BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2011-2012 Regular Session B 1 2 6 SB 1264 (Vargas) 4 As Introduced February 23, 2012 Hearing date: April 17, 2012 Penal and Welfare and Institutions Codes AA:dl MANDATED CHILD ABUSE AND NEGLECT REPORTERS: COLLEGE ATHLETIC COACHES HISTORY Source: Author Prior Legislation: None Support: The Child Abuse Prevention Center; Crime Victims United of California; American Academy of Pediatrics, California; California State Sheriffs' Association; California Probation, Parole, and Correctional Association Opposition:Legal Services for Prisoners with Children KEY ISSUES SHOULD ANY "ATHLETIC COACH, INCLUDING, BUT NOT LIMITED TO, AN ASSISTANT COACH OR A GRADUATE ASSISTANT INVOLVED IN COACHING, AT PUBLIC OR PRIVATE POSTSECONDARY INSTITUTIONS," BE A MANDATED CHILD (More) SB 1264 (Vargas) PageB ABUSE AND NEGLECT REPORTER? SHOULD PENALTIES RELATING TO FAILURE TO REPORT BE RAISED, INCLUDING FINE INCREASES AND MAKING AN EXISTING MISDEMEANOR A FELONY PUNISHABLE BY STATE PRISON? PURPOSE The purpose of this bill is to add any "athletic coach, including, but not limited to, an assistant coach or a graduate assistant involved in coaching, at public or private postsecondary institutions," as a mandated child abuse and neglect reporter, and to raise penalties relating to failure to report, including fine increases and making an existing misdemeanor a felony punishable by state prison. Current law generally requires any person who reasonably believes that he or she has observed the commission of a murder, rape or forcible molestation against a child under the age of 14 years to notify a peace officer, as specified. These provisions do not apply to 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; a person who fails to report based on a reasonable mistake of fact; or 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. Violation of this provision is a misdemeanor punishable by a fine of not more than $1,500, by imprisonment in jail for not more than six months, or by both that fine and imprisonment. (Penal Code § 152.3.) Current law establishes the Child Abuse and Neglect Reporting Act ("CANRA"), which generally is intended to protect children from abuse and neglect. (Penal Code § 11164.) Current law requires "mandated reporters" to make reports of suspected child abuse or neglect, as specified. (Penal Code § 11165.9.) (More) SB 1264 (Vargas) PageC Under current law the term "child abuse or neglect" for purposes of CANRA "includes physical injury inflicted by other than accidental means upon a child by another person, sexual abuse as defined . . . , neglect as defined . . . , the willful harming or injuring of a child or the endangering of the person or health of a child, as defined . . . , and unlawful corporal punishment or injury as defined . . . . 'Child abuse or neglect' does not include a mutual affray between minors. 'Child abuse or neglect' does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer." (Penal Code § 11165.6.) Current law provides that, except as specified, "a mandated reporter shall make a report . . . whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect." (Penal Code § 11166(a).) Current law enumerates 40 categories of persons who are mandated (More) SB 1264 (Vargas) PageE child abuse and neglect reporters. <1> (Penal Code § 11165.7 (a).) Except as specified, current law provides that "volunteers of public or private organizations whose duties require direct contact with and supervision of children are not mandated reporters . . . ." (Penal Code § 11165.7(b).) This bill would make "(a)ny athletic coach, including, but not limited to, an assistant coach or a graduate assistant involved in coaching, at public or private postsecondary institutions," a mandated child abuse and neglect reporter under these provisions. Current law provides that any mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect as required by this section is guilty of a --------------------------- <1> Mandatory child abuse and neglect reporters under Penal Code Section 11165.7: (1) A teacher. (2) An instructional aide. (3) A teacher's aide or teacher's assistant employed by any public or private school. (4) A classified employee of any public school. (5) An administrative officer or supervisor of child welfare and attendance, or a certificated pupil personnel employee of any public or private school. (6) An administrator of a public or private day camp. (7) An administrator or employee of a public or private youth center, youth recreation program, or youth organization. (8) An administrator or employee of a public or private organization whose duties require direct contact and supervision of children. (9) Any employee of a county office of education or the California Department of Education, whose duties bring the employee into contact with children on a regular basis. (10) A licensee, an administrator, or an employee of a licensed community care or child day care facility. (11) A Head Start program teacher. (12) A licensing worker or licensing evaluator employed by a licensing agency as specified. (13) A public assistance worker. (14) An employee of a child care institution, including, but not limited to, foster parents, group home personnel, and personnel of residential care facilities. (15) A social worker, probation officer, or parole officer. (16) An employee of a school district police or security department. (17) Any person who is an administrator or presenter of, or a counselor in, a child abuse prevention program in any public or private school. (18) A district attorney investigator, inspector, or local child support agency caseworker unless the investigator, inspector, or caseworker is working with an