BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1641
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          Date of Hearing:   March 2, 2010
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 1641 (Hall) - As Amended:  February 24, 2010
           

          SUMMARY  :  Eliminates the requirement that a victim be under the  
          age of 14 when making it a crime for a person to fail to report  
          to police an instance when he or she witnesses a rape and  
          applies a 96-hour window to report incidents of rape prior to  
          subjecting the witness to prosecution.  

           EXISTING LAW  :

          1)States that any person who reasonably believes that he or she  
            has observed the commission of any of the following offenses  
            where the victim is a child under the age of 14 years shall  
            notify a peace officer:  rape and specified lewd and  
            lascivious acts committed by force or fear.  (Penal Code  
            Section 152.3).  

             a)   The reporting shall not be construed to affect  
               privileged relationships as provided by law.

             b)   The duty to notify a peace officer imposed is satisfied  
               if the notification or an attempt to provide notice is made  
               by telephone or any other means.

             c)   Failure to notify as required is a misdemeanor and is  
               punishable by a fine of not more than $1,500, by  
               imprisonment in a county jail for not more than six months,  
               or by both that fine and imprisonment.

             d)   The requirements of this section shall not apply to the  
               following:

               i)     A person who is related to either the victim or the  
                 offender, including a husband, wife, parent, child,  
                 brother, sister, grandparent, grandchild, or other person  
                 related by consanguinity or affinity.









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               ii)    A person who fails to report based on a reasonable  
                 mistake of fact.

               iii)   A person who fails to report based on a reasonable  
                 fear for his or her own safety or for the safety of his  
                 or her family.

          2)Provides that in any case in which the defendant, voluntarily  
            acting in concert with another person, by force or violence  
            and against the will of the victim, committed an act of rape  
            or sexual assault, either personally or by aiding and abetting  
            the other person, that fact shall be charged in the indictment  
            or information and if found to be true by the jury, upon a  
            jury trial, or if found to be true by the court, upon a court  
            trial, or if admitted by the defendant, the defendant shall  
            suffer confinement in the state prison for five, seven, or  
            nine years.  (California Penal Code Section 264.1).  

          3)Provides that every person who, after a felony has been  
            committed, harbors, conceals or aids a principal in such a  
            felony, with the intent that said principal may avoid or  
            escape from arrest, trial, conviction or punishment, having  
            knowledge that said principal has committed such a felony or  
            has been charged with such a felony or convicted thereof is an  
            accessory to the felony and is guilty of an alternate  
            felony/misdemeanor.  (Penal Code Sections 32 and 33.)

          4)Provides that it is a crime for any person having knowledge of  
            the actual commission of a crime to take money or property of  
            another, or any gratuity or reward, or any engagement or  
            promise thereof upon any agreement or understanding to  
            compound or conceal a crime or abstain from any prosecution  
            thereof or to withhold any evidence thereof.  The penalty for  
            such crime is an alternate felony/misdemeanor if the crime  
            being concealed was punishable by death or life in prison or  
            any other felony and a six-month misdemeanor if the crime  
            being concealed was a misdemeanor.  (Penal Code Section 153.)

          5)Imposes specified requirements on a mandated reporter, as  
            defined, with respect to the observation and reporting of  
            physical abuse of an elder or dependent adult, with failure to  
            report punishable as a misdemeanor.  (California Welfare and  
            Institutions Code Sections 15630 and 15634.)

          6)Provides for the reporting of actual or suspected physical or  








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            other abuse, as defined, of an elder or dependent adult by  
            specified persons and entities, including care custodians, and  
            imposes various requirements on state and local agencies in  
            processing, investigating, and reporting on these reports.   
            (Welfare and Institutions Code 15600 et seq.)

