BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 110 (Liu)
As Amended April 21, 2009
Hearing date: April 28, 2009
Penal Code; Welfare and Institutions Code
MK:mc
PEOPLE WITH DISABILITIES; VICTIMS OF CRIME
HISTORY
Source: The Arc of California
Prior Legislation: AB 2038 (Lieber) - 2008, held in Senate
Appropriations
Support: Disability Rights California; California Partnership
to End Domestic Violence; Sacramento Homeless
Organizing Committee; The Arc South Bay; Aging Services
of California; Orange County Arc; Housing Now;
Sacramento Housing Alliance; The Arc of Riverside
County; Crime Victims United of California; Congress of
California Seniors; Sacramento Loaves & Fishes;
California Church IMPACT; California Coalition Against
Sexual Assault; Crime Victims Action Alliance;
California Commission on the Status of Women; Aging
Services of California; California State Council on
Developmental Disabilities
Opposition:The National Employment Law Project; Taxpayers for
Improving Public Safety
KEY ISSUES
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SHOULD A NONLICENSED SERVICE PROVIDER WITH A VENDOR RELATIONSHIP
WITH A REGIONAL CENTER BE PERMITTED TO HAVE CRIMINAL BACKGROUND
CHECKS DONE FOR THEIR EMPLOYEES AND VOLUNTEERS?
SHOULD DOJ BE REQUIRED TO SEND OUT A BULLETIN TO LAW ENFORCEMENT
AGENCIES CONTAINING SPECIFIED INFORMATION REGARDING CRIMES
AGAINST PERSONS WITH DISABILITIES?
(CONTINUED)
SHOULD SPECIFIED LAWS RELATING TO DEATH REVIEW TEAMS BE AMENDED TO
INCLUDE THE COLLECTION OF INFORMATION ABOUT DEATHS OF PEOPLE WITH
DISABILITIES?
SHOULD SPECIFIED CHANGES BE MADE TO POST TRAINING REGARDING CRIMES
AGAINST THE HOMELESS OR AGAINST PEOPLE WITH DISABILITIES?
SHOULD A THINK TANK BE CREATED IN THE CALIFORNIA EMERGENCY
MANAGEMENT AGENCY TO CONVENE A MEETING OF VARIOUS GROUPS INTERESTED
IN PERSONS WITH DISABILITIES TO SUGGEST PROCEDURES FOR AGENCIES TO
ADOPT AND CHANGES FOR THE LEGISLATURE TO MAKE REGARDING CRIMES
AGAINST PERSONS WITH DISABILITIES?
PURPOSE
The purpose of this bill is to make numerous technical and
substantive changes regarding provisions of laws relating to
crimes against persons with disabilities.
Existing law provides that the Legislature finds and declares
that crimes against elders and dependent adults are deserving
of special consideration and protection, not unlike the special
protections provided for minor children, because elders and
dependent adults may be confused, on various medications,
mentally or physically impaired, or incompetent, and therefore
less able to protect themselves, to understand or report
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criminal conduct, or to testify in court proceedings on their
own behalf. (Penal Code 368 (a).)
Existing law provides that any person who knows or reasonably
should know that a person is an elder or dependent adult and
who, under circumstances or conditions likely to produce great
bodily harm or death, willfully causes or permits any elder or
dependent adult to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or custody
of any elder or dependent adult, willfully causes or permits the
person or health of the elder or dependent adult to be injured,
or willfully causes or permits the elder or dependent adult to
be placed in a situation in which his or her person or health is
endangered, is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed $6000, or by both
that fine and imprisonment, or by imprisonment in the state
prison for 2, 3, or 4 years. (Penal Code 368 (b)(1).)
Existing law provides that if in the commission of an offense
described in Penal Code Section 368 (b)(1), the victim suffers
great bodily injury, as defined in Section 12022.7, the
defendant shall receive an additional term in the state prison
as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(Penal Code 368 (b)(2).)
Existing law provides that if in the commission of a specified
offense, the defendant proximately causes the death of the
victim, the defendant shall receive an additional term in the
state prison as follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(Penal Code 368 (b)(3).)
Existing law provides that any person who knows or reasonably
should know that a person is an elder or dependent adult and
who, under circumstances or conditions other than those likely
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to produce great bodily harm or death, willfully causes or
permits any elder or dependent adult to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or
having the care or custody of any elder or dependent adult,
willfully causes or permits the person or health of the elder or
dependent adult to be injured or willfully causes or permits the
elder or dependent adult to be placed in a situation in which
his or her person or health may be endangered, is guilty of a
misdemeanor. A second or subsequent violation of this
subdivision is punishable by a fine not to exceed $2000, or by
imprisonment in a county jail not to exceed one year, or by both
that fine and imprisonment. (Penal Code 368 (c).)
