed this Committee earlier this year,
would create a new Penal Code section 273i that reads as
follows:
Any person who publishes information describing or
depicting a child [under the age of 14, the physical
appearance of a child, the location of a child, or
locations where children may be found with the intent
that another person imminently use the information to
commit a crime against a child and the information is
likely to aid in the imminent commission of a crime
against a child, is guilty of a misdemeanor
AB 534 does not restrict protected speech. The bill prohibits
specific conduct that creates a specific danger to a child. The
conduct described is a crime, not the basis for an injunction.
As such, a person who violates this section can be immediately
arrested and prosecuted. In contrast, under this bill a parent
or other party would need to obtain an injunction against the
person who could pose a danger to a child. No more action could
be taken, including arrest, unless and until the person violates
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the injunction. Arguably, the bases for an injunction under
this bill would be subject to uncertain application, including
the application of the term indirect contact with children.
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