BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2011-2012 Regular Session SB 557 (Kehoe) As Amended May 2, 2011 Hearing Date: May 10, 2011 Fiscal: No Urgency: No EDO SUBJECT Family Justice Centers DESCRIPTION This bill would authorize local governments to establish family justice centers (FJC) and allow for the FJCs to be staffed by, among others, law enforcement, medical, social service, and child welfare personnel. This bill would also authorize the FJC to share information between the partner agencies after obtaining informed consent from the victims seeking services. BACKGROUND The Family Justice Center (FJC) model was originally developed in San Diego, which opened a center in 2002. The idea behind the FJC model is to create a coordinated, single-point-of-access center offering comprehensive services for victims of domestic violence, thereby reducing the number of locations a victim must visit in order to receive critical services. The United States Department of Justice, through its Office on Violence Against Women (OVW), has identified the Family Justice Center model as a best practice in the field of domestic violence. According to the OVW, documented and public FJC outcomes include a reduction in the rate of homicide; increased victim safety; improved offender prosecution; reduced fear and anxiety for victims and their children; increased efficiency among service providers through the provision of collaborative victims; and increased community support for the provision of services and their children. (Casey Gwinn and Gael Strack, Hope for Hurting Families: Creating Family Justice Centers Across America, Volcano Press, 2006.) There are currently fifteen family (more) SB 557 (Kehoe) Page 2 of ? justice centers in California and over seventy centers in the United States. This bill would define in law the family justice center (FJC) model and authorize local governments to create a FJC in their communities, as well as require each FJC to maintain an informed consent policy to authorize the sharing of information among the agencies working within the FJC. CHANGES TO EXISTING LAW Existing law , the California Constitution, declares that the right to privacy is an inalienable right. (Cal. Const., art. I, sec. 1.) Existing federal law , the Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires that medical information be kept confidential unless authorized by the patient. Existing law allows for disclosure to law enforcement personnel for specified purposes. (Pub. Law 104-191; 45 CFR 160, 164.) Existing law provides that a victim of domestic violence has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a domestic violence counselor. (Evid. Code Sec. 1037.5.) Existing law provides for the establishment of community-based domestic violence victim shelters and services. (Welf. & Inst. Code Secs. 18290-18309.5.) Existing law provides for the California Emergency Management Agency (CalEMA) to provide grants to proposed and existing child sexual exploitation and child sexual abuse victim counseling centers and prevention programs, including programs for minor victims of human trafficking. (Pen. Code Sec. 13837.) Existing law provides that child protective services agencies, law enforcement, prosecution, child abuse and domestic violence experts, and community-based organizations serving abused children and victims of domestic violence shall develop, in collaboration with one another, protocols as to how law enforcement and child welfare agencies will cooperate in their response to incidents of domestic violence in homes in which a child resides. (Pen. Code Sec. 13732.) This bill would define the Family Justice Center (FJC) model in SB 557 (Kehoe) Page 3 of ? the law and expand the reach for whom services will be provided to include, not only victims of domestic violence, but also victims of officer-involved domestic violence, sexual assault, elder abuse, stalking, cyberstalking, cyberbullying, and human trafficking. This bill would also allow for the FJCs to be staffed by, among others, law enforcement, medical, social service, and child welfare personnel. This bill would also provide that victims of crime will not be denied services based solely on the grounds of criminal history. This bill would require each FJC to develop policies and procedures to enhance the safety of the victims and professionals at the FJC. This bill would require each FJC to maintain an informed consent policy for the purpose of sharing confidential and privileged information among the partner agencies in the FJC. This bill would require that at no time will a victim be required to sign the informed consent policy and that the informed consent policy must be in compliance with all other state and federal laws. This bill would provide that the victim's consent to share information is not a waiver of confidentiality or privilege held by the victim. This bill would require all FJC professionals to be formally trained in victim confidentiality and information sharing. COMMENT 1. Stated need for the bill The author writes: SB 557 would define Family Justice Centers in state law and thereby recognize the growing trend toward innovative, multi-disciplinary, multi-agency service delivery models for victims of domestic violence, sexual assault, elder abuse, and human trafficking. In addition, this bill clarifies that the current protections of victim's confidentiality continue even if a multi-disciplinary team is working with the victim to enhance safety and support that there is no universal waiver of confidentiality in relation to third parties not involved in the safety services being provided. SB 557 (Kehoe) Page 4 of ? Family Justice Centers are a growing trend of providing domestic violence, elder abuse and sexual assault services but there are no standards set for what a family justice center should offer, no uniformity, Ýand] no standards on confidentiality. . . 