Existing law provides that any person who is not a caretaker who
violates any provision of law proscribing theft, embezzlement,
forgery, or fraud, or who violates Section 530.5 proscribing
identity theft, with respect to the property or personal
identifying information of an elder or a dependent adult, and
who knows or reasonably should know that the victim is an elder
or a dependent adult, is punishable by imprisonment in a county
jail not exceeding one year, or in the state prison for 2, 3, or
4 years, when the moneys, labor, goods, services, or real or
personal property taken or obtained is of a value exceeding
$400; and by a fine not exceeding $1000, by imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment, when the moneys, labor, goods, services, or real
or personal property taken or obtained is of a value not
exceeding $400. (Penal Code 368 (d).)
Existing law provides that any caretaker of an elder or a
dependent adult who violates any provision of law proscribing
theft, embezzlement, forgery, or fraud, or who violates
Section 530.5 proscribing identity theft, with respect to the
property or personal identifying information of that elder or
dependent adult, is punishable by imprisonment in a county jail
not exceeding one year, or in the state prison for 2, 3, or 4
years when the moneys, labor, goods, services, or real or
personal property taken or obtained is of a value exceeding
$400, and by a fine not exceeding $1000, by imprisonment in a
county jail not exceeding one year, or by both that fine and
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imprisonment, when the moneys, labor, goods, services, or real
or personal property taken or obtained is of a value not
exceeding $400. (Penal Code 368 (e).)
Existing law provides that any person who commits the false
imprisonment of an elder or a dependent adult by the use of
violence, menace, fraud, or deceit is punishable by imprisonment
in the state prison for 2, 3, or 4 years. (Penal Code 368
(f).)
Existing law provides that as used in Penal Code Section 368:
"Elder" means any person who is 65 years of age
or older.
"Dependent adult" means any person who is
between the ages of 18 and 64, who has physical or
mental limitations which restrict his or her
ability to carry out normal activities or to
protect his or her rights, including, but not
limited to, persons who have physical or
developmental disabilities or whose physical or
mental abilities have diminished because of age.
"Dependent adult" includes any person between the
ages of 18 and 64 who is admitted as an inpatient
to a 24-hour health facility, as defined in
Sections 1250, 1250.2, and 1250.3 of the Health
and Safety Code.
"Caretaker" means any person who has the care,
custody, or control of, or who stands in a
position of trust with, an elder or a dependent
adult. (Penal Code 368 (g, h, and i).)
Existing law provides that nothing in this section shall
preclude prosecution under both this section and Section 187
or 12022.7 or any other provision of law. However, a person
shall not receive an additional term of imprisonment under
both paragraphs (2) and (3) of subdivision (b) for any single
offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or
(3) of subdivision (b) for any single offense. (Penal Code
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368 (j).)
Existing law provides that in any case in which a person is
convicted of violating these provisions, the court may require
him or her to receive appropriate counseling as a condition of
probation. Any defendant ordered to be placed in a counseling
program shall be responsible for paying the expense of his or
her participation in the counseling program as determined by
the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be
denied probation because of his or her inability to pay.
(Penal Code 368 (k).)
This bill provides that by February 1, 2010, the Department of
Justice shall electronically send a bulletin to the executive of
each state and local law enforcement agency and to each district
attorney. The content of the bulletin shall include, but not be
limited to, each of the following sections, entitled as follows:
New Law: Importance and Urgency . This section
shall include a statement of the importance and
urgency that the law now places on arresting and
convicting criminals who commit crimes against victims
with disabilities and on assisting their victims,
demonstrated by enactment of the Crime Victims with
Disabilities Act (Assembly Bill 2038) of 2008.
An Invisible Epidemic . This section shall quote
the findings of subdivisions (g) to (k) inclusive
Section 2 of the Crime Victims with Disabilities Act
of 2009.
Requirements and Recommendations . This section
shall include the following requirements for law
enforcement agencies and district attorneys:
(A) The requirement that state law enforcement
agencies provide training to their peace officers
using the telecourse "Crime Victims with Disabilities"
pursuant to subdivision (a) of Section 13519.65.
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(B) The requirement that every city police
officer or deputy sheriff at a supervisory level and
below who is assigned field or investigative duties
shall complete an elder and dependant adult abuse
training certified by the Commission on Peace Officer
Standards and Training within 18 months of assignment
to field duties, pursuant to Section 13515.
