BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2943
                                                                  Page 1

          Date of Hearing:   April 15, 2008
          Counsel:                Nicole J. Hanson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                    AB 2943 (Lieber) - As Amended:  April 3, 2008
           

                                        REVISED
           
           
           SUMMARY  :   Creates a permissible inference against any person  
          who inflicts physical pain or mental suffering upon a child in  
          specified manners as being unjustifiable. Specifically,  this  
          bill  : 

          1)Declares that the Legislature finds child abuse to be a major  
            social problem and that children in the age group of birth to  
            three years suffer the highest rate of victimization. Child  
            fatalities are the most tragic consequence of maltreatment,  
            and the vast majority of children killed are younger than four  
            years old. Fatal abuse is too often the result of hitting or  
            shaking by caregivers under the guise of discipline.  Infants  
            and toddlers are the most vulnerable because of their tender  
            age and inability to defend themselves or ask for help. It is  
            therefore wholly reasonable that the integrity and sanctity of  
            their bodies should be afforded the greatest protection  
            possible under the law.

          2)Provides that any person who, under circumstances or  
            conditions likely to produce great bodily harm or death,  
            willfully causes or permits  any child to suffer, or inflicts  
            thereon unjustifiable physical pain or mental suffering, or  
            having the care or custody of any child, willfully causes or  
            permits the person or health of that child to be  injured, or  
            willfully causes or permits that child to be placed in a  
            situation where his or her person or health is endangered,  
            shall be  punished by imprisonment in a county jail not  
            exceeding one year, or in the state prison for two, four, or  
            six years.

          3)States that any person who, under circumstances or conditions  
            other than those likely to produce great bodily harm or death,  








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            willfully causes or permits any child to suffer, or inflicts  
            thereon unjustifiable physical pain or mental suffering, or  
            having the care or custody of any child, willfully causes or  
            permits the person or  health of that child to be injured, or  
            willfully causes or permits that child to be placed in a  
            situation where his or her person or health may be endangered,  
            is guilty of a misdemeanor. In a prosecution under this  
            Section in determining whether or not a defendant willfully  
            caused any child to suffer, or inflicted unjustifiable  
            physical pain, or mental suffering, a jury may consider any of  
            the following:

             a)   The use of an implement, including, but not limited to,  
               a stick, a rod, a switch, an electrical cord, an extension  
               cord, a belt, a broom, or a shoe.

             b)   Throwing, kicking, burning, or cutting a child.

             c)   Striking a child with a closed fist.

             d)   Striking a child under the age of three on the face or  
               head.

             e)   Vigorous shaking of a child under the age of three.

             f)   Interference with a child's breathing.

             g)   Brandishing a deadly weapon upon a child.  However, the  
               above conduct is not sufficient by itself to prove guilt,  
               and its weight and significance, if any, is for the jury to  
               decide 

          4)Provides that if a person is convicted of violating this  
            section and probation is granted, the court shall require the  
            following minimum conditions of probation:

             a)   A mandatory minimum period of probation of 48 months.

             b)   A criminal court protective order protecting the victim  
               from further acts of violence or threats, and, if  
               appropriate, residence exclusion or stay-away conditions.

          5)Affirms that successful completion of either a nonviolent  
            parental education class approved by the probation department  
            or no less than one year of a child abuser's treatment  








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            counseling program approved by the probation department. The  
            court shall determine whether the parenting class or the  
            treatment counseling program is most appropriate under the  
            circumstances of each particular case and order the defendant  
            to complete the one which is the most appropriate. The  
            defendant shall be ordered to begin participation in either  
            the class or the program immediately upon the grant of  
            probation. The counseling program shall meet the criteria  
            specified in existing law. The defendant shall produce  
            documentation of program enrollment to the court within 30  
            days of enrollment, along with quarterly progress reports.

          6)Requires that the terms of probation for offenders shall not  
            be lifted until all reasonable fees due to the counseling  
            program have been paid in full, but in no case shall probation  
            be extended beyond the term provided. If the court finds that  
            the defendant does not have the ability to pay the fees based  
            on the defendant's changed circumstances, the court may reduce  
            or waive the fees.

           EXISTING LAW  : 

          1)States any person who, under circumstances or conditions  
            likely to produce great bodily harm or death, willfully causes  
            or permits any child to suffer, or inflicts thereon  
            unjustifiable physical pain or mental suffering, or having the  
            care or custody of any child, willfully causes or permits the  
            person or health of that child to be injured, or willfully  
            causes or permits that child to be placed in a situation where  
            his or her person or health is endangered, shall be punished  
            by imprisonment in a county jail not exceeding one year, or in  
            the state prison for two, four, or six years.  [Penal Code  
            Section 273a(a).]

          2)Provides that any person who, under circumstances or  
            conditions other than those likely to produce great bodily  
            harm or death, willfully causes or permits any child to  
            suffer, or inflicts thereon unjustifiable physical pain or  
            mental suffering, or having the care or custody of any child,  
            willfully causes or permits the person or health of that child  
            to be injured, or willfully causes or permits that child to be  
            placed in a situation where his or her person or health may be  
            endangered, is guilty of a misdemeanor.  [Penal Code Section  
            273a(b).]