          7)Provides that a health care practitioner, child care provider,  
            child protective agency employee, child visitation monitor,  
            firefighter, animal control or humane society officer who  
            reasonably suspects that a child has been abused must report  
            such suspected child abuse to a child protective agency.  Any  
            commercial film and photographic print processor who observes  
            photographic material which depicts a child under age 16  
            engaged in an act of sexual conduct must report the instance  
            of suspected child abuse.  (Penal Code Section 11166.)

          8)Provides that any person who commits a lewd or lascivious act  
            with the intent of arousing sexual desires by use of force,  
            violence, menace or fear of immediate and unlawful bodily  
            injury on the victim or another person is guilty of a felony.   
            [Penal Code Section 288(b)(1).]

          9)Defines assault as an unlawful attempt, coupled with a present  
            ability, to commit a violent injury on the person of another.   
            (Penal Code Section 240.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "AB 1641 would  
            require an individual that reasonably believes they witnessed  
            a sexual assault to report the crime to law enforcement,  
            regardless of the victim's age.  A witness that failed to  
            notify law enforcement of a suspected sexual assault could be  
            charged with a misdemeanor crime punishable by fine and/or  
            imprisonment.  In a civil society, law abiding residents have  
            an obligation to report violent crime.  This measure provides  
            law enforcement with an important tool necessary to bring  
            witnesses forward, to protect victims of sexual assault and to  
            ensure that perpetrators of sexual assault are brought to  
            justice."  
          
           2)Background  :  "On October 24, 2009, a 16-year-old girl from  
            Richmond, California, left her school homecoming dance, joined  








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            a group of students and began drinking alcohol.  The young  
            woman soon lost consciousness, was beaten, robbed, and  
            repeatedly sexually assaulted while onlookers did nothing to  
            help the victim, stop the assault or notify law enforcement.

          "Authorities believe that up to 20 individuals participated in  
            or witnessed the attack and failed to report the crime to law  
            enforcement officials.  Some of the individuals took photos of  
            the assault and only because some of those photographs were  
            forwarded to other students, were law enforcement notified of  
            the crime.

          "While those suspected of assaulting the young woman are  
            currently being prosecuted, nothing in current law requires an  
            individual to report witnessing a sexual assault to law  
            enforcement unless the victim was under the age of 14."  
           
           3)Rape in Concert  :  The author's statement indicates that this  
            bill has been introduced to respond to the onlookers of the  
            October 24, 2009 incident in Richmond, California.  The  
            California Penal Code attempts to addresses this scenario with  
            a "rape in concert" provision:

          "Penal Code Section 264.1 provides that in any case in which the  
            defendant, voluntarily acting in concert with another person,  
            by force or violence and against the will of the victim,  
            committed an act of rape or sexual assault, either personally  
            or by aiding and abetting the other person, that fact shall be  
            charged in the indictment or information and if found to be  
            true by the jury, upon a jury trial, or if found to be true by  
            the court, upon a court trial, or if admitted by the  
            defendant, the defendant shall suffer confinement in the state  
            prison for five, seven, or nine years."  

          Those who encouraged, or joined in, the rape are guilty of rape  
            in concert and face up to nine years in prison.    

           4)96-Hour Rule for Reporting Rape Only  :  This bill adds a  
            96-hour window for reporting the witnessing of a rape before a  
            witness can be prosecuted.  However, the 96-hour window is not  
            applied to the reporting of a murder of a minor under the age  
            or 14 or lewd and lascivious acts.  By inconsistently applying  
            a window of time to report, this bill creates a number of  
            problems.   
           








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              a)   Defeats a Purpose of the Legislation  :  The author's  
               background states several purposes for this bill;  
               protection of sexual assault victims and bringing the  
               assailants to justice are two goals.  As will be explained  
               further below (and as articulated by the California  
               District Attorneys Association), this bill makes  
               prosecution of the actual assailants much more difficult  
               because it makes witnesses to crimes potential defendants.   


