BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 1435 (Dickinson)                                        5
          As Amended May 25, 2012 
          Hearing date:  June 19, 2012
          Penal Code
          AA:mc

                     MANDATORY CHILD ABUSE AND NEGLECT REPORTING:

                                 ATHLETICS PERSONNEL

                                           
                                       HISTORY

          Source:  Author

          Prior Legislation: None

          Support: Crime Victims United of California; The Child Abuse 
          Prevention Center;                 AFSCME, AFL-CIO; California 
          Protective Parents Association; California   Narcotics Officers' 
          Association; California Police Chiefs Association; Crime    
          Victims Action Alliance; California Association of Marriage and 
          Family   Therapists

          Opposition:None known

          Assembly Floor Vote:  Ayes  76 - Noes  0



                                         KEY ISSUE
           
          SHOULD AN "ATHLETIC COACH, ATHLETIC ADMINISTRATOR, OR ATHLETIC 




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          DIRECTOR EMPLOYED BY A PUBLIC OR PRIVATE ORGANIZATION, INCLUDING, 
          BUT NOT LIMITED TO, SCHOOLS THAT PROVIDE KINDERGARTEN OR ANY OF 
          GRADES 1 TO 12, INCLUSIVE," BE EXPRESSLY INCLUDED IN THE MANDATED 
          CHILD ABUSE AND NEGLECT REPORTER LAWS?


                                       PURPOSE

          The purpose of this bill is to expressly include an "athletic 
          coach, athletic administrator, or athletic director employed by 
          a public or private organization, including, but not limited to, 
          schools that provide kindergarten or any of grades 1 to 12, 
          inclusive," in the mandated child abuse and neglect reporter 
          laws.

           Current law  establishes the Child Abuse and Neglect Reporting 
          Act ("CANRA"), which generally is intended to protect children 
          from abuse and neglect.  (Penal Code § 11164.)

           Current law  requires "mandated reporters" to make reports of 
          suspected child abuse or neglect, as specified.  (Penal Code § 
          11165.9.)

           Under current law  the term "child abuse or neglect" for purposes 
          of CANRA "includes physical injury inflicted by other than 
          accidental means upon a child by another person, sexual abuse as 
          defined . . . , neglect as defined . . . , the willful harming 
          or injuring of a child or the endangering of the person or 
          health of a child, as defined . . . , and unlawful corporal 
          punishment or injury as defined . . . .  'Child abuse or 
          neglect' does not include a mutual affray between minors.  
          'Child abuse or neglect' does not include an injury caused by 
          reasonable and necessary force used by a peace officer acting 
          within the course and scope of his or her employment as a peace 
          officer."  (Penal Code § 11165.6.)

           Current law  provides that, except as specified, "a mandated 
          reporter shall make a report  . . . whenever the mandated 
          reporter, in his or her professional capacity or within the 
          scope of his or her employment, has knowledge of or observes a 




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          child whom the mandated reporter knows or reasonably suspects 
          has been the victim of child abuse or neglect."  (Penal Code § 
          11166(a).)

           Current law  enumerates 40 categories of persons who are mandated 
          child abuse and neglect reporters. <1>   (Penal Code § 11165.7 
          (a).)  Except as specified, current law provides that 
          "volunteers of public or private organizations whose duties 
          require direct contact with and supervision of children are not 
          mandated reporters . . . ."  (Penal Code § 11165.7(b).)

