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, AB 2943 Page 2 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 AB 2943 Page 3 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 Page 4 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 : AB 2943 Page 5 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 Page 6 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. AB 2943 Page 7 702.) 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 Page 8 '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