BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 107 (Corbett)                                            
          As Amended April 1, 2013 
          Hearing date:  April 9, 2013
          Penal Code
          AA:mc


                                    SEXUAL ASSAULT:

                  VICTIM MEDICAL EVIDENTIARY EXAMS AND VAWA FUNDING  


                                       HISTORY

          Source:  Alameda County District Attorney; California Coalition  
          Against Sexual Assault

          Prior Legislation: SB 534 (Corbett) - Ch. 360, Stats. 2011

          Support: California District Attorneys Association; California  
                   Police Chiefs Association; California Chapter of the  
                   American College of Emergency Physicians; Peace  
                   Officers Research Association of California; California  
                   State Sheriffs' Association; Alameda County Board of  
                   Supervisors 

          Opposition:None known

           

                                         KEY ISSUE
           
          SHOULD THE JANUARY 1, 2014, SUNSET DATE NOW IN STATUTORY LANGUAGE  




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          AUTHORIZING THE USE OF VAWA GRANT FUNDING TO COVER THE COSTS OF THE  
          MEDICAL EVIDENTIARY EXAMINATION PORTION OF MEDICAL EXAMINATIONS OF  
          SEXUAL ASSAULT VICTIMS BE REPEALED?





                                       PURPOSE

          The purpose of this bill is to repeal the January 1, 2014,  
          sunset date now in statutory language authorizing the use of  
          federal Violence Against Women Act ("VAWA") grant funding to  
          cover the costs of the medical evidentiary examination portion  
          of medical examinations of sexual assault victims.

           Current law  generally provides that no costs incurred by a  
          qualified health care professional, hospital, or other emergency  
          medical facility for the medical evidentiary examination portion  
          of the examination of the victim of a sexual assault, as  
          specified, shall be charged directly or indirectly to the victim  
          of the assault.  (Penal Code  13823.95.)

           Current law  further provides that the cost of a medical  
          evidentiary examination performed by a qualified health care  
          professional, hospital, or other emergency medical facility for  
          a victim of a sexual assault shall be treated as a local cost  
          and charged to the local law enforcement agency in
          whose jurisdiction the alleged offense was  committed, provided,  
          however, that the local law enforcement agency may seek  
          reimbursement for the cost of conducting the medical evidentiary
          examination portion of a medical examination of a sexual assault  
          victim who does not participate in the criminal justice system.   


           Current law  provides that the amount that may be charged by a  
          qualified health care professional, hospital, or other emergency  
          medical facility to perform the medical evidentiary examination  
          portion of a medical examination of a victim of a sexual assault  




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          shall not exceed $300.  "The California Emergency Management  
          Agency shall use the discretionary funds from federal grants  
          awarded to the agency pursuant to the federal Violence Against  
          Women and Department of Justice Reorganization Act of 2005  
          through the federal Office of Violence Against Women,  
          specifically, the STOP (Services, Training, Officers, and  
          Prosecutors) Violence Against Women Formula Grant Program to  
          cover the cost of the medical evidentiary examination portion of  
          a medical examination of a sexual assault victim.  The agency is  
          authorized to use grant funds to pay for medical evidentiary  
          examinations until January 1, 2014."  (Penal Code  13823.95(d)  
          (italics added).)

           This bill  would delete the sentence italicized above authorizing  
          the use of grant funds until the January 1, 2014, date.

           This bill would make additional, purely technical revisions to  
          this section.
                                          

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.  

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  




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          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order to reduce the state's prison population to  
          137.5 percent of design capacity.  The State submitted in part  
          that the, ". . .  population in the State's 33 prisons has been  
          reduced by over 24,000 inmates since October 2011 when public  
          safety realignment went into effect, by more than 36,000 inmates  
          compared to the 2008 population . . . , and by nearly 42,000  
          inmates since 2006 . . . ."  Plaintiffs, who oppose the state's  
          motion, argue in part that, "California prisons, which currently  
          average 150% of capacity, and reach as high as 185% of capacity  
          at one prison, continue to deliver health care that is  
          constitutionally deficient."  

