BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 407|
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UNFINISHED BUSINESS
Bill No: SB 407
Author: Romero (D), et al
Amended: 7/5/07
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE : 4-0, 4/10/07
AYES: Romero, Cedillo, Margett, Ridley-Thomas
NO VOTE RECORDED: Cogdill
SENATE JUDICIARY COMMITTEE : 3-2, 5/8/07
AYES: Corbett, Kuehl, Steinberg
NOES: Harman, Ackerman
SENATE FLOOR : 39-0, 6/7/07
AYES: Aanestad, Ackerman, Alquist, Ashburn, Battin,
Calderon, Cedillo, Cogdill, Corbett, Correa, Cox, Denham,
Ducheny, Dutton, Florez, Harman, Hollingsworth, Kehoe,
Kuehl, Lowenthal, Machado, Maldonado, Margett,
McClintock, Migden, Negrete McLeod, Oropeza, Padilla,
Ridley-Thomas, Romero, Runner, Scott, Simitian,
Steinberg, Torlakson, Vincent, Wiggins, Wyland, Yee
NO VOTE RECORDED: Perata
ASSEMBLY FLOOR : 78-0, 7/19/07 - See last page for vote
SUBJECT : Domestic violence: evidentiary privilege
SOURCE : California Partnership to End Domestic Violence
California Womens Law Center
CONTINUED
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DIGEST : This bill makes a number of changes to the
existing domestic violence victim-counselor evidentiary
privilege: Specifically, this bill (1) changes the
definition of domestic violence counselor, and makes
corresponding cross references, (2) defines "domestic
violence victim service organization," (3) changes the
definition of what constitutes a "confidential
communication,", (4) expressly provides that a guardian or
conservator accused of committing domestic violence against
a victim cannot be a holder of that privilege, and (5)
expressly references which proceedings the privilege
applies to.
Assembly Amendments (1) expand the definition of a
"domestic violence counselor", (2) define "domestic
violence advocate", and (3) add co-authors.
ANALYSIS : Existing law requires that, "(e)xcept as
provided by statute hereafter enacted by a two-thirds vote
of the membership in each house of the Legislature,
relevant evidence shall not be excluded in any criminal
proceeding, including pretrial and post conviction motions
and hearings, or in any trial or hearing of a juvenile for
a criminal offense, whether heard in juvenile or adult
court. Nothing in this section shall affect any existing
statutory rule of evidence relating to privilege, or
heresay, or Evidence Code, Section 352, 792, or 1103.
Nothing in this section shall affect any existing statutory
or constitutional right of the press." [Cal. Const. Art. I
28, ("Victims' Bill of Rights," adopted by the electorate
June 8, 1982.")]
Existing law generally creates a privilege for confidential
communications between victims of domestic violence and
trained counselors employed by domestic violence centers.
Existing law includes within the definition of "domestic
violence counselor" a person who is employed by any
organization providing the programs specified in Section
18294 of the Welfare and Institutions Code, and who meets
one of the following requirements:
1.Has a master's degree in counseling or a related field,
or has one year of counseling experience, at least six
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months of which is in the counseling of domestic violence
victims.
2.Has at least 40 hours of training, as specified, and is
supervised by an individual who qualifies under #1 above.
The training shall include history of domestic violence,
social attitudes towards domestic violence, peer
counseling techniques, housing, public assistance and
other financial resources available to meet the financial
needs of domestic violence victims, and referral services
available to domestic violence victims.
Existing law also includes within the definition of
"domestic violence counselor" a person who is employed by
any organization providing the programs specified in
Section 13835.2 of the Penal Code, whether financially
compensated or not, for the purposes of counseling and
assisting victims of domestic violence, and who meets one
of the following requirements:
1.Is a psychotherapist as defined in Section 1010, has a
master's degree in counseling or a related field, or has
one year of counseling experience, at least six months of
which is in counseling victims of domestic violence.
2.Has the minimum training for counseling victims of
domestic violence required by guidelines established by
the employing agency and is supervised by an individual
who qualifies as a counselor (as specified). The
training, supervised by a person shall include, but not
be limited to, law, victimology, counseling techniques,
client and system advocacy, and referral services.
This bill revises the definition of a "domestic violence
counselor" to mean a person who meets the specified
training requirements, and is employed by a "domestic
violence victim service organization," which will be
defined as follows:
(A) nongovernmental organization or entity that
provides shelter, programs, or services to victims of
domestic violence and their children, including, but
not limited to either of the following: (1) domestic
violence shelter-based programs, as described in
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Section 19284 of the Welfare and Institutions Code, and
(2) other programs with the primary mission to provide
service to victims of domestic violence whether or not
that program exists in an agency that provides
additional services.
The bill provides that a "domestic violence counselor"
must have at least 40 hours of training.
