BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Gloria Romero, Chair A 2007-2008 Regular Session B 2 7 1 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 (More) AB 2718 (Runner) PageB 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 (More) AB 2718 (Runner) PageC 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.) (More) AB 2718 (Runner) PageD 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. (More) AB 2718 (Runner) PageE 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). (More) AB 2718 (Runner) PageF 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. (More) AB 2718 (Runner) PageG . . . (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 (More) AB 2718 (Runner) PageH 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 (More) AB 2718 (Runner) PageI 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 (More) AB 2718 (Runner) PageJ 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 (More) AB 2718 (Runner) PageK 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. (More) AB 2718 (Runner) PageL 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 (More) AB 2718 (Runner) PageM 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 (More) AB 2718 (Runner) PageN 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. (More) 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." (More) AB 2718 (Runner) PageP (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 AB 2718 (Runner) PageQ 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. ***************