BILL ANALYSIS Ó
AB 1628
Page 1
Date of Hearing: April 17, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1628 (Beall) - As Amended: April 11, 2012
As Proposed to be Amended in Committee
SUMMARY : Imposes duties under the Child Abuse and Neglect
Reporting Act (CANRA) to private entities conducting business in
California which have employees or members whose primary duties
involve close interaction with children on a regular basis.
Also extends the statute of limitations for civil claims based
on childhood sexual abuse, and prohibits confidential settlement
agreements in those cases. Specifically, this bill :
1)Extends the statute of limitations for a civil action against
a person or entity based on childhood sexual abuse until the
date the plaintiff reaches the age of 35.
2)Prohibits confidential settlement agreements in civil action
involving childhood sexual abuse.
3)States that a confidential settlement agreement in any civil
action involving childhood sexual abuse that is entered into
on or after January 1, 2013 is void as a matter of law and
against public policy.
4)Makes it a misdemeanor punishable by a fine not to exceed
$1,000 for a party or an attorney to agree to a confidential
settlement agreement in any civil action involving childhood
sexual abuse.
5)Subjects an attorney who demands a confidential settlement
agreement in any civil action involving childhood sexual abuse
subject to disciplinary action by the State Bar.
6)Provides that if a mandated reporter willfully conceals his or
her failure to report an incident under this section the
failure to report is a continuing offense under discovered by
specified agencies.
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7)States that private-entity employing a mandated reporter shall
not impede or inhibit the duties of a mandated reporter.
8)Requires any private entity conducting business in California
that has employees, members, agents, licensees, or
representatives who are either mandated reporters or whose
primary duties involve close interaction with children on a
regular basis to:
a) Designate an employee to receive complaints of suspected
child abuse;
b) Implement an internal procedure, consistent with the
provisions of Penal Code Section 11166, for employees,
members, agents, licensees, or representatives to report
any incident of suspected child abuse to a designated
employee, and distribute a written copy of the procedure to
all employees. The procedure shall identify the employee
who the private entity has designated to receive complaints
of suspected child abuse, and shall specify that a person
who reports a complaint of suspected child abuse shall not
be subject to any sanction for making the report.
c) Distribute a written copy of the aforementioned
procedure to all employees.
d) Ensure that a mandated report has been made in
accordance with Penal Code Section 11166.
9)Defines a "private entity" as "any entity that is registered,
incorporated, or has its principal place of business in this
state."
10)Mandates a private entity conducting business in California
that has employees, members, agents, licensees, or
representatives who are either mandated reporters or whose
primary duties involving close interaction with children on a
regular basis to conduct an enhanced background check on those
person. These enhanced background checks shall include, but
are not limited to:
a) A past employment check;
b) A reference check; and
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c) A criminal background check.
11)Provides that a violation of the provisions of this section
is a misdemeanor punishable by six months imprisonment in the
county jail, a fine of up to $1,000, or both.
12)Makes technical, non-substantive changes.
EXISTING LAW :
1)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).]
