BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 557 (Kehoe)
As Introduced February 17, 2011
Hearing date: March 29, 2011
Penal Code
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FAMILY JUSTICE CENTERS:
COORDINATED VICTIM SERVICES
HISTORY
Source: Family Justice Center Alliance
Prior Legislation: SB 733 (Leno) - 2010, vetoed
AB 1669 (Leno) - 2007, vetoed
AB 50 (Leno) - Ch. 884, Stats. 2006
AB 1768 (Committee on Public Safety) - 2005, vetoed
Support: California Probation, Parole and Correctional
Association; Crime Victims United of California;
California Catholic Conference
Opposition:California Public Defenders Association (unless
amended)
KEY ISSUES
SHOULD LOCAL GOVERNMENT ENTITIES BE AUTHORIZED IN STATE LAW TO
ESTABLISH "FAMILY JUSTICE CENTERS," WITH ENUMERATED PURPOSES,
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DEFINITIONS, STAFF MEMBERS, CONFIDENTIALITY PROVISIONS, AND RELATED
SPECIFICATIONS?
SHOULD THE NATIONAL FAMILY JUSTICE CENTER ALLIANCE BE AUTHORIZED TO
MAINTAIN AGGREGATE, NON-IDENTIFYING DATA ON CLIENTS OF THE FAMILY
JUSTICE CENTERS AUTHORIZED BY THIS BILL, SUBJECT TO AUTHORIZATION
FROM INDIVIDUAL VICTIMS?
PURPOSE
The purposes of this bill are to 1) authorize local government
entities to establish a multiagency, multidisciplinary family
justice center to provide services to victims of domestic
violence, sexual assault, human trafficking and elder abuse, as
specified; and 2) authorize the National Family Justice Center
Alliance to maintain, and a family justice center to provide,
nonidentifying, aggregate data on victims receiving services
from family justice centers and the outcomes from the services
provided, and to report findings and outcomes to the Legislature
annually, as specified.
Existing law includes standards for programs for drug endangered
children. Statute provides that the needs of children exposed
to narcotics crime scenes are best served by written policies
encouraging the arrest of an individual for child endangerment
where there is probable cause that an offence has been committed
and coordination with an appropriate investigation of that
child's welfare by child protective services. Protocols that
encourage dependency hearings, along with law enforcement
investigation, are in the best interests of the child. (Pen.
Code § 13978.80, subd. (b).)
Existing law includes a program for interagency domestic
violence death review teams, composed of professionals such as
coroners, forensic pathologists, prosecutors, domestic violence
center staff members, county health department staff, child
abuse agency staff members and others. (Pen. Code
§11163.3-11163.6.)
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Existing law provides that information developed by or shared
among members of domestic violence death review teams shall
remain confidential, as specified. (Pen. Code §11163.3, subds.
(e)-(g).)
Existing federal law includes the Health Insurance Portability
and Accountability Act of 1996 (HIPAA) which, subject to
specified exceptions and procedures, provides that medical
information shall be confidential. (Pub. Law 104-191; 45 CFR
160, 164.)
This bill authorizes a city, county or city and county to
establish a multiagency, multidisciplinary family justice center
to assist victims of domestic violence, sexual assault, elder
abuse and human trafficking, as defined and specified.
This bill states that family justice centers should ensure that
victims of such crime can access needed services in one
location, thereby enhancing victim safety and increasing
offender accountability.
This bill states that staff members of family justice centers
shall be drawn from public and private agencies and may include,
but are not limited to:
Law enforcement personnel.
Medical personnel.
Prosecutors and civil legal assistance providers.
Victim-witness personnel.
Domestic violence shelter staff.
Rape crisis center staff.
Social service and child welfare professionals.
County health department staff.
City or county welfare and public assistance workers.
Trained volunteers.
Nonprofit agency counseling professionals.
This bill provides that family justice centers are encouraged to
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maintain an informed consent process to authorize information
from victims to be appropriately shared among service providers
within the center structure.
This bill provides that information from victims accessing
services at family justice centers shall remain confidential for
purposes other than providing services within the center
framework. In particular, victim information shall not be
provided to third parties absent authorization by the victim, or
as required by law or court order. Confidentiality provisions
apply to individual staff members of family justice centers who
possess information from a victim.
This bil l provides that disclosure of information to a family
justice center by a victim shall not constitute a waiver of any
of statutory privileges, including lawyer-client,
physician-patient, psychotherapist-patient, counselor-victim,
sexual assault or domestic violence-victim.
This bill provides, subject to authorization from each victim,
that a family justice center may provide non-identifying,
aggregate information about victims to the National Family
Justice Center Alliance (NFJCA) and that the NFJCA may maintain
information on services provided and outcomes obtained through
services. NFJCA may, for evaluation and monitoring, provide
such data to the Legislature annually by April 30th.
