BILL ANALYSIS SB 110 Page 1 Date of Hearing: June 15, 2010 Counsel: Kimberly A. Horiuchi ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 110 (Liu) - As Amended: January 26, 2010 As Proposed to be Amended in Committee SUMMARY : Authorizes every local law enforcement agency that participates in the Peace Officer Standards and Training (POST) program to provide training to its peace officers using a telecourse related to crime victims with disabilities each time that telecourse is updated, as specified. Specifically, this bill : 1)Renames "interagency elder death teams" to "elder and dependent adult death review teams" and expands the authority of those teams to include dependent adult abuse and neglect, as specified. 2)Requires the Department of Developmental Services (DDS) to either immediately report a case of suspected abuse or neglect of a developmentally disabled person held in custody to the police or sheriff or to ascertain the facts and then report confirmed cases of abuse to the police or sheriff's department, as specified. 3)Provides that when DDS has reason to believe that any person with a developmental disability who receives community service through a regional center has been the victim of a crime, DDS shall report the case immediately to the local police or sheriff's department that has jurisdiction. These reporting requirements are in addition to, and do not substitute for, the reporting requirements of mandated reporters. 4)Includes in the definition of "evidence that the person is at risk" for purposes of tracking in the Violent Crime Information Center, that the person missing has a mental impairment. 5)Provides that the training outlined in this bill, as specified, only apply when POST or the Bureau of Medi-Cal SB 110 Page 2 Fraud and Elder Abuse produces new training materials relevant to dependent adult abuse or other crimes against persons with disabilities, or when the POST or Bureau of Medi-Cal Fraud and Elder Abuse updates existing materials relevant to those subjects. 6)Requires POST when producing or updating any such training materials to consult with the Bureau of Medi-Cal Fraud and Elder Abuse and other subject matter experts. 7)Provides that local law enforcement agencies, and state law enforcement agencies with jurisdiction, have concurrent jurisdiction to investigate elder and dependent adult abuse and all other crimes against elder victims and victims with disabilities. 8)Requires POST to include in the course of training, as specified, training on the special problems of investigating and prosecuting sexual assault crimes, as specified, when committed against individuals with disabilities. 9)Requires any new or updated training materials to include: a) The jurisdiction and responsibility of law enforcement agencies pursuant to amended provisions of the Penal Code; b) The fact that the protected classes of "dependent persons" as defined in provisions of the law related to child molestation and "dependent adults" as defined in provisions related to elder abuse include many persons with disabilities, regardless of the fact most of these persons actually live independently; and, c) Other relevant information and laws. 10)States that when POST offers or provides new or updated training materials, as specified, POST may also inform the law enforcement agencies of other relevant training materials that may be available. 11)Makes other technical changes to include the phrase "dependent adult" or "persons with disabilities". EXISTING LAW : SB 110 Page 3 1)States 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; by a fine not to exceed $6,000; by both that fine and imprisonment; or by imprisonment in the state prison for two, three, or four years. [Penal Code Section 368(b)(1).] 2)Provides, if in the commission of an offense described in existing law, the victim suffers great bodily injury, 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; and, c) If in the commission of an offense described, the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows: five years if the victim is under 70 years of age or seven years if the victim is 70 years of age or older. [Penal Code Section 368(a)(1) to (3).] 3)States 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 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 SB 110 Page 4 of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed $2,000; by imprisonment in a county jail not to exceed one year; or by both that fine and imprisonment. 4)Provides that any person who is not a caretaker and who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates existing law 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 two, three, or four 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 $1,000; 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 Section 368(d).] 5)Defines "disability" as a developmental disability, as defined in federal law, a mental illness, as defined in federal law, a disability within the meaning of the Americans with Disabilities Act of 1990, as specified, or a disability within the meaning of the California Fair Employment and Housing Act. [Welfare and Institutions Code Section 4900(d).] 