               This bill fails to protect victims from assault as well.   
               If the purpose of this bill is to protect victims, this  
               bill should require the witness to report the sexual  
               assault while it is occurring so that police could be  
               called to the scene to aid the victim.  By permitting a  
               96-hour window to report a rape, the witness could watch  
               the entire rape occur and report the rape days later.   
               Nothing in that scenario aids the victim.   
                
              b)   Creates an Inconsistency Within the Statute that Could  
               Make Prosecutions for Failure to Report Murder or Lewd and  
               Lascivious Acts Impossible  :  By applying a time widow to  
               the existing statute for the reporting of a rape alone,  
               prosecutors will be virtually unable to prosecute failures  
               to report murder or lewd and lascivious acts for minors  
               under the age of 14.  By applying a time standard to rape  
               but not to the other crimes covered by this statute, this  
               bill creates a natural defense that the potential witness  
               always intended to report but the time to do so was vague  
               and ambiguous.  The defense will be bolstered by the  
               inclusion of a time to report for rape but not for the  
               other offenses under this section.     
             
           5)No General Legal Duty to Aid Others  :  Under the current legal  
            system, dating back to the foundation of common law in the  
            Magna Carta, there has been no legal duty to aid others in  
            peril.  The entire system of criminal laws and civil laws have  
            been developed with that principal in mind.  Creating a legal  
            duty to aid others can have significant impacts on other  
            aspects of criminal and civil law which should not be ignored.  
             

          Citing LaFave and Scott, a Dayton Law Journal article notes that  
            generally speaking:









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          "One has no legal duty to aid another person in peril, even when  
            that aid can be rendered without danger or inconvenience to  
            himself.  He need not shout a warning to a blind man headed  
            for a precipice or to an absent-minded one walking into a  
            gunpowder room with a lighted candle in hand.  He need not  
            pull a neighbor's baby out of a pool of water . . . though the  
            baby is drowning . . .  A moral duty to take affirmative  
            actions is not enough to impose a legal duty to do so."   
            [Briggs, David C. "The Good Samaritan is Packing" An Overview  
            of the Broadened Duty to Aid Our Fellowman, With The Modern  
            Desire To Possess Concealed Weapons (Winter 1997) 22 Dayton L.  
            Rev. 225, 227, citing Wayne R. LaFave &Austin W. Scott, Jr.  
            Criminal Law 203 (2nd ed. 1986).]

          However, the law review article goes on to say that while LaFave  
            and Scott are technically correct:  "[c]riminal law is filled  
            with obligations ascribing legal duties to all of us based  
            upon the consensus of our elected officials as to what they  
            believe is morally appropriate."  Seven major areas where a  
            duty to aid are discussed:  

             a)   A duty to act based upon a relationship of the parties; 

             b)   A duty to act based upon contract; 

             c)   A duty based upon a voluntary assumption of care; 

             d)   A duty may arise from the fact that the person created  
               the risk from which the need for protection arose; 

             e)   A duty can arise from a special relationship that makes  
               a non-acting partner criminally responsible for the actor's  
               criminal action; 

             f)   A duty can arise from the fact that one owns the real  
               property upon which the victim is injured; and,

             g)   The duty to act and the resulting criminal liability for  
               failing to act, based upon statute.

            This bill imposes the last of the above duties.  The Dayton  
            Law Review article asks the following:  "If we have no legal  
            duty based upon any familial, contractual, consensual or  
            propriety obligation, should we have an obligation based upon  
            a moral imperative to come to the aid of another?"








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            A number of different countries and states have chosen to  
            answer the above question with "yes" and imposed a duty to aid  
            and provide criminal penalties for failure to do so.  These  
            statutes are divided into three types:  duty to aid statutes  
            that cover both "Acts of God" and Acts of criminal agents,  
            duty to report a felony in progress and a victim in need, duty  
            to report only specific types of criminal behavior.