(C) The requirement that law enforcement agencies
cross-report elder and dependant adult abuse to adult
protective services agencies, local long-term care
ombudsman programs, and state agencies, pursuant to
Section 15650 of the Welfare and Institutions Code.
(D) The requirement that local law enforcement
agencies provide the telecourse "Law Enforcement
Response to Homelessness Update" to their officers,
and the strong encouragement that local law
enforcement agencies provide this training in
conjunction with homeless and formerly homeless
persons, local agencies, and organizations that serve
homeless and formerly homeless people, including
homeless persons with disabilities, and invite those
local organizations to attend the training sessions
and discuss the problem of crime against homeless
victims and law enforcement response to homelessness
with the agency's officers, pursuant to paragraph (2)
of subdivision (b) of Section 13519.64.
(E) The training section of the bulletin also
shall list relevant training materials produced or
certified by the Commission on Peace Officer Standards
and Training, including materials produced pursuant to
specified section and by the Bureau of Medi-Cal Fraud
and Elder Abuse.
Existing law provides that in order to ensure consistent and
uniform results, data may be collected and summarized by the
domestic violence death review teams to show the statistical
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occurrence of domestic violence deaths in the team's county that
occur under the following circumstances:
The deceased was a victim of a homicide committed by a
current or former spouse, fianc?, or dating partner.
The deceased was the victim of a suicide, was the
current or former spouse, fianc?, or dating partner of the
perpetrator and was also the victim of previous acts of
domestic violence.
The deceased was the perpetrator of the homicide of a
former or current spouse, fianc?, or dating partner and the
perpetrator was also the victim of a suicide.
The deceased was the perpetrator of the homicide of a
former or current spouse, fianc?, or dating partner and the
perpetrator was also the victim of a homicide related to
the domestic homicide incident.
The deceased was a child of either the homicide victim
or the perpetrator, or both.
The deceased was a current or former spouse, fianc?, or
dating partner of the current or former spouse, fianc?, or
dating partner of the perpetrator.
The deceased was a law enforcement officer, emergency
medical personnel, or other agency responding to a domestic
violence incident.
The deceased was a family member, other than identified
above, of the perpetrator.
The deceased was the perpetrator of the homicide of a
family member, other than identified above.
The deceased was a person not included in the above
categories and the homicide was related to domestic
violence. (Penal Code 11163.6.)
This bill provides that data should also be included if the
deceased had a disability and the homicide was related to
domestic violence.
Existing law provides that the State Department of Social
Services shall work with state and local child death review
teams and child protective services agencies in order to
identify child death cases that were, or should have been,
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reported to or by county child protective services agencies.
Findings made pursuant to this section shall be used to
determine the extent of child abuse or neglect fatalities
occurring in families known to child protective services
agencies and to define child welfare training needs for
reporting, cross-reporting, data integration, and involvement by
child protective services agencies in multiagency review in
child deaths. The State Department of Social Services, the
State Department of Health Services, and the Department of
Justice shall develop a plan to track and maintain data on child
deaths from abuse or neglect, and submit this plan, not later
than December 1, 1997, to the Senate Committee on Health and
Human Services, the Assembly Committee on Human Services, and
the chairs of the fiscal committees of the Legislature. (Penal
Code 11174.35.)
This bill provides that the State Department of Social Services,
the State Department of Health Care Services, and the Department
of Justice, working with relevant subject-matter experts from
among those listed in Section 15592 of the Welfare and
Institutions Code shall develop a plan to track and maintain
data on child deaths from abuse or neglect, including crimes
against children with disabilities. Subject to the,
availability of funding, the plan to track and maintain the data
shall be updated by January 1, 2011.
Existing law provides that each county may establish an
interagency elder death team to assist local agencies in
identifying and reviewing suspicious elder deaths and
facilitating communication among persons who perform autopsies
and the various persons and agencies involved in elder abuse or
neglect cases. Each county may develop a protocol that may be
used as a guideline by persons performing autopsies on elder
adults to assist coroners and other persons who perform
autopsies in the identification of elder abuse, in the
determination of whether elder abuse or neglect contributed to
death or whether elder abuse or neglect had occurred prior to
but was not the actual cause of death, and in the proper written
reporting procedures for elder abuse or neglect, including the
designation of the cause and mode of death. (Penal Code
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11174.5.)
This bill provides that the interagency death review team should
also apply to review deaths of dependant adults.
