BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1775
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          Date of Hearing:  March 25, 2014
          Counsel:       Shaun Naidu


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 1775 (Melendez) - As Amended:  March 19, 2014


           SUMMARY  :  Provides that knowingly downloading material,  
          including a video recording, in which a child is engaged in an  
          act of obscene sexual conduct, except as specified, is sexual  
          exploitation for the purpose of mandated reporting by specified  
          individuals under the Child Abuse and Neglect Reporting Act  
          (CANRA).

           EXISTING LAW  : 

          1)Requires a mandated reporter to make a report to a specified  
            agency 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 who the  
            mandated reporter knows or reasonably suspects has been the  
            victim of child abuse or neglect.  Requires the mandated  
            reporter to make an initial report to the agency immediately  
            or as soon as is practicably possible by telephone and to  
            prepare and send, fax, or electronically transmit a written  
            follow-up report thereof within 36 hours of receiving the  
            information concerning the incident.  Authorizes the mandated  
            reporter to include with the report any non-privileged  
            documentary evidence the mandated reporter possesses relating  
            to the incident.  (Pen. Code, § 11166, subd. (a).)

          2)Punishes as a misdemeanor any mandated reporter who fails to  
            report an incident of known or reasonably suspected child  
            abuse or neglect as required with up to six months confinement  
            in a county jail, a fine of $1,000, or by both that  
            imprisonment and fine.  States that if a mandated reporter  
            intentionally conceals his or her failure to report an  
            incident known by the mandated reporter to be abuse or severe  
            neglect, as specified, the failure to report is a continuing  
            offense until a specified agency discovers the offense.  (Pen.  
            Code, § 11166, subd. (c).)









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          3)Defines "child" under CANRA as a person under the age of 18  
            years.  (Pen. Code, § 11165.)

          4)Defines, for purposes of CANRA, "child abuse or neglect" to  
            include physical injury or death 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.  States that "child abuse or neglect" does  
            not include a mutual affray between minors or 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.  (Pen. Code, § 11165.6.)

          5)Defines "sexual abuse" to mean sexual assault or sexual  
            exploitation as these terms are defined.  (Pen. Code, §  
            11165.1.)

          6)States that "sexual exploitation" refers to any of the  
            following:

             a)   Conduct involving matter depicting a minor engaged in  
               obscene acts in violation of state law with respect to:

               i)     the preparing, selling, or distributing of obscene  
                 matter; and

               ii)    the employment or use of a minor to perform  
                 prohibited acts.

             b)   Any person who knowingly promotes, aids, or assists,  
               employs, uses, persuades, induces, or coerces a child, or  
               any person responsible for a child's welfare as specified,  
               who knowingly permits or encourages a child to engage in,  
               or assists others to engage in, prostitution or a live  
               performance involving obscene sexual conduct, or to either  
               pose or model alone or with others for purposes of  
               preparing a film, photograph, negative, slide, drawing,  
               painting, or other pictorial depiction, involving obscene  
               sexual conduct; and

             c)   Any person who depicts a child in, or who knowingly  
               develops, duplicates, prints, or exchanges, any film,  
               photograph, video tape, negative, or slide in which a child  








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               is engaged in an act of obscene sexual conduct, except for  
               those activities by law enforcement, prosecution agencies,  
               and other described persons.  (Pen. Code, § 11165.1, subd.  
               (c).)

          7)Defines "mandated reporter" under CANRA as any of the  
            following:  a teacher; an instructional aide; a teacher's aide  
            or teacher's assistant employed by a public or private school;  
            a classified employee of a public school; an administrative  
            officer or supervisor of child welfare and attendance, or a  
            certificated pupil personnel employee of a 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; an 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; a person who is an  
            administrator or presenter of, or a counselor in, a child  
            abuse prevention program in a public or private school; a  
            district attorney investigator, 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  








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            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 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; a  
            registered clinical counselor intern; an employee or  
            administrator of a public or private postsecondary  
            institution, whose duties bring the administrator or employee  
            into contact with children on a regular basis, or who  
            supervises those whose duties bring the administrator or  
            employee into contact with children on a regular basis, as to  
            child abuse or neglect occurring on that institution's  
            premises or at an official activity of, or program conducted  
            by, the institution; an athletic coach, athletic  
            administrator, or athletic director employed by any public or  
            private school that provides any combination of instruction  
            for kindergarten, or grades 1 to 12, inclusive; a commercial  
            computer technician, as specified, and his or her employer;  
            and any athletic coach, including, but not limited to, an  
            assistant coach or a graduate assistant involved in coaching,  
            at public or private postsecondary institutions.  (Pen. Code,  
            § 11165.7, subd. (a).)

          8)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.  (Pen. Code, §  
            11165.7, subd. (b).)

          9)Strongly encourages employers to provide their employees who  
            are mandated reporters with training in the duties imposed by  








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            CANRA.  States that this training shall include training in  
            child abuse and neglect identification and training in child  
            abuse and neglect reporting and that whether or not employers  
            provide their employees with training in child abuse and  
            neglect identification and reporting, the employers are  
            required to 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.  (Pen. Code, § 11165.7, subd. (c).)