           6)Exceptions to the Reporting Requirement  :  Under current law  
            there are a series of exceptions to the reporting requirement.  
             Specifically:  

              a)   Related Persons  :  A person who is either related to the  
               victim or the offender, including spouses, parents,  
               children, brothers, sisters, grandparents, grandchildren or  
               other person related by consanguinity or affinity is not  
               required to report.  However, this bill would require the  
               reporting of step-relations who are not legally adopted by  
               the family.  Likewise the bill would require an individual  
               to report his or her domestic partner, but does not hold  
               the same standard to a spouse.  

              b)   Mistake of Fact  :  A person who fails to report because  
               of a reasonable mistake of fact.  For instance, this would  
               include any onlooker to the October 24, 2009 Richmond  
               incident who was unaware that the alleged victim failed to  
               consent or reasonably believed that the contact was  
               consensual.  

              c)   Fear for Safety  :  A person who fails to report because  
               he or she has a reasonable fear for his or her safety or  
               that of their family is also exempted.   
              
           7)Impacts on Effective Law Enforcement  :  

              a)   Effect on Investigation by a Peace Officer  :  The Fifth  
               Amendment to the United States Constitution includes a  
               privilege against self-incrimination.  Under the Miranda  
               rules, law enforcement officers must inform an in custody  
               criminal "suspect" of his or her right to remain silent and  
               to have an attorney.  [Miranda v. Arizona (1966) 384 U.S.  
               436.]  A "suspect" is a person upon whom investigating  
               officers have focused their attention as the likely  
               perpetrator of a crime.  [People v. Stansbury (1993) 4  








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               Cal.4th 1017, 1050-1054.]  "Custody" generally means  
               detention by the police such that the person is not free to  
               leave.  [Id. at 1053-1054; People v. Esqueda (1993) 17  
               Cal.App.4th 1450.]

             A person who is talking to a peace officer to report a crime  
               under this statute becomes a "suspect"- a likely  
               perpetrator of a crime.  Thus, once a person becomes a  
               suspect, he or she cannot disclose what it was he or she  
               witnessed and when without incriminating himself or  
               herself.

             Likewise, if a witness is located during the course of an  
               investigation who failed to report the crime, initially he  
               or she will be unable to provide law enforcement with a  
               statement without violating their Fifth Amendment right  
               against self-incrimination.  For instance, when a person  
               witnesses a rape and fails to report the incident to law  
               enforcement and is later located.  If law enforcement later  
               questions that person about what he or she saw related to  
               the incident, the witness potentially becomes another  
               defendant as he or she has committed a crime under this  
               bill.  Any statement taken by the police would have to be  
               the after a Miranda warning from the investigating  
               officers.  And, the witness could legally refuse to provide  
               information by invoking his or her right against  
               self-incrimination under the Fifth Amendment.  

             As stated above, the system of laws has been established  
               around NOT having a duty to aid others.  By imposing a duty  
               to aid, other areas of the criminal justice system will be  
               impacted and potentially conflict.  By potentially  
               requiring law enforcement to Mirandize all witnesses, and  
               by making potential witnesses potential defendants,  
               criminal investigations into the most serious of crimes  
               will be significantly impacted.    
              
             b)   Effect on the Credibility of a Potential Witness  :  If a  
               district attorney uses a witness who did not report one of  
               these crimes, the district attorney will have to give the  
               witness immunity, or charge him or her with a crime.  The  
               district attorney will be required to inform defense  
               counsel of any immunity deal and the witness will then be  
               subject to impeachment on cross-examination.  Any effective  
               criminal defense attorney will utilize the fact that a  








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               witness was given immunity for testimony to color the  
               testimony of the witness, thereby reducing the witness's  
               credibility.  