6)Requires that by July 1, 2006, POST shall establish and keep updated a continuing education classroom training course relating to law enforcement interaction with mentally disabled persons. The training course shall be developed by POST in consultation with appropriate community, local, and state organizations and agencies that have expertise in the area of mental illness and developmental disability, and with appropriate consumer and family advocate groups. In developing the course, POST shall also examine existing courses certified by POST that relate to mentally disabled persons. POST shall make the course available to law enforcement agencies in California. [Penal Code Section 13515.25(a).] FISCAL EFFECT : Unknown COMMENTS : SB 110 Page 5 1)Author's Statement : According to the author, "SB 110 addresses the problem of crimes against people with disabilities. Research tells us that crimes against people with disabilities are widespread. Law enforcement and the public can improve prevention, investigation, prosecution, and even the reporting of these crimes. This bill contains provisions to address these challenges of prevention, reporting, investigation, and prosecution. Each of this bill's provisions alone is modest, but together they should help law enforcement make a significant dent in what has been called 'the invisible epidemic' of crimes against people with disabilities. This bill has bipartisan support, as well as significant support from law enforcement and from organizations serving persons with disabilities. Recent amendments eliminate any costs." 2)Background : According to information provided by the author, Professor Joan Petersilia of the Stanford Law School Criminal Justice stated, "In the past twenty years, I have conducted dozens of studies on the criminal justice system and made recommendations, but none seem so important as revising procedures so that law enforcement receives the proper training and jurisdiction over the crimes committed against this vulnerable population. I chaired the National Research Council's congressionally mandated study on crime victims with disabilities. That study was the only study ever conducted to glean the victimization and enforcement of crimes against persons with disabilities. You can find the complete report entitled Crime Victims with Developmental Disabilities (2001) at the National Academic Press; www.nap.edu/catalog.php?record_id=10042 . That important study documented the very high victimization rates (a conservative estimate is that people with developmental disabilities are 4 to 10 times more likely to be victims of crimes that other people are). "These high victimization rates are coupled with very low prosecutions and conviction rates. Part of the challenge is identifying and successfully prosecuting these cases in the difficulty initially identifying the victim as disabled. If the victim were identified as a person with a disability, collecting data at the crime scene and immediately after would more likely support a successful investigation and prosecution. Perpetrators quickly learn that there are no SB 110 Page 6 consequences to victimizing a person with a disability because the cases 'don't stick'. "Law enforcement training is the key. As we documented in that national study, most law enforcement are unable to distinguish between mental illness and developmental disabilities-and aren't sensitized or trained specifically on how to interview and collect data from a person who is disabled. After the National Academy Report, Crime Victims with Developmental Disabilities, was published, I did training of law enforcement officers on these issues and always got feedback about how critically important the information was. Law enforcement (including prosecutors and judges) were unaware of the unique aspects related to persons with disabilities, and so their interviewing techniques were not sensitive, and often the victim shut down or become fearful during investigation and court proceedings. With training, this can be avoided." 3)Protection & Advocacy Report : In 2003, Protection & Advocacy issued a report, Abuse and Neglect of Adults with Developmental Disabilities & the System's Failure to Provide Equal Protection: A Public Health Priority for the State of California. The report made several recommendations regarding the most effective ways to confront the problem of abuse and neglect of disabled people: "Similar findings have been documented from studies of Californians with disabilities. Hard (1986) found that, of 95 adult Californians with developmental disabilities surveyed, 83% of the women and 32% of the men had been sexually assaulted. A later study of San Francisco Bay area residents with mild mental retardation found that nearly 80% of the women and 54% of the men had been sexually abused at least once (Stromsness, 1993). "While many feel that living in the community carries inherent risks, it is notable that some studies have found that crime rates are higher for victims with disabilities in institutions, group homes and other segregated facilities (Sobsey & Mansell, 1990; Roeher Inst., 1994). Adding to these alarming incidence rates, studies show that people with