Existing law provides an oral or written communication or a
document shared within or produced by an elder death review team
related to an elder death review is confidential and not subject
to disclosure or discoverable by another third party. An oral
or written communication or a document provided by a third party
to an elder death review team, or between a third party and an
elder death review team, is confidential and not subject to
disclosure or discoverable by a third party. Notwithstanding
subdivisions (a) and (b), recommendations of an elder death
review team upon the completion of a review may be disclosed at
the discretion of a majority of the members of the elder death
review team. (Penal Code 11174.8.)
This bill provides that this provision applies to elder and
dependant adult death review teams.
Existing law provides generally for mandated and recommended
peace officer training by the Commission on Peace Officer
Standards and Training and specifically provides that: the
Legislature finds and declares that research, including "Special
Report to the Legislature on Senate Resolution 18: Crimes
Committed Against Homeless Persons" by the Department of Justice
and "Hate, Violence, and Death: A Report on Hate Crimes Against
People Experiencing Homelessness from 1999-2002" by the National
Coalition for the Homeless demonstrate that California has had
serious and unaddressed problems of crime against homeless
persons, including homeless persons with disabilities. (Penal
Code 13519.64 (a).)
This bill adds a number of additional reports to the findings
and declarations in the above sections.
Existing law provides that by July 1, 2005, the Commission on
Peace Officer Standards and Training, using available funding,
shall develop a two-hour telecourse to be made available to all
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law enforcement agencies in California on crimes against
homeless persons and on how to deal effectively and humanely
with homeless persons, including homeless persons with
disabilities. The telecourse shall include information on
multimission criminal extremism, as defined in Section 13519.6.
In developing the telecourse, the commission shall consult
subject-matter experts including, but not limited to, homeless
and formerly homeless persons in California, service providers
and advocates for homeless persons in California, experts on the
disabilities that homeless persons commonly suffer, the
California Council of Churches, the National Coalition for the
Homeless, the Senate Office of Research, and the Criminal
Justice Statistics Center of the Department of Justice. (Penal
Code 13519.64 (b).)
Existing law provides that every state law enforcement agency,
and every local law enforcement agency, to the extent that this
requirement does not create a state-mandated local program cost,
shall provide the telecourse to its peace officers. (Penal Code
13519.64 (c).)
This bill provides that every state law enforcement agency shall
provide training to its peace officers using the telecourse
"Crime Victims with Disabilities," produced by the Commission on
Peace Officer Standards and Training and the Department of
Justice. This requirement shall take effect if the commission,
the department, or both the commission and the department update
the telecourse to reflect changes in law, standards, and
information since they produced the telecourse in 2002.
This bill provides that the requirement above replaces the
requirement of the portion of paragraph (2) of subdivision (b)
of Section 13519.64 that was repealed by the act of the 2009-10
Regular Session of the Legislature that enacted this section,
and does not create a new cost.
This bill provides that every local law enforcement agency may
provide training to its officers using the telecourse "Crime
Victims with Disabilities," and the Legislature strongly
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encourages each local law enforcement agency to do so if the
commission, the department, or both the commission and the
department update the telecourse. The Legislature encourages
law enforcement agencies to provide this training in conjunction
with people with disabilities and local agencies and
organizations that serve and advocate for people with
disabilities and to invite people with disabilities and those
local organizations to attend the training sessions and discuss
the problem with the agency's officers.
Existing law provides for a Comprehensive Statewide Domestic
Violence Program administered by an advisory council in the
Office of Emergency Services. The advisory council shall
consist of domestic violence victims' advocates and service
providers as specified and that it is the intent of the
Legislature that the advisory counsel be diverse. The section
sunsets on January 1, 2010. (Penal Code 13823.16.)
This bill provides that the diversity of the advisory council
shall include people with disabilities.
This bill extends the sunset to January 1, 2015.
Existing law provides for an advisory committee to develop a
course of training for district attorneys in the investigation
and prosecution of sexual assault cases, etc. The course shall
include training in the unique emotional trauma experienced by
victims of these crimes. (Penal Code 13836.)
This bill provides that the course shall also include training
in the special problems of investigating and prosecuting these
crimes when committed against individuals with disabilities.
Existing law provides that the advisory committee shall consist
of 11 members and shall represent the view of diverse ethnic and
language groups. (Penal Code 1386.1.)
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This bill further provides that the advisory committee shall
also represent subject-matter experts on crimes against
individuals with disabilities.
