BILL ANALYSIS                                                                                                                                                                                                    Ó







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

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          SB 782 (DeSaulnier)                                         
          As Introduced February 22, 2013 
          Hearing date:  April 30, 2013
          Health and Safety, Penal, and Revenue and Taxation Codes
          AA:mc

                                    SEXUAL ASSAULT:

                              TREATMENT AND PREVENTION  


                                       HISTORY

          Source:  Alameda County District Attorney; CalCASA

          Prior Legislation: AB 2441 (Williams) - died in Assembly  
          Appropriations, 2012

          Support: Crime Victims United of California; Crime Victims  
          United of California
                   CA Police Chiefs Association; Yreka Police Department;  
          Crime Victims Action     Alliance; Alameda County Board of  
          Supervisors; North Coast Rape Crisis    Team;Center for  
          Community Solutions; Coalition for Family Harmony; Plumas Crisis  
          Intervention and Resource Center; Napa Emergency Women's  
          Services;      Project Sanctuary; Riverside Area Rape Crisis  
          Center; Sexual Assault Recovery    and Prevention Center of San  
          Louis Obispo County; North County Women's    Shelter and  
          Recovery Center; Santa Barbara Rape Crisis CenterThe Resource  
          Connection; Antelope Valley Domestic Violence Council; Valley  
          Trauma Center; The Women's Center Youth and Family Services;  
          Resource Center for Survivors of Sexual Assault and Family  
          Violence; Kene Me-Wu Family Healing Center; Family and Children  




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          Services; United Way of Kern County; Community Overcoming  
          Relationships Abuse; CA Crime Victims Assistance Association; CA  
                                                                 National  
          Organization for Women; The Center Against Sexual Assault of  
          Southwest Riverside County; Rape Trauma Services of San Mateo  
          County; The Center for Violence-free Relationships; Community  
          Service Programs - Sexual     Assault Victim Services; Family  
          Services of Tulare County; Women's Crisis    Support- Defensa de  
          Mujeres; Haven Women's Center of Stanislaus; East Los  Angeles  
          Women's Center; Sexual Assault and Domestic Violence Center; The  
                   Monterey County Rape Crisis Center; North County Rape  
          Crisis and Child Protection Center; Peace Over Violence; Rape  
          Crisis Intervention and Prevention- Butte, Glenn and Tehama  
          Counties; Safequest Solano; Tri- Valley Haven; Siskiyou Domestic  
          Violence and Crisis Center; Center for the Pacific Asian     
          Family; Community Action Partnership of Madera County; Stand Up  
          Placer;  Alliance Against Family Violence and Sexual Assault;  
          Tahoe Safe Alliance; Wild     Iris Women's Services of Bishop,  
          Inc.; Verity, Sonoma County's Rape Crisis,   Trauma and Healing  
          Center; YWCA Greater Los Angeles; Kings Community      Action  
          Organization; Mountain Crisis Services; WEAVE, Inc.; San  
          Bernardino     County Sexual Assault Services; Project  
          Sanctuary; The Pink Cross Foundation; numerous individuals 

          Opposition:                                                  
          CalSmallBiz; Taxpayers for Improving Public Safety; Association  
          of Club  Executives of California; several letters from  
          individuals
           


                                         KEY ISSUE
           
          SHOULD A "SEXUAL ASSAULT TREATMENT AND PREVENTION FUND" BE  
          ESTABLISHED FOR PURPOSES RELATING TO THE PREVENTION, INTERVENTION  
          AND RELATED SERVICES FOR VICTIMS OF SEXUAL ASSAULT, AND FINANCED  
          THROUGH A "SEXUALLY ORIENTED BUSINESS TAX," AS SPECIFIED?


                                       PURPOSE




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                                                        SB 782 (DeSaulnier)
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          The purpose of this bill is to establish a "Sexual Assault  
          Treatment and Prevention Fund," to be administered by the Office  
          of Emergency Services, allocated for purposes relating to  
          prevention, intervention and related services for victims of  
          sexual assault, and financed through a "Sexually Oriented  
          Business Tax," as specified.

           Current law  requires the California Emergency Management Agency  
          to establish a protocol for the examination and treatment of  
          victims of sexual assault and attempted sexual assault,  
          including child molestation, and the collection and preservation  
          of evidence therefrom, as specified.  (Penal Code § 13823.5.)

           Current law  authorizes the agency to "secure grants, donations,  
          or other funding for the purpose of funding any statewide task  
          force on sexual assault of children that may be established and  
          administered by the Department of Justice."  (Penal Code §  
          13823.6)

           Current law  requires minimum standards for the examination and  
          treatment of victims of sexual assault or attempted sexual  
          assault, as specified.  (Penal Code § 13823.11.)

           Current law  generally provides for the development of a course  
          of training relating to the examination and treatment of victims  
          of sexual assault.  (Penal Code § 13823.13.)

           Current law  requires the agency to "establish an advisory  
          committee which shall develop a course of training for district  
          attorneys in the investigation and prosecution of sexual assault  
          cases, child sexual exploitation cases, and child sexual abuse  
          cases and shall approve grants awarded pursuant to Section  
          13837.  The courses shall include training in the unique  
          emotional trauma experienced by victims of these crimes."   
          (Penal Code § 13836.)