           This bill  would add an "athletic coach, athletic administrator, 
          or athletic director employed by a public or private 
          organization, including, but not limited to, schools that 
          provide kindergarten or any of grades 1 to 12, inclusive," to 
          ---------------------------
          <1>  Mandatory child abuse and neglect reporters under Penal 
          Code Section 11165.7:  (1) A teacher.  (2) An instructional 
          aide.  (3) A teacher's aide or teacher's assistant employed by 
          any public or private school.  (4) A classified employee of any 
          public school.  (5) An administrative officer or supervisor of 
          child welfare and attendance, or a certificated pupil personnel 
          employee of any public or private school.  (6) An administrator 
          of a public or private day camp.  (7) An administrator or 
          employee of a public or private youth center, youth recreation 
          program, or youth organization.  (8) An administrator or 
          employee of a public or private organization whose duties 
          require direct contact and supervision of children.  (9) Any 
          employee of a county office of education or the California 
          Department of Education, whose duties bring the employee into 
          contact with children on a regular basis.  (10) A licensee, an 
          administrator, or an employee of a licensed community care or 
          child day care facility.  (11) A Head Start program teacher.  
          (12) A licensing worker or licensing evaluator employed by a 
          licensing agency as specified.  (13) A public assistance worker. 
           (14) An employee of a child care institution, including, but 
          not limited to, foster parents, group home personnel, and 
          personnel of residential care facilities.  (15) A social worker, 
          probation officer, or parole officer.  (16) An employee of a 
          school district police or security department.  (17) Any person 
          who is an administrator or presenter of, or a counselor in, a 
          child abuse prevention program in any public or private school.  
          (18) A district attorney investigator, inspector, or local child 
          support agency caseworker unless the investigator, inspector, or 
          caseworker is working with an attorney appointed pursuant to 
          Section 317 of the Welfare and Institutions Code to represent a 
          minor.  (19) A peace officer, as specified.  (20) A firefighter, 
          except for volunteer firefighters.  (21) A physician, surgeon, 
          psychiatrist, psychologist, dentist, resident, intern, 
          podiatrist, chiropractor, licensed nurse, dental hygienist, 
          optometrist, marriage, family and child counselor, clinical 
          social worker, or any other person who is currently licensed 
          under Division 2of the Business and Professions Code.  (22) Any 
          emergency medical technician I or II, paramedic, or other person 
          certified pursuant to Division 2.5 of the Health and Safety 
          Code.  (23) A psychological assistant, as specified.  (24) A 
          marriage, family, and child therapist trainee, as specified.  
          (25) An unlicensed marriage, family, and child therapist intern, 
          as specified.  (26) A state or county public health employee who 
          treats a minor for venereal disease or any other condition.  
          (27) A coroner.  (28) A medical examiner, or any other person 
          who performs autopsies.  (29) A commercial film and photographic 
          print processor, as specified.  As used in this article, 
          "commercial film and photographic print processor" means any 
          person who develops exposed photographic film into negatives, 
          slides, or prints, or who makes prints from negatives or slides, 
          for compensation.  The term includes any employee of such a 
          person; it does not include a person who develops film or makes 
          prints for a public agency.  (30) A child visitation monitor, as 
          specified.  (31) An animal control officer or humane society 
          officer, as specified.  (32) A clergy member, as specified.  
          (33) Any custodian of records of a clergy member, as specified.  
          (34) Any employee of any police department, county sheriff's 
          department, county probation department, or county welfare 
          department.  (35) An employee or volunteer of a Court Appointed 
          Special Advocate program, as specified.  (36) A custodial 
          officer, as specified.  (37) Any person providing services to a 
          minor child under Section 12300 or 12300.1 of the Welfare and 
          Institutions Code. (38) An alcohol and drug counselor, as 
          specified.  (39)  A clinical counselor trainee, as specified.  
          (40)  A clinical counselor intern, as specified.



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          the mandated child abuse and neglect reporter statute.  
           
