BILL ANALYSIS Ó AB 1775 Page 1 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).) AB 1775 Page 2 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 AB 1775 Page 3 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 AB 1775 Page 4 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 AB 1775 Page 5 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 AB 1775 Page 6 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 AB 1775 Page 7 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 AB 1775 Page 8 Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744