BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1438
                                                                  Page 1

          Date of Hearing:   March 6, 2012
          Counsel:                Milena Blake


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 1438 (Bradford) - As Amended:  January 23, 2012
                       As Proposed to be Amended in Committee
           

          SUMMARY  :   Requires any person who reasonably believes that he 
          or she has observed a lewd or lascivious act upon a child under 
          the age of 14 years, as specified, to report the incident to law 
          enforcement, as specified.  Violation of this section is a 
          misdemeanor punishable by a fine of not more than $1,500, by 
          imprisonment in a county jail for not more than six months, or 
          by both that fine and imprisonment.  

           EXISTING LAW  :  

           1)Requires any person who reasonably believes that he or she has 
            observed the following offenses where the victim is a child 
            under the age of 14 to notify a peace officer, as specified 
            ĘPenal Code Section 152.3(a).]:

             a)   Murder; 

             b)   Rape;  or, 

             c)   A forcible lewd and lascivious act.   

          2)Specifies that any person who fails to report specified 
            offenses against a child under 14 is guilty of a misdemeanor 
            punishable by a fine of up to $1,500, imprisonment in a county 
            jail for up to six months, or by fine and imprisonment.  
            ĘPenal Code Section 152.3(d).]

          3)Specifies that the duty to report to a peace officer of 
            specified offenses against a child under 14 is satisfied if 
            the notification or attempt provide notice is made by 
            telephone or any other means.  ĘPenal Code Section 152.3(c).]

          4)Specifies that the duty to report to a peace officer of 
            specified offenses against a child under 14 is not to be 








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            construed to affect privileged relationships as provided by 
            law.  ĘPenal Code Section 152.3(b).]

          5)Specifies that the duty to report to a peace officer of 
            specified offenses against a child under 14 does not apply if 
            the person is related either to the victim or the offender, as 
            specified.  ĘPenal Code Section 152.3(e)(1).]

          6)Specifies that the duty to report to a peace officer of 
            specified offenses against a child under 14  does not apply is 
            the person observing the offense fails to report based on a 
            reasonable mistake of fact or a reasonable fear for his or her 
            own safety or the safety of his or her family.  ĘPenal Code 
            Section 152.3(e)(2) and (3).]

          7)Prohibits and person from willfully and lewdly committing any 
            lewd or lascivious act upon a child under 14, with the intent 
            of arousing, appealing to, or gratifying the lust, passions, 
            or sexual desires of that person or the child and specifies 
            that violation of this prohibition if a felony punishable by 
            imprisonment in the state prison for three, six, or eight 
            years.  ĘPenal Code Section 288(a).]

          8)Prohibits and person from willfully and lewdly committing any 
            lewd or lascivious act upon a child under 14, with the intent 
            of arousing, appealing to, or gratifying the lust, passions, 
            or sexual desires of that person or the child, by the use of 
            force, violence, duress, menace, or fear of immediate and 
            unlawful bodily injury on the victim or another person and 
            specifies that violation of this prohibition if a felony 
            punishable by imprisonment in the state prison for five, 
            eight, or ten years.  ĘPenal Code Section 288(b)(1).]

          9)Requires that any mandated reporter who has knowledge of, or 
            observes, a child in his or her professional capacity or 
            within the scope of his or her employment whom he or she 
            knows, or reasonably suspects, has been the victim of child 
            abuse shall report that incident immediately to a specified 
            child protection agency by telephone, and further requires a 
            written report be sent within 36 hours.  ĘPenal Code Section 
            11166(a).]

          10)Provides that any mandated reporter who fails to report an 
            incident of known or reasonably suspected child abuse or 
            neglect is guilty of a misdemeanor, punishable by up to six 








                                                                  AB 1438
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            months confinement in a county jail, or by a fine of $1,000, 
            or by both imprisonment and fine.  ĘPenal Code Section 
            11166(c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "The primary 
            intent of reporting law is to protect the child.  This bill 
            seeks to ensure that further protection is in place by 
            improving child abuse reporting requirements.  As we have seen 
            in the Penn State scandal, not every adult chooses to make the 
            right decision, leaving predators on the loose and placing 
            children at risk of further abuse.  This bill will mandate all 
            adults, not only legally mandated reporters, to report a lewd 
            or lascivious act upon a child under 14 to law enforcement."
          
