BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 157 (Campos)
As Amended April 22, 2013
Hearing Date: June 4, 2013
Fiscal: Yes
Urgency: No
NR
SUBJECT
Protective orders: credibly impersonating and falsely
personating
DESCRIPTION
This bill would, commencing July 1, 2014, authorize a court to
issue an ex parte order enjoining a party from credibly
impersonating or falsely personating another party.
BACKGROUND
Despite numerous beneficial legislative measures, domestic
violence remains a significant problem, affecting an estimated
one in four families. "Abuse" under the Domestic Violence
Prevention Act encompasses a number of different actions,
including: (1) physically hurting or trying to hurt someone; (2)
sexual assault; (3) making someone reasonably afraid that they
or someone else are about to be seriously hurt; (4) harassing,
stalking, or threatening someone; (5) disturbing someone's
peace; or (6) destroying someone's personal property. In
addition, physical abuse, is not limited to hitting, but may
include any unwanted touching, following a person, or keeping a
person from freely coming and going.
This bill would further authorize a court to issue a domestic
violence protective order enjoining that party from
impersonating the petitioner. That protection seeks to respond
to cyber stalkers that may damage a person's personal or
professional reputation, or cause them to stop using a popular
site due to unrelenting harassment.
(more)
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CHANGES TO EXISTING LAW
Existing law establishes the Domestic Violence Prevention Act,
and authorizes a court to issue a domestic violence protective
order enjoining a party from molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering,
harassing, telephoning, destroying personal property, and other
specified behaviors. (Fam. Code Sec. 6200 et seq.) Existing law
provides that an impersonation is credible if another person
would reasonably believe, or did reasonably believe, that the
defendant was or is the person who was impersonated. Existing
law further provides that a credible impersonation online or by
electronic means is punishable as a misdemeanor. (Pen. Code
Sec. 528.5.)
Existing law provides false personation is intentionally
assuming the identity of another person where it is likely that
the person whose identity was assumed could become liable to
criminal prosecution or a lawsuit, or be subject to a debt or
penalty. The crime is also committed where the defendant
intentionally assumed the identity of another person under
circumstances where a benefit "might accrue" to the defendant or
any other person. (Pen. Code Sec. 529.)
Existing law provides that one also commits false personation
where he or she assumes the identity of another person to 1)
become a bail or surety for any party, or 2) verify, publish,
acknowledge, or prove any written instrument, with the intent
that the writing be recorded, delivered, or used as true. (Pen.
Code Sec. 529.)
This bill would add false personation and credible
impersonation, as defined, to the list of activities for which a
protective order may be issued under the Domestic Violence
Prevention Act.
COMMENT
1.Stated need for the bill
According to the author:
False impersonation and online identity theft are increasingly
becoming common tactics of abuse for domestic violence
victims. The popularity of Facebook, Twitter and other online
technologies and the ease with which someone can create,
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assume and/or misuse another person's online presence have
provided a new and devastating tool for abusers. As such, it
is important that protective orders should evolve to reflect
the new technological realities.
AB 157 would help judges reviewing domestic violence
protective orders to know that "high- tech abuse" is clearly
considered abuse in the Family Code. This tactic of abuse
should be considered relevant to protective orders.
2.Harm inflicted electronically
Existing law authorizes a court to issue a domestic violence
protective order against a party. These orders enjoin that
party from engaging in specified acts, determined on a
case-by-case basis, against a petitioner. This bill would add
false personation and credible impersonation to the list of
activities for which a domestic violence protective order may be
issued.
Under state law, domestic violence "abuse" encompasses a number
of different actions, including: (1) physically hurting or
trying to hurt someone; (2) sexual assault; (3) making someone
reasonably afraid that they or someone else are about to be
seriously hurt; (4) harassing, stalking, or threatening someone,
including telephone calls and contact via mail; (5) disturbing
someone's peace; or (6) destroying someone's personal property.
(Fam. Code Secs. 6203, 6230.) This list detailing a court's
authority to fashion an order specific to a victim's unique
situation is indicative of the Legislature's desire to provide
meaningful protection to victims of domestic violence and abuse.
The Internet, which provides the easy and immediate free flow of
information, allows for self-expression and education, but has
also become a tool which abusers may use to harm victims. The
author writes, "judges are seeing more and more cases and
circumstances wherein an abuser has used a social media to
continue their abuse. For example, a domestic violence victim's
name is used to create a false Facebook page or Twitter account.