This bill further provides that the requirement that the
Commission the Status of Women appoint an expert on crimes
against victims with disabilities shall take effect upon the
occurrence of the first vacancy for a member appointed by the
commission, other than the member who represents a rape crisis
center or the member who is a medical professional, on or after
January 1, 2010.
Existing law provides that the online missing persons' registry
shall accept and generate complete information on a missing
person and that information shall be retrievable by specified
categories. (Penal Code 14203.)
Existing law provides that "missing person" includes but is not
limited to a child who has been taken, detained, concealed,
enticed away or retained by a parent. It also includes any
child who is missing voluntarily or involuntary. It further
provides that evidence that a missing person is at risk includes
evidence that the missing person is mentally impaired. (Penal
Code 14213.)
This bill provides in addition that evidence that a missing
person is at risk includes evidence that the missing person has
a mental or physical disability.
Existing law provides that when the Department of Developmental
Services (DSS) has reason to believe that any person held in
custody as developmentally disabled is wrongfully deprived of
his liberty, or is cruelly or negligently treated, or that
inadequate provision is made for the skillful medical care,
proper supervision, and safekeeping of any such person, it may
ascertain the facts. It may issue compulsory process for the
attendance of witnesses and the production of papers, and may
exercise the powers conferred upon a referee in a superior
court. It may make such orders for the care and treatment of
such person as it deems proper. Whenever the DSS undertakes an
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investigation into the general management and administration of
any establishment or place of detention for the developmentally
disabled, it may give notice of such investigation to the
Attorney General, who shall appear personally or by deputy, to
examine witnesses in attendance and to assist the department in
the exercise of the powers conferred upon it in this code. DSS
may at any time cause the patients of any county or city
almshouse to be visited and examined, in order to ascertain if
developmentally disabled persons are kept therein. (Welfare and
Institutions Code 4427.)
This bill provides instead that when DSS has reason to believe
that any person held in custody as developmentally disabled is
wrongfully deprived of liberty, or is cruelly or negligently
treated, or that inadequate provision is made for the skillful
medical care, proper supervision, and safekeeping of any such
person, or is otherwise the victim of crime, DSS shall do either
of the following:
Report the case immediately to the local police
department or sheriff's office that has jurisdiction.
Ascertain the facts. It may issue compulsory
process for the attendance of witnesses and the
production of papers, and may exercise the powers
conferred upon a referee in a superior court. It may
make such orders for the care and treatment of such
person as it deems proper. If it ascertains that the
person is the victim of a crime, it shall report the
case immediately to the local police department or
sheriff's office that has jurisdiction.
Existing law provides that a developmental center shall
immediately report all resident deaths and serious injuries of
unknown origin to the appropriate law enforcement agency that
may, at its discretion, conduct an independent investigation.
(Welfare and Institutions Code 4427.5.)
This bill provides that the reporting requirements of this
subdivision are in addition to, and do not substitute for, the
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reporting requirements of mandated reporters.
Existing law generally provides support for a variety of living
arrangements for a person with developmental disabilities.
(Welfare and Institutions Code 4689 et seq.)
This bill provides for a process for a criminal background check
of a non-licensed service provider.
This bill creates "The Abuse Victims with Disabilities Think
Tank of the California Emergency Management Agency."
This bill provides that the Abuse Victims with Disabilities
Think Tank shall convene a first meeting of a working group on
crimes against elders, dependent adults, and people with
disabilities and shall invite subject matter experts as
specified. The bill does not require the think tank to convene
any further meetings of the working group but provides that the
working group may organize itself, including by creating
committees and scheduling future meetings.
This bill provides that the working group may set goals for
itself including developing one or more models of memoranda of
understanding that appropriate agencies and organizations may
adopt and make recommendations to the Governor or Legislature
for reform of mandated reporter requirements and of
investigation and jurisdiction issues to provide equal
protection to crime victims who are elders, dependant adults,
and peoples with disabilities.
This bill provides that nothing requires any state agency to
participate in the working group if that participation would
create a cost or to pay for travel or other expenses of any
person attending working group meetings.
Existing law , for the purposes of being a mandated reporter of
abuse, provides that a "clergy member: means a priest, minister,
rabbi, religious practitioner, or similar functionary of a
church, synagogue, temple, mosque, or recognized religious
denomination or organization." "Clergy member" does not include
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unpaid volunteers whose principal occupation or vocation does
not involve active or ordained ministry in a church, synagogue,
temple, mosque, or recognized religious denomination or
organization, and who periodically visit elder or dependent
adults on behalf of that church, synagogue, temple, mosque, or
recognized religious denomination or organization. (Welfare and
Institutions Code 15610.19.)