           2)Mandating Reporting  : Under existing law, any person who 
            reasonably believes that he or she observed the murder or rape 
            of a child under 14 or forcible lewd or lascivious act upon a 
            child under 14 to report the act to law enforcement.  This law 
            would require any person to report any lewd or lascivious act 
            upon a child under the age of 14, whether forcible or not.   

           3)Related Legislation  :

             a)   AB 1434 (Feuer) makes an employee of a public or private 
               institution of higher education a mandated reporter.  AB 
               1434 will be heard by this Committee today.

             b)   AB 1435 (Dickinson) makes coaches, administrators, and 
               directors employed by or volunteering with a public or 
               private organization mandated reporters.  AB 1435 will be 
               heard by this Committee today.

             c)   AB 1628 (Beall) makes technical, non-substantive changes 
               to the Child Abuse and Neglect Reporting Act (CANRA).  AB 
               1628 is pending rereferral by the Assembly Rules Committee.

             d)   AB 1713 (Campos) expands the list of persons identified 
               as mandated reporters to include commercial-film and 
               photographic-print or image processors; and also expands 
               the list of media to which CANRA provisions apply to 
               include, among other things, any representation of 








                                                                  AB 1438
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               information, data, or an image.  AB 1713 has not been set 
               for hearing as yet by this Committee.

             e)   AB 1817 (Atkins) expands the list of persons identified 
               as mandated reporters to include commercial computer 
               technicians.  AB 1817 has not been set for hearing as yet 
               by this Committee.

             f)   SB 1264 (Vargas) expands the list of persons identified 
               as mandated reporters to include athletic coaches at public 
               or private postsecondary institutions, and increases the 
               penalties for failure to report an incident.  SB 1264 is 
               pending rereferral by the Senate Rules Committee.

           4)Prior Legislation :

             a)   SB 646 (Watson), Chapter 1444, Statutes of 1987, 
               established CANRA, which requires specified persons who 
               have knowledge of or observe a child in their professional 
               capacity or within the scope of their employment, whom the 
               person knows or reasonably suspects has been the victim of 
               child abuse to report the known or suspected instance of 
               child abuse to a child protective agency, as defined.

             b)   AB 1241 (Pacheco), Chapter 916, Statutes of 2000, 
               expanded the list of mandated reporters and training 
               requirements under CANRA, and required that additional 
               information be included in a report of suspected child 
               abuse or neglect.

             c)   AB 525 (Chu), Chapter 701, Statutes of 2006, expanded 
               the definition of "child abuse and neglect" to include 
               instances in which a child suffers or is at substantial 
               risk of suffering serious emotional damage.

             d)   AB 673 (Hayashi), Chapter 393, Statutes of 2007, added 
               death by other than accidental means to the definition of 
               "child abuse and neglect," and clarified that a mandated 
               reporter not acting in his or her private capacity or in 
               the course and scope of his or her employment may report 
               instances of known or suspected child abuse.

             e)   AB 2380 (Lowenthal), Chapter 123, Statutes of 2010, 
               clarified that a "reasonable suspicion" that a child has 
               been a victim of child abuse or neglect does not require 








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               certainty that a child has been abused, and may be based on 
               credible information from other individuals.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Federation of State, County and Municipal 
            Employees (AFSCME), AFL-CIO

           Opposition 
           
          California Attorneys for Criminal Justice
          California District Attorneys Association 
          California Public Defenders Association
          Child and Family Protection Association
           

          Analysis Prepared by  :    Milena Blake / PUB. S. / (916) 319-3744