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).]
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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
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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.)
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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