This bill makes technical changes to that section.
Existing law provides that each county shall establish an
emergency response adult protective services program that shall
provide in person response, 24 hours per day, seven days per
week to reports of abuse of an elder or a dependant adult.
(Welfare and Institutions Code 15763.)
This bill makes technical changes to that section.
This bill makes the following legislative findings and
declarations:
(a) A large body of research indicates that people with
mental and physical disabilities in California and
throughout the United States are victimized by violent
crime and major property crime at much higher rates than
the general population.
(b) At least 13,500 American adults with disabilities
are victims of criminal violence every day - 562 every
hour. At least 410 children with disabilities are
victimized every day -17 every hour.
(c) People with disabilities who are abused experience
both more prolonged and more severe abuse on the average
than other crime victims. Evidence suggests that the
harmful effects may be more serious and chronic for
victims with disabilities.
(d) California and national research has found
particularly disturbing indications, including:
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Californians with developmental
disabilities are victimized 4 to 10 times more
frequently than the general population, and
they are at a higher risk of revictimization.
The rate of victimization of
Californians with severe and persistent mental
illness is 1,970 percent that of the general
population. The rate of victimization for
those diagnosed with both mental illness and
substance abuse is 6,300 percent that of the
general population.
Of Californians with developmental
disabilities, about 8 in 10 women and 4 in 10
men have been sexually abused. About 4 in 10
women and 2 in 10 men have been sexually abused
at least 10 times.
More than 8000 California children with
disabilities were reported by Child Protective
Services to be victims of maltreatment in 2005
- about one per hour.
Mentally ill prison and jail inmates are
at a significantly higher risk of violence,
particularly sexual abuse, than other inmates.
People often become homeless because of
disabilities, and those who were able when they
were housed typically become disabled due to
their homelessness. Homeless Californians are
much more likely than the housed population to
become crime victims - more than 6 out of 10 are
victimized every year, 2 out of 10 at least five
times in the year. Their disabilities increase
the likelihood of victimization still further.
The lifetime risk of victimization for seriously
mentally ill, episodically homeless women is
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97%.
People with disabilities, both those who
live at home and those who live in institutions,
are often victims of domestic and family
violence and other crimes by caregivers.
Elders and children with disabilities are
particularly at risk of becoming victims of abuse,
neglect, and other major crimes.
(e) Research indicates that criminals select people with
disabilities as their victims because of two major categories
of motivations, as follows:
Hostility toward those who arouse guilt,
fear of those whose visible traits are perceived
as disturbing to others, a perception that
people with disabilities are inferior and
therefore 'deserving victims,' and resentment of
those who require and increasingly demand
alternative physical and social accommodations.
Belief that people with disabilities are
especially vulnerable a belief that is well
founded.
(f) It is the intent of the Legislature to clarify and
enforce existing laws and make California the national leader
in humane treatment of people with disabilities.
(g) People with disabilities are especially vulnerable to
crime and become victims at rates many times higher than the
general population. A large majority of these crimes are
never reported to law enforcement. In addition, the law
previously did not make it clear that abuse is a crime. As a
result, many law enforcement officers, prosecutors, and other
citizens are unaware of this invisible epidemic.
(h) Crimes against victims with disabilities occur in the
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jurisdiction of every law enforcement agency and every
district attorney's office. Every law enforcement officer
encounters persons with disabilities who may be particularly
vulnerable to crime and who have a disproportionately high
likelihood of becoming victims.
(i) Persons with disabilities in specific population groups,
including all of the following, often become victims of
serious crime, frequently including domestic violence and
sexual assault:
Children.
Elders.
Homeless persons.
Inmates of prisons, jails, and other
incarceration facilities.
Residents of public and private treatment and
care facilities of all kinds.
(j) Many crimes against victims with disabilities are
motivated in whole or in part by preexisting negative
attitudes toward the victims' disabilities, including
hostility to persons who arouse guilt, fear of or revulsion to
persons whose visible traits are disturbing to others, a
perception that persons with disabilities are inferior or
deserving of victimization, belief that persons with
particular disabilities are weak and therefore easy targets,
and resentment of those who need and increasingly demand
alternative physical and social accommodations. Law
enforcement agencies must investigate these crimes as hate
crimes and report them to the Department of Justice as Section
13023 of the Penal Code requires.
(k) Preventing, recognizing, and responding to crimes
against victims with disabilities often require special
training, which all officers should receive. Investigating
and successfully prosecuting these crimes often require more
advanced training, which some officers in every agency should
receive.