This bill provides that a staff member, volunteer or agency of a
family justice center shall be liable for maintaining
confidential victim information for the purpose of providing
non-identifying aggregate information to NFJCA on an annual
basis. The immunity from liability applies only where the
family justice center maintains a formal training program for
all staff members, volunteers and agency professionals, as
specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
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
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 Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1.Need for This Bill
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SB 557 defines family justice centers for the first
time in California law. Family justice centers have
been identified as a "best practice" by the U.S.
Department of Justice. They involve collaboration
among public and private non-profit agencies providing
intervention and prevention services to address
domestic violence, sexual assault and other forms of
abuse. While each centers may vary by community, the
concept of providing all the services for victims
under one roof has been identified as an effective
approach to increase safety and offender
accountability by avoiding the need for victims to
travel from agency to agency, telling their story over
and over in order to receive help. We now have
fifteen such centers in California and another fifteen
are planned. The Family Justice Center Alliance is
the umbrella organization for family justice centers
around the United States. The Alliance gathers
non-identifying, aggregate data from centers to
document outcomes. It is time to define in statute
this innovative, multi-disciplinary approach to
meeting the needs of victims and their children.
There is no funding associated with the bill. The
bill does not change any existing reporting
obligations or create any new confidentiality
privileges.
In particular, SB 557 does the following: 1) defines
Family Justice Centers; 2) requires informed consent
processes in all centers to allow clients to authorize
information sharing among agencies; 3) encourages
information sharing to help victims; 4) protects the
confidentiality of otherwise confidential information
from disclosure to third parties even after
information has been shared within centers; 5) allows
the Family Justice Center Alliance (FJCA) to gather
non-identifying, aggregate information in order to
track outcomes and report them to the Legislature (at
no expense to the taxpayers); and 6) provides immunity
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from liability for good faith sharing of information
among partner agencies and volunteers within a family
justice center when authorized by the client.
2. Confidentiality Issues, Including Federal HIPAA Medical
Privacy Rules
California law includes relatively stringent medical privacy
rules. Unless a specified exception applies, such as a court
order or warrant, medical information can only be disclosed with
the authorization of the patient.
The federal Health Insurance Portability and Accountability Act
of 1996 (HIPAA) rules also require confidentiality of medical
information, with specified exceptions. It appears that HIPAA
controls over any conflicting state laws. Under HIPAA, covered
entities may disclose protected health information to law
enforcement officials for specified law enforcement purposes,
such as court orders, to identify suspects or witnesses, to find
missing persons, information about a crime victim, notice of
death and related matters.
The services provided at a family justice center would often
include medical and counseling services that fall under medical
privacy rules. It may be somewhat difficult to coordinate
medical privacy protections in the context of law enforcement
investigations and criminal prosecutions.
HOW DO THE INFORMED CONSENT AND CONFIDENTIALITY PROVISIONS IN
THE BILL INTERACT WITH OR CONFORM TO FEDERAL HIPAA MEDICAL
PRIVACY RULES?
DO THE CONFIDENTIALITY PROVISIONS IN THIS BILL ADEQUATELY COVER
CONFIDENTIALITY CONCERNS AND INTERESTS?
3.Integrated Services for Crime Victims
The Family Justice Center Initiative is the umbrella
organization for one of many programs begun in recent years to
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provide a single location for victims to interface with law
enforcement and victim services. It appears that the family
justice center model is one of the most fully developed and
implemented programs in the country. The family justice center
model specializes in sexual assault, domestic violence, child
abuse and abuse of the elderly.
The University of California San Francisco Medical Center and
San Francisco General Hospital operate a program called the
Trauma Recovery Center to serve victims of all kinds of criminal
violence. The TRC is also a one-stop center for comprehensive
and integrated victim services. Studies of the TRC have shown
that victims who receive TRC have better outcomes (such as
keeping jobs and housing) and are more likely to cooperate with
law enforcement than other victims.
In 2005, Washington State released a Strategic Plan for Victim
Services. The website of the Spokane Crime Victim Service
Center noted that the center offered crisis intervention,
medical referrals and assistance and legal assistance.
It appears that these programs recognize that crime causes harm
to entire communities, not simply individual victims. (The
Culture of Control, Garland, Univ. of Chicago Press, 2001, pp.
11-12.) Victims can lose employment because of their injuries
and psychological stress. Psychological stress suffered by
crime victims can interfere with their ability to raise children
and support other family members. Members may wish to consider
the role and value of comprehensive and timely services for
crime victims as part of the state's response to crime, and
whether these types of services could save the state resources
in the long run and create healthier and more productive
citizens and communities.
SHOULD STATE LAW INCLUDE STANDARDS AND PROCEDURES FOR FAMILY
JUSTICE CENTERS WHICH PROVIDE COMPREHENSIVE SERVICES FOR VICTIMS
OF CHILD ABUSE, DOMESTIC VIOLENCE, SEXUAL ASSAULT, HUMAN
TRAFFICKING AND ABUSE OF THE ELDERLY?