attorney appointed pursuant to Section 317 of the Welfare and Institutions Code to represent a minor. (19) A peace officer, as specified. (20) A firefighter, except for volunteer firefighters. (21) A physician, surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, optometrist, marriage, family and child counselor, clinical social worker, or any other person who is currently licensed under Division 2of the Business and Professions Code. (22) Any emergency medical technician I or II, paramedic, or other person certified pursuant to Division 2.5 of the Health and Safety Code. (23) A psychological assistant, as specified. (24) A marriage, family, and child therapist trainee, as specified. (25) An unlicensed marriage, family, and child therapist intern, as specified. (26) A state or county public health employee who treats a minor for venereal disease or any other condition. (27) A coroner. (28) A medical examiner, or any other person who performs autopsies. (29) A commercial film and photographic print processor, as specified. As used in this article, "commercial film and photographic print processor" means any person who develops exposed photographic film into negatives, slides, or prints, or who makes prints from negatives or slides, for compensation. The term includes any employee of such a person; it does not include a person who develops film or makes prints for a public agency. (30) A child visitation monitor, as specified. (31) An animal control officer or humane society officer, as specified. (32) A clergy member, as specified. (33) Any custodian of records of a clergy member, as specified. (34) Any employee of any police department, county sheriff's department, county probation department, or county welfare department. (35) An employee or volunteer of a Court Appointed Special Advocate program, as specified. (36) A custodial officer, as specified. (37) Any person providing services to a minor child under Section 12300 or 12300.1 of the Welfare and Institutions Code. (38) An alcohol and drug counselor, as specified. (39) A clinical counselor trainee, as specified. (40) A clinical counselor intern, as specified. (More) SB 1264 (Vargas) PageF misdemeanor punishable by up to six months confinement in a county jail or by a fine of $1000 or by both that imprisonment and fine, as specified. (Penal Code § 11166 (c).) This bill would increase this penalty by raising the county jail time to up to 12 months, and by raising the fine from $1000 to $5,000. Current law provides that any mandated reporter who willfully fails to report abuse or neglect, or any person who impedes or inhibits a report of abuse or neglect where that abuse or neglect results in death or great bodily injury, shall be punished by not more than one year in a county jail, by a fine of not more than $5000, or by both that fine and imprisonment. (Penal Code § 11166.01 (b).) This bill would increase this penalty by making it a felony of one-to-five years in state prison, a fine of not more than $25,000, or by both that fine and imprisonment. This bill makes additional non-substantive technical amendments to conform specified sections to the proposed changes described above. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA") In response to the unresolved prison capacity crisis, since early 2007 it has been the policy of the chair of the Senate Committee on Public Safety and the Senate President pro Tem to hold legislative proposals which could further aggravate prison overcrowding through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/Overcrowding Crisis Aggravation"), the Committee has held measures which create a new felony, expand the scope or penalty of an existing felony, or otherwise increase the application of a felony in a manner which could exacerbate the prison overcrowding crisis by expanding the availability or length of prison terms (such as extending the statute of limitations for felonies or constricting statutory parole (More) SB 1264 (Vargas) PageG standards). In addition, proposed expansions to the classification of felonies enacted last year by AB 109 (the 2011 Public Safety Realignment) which may be punishable in jail and not prison (Penal Code section 1170(h)) would be subject to ROCA because an offender's criminal record could make the offender ineligible for jail and therefore subject to state prison. Under these principles, ROCA has been applied as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress towards reducing prison overcrowding by passing legislation which could increase the prison population. ROCA will continue until prison overcrowding is resolved. For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. 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 May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances. Design capacity is the number of inmates a prison can house based on one inmate per cell, single-level bunks in dormitories, and no beds in places not designed for housing. Current design capacity in CDCR's 33 institutions is 79,650. (More) SB 1264 (Vargas) PageH On January 6, 2012, CDCR announced that California had cut prison overcrowding by more than 11,000 inmates over the last six months, a reduction largely accomplished by the passage of Assembly Bill 109. Under the prisoner-reduction order, the inmate population in California's 33 prisons must be no more than the following: 167 percent of design capacity by December 27, 2011 (133,016 inmates); 155 percent by June 27, 2012; 147 percent by December 27, 2012; and 137.5 percent by June 27, 2013. As proposed to be amended in Committee by the author (See Comment 1), this bill will not aggravate the prison overcrowding crisis described above under ROCA. COMMENTS 1. Author's Amendments The author's office has advised Committee staff that the author will amend this bill in Committee to remove all of its penalty provisions. Specifically, the author will delete sections 2 and 3 of the bill, and in section 4 of the bill the author will delete the change proposed in subdivision (b) of the bill. The intent of these amendments is to remove all penalty provisions from the bill, and in that way not change current penalties related to this issue. 