disabilities are more likely to experience more severe abuse, experience abuse for a longer duration, be victims of multiple episodes, and be victims of a larger number of perpetrators (Schaller & Fieberg, 1998; Sobsey & Doe, 1991; Young et al., SB 110 Page 7 1997). "The authors are aware that some of the above data must be interpreted cautiously. Accurate estimates regarding the incidence of abuse or neglect of persons with developmental disabilities specifically are difficult to obtain. Consequently, some research referenced in this report comes from studies of individuals with a broad range of disabilities. Much of the research on victimization of people with disabilities does not delineate specific sub-populations. Public records of violence against individuals usually do not indicate whether or not the victim has a disability, let alone a developmental disability (Curry et al., 2001). "Reliable studies focusing specifically on Californians with developmental disabilities who have been victims of physical or sexual abuse are small in number. Furthermore, there is no coordinated system to collect data on and track outcomes of victims with disabilities from the initial allegation, to the initial report, to prosecution and finally to conviction. However, most experts agree that research findings involving other groups of people with disabilities should be viewed as under-estimates for persons with developmental disabilities. "Regardless of the type of disability or whether the abuse is emotional, physical, or sexual, people who provide care and support to individuals with disabilities are often the same people who victimize them - people the victims know and trust (Petersilia et al., 2001; Nosek et al, 1997; Marchetti & McCartney, 1990). It is estimated that risk of abuse increases by 78% due to the vulnerability of people with developmental disabilities and their need for personal assistance services (c.f., Sobsey and Doe, 1991; Young et al., 1997; Curry & Powers, 1999). In a survey of individuals with disabilities who had been abused, 96% of the cases involved perpetrators who were known to their victim (Sobsey and Doe, 1991). The largest group of offenders (44%) were individuals who had a relationship with the victim specifically because of their disability (27.7% disability service providers, 5.4% specialized transportation, 4.3% specialized foster parents and 6.5% other disabled individuals). Mansell et al. (1992) similarly found that 26% of perpetrators were paid care givers providing services related to the victim's disability and 11% were other service providers. SB 110 Page 8 "Homes and other residences are the most common setting for abuse (Sobsey, 1994; Furey, 1994; Turk & Brown, 1992). One study found that 58% of the offenses took place in the homes of either the victim (48%) or the perpetrator (10%) (Turk and Brown, 1992). As individuals with developmental disabilities have access to a wider array of living arrangements, states must ensure that systems are in place to prevent abuse not only in congregate facilities, but also in the community. "Law enforcement must be required to periodically and regularly complete the POST eight-hour advanced officer training course, entitled, Police Response to People with Mental Illness or Developmental Disabilities. Similarly, there must be periodic training provided to local prosecutors and judicial personnel specifically regarding crimes against persons with disabilities, including requesting and providing necessary accommodations. APS and licensing agencies (for facilities and licensed care providers) should develop and implement a similar training component regarding conducting investigations involving victims with developmental disabilities. 4)Prior Legislation : AB 2038 (Lieber), of the 2007-2008 Legislative Session, would have replaced the phrase "dependant adult" with the phrase "adult with disability" when referring to a person described under existing law as a person between the ages of 18 and 64 who has a physical or mental limitation which restricts or substantially restricts his or her ability to carry out normal activities or to protect his or her rights, as specified. AB 2039 was held on the Senate Committee on Appropriations' Suspense File. REGISTERED SUPPORT / OPPOSITION : Support Alliance of California Autism Organization Arc of California Arc of Riverside Arc of South Bay California Coalition Against Sexual Assault California Commission on the Status of Women California Communities United Institute California Foundation for Independent Living Centers California Partnership to End Domestic Violence California State Council on Developmental Disabilities SB 110 Page 9 Child Abuse Prevention Center Congress of California Seniors Crime Victims Action Alliance Crime Victims United Disability Rights California Easter Seals Housing NOW Joan Petersilia, Co-Director, Stanford Law School Center on Criminal Justice Orange County Arc Sacramento Homeless Organizing Committee Sacramento Housing Alliance Sacramento Loaves & Fishes Taxpayers from Improving Public Safety One private individual Opposition None Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916) 319-3744