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                      ("ROCA")
          
          In response to the unresolved prison capacity crisis, since 
          early 2007 it has been the policy of the chair of the Senate 
          Committee on Public Safety and the Senate President pro Tem to 
          hold legislative proposals which could further aggravate prison 
          overcrowding through new or expanded felony prosecutions.  Under 
          the resulting policy known as "ROCA" (which stands for 
          "Receivership/Overcrowding Crisis Aggravation"), the Committee 
          has held measures which create a new felony, expand the scope or 
          penalty of an existing felony, or otherwise increase the 
          application of a felony in a manner which could exacerbate the 
          prison overcrowding crisis by expanding the availability or 
          length of prison terms (such as extending the statute of 
          limitations for felonies or constricting statutory parole 
          standards).  In addition, proposed expansions to the 
          classification of felonies enacted last year by AB 109 (the 2011 
          Public Safety Realignment) which may be punishable in jail and 
          not prison (Penal Code section 1170(h)) would be subject to ROCA 
          because an offender's criminal record could make the offender 
          ineligible for jail and therefore subject to state prison.  
          Under these principles, ROCA has been applied as a 
          content-neutral, provisional measure necessary to ensure that 
          the Legislature does not erode progress towards reducing prison 
          overcrowding by passing legislation which could increase the 
          prison population.  ROCA will continue until prison overcrowding 
          is resolved.

          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 




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          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  Design capacity is the number of inmates a 
          prison can house based on one inmate per cell, single-level 
          bunks in dormitories, and no beds in places not designed for 
          housing.  Current design capacity in CDCR's 33 institutions is 
          79,650.

          On January 6, 2012, CDCR announced that California had cut 
          prison overcrowding by more than 11,000 inmates over the last 
          six months, a reduction largely accomplished by the passage of 
          Assembly Bill 109.  Under the prisoner-reduction order, the 
          inmate population in California's 33 prisons must be no more 
          than the following:

                 167 percent of design capacity by December 27, 2011 
               (133,016 inmates);
                 155 percent by June 27, 2012;
                 147 percent by December 27, 2012; and
                 137.5 percent by June 27, 2013.
               
          This bill does not aggravate the prison overcrowding crisis 
          described above under ROCA.

                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:




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                                                        AB 1435 (Dickinson)
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               Currently, people working in a variety of professions 
               are required to report instances of child sexual abuse 
               and neglect. (Sec.11165.7 PC).  However, there is a 
               gap in current law. Athletic coaches, administrators 
               and directors are not specifically cited in the 
               current statute.  Athletic coaches hold a particularly 
               high position of trust with the youth they work with, 
               and there should be no mistake or confusion that 
               coaches, administrators and athletic directors should 
               be included as Mandated Reporters.

               A number of recent events involving instances of 
               sexual abuse between athletic coaches and youth whom 
               coaches instruct, has focused attention as to whether 
               coaches have the proper training about what 
               constitutes sexual abuse of minors, and what to do if 
               they, as coaches, become aware of a youth who is or 
               has been the subject of abuse.  Perhaps the highest 
               profile event concerned the late Penn State football 
               coach, Joe Paterno, who claimed in an interview, that 
               upon receiving a report of another coach who was 
               abusing youth "I didn't know exactly how to handle 
               it?"  Recently, an article in the Sacramento Bee 
               identified at least a half dozen cases of improper 
               contact and sexual abuse between coaches and youth who 
               were in their charge, in the Sacramento region alone, 
               within a six month period.  These and other reports 
               have underscored shortcomings in both the state's 
               mandated reporter law?coaches are not explicitly 
               covered, and a lack of training and education of 
               athletic coaches, administrators and directors, in 
               terms of what is inappropriate and illegal behavior, 
               and what to do if they become aware of such behavior.

               Amending athletic coaches, administrators and 
               directors into Section 11165.7 PC will not only make 
               them mandated reporters, but will hopefully expose 
               them to some training, as the statute encourages 
               employers to train their employees who are mandated 




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               reporters.

          2. What This Bill Would Do; Current Mandated Reporter Law
           

          This bill would add an "athletic coach, athletic administrator, 
          or athletic director employed by a public or private 
          organization, including, but not limited to, schools that 
          provide kindergarten or any of grades 1 to 12, inclusive," to 
          the mandated child abuse and neglect reporter statute.  Under 
          current law, there are 40 enumerated categories of mandated 
          reporters, including teachers, instructional aides and others 
          who already may include the athletic coaching staff covered by 
          this bill.  For example, current law makes an administrator or 
          employee of a public or private youth center, youth recreation 
          program, or youth organization a mandated child abuse or neglect 
          reporter.  As noted below, as currently drafted this bill 
          appears to have some cross-over with other bills heard by or now 
          before this Committee.