           8)Arguments in Support  :  

             a)   The  California State Sheriffs' Association  states,  
               "[e]xisting law requires any person who reasonably believes  
               that he or she has observed the commission of a rape where  
               the victim is a child under 14 years of age to notify a  
               peace officer.  As demonstrated this fall by the gruesome  
               gang rape of a 15 year old girl leaving her high school  
               homecoming dance, the duty to report such a crime against  
               another human being should know no age.  Whether the crime  
               is against a 14 year old or a 44 year old, it is the duty  
               of any witness to report such a horrific crime."

             b)   The  Riverside Sheriffs' Association  states, "[a] 1999  
               California law makes it illegal not to report a witnessed  
               crime against a child under the age of 14, and is  
               punishable as a misdemeanor with up to 6 months in the  
               county jail and maximum fine of $1,500.  AB 1641 will  
               remove the victim's age threshold that requires and  
               observer to report the act of murder, rape, or other  
               violent crime.  

               "On October 24, 2009 a young woman in Richmond, only 16  
               years old, left her high school dance to get a ride from  
               her father when she joined some young men and began  
               drinking with them.  They soon began their assault.   
               Several of the men beat her, robber her, and began  
               repeatedly raping her while people looked on without taking  
               any action for 2  hours.  

               "Police believe there were up to 10 attackers and anywhere  
               from 15 to 20 people stopping to watch.  Additionally,  
               authorities said people took photos, laughed, and some  
               joined in as the girl was repeatedly assaulted.  People  
               came and went, and no one called the police.  

               "Because the victim was 16 at the time of the attack, law  
               enforcement could not hold accountable the numerous  
               witnesses to this brutal crime.  They could not take them  
               in for questioning."  
                








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           9)Arguments in Opposition  :  

             a)   The  California District Attorneys Association  states,  
               "[o]n behalf of the California District Attorneys  
               Association (CDAA), I regret to inform you that we are  
               opposed to your measure, AB 1641, as introduced January 11,  
               2010.  This bill would expand the existing statutory  
               requirement that a witness report his or her observation of  
               a rape or forcible lewd act by eliminating the provision  
               that limits this requirement to offenses involving victims  
               under the age of 14 years.  

               "We appreciate that we perceive to be the implicit goal of  
               this bill: to increase the frequency with which terrible  
               crimes are reported to law enforcement.  Unfortunately, we  
               are concerned that this bill could jeopardize prosecutions  
               for the underlying crimes that you are seeking to have  
               reported.  It is for this reason that CDAA opposed the  
               creation of Penal Code Section 152.3 by AB 1422 (Torlakson,  
               Chapter 477, Statutes of 2000) and must now oppose its  
               expansion.  

               "Our specific concern lies with the fact that, if a  
               prosecutor needs or wants to use a witness who has failed  
               to report the crime at issue, the prosecutor will likely  
               have to grant the witness immunity from the offense of  
               failing to notify a peace officer.  Conferring immunity can  
               damage the People's case because the immunity agreement  
                                                                     will be disclosed to the defense and could be used as the  
               basis for impeachment despite the fact that the jury might  
               not know the nature of the offense for which the witness  
               has been granted immunity.  

               "We fear that this measure will not effectively encourage  
               the reporting of crimes, but could very likely hinder  
               prosecutions of horrific offenses."

             b)   The  American Civil Liberties Union  states, "[t]he ACLU  
               regrets to inform you of our opposition to AB 1641 that  
               expands upon an affirmative duty on people who have  
               witnessed certain crimes to notify police officers.   
               Failure to report is punishable as a misdemeanor punishable  
               by a fine of not more than $1,500 or imprisonment in county  
               jail for not more than six months or both.  









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               "Americans value their liberty and the limitations of  
               government.  This, our criminal justice system is based on  
               findings of wrongful intent and wrongful acts; exceptions  
               to this rule arise where there is prior fiduciary  
               relationship between individuals - not included in this  
               measure.  This bill does not require either wrongful intent  
               or a wrongful act; mere presence at the wrong place at the  
               wrong time makes someone a criminal if they fail to report  
               what he or she has seen. 