2. This bill raises concerns regarding the sharing of victim information The doctrine of informed consent originated in the medical community and was meant to reconcile a person's inherent right to decide what happened to his or her body and the doctor's duty to provide the patient with enough information to make that determination. As applied to this bill, informed consent would mean the right of the victim seeking services to share personally identifying information with the partner agencies and the duty of the FJC to provide enough information for the victim to determine whether or not he or she wants to share that information. This bill would also require each FJC to maintain a formal and mandatory training program for all staff members that includes confidentiality and information sharing. According to the sponsor, "the heart of an FJC is sharing critical information authorized to be shared by the victim . . . The primary information shared in FJC's is demographic information so the victim does not have to give her basic information over and over to 25 partner agencies. She also gets to choose who gets to see her demographic information among the agencies in a Center. The intake process includes risk assessment and safety planning . . . Later, after the intake process is completed, she gets to choose what incident-based information she wants to share and who she wants to share it with. At times, the sharing of information is critical to keeping her alive in high risk cases. The 'informed' part of the consent process is about advising the victim on the impacts and ramifications of sharing information." In response to staff inquiries regarding the use of the information shared and the potential for the information to be used against the victim, the sponsor responded "we are not aware of any examples of victims being prosecuted in Centers in California after coming forward for help and disclosing certain information, but it is an issue that we have to be aware of and sensitive to especially with mandated reporters in Centers." The California Partnership to End Domestic Violence SB 557 (Kehoe) Page 5 of ? (Partnership) is opposed to this bill and raises concerns with the sharing of confidential and privileged information among the partner agencies. While the goal is to help the victims receive the services necessary, there is always concern when domestic violence victims share their names and addresses. Special programs have been created in the law to protect the identity and addresses of victims of domestic violence. SB 1491 (Kuehl, Chapter 54, Statutes of 2006) prohibited any entity that awards grants to victim service providers from requesting or requiring, the personally identifying information of victims of domestic violence, and other specified groups as a condition of the award. SB 1491 also prohibited the use of computer programs or systems that require the disclosure of that personally identifying information. The author of SB 1491 argued at the time "that studies show individuals can often be located through the release of limited information, including gender and place and date of birth." And a supporter of SB 1491, Calegislation, added "that even including victims' personal information in a database can place victims at a heightened risk of re-victimization because the database may be subject to computer hacking or a record breach." The Privacy Rights Clearinghouse (PRC) and the American Civil Liberties Union (ACLU) also oppose this bill and raise concerns regarding the sharing of confidential information. PRC writes "we are concerned with the sharing of victims' 'confidential, privileged, or protected' information among the various social services, law enforcement, or nonprofit organizations in a 'family justice center' with the implementation of an 'informed client consent policy.' Such broad sharing of information could serve as a 'chilling effect' for individuals seeking such vital services. It should be possible to offer these services without widely sharing this sensitive and highly protected information." (See Comment 3 for suggested amendments to address these concerns.) 3. This bill raises concerns regarding defining the Family Justice Center (FJC) model in the law Currently, there are fifteen FJCs in California. There are also over 100 domestic violence shelters in California and another 100 community-based organizations in California that provide similar services as the shelters. This bill would authorize local governments to establish a multi-agency, multi-disciplinary family justice center to assist victims of SB 557 (Kehoe) Page 6 of ? domestic violence, officer-involved domestic violence, sexual assault, elder abuse, stalking, cyber-stalking, cyberbullying, and human trafficking. The stated purpose of the FJC is to allow victims to be able to access all of the needed services in one location. The sponsor of this bill, the National Family Justice Center Alliance, notes that "the California Legislature has recognized Child Advocacy Centers, Domestic Violence Fatality Review Teams, and other forms of multi-disciplinary intervention in family violence but has never recognized Family Justice Centers." The sponsor argues that the purpose of the FJC is to bring all of the services for these vulnerable victims under one roof. The sponsor contends that "victims are often required to travel from location to location to seek services that are scattered through a community or region. They have to tell their story over and over again to staff members representing agencies, such as, law enforcement, courts, civil legal, medical, transportation, housing, social services, mental health, rehabilitation, financial assistance, and many more. The criminal justice system unintentionally makes it easy for victims to become frustrated and ultimately stop seeking help. Faced with so many obstacles, victims often return to their abuser rather than obtaining the necessary services." In opposition to the bill, the Partnership to End Domestic Violence (Partnership) has several concerns about authorizing local governments to establish the FJC model. The Partnership argues that: California should be consistent with Federal statute and not promote, define or authorize the establishment of a Family Justice Center model over other models as SB 557 would do if passed. Although SB 557 is intended to promote victim safety and batterer accountability by defining Family Justice Centers in state statute, the Partnership strongly believes that the decision to establish Family Justice Centers, or any other type of multi-agency service-delivery program, should reside at the local level. Because a majority of Family Justice Centers are primarily led by members of the criminal justice systems, it is crucial that cities and counties continue to seek input and consultation for community-based victim services providers, including representatives from domestic violence crisis and advocacy centers. We have heard from local advocates that, 'One size does not fit all.' For example, rather than a one-stop shop, San Francisco has opted SB 557 (Kehoe) Page 7 of ? not to