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 AB 1438 Page 2 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 Page 3 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 Page 4 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 AB 1438 Page 5 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