2. Stated Need for This Bill The author states: Abuse and (neglect) inflicted upon children is something that our state has many laws and provisions against. According to the California Department of Social Services, the first child abuse reporting law (More) SB 1264 (Vargas) PageI in California was enacted in 1963. The early laws mandated only physicians to report physical abuse. Over the years, numerous amendments have expanded the definition of child abuse and the persons required to report. Procedures for reporting categories of child abuse have also been clarified through legislation over the last fifty years. This bill proposes necessary changes to the mandated reporter laws in order to be sure that those who work in close proximity with children are ultimately responsible for the well-being of those children. At the end of 2011, prosecutors filed criminal charges against Jerry Sandusky, the assistant football coach at Penn State for nearly fifteen years, for alleged sexual abuse charges. In the case against Sandusky, the Grand Jury found that there had been at least eight victims of sexual assaults throughout his career at Penn State. The head coach of the Penn State football team, Joe Paterno, allegedly knew of instances of sexual abuse but failed to report these directly to Child Welfare Services. Instead, he reported to a supervisor who also failed to report to Child Welfare Services. According to the author, "these men protected their football team rather than the innocent boys? and Ýthis] should never happen again." According to the American Academy of Pediatrics, "A child is abused every 7 minutes in California. Existing California law requires mandated reporters to report when he/she has knowledge of, or has observed a child whom, the mandated reporter know or reasonably suspects has been the victim of child abuse or neglect. Passing the bill would extend mandated reporters of child abuse and neglect to include postsecondary coaches and employees, at public or private institutions, serving in a coaching capacity. In (light) of recent events, it is imperative that the (More) SB 1264 (Vargas) PageJ net of mandated reporters and the penalties for failure to report be re-evaluated. This amendment to the current Child Abuse and Neglect Reporting Act (CANRA) serves as a means to hold institutions accountable if there is any impedance to reporting or any cover-up surrounding any abuse. The proposed legislation would insure that athletic coaches of all capacities be held responsible for reporting instances of child sexual abuse or neglect, and would also increase the penalties for failure to report. 3. What This Bill Would Do; Current Mandated Reporter Law This bill would add any "athletic coach, including, but not limited to, an assistant coach or a graduate assistant involved in coaching, at public or private postsecondary institutions," as mandated child abuse and neglect reporters. Under current law, there are 40 enumerated categories of mandated reporters, including teachers, instructional aides and others, which already may include the athletic coaching staff covered by this bill; however, current statute does not clearly specify higher education personnel or volunteers. 4. Existing California Law - Penal Code Section 152.3 Historically, in common law there is no general legal duty to aid others. In 2000, the Legislature passed the "Sherrice Iverson Child Victim Protection Act." Reflected in Penal Code section 152.3, this law imposes criminal liability for failing to report the kind of crimes against children described by the author. This Committee's analysis of AB 1422, which enacted that law, provides background with respect to the duty to aid others: Citing LaFave and Scott, a Dayton Law Journal article (More) SB 1264 (Vargas) PageK notes that generally speaking: One has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvenience to himself. He need not shout a warning to a blind man headed for a precipice or to an absent-minded one walking into a gunpowder room with a lighted candle in hand. He need not pull a neighbor's baby out of a pool of water . . . though the baby is drowning . . . A moral duty to take affirmative actions is not enough to impose a legal duty to do so. (fn.) However, the law review article goes on to say that while LaFave and Scott are technically correct "Ýc]riminal law is filled with obligations ascribing legal duties to all of us based upon the consensus of our elected officials as to what they believe is morally appropriate." (fn.) Seven major areas where a duty to aid are discussed. They are: A duty to act based upon a relationship of the parties; a duty to act based upon contract; a duty based upon a voluntary assumption of care; a duty may arise from the fact that the person created the risk from which the need for protection arose.; a duty can arise from a special relationship that makes a non-acting partner criminally responsible for the actor's criminal action; a duty can arise from the fact that one owns the real property upon which the victim is injured; and the duty to act and the resulting criminal liability for failing to act, based upon statute. (fn.)