               "Encouraging individuals to report crimes is an important  
               societal goal; however, the state should affirmatively  
               reward individuals and communities who choose to report  
               crimes rather than make criminals out of innocent  
               bystanders who fail to report crimes.  The goal of  
               increasing the reporting of crime may be reached by such  
               measures as (1) ensuring the protection of individuals who  
               report crimes, (2) improving relationships between  
               communities and law enforcement agencies; and (3)  
               increasing employment in economically depressed  
               neighborhoods so that individuals who commit crimes are  
               marginalized and chances of their crimes being reported  
               will be improved.  

               "In addition, there are problems with the details of the  
               measure.  There are many other legitimate reasons for a  
               person's failure to report a crime other than being one of  
               the itemized relatives to the victim, a reasonable "mistake  
               of fact," or a "reasonable fear for his or her own safety  
               or the safety of his or her family."  For example, people  
               may not comply with a requirement to report crimes because  
               of a fear of the safety of friends or a domestic partner or  
               they may be experiencing trauma or harm from witnessing the  
               crime itself.  There are notice problems.  How will the  
               public - non lawyers - know which crimes will lead to  
               criminal prosecution for failure to report?  In addition,  
               people who are poor or homeless or who are recent  
               immigrants who don't speak English may not be able to feel  
               comfortable calling law enforcement officers."

             c)   The  California Public Defenders Association  states,  
               "This bill would expand the pool of potential witnesses to  
               a crime who could be prosecuted for failure to immediately  
               contact the police, resulting in fewer community members  
               who will be willing to cooperate in a police investigation.  








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               We contend in fact, that implementation of this measure  
               will cause more witnesses to deny that they saw anything to  
               avoid prosecution. 

             "AB 1641 would create every incentive for witnesses not to  
               pay close attention to actual crimes occurring lest they  
               now face a legal obligation to report accurately every  
               detail or face prosecution. Without reliable witnesses, the  
               likelihood of an innocent person being wrongly arrested and  
               convicted will increase as well.

             "Ultimately, when a violent crime is committed, public safety  
               is enhanced when accurate, reliable information is acquired  
               from witnesses who have no motive to lie and who  
               voluntarily come forward without duress or coercion. Many  
               crimes remain unsolved because witnesses fear retaliation,  
               prosecution and sometimes immigration consequences. 

             "Instead of encouraging individuals to report crimes and  
               rewarding and protecting those fragile witnesses who choose  
               to step forward and speak to law enforcement about  
               traumatizing events they have witnessed, AB 1641 would  
               instead make criminals out of innocent but frightened  
               bystanders.

             "If the Legislature is concerned regarding how best to ensure  
               that witnesses come forward the Legislature may want to  
               instead consider convening a hearing to assess the  
               effectiveness of current law to determine how often would  
               be witnesses are prosecuted for failing to report instances  
               of murder, rape and molestation involving a child."

           10)Related Legislation  :

             a)   AB 984 (Nava) eliminates the requirement that a victim  
               be under the age of 14 when making it a crime for a person  
               to fail to report to police an instance when he or she  
               witnesses a murder, rape, or specified lewd and lascivious  
               acts.  AB 984 pending hearing by the Senate Public Safety  
               Committee.

             b)   SB 840 (Yee) expands the requirement that a victim be  
               under the age of 14 when making it a crime for a person to  
               fail to report to police an instance when he or she  
               witnesses a murder, rape, or specified lewd and lascivious  








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               acts from 14 years to 18 years.  SB 840 is pending hearing  
               by the Senate Public Safety Committee.      

           11)Prior Legislation  :  AB 1422 (Torlakson), Chapter 477,  
            Statutes of 2000, created a misdemeanor offense after  
            observing the following crimes against a child under the age  
            of 14:  (a)  a lewd act on a child by force or fear, (b) rape,  
            and (c) murder.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Association for Los Angeles Deputy Sheriffs 
          California Peace Officers' Association
          California State Sheriffs' Association 
          California Teachers Association
          Los Angeles Police Protective League 

           Opposition 
           
          American Civil Liberties Union
          California District Attorneys' Association
          California Public Defenders Association 
          Taxpayers for Improving Public Safety 

           
          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744