           
          3.  Related Measures

           Earlier this year this Committee passed SB 1264 (Vargas), which 
          like this bill specifically addresses athletic personnel:

           AB 1435 (Dickinson):
           
          "An athletic coach, athletic administrator, or athletic director 
          employed by a public or private organization, including, but not 
          limited to, schools that provide kindergarten or any of grades 1 
          to 12, inclusive."

           SB 1264 (Vargas):
           
          "Any athletic coach, including, but not limited to, an assistant 
          coach or a graduate assistant involved in coaching, at public or 
          private postsecondary institutions."
            
          The differences between these bills appear to be:




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           ------------------------------------------------------- 
          |  Bill   |  Persons Made  |  Entities   |Volunteers/Non|
          |         |   Mandatory    | Under Which |    -paid     |
          |         |   Reporters    |     The     |   Persons?   |
          |         |                | Reporters   |              |
          |         |                |  Function   |              |
          |---------+----------------+-------------+--------------|
          |AB 1435  |an athletic     |a public or  |No; employees |
          |(Dickinso|coach, athletic |private      |only          |
          |n)       |administrator   |organization,|              |
          |         |or athletic     | including   |              |
          |         |director        |but not      |              |
          |         |                |limited to   |              |
          |         |                |K-12 schools |              |
          |---------+----------------+-------------+--------------|
          |SB 1264  |any athletic    |public or    |Yes; does not |
          |(Vargas) |coach,          |private      |specify       |
          |         |including but   |postsecondary|employees     |
          |         |not limited to  |             |only          |
          |         |an assistant    |institutions |              |
          |         |coach or        |             |              |
          |         |graduate        |             |              |
          |         |assistant       |             |              |
          |         |involved in     |             |              |
          |         |coaching        |             |              |
           ------------------------------------------------------- 

          To the extent a "public or private organization," as set forth 
          in AB 1435, includes postsecondary institutions, these bills 
          could be confusing if both were to be enacted.  Some 
          postsecondary institutions may interpret the Vargas bill to be 
          the provision applying solely to their athletic personnel, while 
          others may interpret this bill, because of its inclusion of a 
          "public or private organization," to include them as well.  The 
          author may wish to consider amending this bill to narrow its 
          application to public or private organizations serving minors 
          under the age of 18 to avoid any confusion about its scope or 
          application.  However, it should be noted that current law makes 
          an administrator or employee of a public or private youth 




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          center, youth recreation program, or youth organization a 
          mandated child abuse or neglect reporter (Penal Code § 
          11165.7(a)(7).).  To avoid confusion and redundancy in the 
          statute, members of the Committee and the author instead may 
          wish to amend this bill to expressly revise paragraph (7) to 
          state, "including but not limited to an athletic coach, athletic 
          administrator or athletic director."   

          SHOULD THIS AMENDMENT BE MADE?
           
          Several bills have been introduced this session which propose to 
          expand the obligation to report suspected child abuse or 
          neglect:  

                                          


          
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          |        Bill         | What the Bill Does  |       Status        |
          |---------------------+---------------------+---------------------|
          |AB 1435 (Dickinson)  |Makes an "athletic   |Before this          |
          |                     |coach, athletic      |Committee (this      |
          |                     |administrator, or    |bill)                |
          |                     |athletic director    |                     |
          |                     |employed by a public |                     |
          |                     |or private           |                     |
          |                     |organization,        |                     |
          |                     |including, but not   |                     |
          |                     |limited to, schools  |                     |
          |                     |that provide         |                     |
          |                     |kindergarten or any  |                     |
          |                     |of grades 1 to 12,   |                     |
          |                     |inclusive," a        |                     |
          |                     |mandated reporter.   |                     |
          |---------------------+---------------------+---------------------|
          |AB 1434 (Feuer)      | Makes an "employee  |Before this          |
          |                     |of a public or       |Committee            |
          |                     |private institution  |                     |
          |                     |of higher education, |                     |