                                                                  AB 2943
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          3)Requires persons convicted of causing willful harm or injury  
            to a child, or endangering the person or health of a child and  
            probation is granted, the court shall set the following as  
            minimum standards of probation:

             a)   A mandatory minimum period of probation of 48 months;

             b)    A criminal court protective order protecting the victim  
               from further acts of violence or threats, and, if  
               appropriate, residence exclusion or stay-away conditions;

             c)   Successful completion of no less than one year of a  
               child abuser's treatment counseling program approved by the  
               probation department.  The defendant shall be ordered to  
               begin participation in the program immediately upon the  
               grant of probation.  The counseling program shall meet  
               specified criteria as outlined under existing law.  The  
               defendant shall produce documentation of program enrollment  
               to the court within 30 days of enrollment, along with  
               quarterly progress reports;

             d)   The terms of probation for offenders shall not be lifted  
               until all reasonable fees due to the counseling program  
               have been paid in full, but in no case shall probation be  
               extended beyond the term provided under existing law.  If  
               the court finds that the defendant does not have the  
               ability to pay the fees based on the defendant's changed  
               circumstances, the court may reduce or waive the fees;

             e)   If the offense was committed while the defendant was  
               under the influence of drugs or alcohol, the defendant  
               shall abstain from the use of drugs or alcohol during the  
               period of probation and shall be subject to random drug  
               testing by his or her probation officer; and,

             f)   The court may waive any of the above minimum conditions  
               of probation upon a finding that the condition would not be  
               in the best interests of justice.  The court shall state on  
               the record its reasons for any waiver.  [Penal Code Section  
               273a(c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   









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           1)Author's Statement  :  According to the author, "Corporal  
            punishment of children as a discipline technique has long been  
            a source of debate.  What starts as discipline, though, too  
            often becomes abuse.  

            "Conservative estimates indicate that almost 2,000 infants and  
            young children die from abuse or neglect by parents or  
            caretakers each year, or 5 children every day.  More must be  
            done to protect the smallest citizens of the State.    

            "Corporal punishment in California schools has been illegal  
            since 1986 (Education Code Section 49000).  It is also  
            expressly prohibited in day care centers, group homes, and  
            foster care. 

            "Existing law, Penal Code Section 273a, makes it a crime for  
            any person, under specified circumstances, to willfully cause  
            or permit a child to suffer, or inflict on a child  
            unjustifiable physical pain or mental suffering.  

            "The vagueness of the 'unjustifiable' standard leads to  
            inconsistent results.  Cases of discipline serious enough to  
            injure a child and warrant prosecution may go unpunished if  
            the defendant raises the affirmative defense of "reasonable  
            corporal punishment."  Nor does current law explicitly ban  
            baby-shaking, which can result in grave injury to infants. 

            "This legislation amends California Penal Code Section 273a.  

            "The bill creates a permissible inference for the trier of  
            fact that certain specified types of discipline are to be  
            considered unjustifiable per se.  These provisions allow  
            prosecutors to charge baby-shaking as either a felony or a  
            misdemeanor.  The bill also expands the sentencing discretion  
            of courts by adding non-violent parenting education classes as  
            an option for those convicted under the statute." 

           2)Historical Backdrop behind Corporal Punishment  :  Corporal  
            punishment is the infliction of physical force by a parent or  
            guardian upon a child with the intent of correcting a child's  
            behavior.  Adults have used corporal punishment to discipline  
            children for centuries; however, it does have its limits.   
            Historically, common law held that a parent was "not permitted  
            to resort to punishment which would exceed that properly  
            required for disciplining purposes or which would extend  








                                                                  AB 2943
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            beyond the bounds of moderation.  Excessive or cruel conduct  
            was universally prohibited."  (Bowers v. State (Md. 1978) 389  
            A.2d 341, 348.)  

          All 50 states permit corporal punishment, either explicitly in  
            state statutes or through court decisions.  (Annot., Criminal  
            Liability for Excessive or Improper Punishment Inflicted on  
            Child by Parent, Teacher, or One in Loco Parentis (1995) 89  
            A.L.R.2d 396.)  By official estimates, over 90% of American  
            parents use corporal punishment to discipline their children.   
            [Stark & McEvoy III, Middle Class Violence, Psychol. Today,  
            Nov. 1970, p. 54.]

          The Bible sanctions corporal punishment and religious and other  
            moral teachings have approved of the threat and use of force  
            as a proper method of disciplining children.  Biblical support  
            came from Proverbs 23:13-14:  "Withhold not correction from  
            the child; for if thou beatest him with the rod, he shall not  
            die.  Though halt beat him with the rod, and shalt deliver his  
            soul from hell."  (Cited in People v. Mummert (Nassau County  
            Ct. 1944) 40 N.Y.S.2d 699, 703-04.)  Martin Luther believed  
            that parents could use extreme measures, even death, when  
            children were disobedient.  [What Luther Says: An Anthology  
            145 (E. Plass ed., 1959).]  Based upon these religious  
            authorities, many people believed that beating a child was  
            acceptable. 