<2> ---------------------- <2> Analysis of AB 1422 (Torlakson), June 13, 2000, Senate Committee on Public Safety (footnotes omitted). (More) SB 1264 (Vargas) PageL The Sherrice Iverson Act (AB 1422) was described by its author as "needed to help avoid future scenarios such as the 1997 tragedy where the young girl . . . was assaulted and killed by a young man whose companion did not feel the responsibility to report the crime." Current California law requires any person (except as specified) who reasonably believes that he or she has observed the commission of a murder, rape or forcible molestation against a child under the age of 14 years to notify a peace officer. Arguably, had this been the law in Pennsylvania at the time the alleged Sandusky assaults were witnessed, it may have applied to those witnesses. DOES CALIFORNIA LAW ALREADY COVER THE KIND OF CIRCUMSTANCES DESCRIBED BY THE AUTHOR? IF SO, IS THIS BILL NECESSARY? 5. Scope of This Bill This bill would apply to college and university athletic coaches, assistant coaches, and graduate assistant coaches involved in coaching. Members and the author may wish to discuss whether students or volunteers - who may be participating as coaching assistants or graduate assistants - should be included as mandated reporters. Many categorical reporters are provided with information about identifying child abuse and neglect either through professional training or through their employers.<3> In addition, many are engaged in professions where protocols have been developed and implemented --------------------------- <3> See, for example, California School Employees website page, "Child Abuse Reporting," (http://www.csea.com). (More) SB 1264 (Vargas) PageM to ensure compliance with the law.<4> Members may wish to discuss whether students, or volunteers to the extent they may be within the scope of this bill, should be mandated child abuse and neglect reporters. Members also may wish to discuss whether narrowing this bill to coaching employees of public or private postsecondary institutions would make sense. SHOULD COLLEGE STUDENT COACHES BE MANDATED CHILD ABUSE AND NEGLECT REPORTERS? SHOULD VOLUNTEER COLLEGE COACHES BE MANDATED CHILD ABUSE AND NEGLECT REPORTERS? SHOULD THIS BILL BE NARROWED TO COACHING EMPLOYEES? 6. Several Bills in This Area Several bills have been introduced this session which propose to expand the obligation to report suspected child abuse or neglect. Members may wish to consider how these bills relate to one another and how they could be reconciled to the extent they may be redundant or inconsistent. ----------------------------------------------------------------- | Bill | What the Bill Does | Status | |---------------------+---------------------+---------------------| |SB 1264 (Vargas) |Makes any "athletic |Before this | |(this bill) |coach, including, |Committee | | |but not limited to, | | | |an assistant coach | | --------------------------- <4> See, e.g., Physical Therapy Board of California, Mandatory Reporting Obligations ( http://www.ptbc.ca.gov/ laws_regs /report_injuries.html.) (More) SB 1264 (Vargas) PageN | |or a graduate | | | |assistant involved | | | |in coaching, at | | | |public or private | | | |postsecondary | | | |institutions," a | | | |mandated reporter, | | | |and increases | | | |specified related | | | |penalties. | | ----------------------------------------------------------------- (More) ----------------------------------------------------------------- | Bill | What the Bill Does | Status | |---------------------+---------------------+---------------------| |AB 1434 (Feuer) |Makes an "employee |Assembly Floor | | |of a public or | | | |private institution | | | |of higher education, | | | |as to child abuse or | | | |neglect occurring on | | | |that institution's | | | |premises or at an | | | |official activity | | | |of, or program | | | |conducted by, the | | | |institution," a | | | |mandated reporter. | | |---------------------+---------------------+---------------------| |AB 1435 (Dickinson) |Makes an "athletic |Assembly | | |coach, athletic |Appropriations | | |administrator, or |(suspense) | | |athletic director | | | |employed by a public | | | |or private | | | |organization, | | | |including, but not | | | |limited to, schools | | | |and institutions of | | | |higher education," a | | | |mandated reporter; | | | |and requires | | | |training, as | | | |specified. | | |---------------------+---------------------+---------------------| |AB 1438 (Bradford) |Expands the existing |Assembly Floor | | |crime for failing to | | | |notify a peace | | | |officer of a | | | |specified violent | | SB 1264 (Vargas) PageP | |crime against a | | | |child under 14 to | | | |include non-forcible | | | |child molestation | | | |(PC 152.3) | | |---------------------+---------------------+---------------------| |AB 1564 (Lara) |Makes "volunteers of |Assembly Public | | |public or private |Safety | | |organizations, | | | |including nonprofit | | | |organizations, whose | | | |duties require | | | |direct contact with | | | |and supervision of | | | |children," mandated | | | |reporters. | | |---------------------+---------------------+---------------------| |AB 1713 (Campos) |Expands existing |Assembly | | |definition of |Appropriations | | |commercial film and | | | |photographic print | | | |processers who are | | | |mandated reporters | | | |to include several | | | |enumerated types of | | | |computer-related | | | |data and imagery. | | |---------------------+---------------------+---------------------| |AB 1817 (Atkins) |Makes "commercial |Assembly Public | | |computer |Safety | | |technicians," as | | | |specified, mandated | | | |reporters | | ----------------------------------------------------------------- (More) ***************