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                                                        AB 1435 (Dickinson)
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          |                     |as to child abuse or |                     |
          |                     |neglect occurring on |                     |
          |                     |that institution's   |                     |
          |                     |premises or at an    |                     |
          |                     |official activity    |                     |
          |                     |of, or program       |                     |
          |                     |conducted by, the    |                     |
          |                     |institution," a      |                     |
          |                     |mandated  reporter.  |                     |
          |---------------------+---------------------+---------------------|
          |AB 1438 (Bradford)   |Expands the existing |Before this          |
          |                     |crime for failing to |Committee            |
                                                                        |                     |notify a peace       |                     |
          |                     |officer of a         |                     |
          |                     |specified violent    |                     |
          |                     |crime against a      |                     |
          |                     |child under 14 to    |                     |
          |                     |include non-forcible |                     |
          |                     |child molestation    |                     |
          |                     |(PC 152.3)           |                     |
          |---------------------+---------------------+---------------------|
          |AB 1713 (Campos)     |Expands existing     |Before this          |
          |                     |definition of        |Committee            |
          |                     |commercial film and  |                     |
          |                     |photographic print   |                     |
          |                     |processers who are   |                     |
          |                     |mandated reporters   |                     |
          |                     |to include several   |                     |
          |                     |enumerated types of  |                     |
          |                     |computer-related     |                     |
          |                     |data and imagery.    |                     |
          |---------------------+---------------------+---------------------|
          |AB 1817 (Atkins)     |Makes "commercial    |Before this          |
          |                     |computer             |Committee            |
          |                     |technicians," as     |                     |
          |                     |specified, mandated  |                     |
          |                     |reporters.           |                     |
          |---------------------+---------------------+---------------------|
          |SB 1264 (Vargas)     |Makes any "athletic  |Passed this          |
          |                     |coach, including,    |Committee 4/17/12    |




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                                                        AB 1435 (Dickinson)
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          |                     |but not limited to,  |(7-0); pending in    |
          |                     |an assistant coach   |the Assembly         |
          |                     |or a graduate        |                     |
          |                     |assistant involved   |                     |
          |                     |in coaching, at      |                     |
          |                     |public or private    |                     |
          |                     |postsecondary        |                     |
          |                     |institutions," a     |                     |
          |                     |mandated reporter.   |                     |
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           ----------------------------------------------------------------- 
          |        Bill         | What the Bill Does  |       Status        |
          |---------------------+---------------------+---------------------|
          |SB 1551 (Vargas)     |Requires a           |Pulled by author     |
          |                     |"competent adult who |after hearing in     |
          |                     |becomes aware of     |this Committee       |
          |                     |information or       |4/17/12 (ROCA bill)  |
          |                     |evidence that would  |                     |
          |                     |cause a reasonable   |                     |
          |                     |suspicion of child   |                     |
          |                     |sexual               |                     |
          |                     |abuse is required to |                     |
          |                     |report that          |                     |
          |                     |information to state |                     |
          |                     |or local law         |                     |
          |                     |enforcement or to    |                     |
          |                     |county child         |                     |
          |                     |protective services  |                     |
          |                     |within 72 hours,"    |                     |
          |                     |with specified       |                     |
          |                     |criminal penalties.  |                     |
          |---------------------+---------------------+---------------------|
          |AB 1564 (Lara)       |Makes "volunteers of |Assembly Public      |
          |                     |public or private    |Safety               |
          |                     |organizations,       |                     |
          |                     |including nonprofit  |                     |
          |                     |organizations, whose |                     |
          |                     |duties require       |                     |
          |                     |direct contact with  |                     |
          |                     |and supervision of   |                     |
          |                     |children," mandated  |                     |
          |                     |reporters.           |                     |
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