          10)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.  (Pen. Code, §  
            11165.7, subd. (f).)

          11)Provides that neither the physician-patient privilege nor the  
            psychotherapist-patient privilege applies to information  
            reported pursuant to CANRA in any court proceeding or  
            administrative hearing.  (Pen. Code, § 11171.2, subd. (b).)


           FISCAL EFFECT  :  Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "AB 1775 will  
            further ensure the protection of children from the  
            proliferation of sexual exploitation through internet child  
            pornography. The State Legislature has a duty to ensure it  
            does everything within its power to make certain the most  
            vulnerable of our society, our children, are protected."

           2)Child Abuse and Neglect Reporting Act & Child Abuse Central  
            Index  :  California maintains a database of "reports of  
            suspected child abuse and severe neglect" known as the Child  
            Abuse Central Index (CACI).  (Pen. Code, §11170, subd.  
            (a)(2).)  California has collected such information since  
            1965; since 1988, the maintenance of CACI has been governed by  
            the CANRA.  (See Pen. Code, § 11164 et seq.)
           
          There are many different ways a person can find himself or  
            herself listed in CACI.  CANRA mandates that various  
            statutorily-enumerated individuals report instances of known  








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            or suspected child abuse or neglect either to a law  
            enforcement agency or a child welfare agency.  (Pen. Code, §  
            11165.9.)  These agencies, in turn, are required to accept the  
            report and investigate the allegation or immediately refer the  
            case to a proper agency if the accepting agency lacks subject  
            matter or geographical jurisdiction.  (Pen. Code, §§ 11165.9  
            and 11169, subd. (a).)

          CANRA requires the investigating agency to send DOJ a report of  
            every case it investigates of known or suspected child abuse  
            or severe neglect when it is determined not to be unfounded,  
            but the "agency shall not forward a report unless it has  
            conducted an active investigation and determined that the  
            report is not unfounded.  (Pen. Code, § 11169, subd. (a).)   
            CANRA defines a report as "unfounded" if it is "determined by  
            the investigator who conducted the investigation to be false,  
            to be inherently improbable, to involve an accidental injury,  
            or not to constitute child abuse or neglect."  (Pen. Code, §  
            11165.12, subd. (a).)  Reports also may be classified as  
            "substantiated" or "inconclusive."  A "substantiated report"  
            is one that the investigator determines "constitute[s] child  
            abuse or neglect . . . based upon evidence that makes it more  
            likely than not that child abuse or neglect, as defined,  
            occurred."  (Pen. Code, § 11165.12, subd. (b).)  An  
            "inconclusive report" is one where the investigator found the  
            report "not to be unfounded, but the findings are inconclusive  
            and there is insufficient evidence to determine whether child  
            abuse or neglect ? has occurred."  (Pen. Code, § 11165.12,  
            subd. (c).)  Both inconclusive and substantiated reports are  
            submitted to DOJ for inclusion in CACI.  (See Pen. Code, §§  
            11169, subds. (a) & (c) and 11170, subd. (a)(3).)
           
          3)Argument in Support :  According to the  California State  
            Sheriffs' Association  , "While current law includes within the  
            definition of sexual exploitation the acts of developing,  
            duplicating, printing, and exchanging media in which a child  
            is engaged in an act of obscene sexual conduct, it does not  
            specifically reference the act of downloading such media.  

             "To ensure that our statutes are updated to reflect current  
            technology and sufficiently protect our most vulnerable  
            population, it is necessary to amend the law as AB 1775 does."
                
            4)Argument in Opposition  :   Taxpayers for Improving Public Safety   
            writes, "The difficulty with this proposed legislation is that  








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            the definition of 'knowingly downloads ? a child is engaged in  
            an act of obscene sexual conduct' is amorphous.  For better or  
            worse, some pornographic websites assert that underage  
            children are over the age of 18, thus blurring the line of  
            'knowingly'.  Further, the definition of 'an act of obscene  
            sexual conduct' is constantly changing in that when the  
            creation 'stag films' was considered to be an underground  
            activity to today where every cable provider and hotel offers  
            'adult entertainment'.  Despite TiPS distain for any  
            individual which aides or abets in child pornography, this  
            legislation is not sufficiently specific to allow an accused  
            to identify what is and what is not prohibited conduct."  

          5)Prior Legislation  :  
                 
              a)   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.

             b)   AB 525 (Chu), Chapter 701, Statutes of 2006, expanded  
               the definition of "child abuse and neglect" to include  
               instances in which a child suffers or is at substantial  
               risk of suffering serious emotional damage.

             c)   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, who 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.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California District Attorneys Association
          California State Sheriffs' Association

           Opposition 
           
          Taxpayers for Improving Public Safety








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          Analysis Prepared by  :    Shaun Naidu / PUB. S. / (916) 319-3744