2)Defines a "mandated reporter" under CANRA as any of the
following: a teacher; an instructional aide; a teacher's aide
or teacher's assistant employed by any public or private
school; a classified employee of any public school; an
administrative officer or supervisor of child welfare and
attendance, or a certificated pupil personnel employee of any
public or private school; an administrator of a public or
private day camp; an administrator or employee of a public or
private youth center, youth recreation program, or youth
organization; an administrator or employee of a public or
private organization whose duties require direct contact and
supervision of children; any employee of a county office of
education or the State Department of Education, whose duties
bring the employee into contact with children on a regular
basis; a licensee, an administrator, or an employee of a
licensed community care or child day care facility; a Head
Start program teacher; a licensing worker or licensing
evaluator employed by a licensing agency as defined; a public
assistance worker; an employee of a child care institution,
including, but not limited to, foster parents, group home
personnel, and personnel of residential care facilities; a
social worker, probation officer, or parole officer; an
employee of a school district police or security department;
any person who is an administrator or presenter of, or a
counselor in, a child abuse prevention program in any public
or private school; a district attorney investigator,
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inspector, or local child support agency caseworker unless the
investigator, inspector, or caseworker is working with an
attorney appointed to represent a minor; a peace officer, as
defined, who is not otherwise described in this section; a
firefighter, except for volunteer firefighters; a physician
and surgeon, psychiatrist, psychologist, dentist, resident,
intern, podiatrist, chiropractor, licensed nurse, dental
hygienist, optometrist, marriage and family therapist,
clinical social worker, professional clinical counselor, or
any other person who is currently licensed as a health care
professional as specified; any emergency medical technician I
or II, paramedic, or other person certified to provide
emergency medical services; a registered psychological
assistant; a marriage and family therapist trainee, as
defined; a registered unlicensed marriage and family therapist
intern; a state or county public health employee who treats a
minor for venereal disease or any other condition; a coroner;
a medical examiner, or any other person who performs
autopsies; a commercial film and photographic print processor,
as defined; a child visitation monitor, as defined; an animal
control officer or humane society officer, as defined; a
clergy member, as defined; any custodian of records of a
clergy member, as specified; any employee of any police
department, county sheriff's department, county probation
department, or county welfare department; an employee or
volunteer of a Court Appointed Special Advocate program, as
defined; any custodial officer, as defined; any person
providing services to a minor child, as specified; an alcohol
and drug counselor, as defined; a clinical counselor trainee,
as defined; and a registered clinical counselor intern.
ĘPenal Code Section 11165.7(a).]
3)Provides that the reporting duties under CANRA are individual,
and no supervisor or administrator may impede or inhibit the
reporting duties, and no person making a report shall be
subject to any sanctions for making the report. ĘPenal Code
Section 11166(i)(1).]
4)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
months confinement in a county jail, or by a fine of $1,000,
or by both imprisonment and fine. ĘPenal Code Section
11166(c).]
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5)Provides that volunteers of public or private organizations,
except a volunteer of a Court Appointed Special Advocate
program, whose duties require direct contact with and
supervision of children are not mandated reporters, but are
encouraged to obtain training in the identification and
reporting of child abuse and neglect and are further
encouraged to report known or suspected instances of child
abuse or neglect to a specified agency. ĘPenal Code Section
11165.7(b).]
6)Strongly encourages employers to provide their employees who
are mandated reporters with training in the duties imposed by
CANRA. This training shall include training in child abuse
and neglect identification and training in child abuse and
neglect reporting. Whether or not employers provide their
employees with training in child abuse and neglect
identification and reporting, the employers shall provide
their employees who are mandated reporters with a statement
that informs the employee that he or she is a mandated
reporter and informs the employee of his or her reporting
obligations and of his or her confidentiality rights. ĘPenal
Code Section 11165.7(c).]
7)Encourages public and private organizations to provide their
volunteers whose duties require direct contact with and
supervision of children with training in the identification
and reporting of child abuse and neglect. ĘPenal Code Section
11165.7(f).]
8)Requires that any person who reasonably believes he or she has
observed the commission of a murder, rape, or lewd act upon a
child under the age of 14 years to notify a peace officer, and
provides that the failure to do so 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. ĘPenal Code Section 152.3.]
9)Excludes from the reporting requirements for those three
crimes the following people:
a) A person who is related to either the victim or the
offender, including a husband, wife, parent, child,
brother, sister, grandparent, grandchild, or other person
related by consanguinity or affinity;
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b) A person who fails to report based on a reasonable
mistake of fact; and
c) A person who fails to report based on a reasonable fear
for his or her own safety or for the safety of his or her
family. ĘPenal Code Section 152.3(e).]
10)Provides that the statute of limitations for a civil action
based on childhood sexual abuse is eight years after the date
the plaintiff attains the age of majority, or within three
years of the date the plaintiff discovers or reasonably should
have discovered that psychological injury or illness occurring
after the age of majority was caused by the sexual abuse,
whichever period expires later. ĘCivil Procedure Code Section
340.1(a).]
11)Disfavors confidential settlement agreements in any civil
action involving elder abuse. ĘCivil Procedure Code Section
2017.310(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Assembly Bill
1628 addresses gaps in the law that enable pedophiles to
shield their activities. The best way to stop hidden
predators from hurting more children is by identifying them.