This bill provides that it is the intent of the Legislature that
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nothing in this act creates any new substantial General Fund
costs. To that end, notwithstanding any provision of law to the
contrary, all of the following shall apply:
Nothing in this act requires a state agency to revise
any form document, or other material if that revision would
create a General Fund cost that is more than minor and
absorbable.
Nothing in this act requires a state or local agency to
adopt or revise a regulation.
Nothing in this act creates a new training requirement
for any state agency if that training requirement would
create a General Fund cost that is more than minor or
absorbable.
Any provision of this act that requires a state agency
to take any action is contingent on the availability and
appropriation of adequate funds.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28,
United States Code (Feb. 9, 2009).
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According to the author:
Crime against victims with disabilities has been
called an "invisible epidemic," comparable with
domestic violence before society awakened to the
horror and widespread extent of that terrible
problem. Children and elders with disabilities,
homeless people with disabilities, and people with
disabilities in care, treatment, and incarceration
facilities are among those most vulnerable and most
often victimized. Women and men with disabilities
also are at high risk of sexual assault and domestic
violence.
Despite great efforts, California - like the rest of
the country - continues to fall shamefully short of
meeting its responsibility to provide equal
protection from crime to people with disabilities.
Research shows that the current system generally
fails to prevent crimes, assist victims, prosecute
perpetrators, or even report most crimes against
victims with disabilities.
It is unlikely that society would tolerate this level
of violent crime against most other classes of
victims without demanding much more effective action.
2. DOJ to Send a Bulletin
This bill requires the Department of Justice to electronically
send a bulletin to all local and state law enforcement officers
by February 1, 2010. As proposed to be amended, among the
things the bulletin shall include are the following:
New Law: Importance and Urgency . This section shall
include a statement of the importance and urgency
that the law now places on arresting and convicting
criminals who commit crimes against victims with
disabilities and on assisting their victims,
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demonstrated by enactment of the Crime Victims with
Disabilities Act of 2009.
An Invisible Epidemic . This section shall quote the
findings of subdivisions (g) to (k), inclusive, of
Section 2 of the Crime Victims with Disabilities Act of
2009.
The bulletin also provides for a statement of requirements and
recommendations relating to training regarding victims with
disabilities. Since most of the requirements and
recommendations exist in current law, it is not clear why they
need to be included in the bulletin.
Although the DOJ regularly sends out electronic bulletins, it is
not clear what real purpose the one required by this bill will
have since it is primarily a restatement of requirements that
exist in law. Is there a better or more appropriate use of time
and money that may be spent on this bulletin?
IS THE BULLETIN FROM DOJ NECESSARY IF IT MOSTLY RESTATES
EXISTING LAW?
3. Background Checks
This bill creates a new criminal background check requirement
for a "nonlicensed service provider" who has a vendor
relationship with a regional center. It provides that the
"nonlicensed service provider" shall submit to the DOJ evidence
of a vendor relationship with a regional center showing the
effective and ending date. Once approved by the DOJ, a
non-licensed service provider may electronically submit
fingerprint images and related information required of all
current or prospective employees or volunteers for the purposes
of obtaining information as to the existence and content of a
record of state conviction or arrest pending adjudication. The
non-licensed service provider may request subsequent arrest
information. The vendor shall notify the regional center that
the employees and volunteers have been background checked. If a
person has been convicted of a serious or violent felony or is a
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registered sex offender, the provider shall not hire or accept
employment from that person. If background checks are not
performed, the non-licensed service provider must inform the
consumers at the regional center.
The National Employment Law Project opposes this provision of
the bill because of the ban on employment for specified crimes
with no consideration as to rehabilitation. They state:
This bill would expand access to criminal history
reports held by the Department of Justice to
non-licensed service providers and would prohibit anyone
convicted of specified offenses or required to register
as a sex offender form employment as a care provider for
disabled adults. While we believe reasonable
protections are important, in its current form, the bill
does not provide an opportunity for an applicant or
employee to present evidence of rehabilitation and
fitness to perform the duties of the position.
The proposed lifetime bars are unwarranted and over
expansive. The Legislature should exercise caution in
adding crimes that would bar an individual for life from
working in a position they have demonstrated fitness to
hold.
In order to bring the bill in line with existing laws,
we recommend the following amendments:
Provide an applicant or current employee
with an opportunity to appeal adverse employment
decisions by demonstrating rehabilitation in order
to obtain or retain a care giver position.