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4. Background: The Effects of Abuse and Crime on Individual and
Public Health
Increasingly, public health researchers and physicians have
begun to view criminal abuse, especially where children are
victims, as equivalent to a disease vector. A well-known Kaiser
study (Relationship of Adverse Childhood Experiences to Adult
Health - ACE) found that abused children are much more likely to
suffer life-long physical illnesses, drug and alcohol abuse and
psychological disorders. (The original ACE report was published
in May of 1998 in the American Journal of Preventive Medicine.
The study, however, is ongoing.) Other studies have found that
such patterns of behavior and result spread through the
community over generations. Researchers at Columbia,
Rockefeller and McGill Universities have found that early abuse
and stress can even produce changes to DNA in the brain. These
changes can prevent the brain from properly regulating the
response to stress. As one example, children exposed to high
levels of abuse and stress are likely as adults to have elevated
levels of C-reactive protein, a leading marker for
cardiovascular disease. (The Poverty Clinic, Tough, The New
Yorker, March 21, 2011, pp. 28-30.)
Dr. Nadine Burke, a San Francisco pediatrician who runs a clinic
in Hunters Point and who is familiar with research on abuse and
health, has noted:
In many cases, what looks like a social situation is
actually a neurochemical situation. You can trace the
pathology as it moves from the molecular level to the
social level. You have a girl who grows up in a
household where there's domestic violence. . . .
That triggers her fight-or-flight response, which
affects the way the hormone receptors in her brain
develop, and as she grows up her stress-regulation
system goes off track. Maybe she overreacts to
confrontation, or maybe . . . she feels comfortable
only around a lot of drama. So she ends up with a
partner who's abusive. Then the pathology moves from
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the individual level to the household level, because
that partner beats their kids, and then their son goes
to a school where ten out of thirty kids are
experiencing the same thing. Those kids create in the
classroom a culture of ? fighting ? for all thirty
Ýkids]. Then those kids get older . . . and they
behave violent and they beat their kids. And it's
just accepted. It becomes a cultural norm. (Id, at
p. 30.)
Research is also being done on the effect of violence and
traumatic stress on the brains of adults. For example, a very
recently published study from the San Francisco Veterans
Administration Hospital and UCSF considered adults who have
suffered post-traumatic stress (PTSD). Victims of violent crime
often suffer PTSD. The study found changes in the hippocampus
of PTSD sufferers. The hippocampus is very important in memory.
(Biological Psychiatry, Apfel, Weiner, et al, March 15, 2011.)
Michael Weiner, MD, a co-author, said that the current study
"adds to the general body of knowledge that PTSD is associated
with significant changes in the brain, and is thus a biological
disorder."
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5. Argument in Opposition (unless the Bill is Amended)
The California Public Defenders Association argues that the bill
should be amended:
While well-intentioned in concept, family justice
centers are often dominated by law enforcement
personnel and prosecutors. The immediate availability
of community-based supportive services delivered by
domestic violence shelter staff, counseling
professionals, social workers and public health staff
are critical to ensuring that victims receive timely,
co-located services.
However, the presence of law enforcement and
prosecutors may be coercive and tells victims that
they do not deserve services unless they cooperate
with law enforcement and testify for the prosecution.
Individuals or families who seek shelter or
counseling, but who do not wish to report a crime or
testify or who fear immigration consequences, may
simply choose to not access needed services. In some
communities, family justice centers are the only
resources for victims of domestic violence and sexual
assault.
SB 557 should be amended to expressly state that any
person seeking services at a family justice center
need not participate in the criminal justice system or
cooperate with law enforcement. Provisions should be
included to allow persons to file complaints when they
are faced with coercive tactics by law enforcement or
prosecutors.
Justice centers have also been free to define victims
as excluding those with a criminal conviction,
regardless of the circumstances of the case. In
reality many victims of domestic violence and sexual
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assault have been previously convicted of crimes. SB
557 should be amended to prohibit family justice
centers from denying services to a victim because he
or she has a criminal record. The bill should also be
amended to prohibit rap sheets from being run unless
the victim has voluntarily contacted law enforcement.
CPDA also has concerns about confidentiality. Victims
will fear that information they share with a social
service agency will be forwarded to law enforcement
and the prosecution. While SB 557 provides that a
victim's consent is not universal and that third
parties cannot access such information without the
victim's express consent, SB 557 nevertheless grants
blanket immunity to all staff of co-located agencies
as long as agencies have received some confidentiality
training. The immunity applies regardless of a staff
member's motives or coercion. SB 557 should be
amended to remove this immunity.
6. Double Referral of Bill to Judiciary Committee
This bill has also been referred for hearing to the Judiciary
Committee. The Judiciary Committee has not set a date for the
hearing.
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