The 40 hours of training shall be supervised by an
individual who qualifies as a counselor, and who has at
least one year of experience counseling domestic violence
victims for the domestic violence victim service
organization. The training shall include, but need not
be limited to, the following areas: history of domestic
violence, civil and criminal law as it relates to
domestic violence, the domestic violence victim-counselor
privilege and other laws that protect the confidentiality
of victim records and information, social attitudes
toward domestic violence, peer counseling techniques,
housing, public assistance and other financial resources
available to meet the financial needs of domestic
violence victims, and referral services available to
domestic violence victims.
A domestic violence counselor who has been employed by
the domestic violence victim service organization for a
period for less than six months shall be supervised by a
domestic violence counselor who has at lest one year of
experience counseling domestic violence victims for the
domestic violence victim service organization.
This bill also adds "the domestic violence victim-counselor
privilege and other laws that protect the confidentiality
of victim records and information" to the topics of
required training for domestic violence counselors.
The bill also defines the duties of a "domestic violence
advocate."
Existing law defines "confidential communication" as
"information transmitted between the victim and the
counselor in the course of their relationship and in
confidence by a means which, so far as the victim is aware,
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discloses the information to no third person other than
those who are present to further the interests of the
victim in the consultation or those to whom disclosures are
reasonably necessary for the transmission of the
information or an accomplishment of the purposes for which
the domestic violence counselor is consulted. It includes
all information regarding the facts and the circumstances
involving all incidences of domestic violence, as well as
all information about the children of the victim or abuser
and the relationship of the victim with the abuser."
[Evidence Code Section 1037.2.]
This bill inserts the phrase "included, but not limited to
written or oral" into that definition of "confidential
communication."
Existing law provides that the "holder of the privilege
means:"
1.The victim when he or she has no guardian or conservator.
2.A guardian or conservator of the victim when the victim
has a guardian or conservator. [Evidence Code Section
1037.4.]
This bill revises this language to expressly exclude a
guardian or conservator who is accused of perpetrating
domestic violence against the victim.
Existing law provides that, except as otherwise provided by
statute, the provisions of evidentiary privileges apply in
all proceedings. [Evidence Code Section 910.]
This bill expressly states that the domestic violence
victim-counselor privilege applies in any proceeding
specified in Evidence code Section 901.
The bill also adds a new section to the bill amending Penal
Code Section 679.05 to update the cross reference this bill
makes to the definition of "domestic violence counselor."
This bill makes legislative findings and declarations t hat
the amendments to the provisions constitute clarifications
and revisions that are consistent with the original intent
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and purposes and are intended to be declaratory of existing
law, and constitute clarifications, rather than an
expansion, of the domestic violence victim-counselor
privilege.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/20/07)
California Partnership to End Domestic Violence (co-source)
California Women's Law Center (co-source)
Break the Cycle
California Coalition Against Sexual Assault
The California Partnership
Center for Community Solutions
Community Overcoming Relationship Abuse
Domestic Abuse Center
Domestic Violence Education and Services
Equality California
Haven House, Inc.
House of Ruth
Human Options
Humboldt Domestic Violence Services
Lassen Family Services, Inc.
Los Angeles County District Attorney's Office
Los Angeles Gay and Lesbian Center
Mountain Crisis Services
Operation Care
Option House, Inc.
Peace Over Violence
Rainbow Services
San Diego Domestic Violence Council
San Francisco Domestic Violence Consortium
Shasta County Women's Refuge
Su Casa: Ending Domestic Violence
Taxpayers for Improving Public Safety
Women Shelter of Long Beach
ARGUMENTS IN SUPPORT : The sponsor states, ""[A]lthough
California was among the first states to enact a
victim-counselor privilege, since its enactment in 1986,
the privilege law has never been significantly amended to
keep pace with the growth and expansion of programs in the
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domestic violence field that provide counseling and
assistance to domestic violence victims. These outdated
definitions have caused confusion in the field over who is
subject to the privilege and the type of information that
is deemed privileged. SB 407 clarifies these statutory
definition and revises existing training requirements for
domestic violence counselors to require training on that
privilege."
ASSEMBLY FLOOR :
AYES: Adams, Aghazarian, Anderson, Arambula, Bass, Beall,
Benoit, Berg, Berryhill, Blakeslee, Brownley, Caballero,
Charles Calderon, Cook, Coto, Davis, De La Torre, De
Leon, DeSaulnier, DeVore, Duvall, Dymally, Emmerson, Eng,
Evans, Feuer, Fuentes, Fuller, Gaines, Galgiani, Garcia,
Garrick, Hancock, Hayashi, Hernandez, Horton, Houston,
Huff, Huffman, Jeffries, Jones, Karnette, Keene,
Krekorian, La Malfa, Laird, Leno, Levine, Lieber, Lieu,
Ma, Maze, Mendoza, Mullin, Nakanishi, Nava, Niello,
Parra, Plescia, Portantino, Price, Richardson, Sharon
Runner, Ruskin, Salas, Saldana, Silva, Smyth, Solorio,
Soto, Spitzer, Strickland, Swanson, Torrico, Tran,
Villines, Walters, Wolk
NO VOTE RECORDED: Carter, Nunez
RJG:cm 7/20/07 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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