The law must be changed to protect children, not child
molesters.
"The bill, which strengthens reporting standards, was triggered
by the arrest and conviction of San Jose swim coach Andrew
King who pleaded no contest in 2009 to 20 felony counts of
child molestation. He is serving a 40-year sentence in state
prison.
"A teen-age girl who had been abused by King, came to Jim Beall
along with her attorney, and asked him to change the law to
stop pedophiles like King from freely roaming from swim club
to swim club without having their past behavior uncovered.
"We have seen in the cases litigated against USA Swimming, as
well as the matter that has recently arisen at Penn State
University, that we cannot rely on another's moral conscience
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to report instances of suspected child abuse and properly vet
or screen those to whom the care and custody of children has
been entrusted by their parents. It has become necessary to
legislate the duty to report and screen and carry with it
'real' consequences in the event of non-compliance.
"With regard to USA Swimming, we have seen at least two coaches
seek their prey in the form of minor girls across the Bay Area
and, despite notification of suspected pedophilia to virtually
every level at USA Swimming; nothing was done to prevent their
access to children. We have seen a day care facility, a
private entity which rents space from a public entity, hire a
pedophile in his 20's who had a history of child abuse to
supervise children, only to see him go on to molest up to 16
children under the age of 10. We have seen a foster care
facility which had ample knowledge of a foster care parent
sexually abusing children and yet continued to place children
in his care. Countless lives have been irreparably scarred.
Legislation has become urgently necessary to prevent future
harm."
2)Statute of Limitations : This bill extends the statute of
limitations for a civil action based on childhood sexual abuse
until the date the plaintiff reaches the age of 35. The
current civil statute of limitations is essentially until the
age of 26 (age of majority plus eight years). There is also a
tolling provision for "delayed discovery," which is within
three years of the date the plaintiff discovers or reasonably
should have discovered that psychological injury or illness
occurring after the age of majority was caused by the sexual
abuse. ĘCivil Procedure Code Section 340.1(a).]
In contrast, the general criminal statute of limitations for
these sex offenses is until the victim's 28th birthday.
ĘPenal Code Section 801.1(a).] In addition, the statute of
limitation for prosecution of specified sex offenses may be
tolled until one year from the date the crime is reported to
law if the crime involved substantial sexual conduct and there
is independent corroboration of the victim's allegations.
ĘPenal Code Section 803(f).]
3)Background Screening Requirements : This bill requires
specified private entities to conduct an enhanced background
check if its employees, members, agents, licensees or
representatives whose primary duties involve close interaction
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with children on a regular basis. This enhanced background
check consists of a past employment check, a reference check,
and a criminal background check. Presumably, the criminal
background check could be performed on sites such as the
Federal Bureau of Investigation's National Sex Offender Public
Web site () or the
Megan's Law Web site ().
However, these Web sites only provide information on
registered sex offenders and do not identify individuals who
had not previously been convicted or required to register. In
addition, as the Department of Justice notes on its disclaimer
page, mistaken identification may occur when relying solely
upon name, age and address to identify individuals. Moreover,
some registered sex offenders are not subject to public
disclosure and, therefore, are not included on the Megan's Law
Web site. There are also private companies which can be found
on the Internet that provide such services for a fee.
However, it is not known how reliable the information from
these providers.
4)Secret Settlements : California rules of court already provide
for a policy against secrecy for court records filed in all
civil cases. Rule 2.550(c) provides, "Unless confidentiality
is required by law, court records are presumed to be open" and
sets the requisite findings a court must make before sealing a
court record. The provisions of this bill prohibiting
confidential settlement agreements seem consistent with that
policy.
5)Argument in Support : According to Child Abuse Listening
Mediation , "This bill will help prevent child sex abuse by
mandating reporting and enhancing background screenings for a
wider array of entities and individuals. This will,
undoubtedly, make California a safer place for our children by
making the entities that we entrust with our children
accountable for what happens to them.