Existing laws require agencies to review any
evidence presented that the person has been
rehabilitated for at least five years, or has
received a certificate of rehabilitation or if the
conviction has been dismissed pursuant to Section
1203.4 or 1203.4a of the Penal Code in making
determinations about whether or not to use
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specified convictions as a bar to employment.
Remove the provisions requiring workers to
pay the costs associated with processing a criminal
history report.
Provide all individuals with a copy of their
criminal history record when they are denied
employment based on prior criminal convictions.
WHO ARE THE "NONLICENSED SERVICE PROVIDERS" WITH "VENDOR"
RELATIONSHIPS WITH REGIONAL CENTERS?
SHOULD A PERSON WHO HAS COMMITTED ONE OF THE LISTED OFFENSES BE
PERMITTED TO SHOW PROOF OF REHABILITATION?
SHOULD THE OFFENSES BAN A PERSON OR SHOULD EXEMPTIONS BE
PERMITTED?
4. Death Review Teams
This bill makes a number of changes in a number of sections to
provide that elder death review teams should be instead elder
and dependant adult review teams. Thus any of the guidelines or
protocols that currently apply to elder death review teams will
now apply in cases where the decedent was a dependant adult.
This bill also provides that one of the factors that the
domestic violence death review teams should include in their
report is whether the deceased had a disability and the homicide
was related to domestic violence, and further provides that
child death review teams should include crimes against children
with disabilities.
5. POST Training
This bill adds to the legislative findings and declarations of
an existing Penal Code section dealing with Commission on Peace
Officer Standards and Training (POST) on crimes against the
homeless.
This bill provides that every state law enforcement agency that
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complies with POST shall provide training to its peace officers
using the telecourse "Crime Victims with Disabilities," produced
by the Commission on Peace Officer Standards and Training (POST)
and the Department of Justice. However, the requirement shall
take effect only if the commission, the department, or both POST
and DOJ update the telecourse to reflect changes in law,
standards, and information since they produced the telecourse in
2002. The requirement will replace the existing requirement
that local agencies provide the existing telecourse, if it does
not create a mandate.
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This bill further provides that every local law enforcement
agency may provide training to its officers using the telecourse
"Crime Victims with Disabilities," and the Legislature strongly
encourages each local law enforcement agency to do so if POST,
DOJ, or both update the telecourse. The Legislature encourages
law enforcement agencies to provide this training in conjunction
with people with disabilities and local agencies and
organizations that serve and advocate for people with
disabilities and to invite people with disabilities and those
local organizations to attend the training sessions and discuss
the problem with the agency's officers.
IS IT APPROPRIATE OR NECESSARY TO ADD NEW LEGISLATIVE FINDINGS
TO AN EXISTING CODE SECTION?
IT IS UNCLEAR WHAT THE NEW TRAINING COURSE ON CRIME VICTIMS WITH
DISABILITIES IS TO INCLUDE, OR WHEN IT WILL BE CREATED;
FURTHERMORE, SINCE POST PERIODICALLY UPDATES ITS COURSES TO
REFLECT CHANGES IN THE LAW, WHY IS THIS NEW PROVISION NECESSARY?
6. "Think Tank"
This bill attempts to create the "Abuse Victims with
Disabilities Think Tank" in the California Emergency Management
Agency. However, it only requires that the "think tank" convene
a first meeting of a working group on crimes against elders,
dependant adults and people with disabilities inviting at
minimum approximately 50 listed groups. It further provides
that the working group may then organize itself. The "think
tank" is to develop a memorandum of understanding that
appropriate agencies and organizations may adopt and to make
recommendations to the Governor or Legislature for reform of the
mandated reporter requirements and investigation and
jurisdiction issues. However, the bill provides that nothing
requires any state agency to participate in the working group if
the participation would create a cost. The California Emergency
Management Agency will clearly incur costs setting up a meeting
that involves so many people. If no agency can incur costs, how
does this "think tank" that only requires one meeting ever have
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its one required meeting?
IS THE "THINK TANK" CREATED BY THIS BILL NECESSARY IF ONLY ONE
MEETING IS REQUIRED?
SINCE THE CALIFORNIA EMERGENCY MANAGEMENT AGENCY WILL CLEARLY
INCUR COSTS TO PUT TOGETHER THE MEETING, WILL IT EVER HAPPEN?
IF CALIFORNIA EMERGENCY MANAGEMENT AGENCY WANTS TO PUT TOGETHER
THE MEETING DESPITE THE COSTS, WHY MUST THIS PROVISION BE PUT
INTO LAW?
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