The abuser will then post inflammatory statements designed to
alienate the victim from friends and family, disrupt the
victim's online presence, or damage the victim's reputation and
cause embarrassment."
Cyber harassment is a common occurrence -- anonymous bloggers
use hateful remarks and threats to attack the named. Often, as
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soon as online attention is drawn to a person, he or she becomes
the victim of harassment. More often than not, the targets of
online harassment are women, and the attacks involve remarks
referring to their sexuality, or to sexual assault. The first
case prosecuted under California cyber stalking law (enacted by
AB 2351 (Hertzberg, Ch. 826, Stats. 1998) added threats
communicated through an electronic communications device to
criminal stalking law) involved a batterer who impersonated a
woman who had rejected his romantic advances. He posted on
Internet bulletin boards and chat rooms that she fanaticized
about being raped, as well as her address and phone number.
According to testimony, six different men showed up on various
occasions at her apartment during a five-month period, saying
they were responding to online ads and e-mails sent in her name
that described fantasies of being raped. (Los Angeles Times, N.
Hollywood Man Charged in 1st Cyber-Stalking Case, January 22,
1999, found at [as of May 29, 2013].)
In support of this bill, the California Partnership to End
Domestic Violence writes, "ex parte orders can be an important
element in a survivor's overall plan to increase safety and
prevent future abuse. The addition of false impersonation to
these orders reflects the realities of our society and addresses
a tactic commonly used by abusers. Some abusers will use their
knowledge of the victim's passwords to lock them out of their
internet accounts, including email, social media and other
accounts. In today's reality, where so much information is
transmitted online, losing access to these accounts can have a
dramatic impact on a survivor's daily life. Further, abusers
will often use their access to the victim's social networking
sites and email accounts to pose private, intimate photographs,
which can shame and intimidate a survivor."
3.Consistent with existing law
This bill would add falsely personating and credibly
impersonating to the list of behaviors a court may enjoin with
an ex parte order. While these actions already subject a person
to criminal liability, this bill would allow a court to
proactively warn parties to a domestic violence action as to
what types of behavior are appropriate.
Staff notes that impersonation is an action that the court may
enjoin under existing law because it arguably falls under the
definitions of harassment or disturbing the peace of the other
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party. Additionally, courts are authorized to enjoin "a party
from specified behavior that the court determines is necessary
to effectuate [a restraining order]." (Fam. Code Sec. 6322.)
Thus, if a court anticipates that a party may be subjected to
impersonation by an abuser, the court could restrain that
behavior under existing law. Problems may arise however, if
courts do not understand that the authority to enjoin online
behavior exists under current law. Accordingly, this bill would
clarify that this authority is indeed available.
Support : Association of Certified Family Law Specialists;
California Communities United Institute; California Partnership
to End Domestic Violence; California Police Chiefs Association;
Executive Committee of the Family Law Section of the State Bar
of California (FLEXCOM)
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 1411 (Simitian, Chapter 335, Statutes of 2010) provided that
any person who knowingly and without consent credibly
impersonates another actual person through or on an Internet Web
site or by other electronic means, for purposes of harming,
intimidating, threatening, or defrauding another person is
guilty of a misdemeanor.
AB 1596 (Hayashi, Chapter 572, Statutes of 2010) implemented
recommendations from the Judicial Council's Protective Orders
Working Group and made various changes to protective order
statutes.
AB 353 (Kuehl, Chapter 205, Statutes of 2007) authorized
domestic animals to be included in the scope of a domestic
violence protective order.
AB 99 (Cohn, Chapter 125, Statutes of 2005), extended the
duration of protective orders from three to five years.
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AB 2351 (Hertzberg, Ch. 826, Stats. 1998) See Comment 2.
AB 878 (Rogan, Chapter 598, Statutes of 1996) expanded the
definition of "abuse" for domestic violence purposes to include
stalking, annoying or harassing telephone calls, contact by mail
with the intent to annoy or harass, and the intentional
destruction of personal property.
AB 2224 (Kuehl, Chapter 904, Statutes of 1996) increased the
penalties for battery against a spouse or person with whom the
defendant is cohabiting from six months to 12 months.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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