"Furthermore, the civil procedure enhancements will make it
harder for predators to go unpunished when the criminal
statute of limitations has elapsed. By extending the statute
of limitations for civil claims involving childhood sexual
abuse from 26 years of age to 35 years of age, the state will
have accounted for an increasing population of people who are
realizing the psychological damages, of said abuse, later in
their life. Additionally, banning "secret settlements", for
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sexual abuse civil proceedings, will make it impossible for a
predator to go unscathed by public scrutiny, thus, shedding
light on a secret admission of guilt that the public has a
right to know about."
6)Argument in Opposition : According to the California Catholic
Conference , "The California Catholic Conference has several
different concerns about the bill in its current form, but for
this letter we focus on two primary areas.
"First, although we have been in contact with the author's
office, and understand that there is no intent that the bill
be retroactive in its effect, we believe that one unintended
consequence of the current amendments to Code of Civil
Procedure section 340.1 could be to leave open a legal
argument that the effect of the amendments is to revive claims
that are currently barred. Of particular concern is the
impact of the amendments to section 340.1 in the wake of the
very recent California Supreme Court decision in Quarry v. Doe
(2012) 2012 Cal. LEXIS 2854, which settled a longstanding
appellate issue regarding delayed discovery claims and the
impact of the amendments to section 340.1 that were enacted in
2002.
"A second primary area of concern is the proposed new Penal
Code section 11166.6, which would impose background check
obligations upon private entities conducting business in
California, with regard to any individuals who, in connection
with that organization, have close interaction with children.
Once again, although our understanding from the author's
office is that the intent of this provision is to focus on
private entities that engage in business activity, and not
religious organizations, that distinction is not clearly set
forth in the current language of the bill. And as opposed to
private entities engaged in business activity, whose employees
or agents (including volunteers) are likely to be very limited
in number, the number of volunteers who assist in the daily
and diverse activity of a California diocese or archdiocese
numbers in the tens, if not hundreds, of thousands. The
resources that would be necessary to conduct both employment
and reference background checks for every such employee and
volunteer would be significantly prohibitive.
"We note that for Roman Catholic dioceses and archdioceses in
California, the standard practice for screening employees and
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volunteers who will have close interaction with children is to
conduct criminal background checks via fingerprinting through
the California Department of Justice. And as part of the
hiring of employees, additional background checks are also
often conducted. But to impose an absolute requirement that
each and every employee and volunteer be subject to past
employment checks, reference checks, and criminal background
checks would impose significant costs, and at least as it
relates to Catholic Church volunteers, not likely provide a
level of safety and screening beyond the measures currently
observed by Catholic dioceses and archdioceses throughout the
state."
7)Related Legislation :
a) AB 1434 (Feuer) makes an employee of a public or private
institution of higher education a mandated reporter. AB
1434 is pending a vote on the Assembly floor.
b) AB 1435 (Dickinson) makes coaches, administrators, and
directors employed by a public or private organization
mandated reporters. AB 1435 is pending hearing by the
Assembly Appropriations Committee.
c) AB 1438 (Bradford) makes it a misdemeanor punishable by
up to six months in the county jail to fail to report to a
peace officer an instance of known or suspected lewd acts
upon a child 14 years or younger. AB 1438 is pending a
vote on the Assembly floor.
d) AB 1564 (Lara) makes volunteers of public and private
organizations, including non-profits, mandated reporters
under CANRA, and revokes a non-profit's tax-exempt status
if an employee or volunteer fails to report an instance of
known or suspected child abuse. AB 1564 is pending hearing
by this Committee.
e) 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
information, data, or an image. AB 1713 is pending hearing
by the Assembly Appropriations Committee.
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f) AB 1817 (Atkins) expands the list of persons identified
as mandated reporters to include commercial computer
technicians. AB 1817 is pending hearing by the Assembly
Appropriations Committee.
g) 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 hearing by the Senate Public Safety Committee.
8)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 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.
d) AB 634 (Steinberg), of the 2003-2004 Legislative
Session, prohibited "secret settlements" in elder abuse
cases.
REGISTERED SUPPORT / OPPOSITION :
Support
California Protective Parents Association
Child Abuse Listening Mediation
Consumer Attorneys of California
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Safe4 Athletes
Opposition
California Catholic Conference
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744