           3)Corporal Punishment versus Constitutional Right to Discipline  :  
             Some people believe that corporal punishment is an inherent  
            parental right.  The United States Supreme court has provided  
            support for the idea that parents have a constitutional right  
            to use corporal punishment.  The interest of parents in the  
            care, custody, and control of their children is a fundamental  
            right protected by the Constitution.  [Troxel v. Granville  
            (2000) 530 U.S. 57, 66 ("In light of . . . extensive  
            precedent, it cannot now be doubted that the Due Process  
            Clause of the Fourteenth Amendment protects the fundamental  
            right of parents to make decisions concerning the care,  
            custody, and control of their children." (citing Meyer v.  
            Nebraska (1923) 262 U.S. 390; Pierce v. Soc'y of Sisters  
            (1925) 268 U.S. 510; Prince v. Massachusetts (1944) 321 U.S.  
            158; Stanley v. Illinois (1972) 405 U.S. 645; Wisconsin v.  
            Yoder (1972) 406 U.S. 205; Quilloin v. Walcott (1978) 434 U.S.  
            246; Parham v. J.R. (1979) 442 U.S. 584; Santosky v. Kramer  
            (1982) 455 U.S. 745; Washington v. Glucksberg (1997) 521 U.S.  








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            702.)

          There are, however, limits to this right.  A parent who  
            willfully inflicts unjustifiable punishment is not immune from  
            criminal prosecution.  (People v. Stewart (1961) 188  
            Cal.App.2d 88, 91; People v. Curtiss (1931) 116 Cal. App.  
            Supp. 771, 777.) As explained in Curtiss, corporal punishment  
            is unjustifiable when it is not warranted by the  
            circumstances, i.e., not necessary, or when such punishment,  
            although warranted, was excessive.  (People v. Curtiss, supra,  
            116 Cal. App. Supp. at 780.)  "[B]oth the reasonableness of,  
            and the necessity for, the punishment is to be determined by a  
            jury, under the circumstances of each case." (Id. at 777.)

          The Attorney General (AG) issued an opinion on July 21, 1997  
            concerning the lawfulness of corporal punishment administered  
            by a parent. The AG concluded that such punishment may be so  
            administered as long as it is necessary and not excessive in  
            relation to the individual circumstances.  The AG stated, "The  
            use of an object other than the open hand when a parent  
            administers a spanking to his or her child is not in itself  
            unlawful.  However, the particular object used may affect the  
            reasonableness of the punishment, which is at the center of  
            the legal right to discipline one's own child.  In People v.  
            Whitehurst (1992) 9 Cal.App.4th 1045, 1050, the court recently  
            explained:  

          'A parent has a right to reasonably discipline by punishing a  
            child and may administer reasonable punishment without being  
            liable for a battery.  (Emery v. Emery (1955) 45 Cal.2d 421,  
            429; People v. Stewart, supra, 188 Cal.App.2d at  91.)  This  
            includes the right to inflict reasonable corporal punishment.  
            [People v. Curtiss, supra, 116 Cal.App.Supp. at 775.]

          'However, a parent who willfully inflicts unjustifiable  
            punishment is not immune from either civil liability or  
            criminal prosecution.  (Id., at 91; People v. Curtiss, supra,  
            116 Cal.App.Supp. at 777.)  As explained in Curtiss, corporal  
            punishment is unjustifiable when it is not warranted by the  
            circumstances, i.e., not necessary, or when such punishment,  
            although warranted, was excessive.  (People v. Curtiss, supra,  
            116 Cal.App.Supp. at 780.)  "Both the reasonableness of, and  
            the necessity for, the punishment is to be determined by a  
            jury, under the circumstances of each case."  (Id. at 777.)









                                                                  AB 2943
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          'Thus as these cases make clear, whether the corporal punishment  
            falls within the parameters of a parent's right to discipline  
            involves consideration of not only the necessity for the  
            punishment but also whether the amount of punishment was  
            reasonable or excessive. Reasonableness and necessity  
            therefore are not two separate defenses but rather two aspects  
            of the single issue of parental right to discipline by  
            physical punishment . . . . '

          Hence, it is not unlawful for a parent to spank a child for  
            disciplinary purposes with an object other than the hand;  
            however, the punishment must be necessary and not excessive.   
            Whether such punishment is necessary and not excessive is for  
            the tier of fact to decide, not the Legislature as this bill  
            projects.

           4)Prior Legislation  :  AB 755 (Lieber) is identical to this bill.  
             AB 755 failed passage in the Assembly Committee on  
            Appropriations and was returned to the Chief Clerk of the  
            Assembly.

           REGISTERED SUPPORT/OPPOSITION  :

           Support 
           
          California Protective Parents Association
          Centro Contra La Violencia

           Opposition 
           
          California Family Council
          Capitol Resource Family Impact
          Child and Family Protection Association
          Concerned Women for America of California
          6 private citizens

           
          Analysis Prepared by  :    Nicole J. Hanson / PUB. S. / (916)  
          319-3744