establish an FJC, based on local DV program input and desire to coordinate services and work to build mutually respectful relationships with the Criminal Legal System, but keep their services separate and equal. The Partnership has also expressed concerns regarding the availability of funding. The partnership states that: In communities where FJCs have been created, local providers of domestic violence services and shelters are reporting having to compete with FJCs for available funds. While this bill does not seek funding for FJCs, service providers know that there will be future attempts at tapping into already thin funding available for services to crime victims which could divert funding from local non-profits to cities and counties. The passage of SB 557 would appear to be a state endorsement of a Family Justice Center Model, which will lead to future collaborations that are more innovative or locally relevant to lose out because they are not in state statute. While we have seen some successful Family Justice Centers, there are many that have problematic practices, such as background checks and arrest of victims with warrants, and violation of victims' rights to confidentiality and privilege. Furthermore, as a statewide coalition representing many groups, including multidisciplinary, multiservice agencies, it is a direct conflict of interest for the Partnership to promote one service model over another. In response to these concerns and the concerns discussed above relating to the sharing of confidential information, the committee should consider limiting the bill to a two-year pilot project in selected cities and counties in order to study and address the concerns that have been raised. In order to help address the significant privacy concerns raised by this bill, the committee should also consider involving the California Office of Privacy Protection to ensure that the informed consent process being used by the currently operating FJCs for confidential victim information sharing is providing sufficient protection for victims' privacy and safety. Suggested amendments: 1. On page 2, line 6, insert "13750. (a) The City of San Diego, the City of Anaheim, the County of Alameda, and the County of Sonoma shall be authorized to create a two-year pilot project for the establishment of a Family Justice SB 557 (Kehoe) Page 8 of ? Center in accordance with the provisions of this Section and Section 13751." 2. On page 2, line 6, strike out "A city, county, or city and county" and insert "The City of San Diego, the City of Anaheim, the County of Alameda, and the County of Sonoma" 3. On page 3, line 4, strike out "a city, county, or city and county" and insert "the City of San Diego, the City of Anaheim, the County of Alameda, and the County of Sonoma" 4. On page 6, line 8, strike out "in order to authorize the sharing of confidential, " and lines 9 through 13 inclusive and on line 14 strike out "affiliated with the family justice center. However" 5. On page 6, line 8 after "policy" insert "and shall be in compliance with all state and federal laws protecting the confidentiality of the types of information and documents that may be in a victim's file, including, but not limited to, medical and legal records." 6. On page 6, line 14 strike out "at" and insert "At". 7. On page 6, line 16, strike out "The informed consent" and lines 17 through 20 inclusive. 8. On page 6, line 25, insert "(j) The Office of Privacy Protection in conjunction with the four pilot Centers, the National Family Justice Center Alliance, and relevant stakeholders shall develop best practices to ensure the privacy of all Family Justice Center clients and shall submit a report to the Assembly and Senate Committees on Judiciary, no later than January 1, 2013, with recommendations." 9. On page 6, after the previous above paragraph insert "(k) This section shall remain in effect only until January 1, 2014, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2014, deletes or extends that date." 10. On page 6, line 32, insert, "(k) This section shall remain in effect only until January 1, 2014, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2014, deletes or extends that SB 557 (Kehoe) Page 9 of ? date." Support : City Attorney of San Diego; Community Service Programs Victim Assistance Programs; Family Justice Center Sonoma County; Family Justice Center Legal Network; Fresno Police Department Domestic Violence Unit; Office of the District Attorney County of Shasta; Office of the District Attorney of Stanislaus County; San Diego District Attorney; San Diego Police Department; Shasta Family Justice Center; Stanislaus Family Justice Center Opposition : ACLU (unless amended); Asian Women Speak-Asian and Pacific Islander Advocates against Domestic Violence; California Partnership to End Domestic Violence; Casa de Esperanza; Interval House Crisis Shelters & Centers for Victims of Domestic Violence; Hermanas Latino Advocates Against Domestic Violence; Privacy Rights Clearinghouse (unless amended); Rainbow Services; Salaam Middle Eastern Advocates Against Domestic Violence; Slavic Voices-Slavic advocates against Domestic Violence; The African American Network for Violence Free Relationships; The Center Long Beach (LGBT victim support services); Women Shelter of Long Beach. HISTORY Source : National Family Justice Center Alliance Related Pending Legislation : None Known Prior Legislation : SB 914 (Bowen, Chapter 840, Statutes of 2004) among other things, stated the intent of the Legislature that victims' services programs that were administered by the Office of Criminal Justice Planning be temporarily redirected to the Office of Emergency Services, and that certain programs involving domestic violence and sexual assault be permanently consolidated in one office, branch, or department. SB 1745 (Polanco, Chapter 187, Statutes of 2002) required child protective services, law enforcement agencies, and others to develop protocols in collaboration with one another, as specified, as to how law enforcement and child welfare agencies will cooperate in their response to a domestic violence related incident in a home in which a child resides. SB 557 (Kehoe) Page 10 of ? SB 425 (Torlakson, Chapter 90, Statutes of 2001) authorized a pilot program in Contra Costa County, allowing the county to provide governmental oversight and coordination of domestic violence prevention, intervention, and prosecution efforts within the county. Prior Vote : Senate Committee on Public Safety (Ayes 6, Noes 0) **************