          In an order dated January 29, 2013, the federal court granted  
          the state a six-month extension to achieve the 137.5 % prisoner  
          population cap by December 31st of this year.  

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unsettled.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 




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                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.



                                      COMMENTS

          1.  Stated Need for This Bill































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           The author states:

               The appropriation of VAWA Funds for forensic medical  
               examinations for victims/survivors of sexual assault  
               who do not wish to cooperate with law enforcement  
               granted under SB 534 will sunset on January 1, 2014.   
               After that time, it is unclear what funding source  
               will be used to reimburse local law enforcement for  
               these forensic medical examinations.  Without the  
               extension of this authorization, if no additional  
               funding source can be found to reimburse local law  
               enforcement, California may once again fall out of  
               compliance with the VAWA.

               Sexual assault remains a problem for Californians.  In  
               2009, in the United States, 1.3 million women were  
               raped. In the United States, nearly 1 in 5 women and 1  
               in 71 men will be raped in their lifetime.  In  
               California alone, approximately 2 million women have  
               been raped in their lifetime.  In 2012, CalEMA/Office  
               of Emergency Services received approximately $12  
               million from the federal government for VAWA.

               Victims of sexual assault have already suffered  
               physical trauma, fear, and an attack on their privacy  
               and dignity.  SB 107 will reaffirm California's  
               commitment to protecting victim's rights.  Also, it is  
               not only important for the victim should they choose  
               to pursue legal action later, but also for society at  
               large as these tests will grow the DNA database which  
               will help to ensure that those who commit horrendous  
               crimes can be held accountable.

          2.  What This Bill Will Do

           As explained above, this bill will remove the January 1, 2014,  
          authorization date for VAWA funding to be used for the medical  
          evidentiary examination portion of a medical examination of a  
          sexual assault victim.  The bill also makes additional,  




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          nonsubstantive technical changes.

          3.  The Federal Violence Against Women Act (VAWA) - Background of  
            the Law and Federal Grants to Fund State Programs  

          The Violence Against Women Act (VAWA) was enacted in Congress in  
          1994.  It has been reenacted in 2000 and 2005.  On March 7,  
          2013, the President signed an extension of VAWA for another five  
          years.  

          According to the U.S. Department of Justice, the intent of VAWA  
          is to "remedy the legacy of laws and social norms that serve to  
          justify violence against women.  Since the passage of VAWA,  
          there has been a paradigm shift in how the issue of violence  
          against women is addressed."  In 2000, VAWA expanded or created  
          programs for sexual assault victims, dating violence victims and  
          battered immigrants.  Domestic violence victims who fled across  
          state lines were allowed to obtain custody orders in their new  
          states.  In 2005, VAWA was expanded to include court training,  
          child witness and culturally specific programs.  Expansions of  
          VAWA generally have been done to reach underserved populations.

          The initial VAWA legislation established the Office on Violence  
          Against Women (OVW) in the Department of Justice.  According to  
          the Department of Justice, "OVW administers financial and  
          technical assistance  around the country to facilitate"  
          programs and practices to end or limit sexual assault, domestic  
          and dating violence, and stalking.  

          VAWA effectively set national standards for state and local  
          government responses to sexual assault, domestic violence and  
          related issues.  These standards maintained or enforced in  
          significant part through conditions on grants of federal funds  
          to states, local governments, tribal entities, non-profit  
          organizations and even law schools.  

          The STOP (Services-Training-Officers-Prosecutors) grants under  
          VAWA are essentially the subject of this bill.  Each state  
          receiving a STOP grant must allocate the funds in this manner:  











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          25% to law enforcement; 25% to prosecution; 5% for courts; and  
          30% for victim services.  In order to receive STOP funds, the  
          state or another governmental entity must bear "the full  
          out-of-pocket cost of forensic exam  for victims of sexual  
          assault."  The state or local entity may not condition receipt  
          of an examination on cooperation by the victim with law  
          enforcement. 
          (42 U.S.C.  3896gg-4; DOJ, OVW website.)


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