           Current law requires that this advisory committee "shall consist  
          of 11 members.  Five shall be appointed by the secretary, and  
          shall include three district attorneys or assistant or deputy  




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          district attorneys, one representative of a city police  
          department or a sheriff or a representative of a sheriff's  
          department, and one public defender or assistant or deputy  
          public defender of a county. Six shall be public members  
          appointed by the Commission on the Status of Women and Girls,  
          and shall include one representative of a rape crisis center,  
          and one medical professional experienced in dealing with sexual  
          assault trauma victims.  The committee members shall represent  
          the points of view of diverse ethnic and language groups."   
          (Penal Code § 13836.1.)

           This bill  would establish the "Sexual Assault Treatment and  
          Prevention Fund," as specified, with the following features and  
          requirements:

                 Administration
          
           This bill  would require that the Office of Emergency Services  
          use funds transferred from the Sexual Assault Treatment and  
          Prevention Fund. 

           This bill  would require that no more than 10 percent annually of  
          the funds deposited in the Sexual Assault Treatment and  
          Prevention Fund may be used for the administration by the Office  
          of Emergency Services of these grant programs.

                 Allocations
          
           This bill  would require that funding allocations "be determined  
          by the Office of Emergency Services, in collaboration with the  
          State Advisory Committee on Sexual Assault Victim Services, . .  
          . no later than June 20, 2014."

           This bill  would provide that funds transferred from the Sexual  
          Assault Treatment and Prevention Fund shall be used only for the  
          following purposes:

          (1) To award grants for intervention services related to sexual  
          assault survivors and rape prevention programs provided by rape  
          crisis centers, as specified.




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          (2) To award grants to, and contracts with, a statewide  
          organization organized and operated as described in Section  
          501(c)(3) of the Internal Revenue Code that has the primary  
          purpose of ending sexual violence in this state, for programs  
          for the intervention and prevention of sexual violence, outreach  
          programs, training, and technical assistance to and support of  
          California rape crisis centers, as specified, and other  
          organizations funded by the Sexual Assault Treatment and  
          Prevention Fund to prevent and intervene in sexual violence in  
          underserved communities.  This bill would require that funds  
          awarded pursuant to this paragraph be administered by the Office  
          of Emergency Services and approved by the State Advisory  
          Committee on Sexual Assault Victim Services, as authorized in  
          Section 13836 of the Penal Code.

          (3) Civil legal services to sexual assault survivors. 

          (4) Coordination of sexual assault response teams that provide  
          multidisciplinary response services to sexual assault survivors.  


          (5) Culturally and linguistically appropriate intervention  
          services to sexual assault survivors from underrepresented or  
          underserved communities. 

          (6)  To award grants to reimburse the payment of adult and  
          adolescent sexual assault forensic exams.

          (7) To award grants to nonprofit, community-based organizations  
          to support intervention and treatment services for victims of  
          sexual exploitation of human trafficking.  Eligible programs for  
          these grants include, but are not limited to, community-based  
          organizations that provide services for victims of sexual and  
          domestic violence and work to end and prevent sexual and  
          domestic violence.

          (8) To award grants to nonprofit, community-based organizations  
          to support the intervention and treatment services for victims  
          of sexual assault as part of dating or domestic violence,  




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          including, but not limited to, sexual assault services programs,  
          as defined in Section 13837 of the Penal Code, or domestic  
          violence victim service organizations, as defined in Section  
          1037.1 of the Evidence Code.  Funds awarded pursuant to this  
          paragraph shall be administered by the Office of Emergency  
          Services and approved by the State Advisory Committee on Sexual  
          Assault Victim Services, as stipulated in Section 13836 of the  
          Penal Code.

           This bill  would require that grants awarded pursuant to  
          paragraphs 3 to 8 above, inclusive, be awarded as a result of a  
          competitive request for proposal process.

                 Reporting

           This bill  would provide that $200,000 shall be appropriated  
          biennially by the Legislature to the Office of Emergency  
          Services from the Sexual Assault Treatment and Prevention Fund  
          to fund a report created by the Office of Emergency Services to  
          the Governor and the Legislature reporting the following:

             (A) The deficiencies with respect to research, prevention,  
             response, victim services, adjudication, and incarceration,  
             related to sexual assaults at state and local levels.
             (B) The effectiveness of appropriations made to fund this  
             chapter and other legislation related to sexual assault  
             intervention enacted by the Legislature.
             (C) Recommendations for appropriate performance measures that  
             enable the Governor and the Legislature to assess and respond  
             to the status of sexual assault prevention in this state.
           
           This bill  would impose a tax upon all persons who operate a  
          sexually oriented business at the rate of ten dollars ($10) per  
          visit by a customer to the business inclusive of admission and  
          reentry, with proceeds of this tax to be transmitted to the  
          Treasurer to be deposited in the State Treasury to the credit of  
          the Sexual Assault Treatment and Prevention Fund, which would be  







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          created by this bill.<1>

           This bill  contains uncodified legislative findings and  
          declarations, as specified.


                    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  
          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 issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          ---------------------------
          <1> The tax provisions of this bill have been heard by the  
          Senate Committee on Governance and Finance, and are outside the  
          scope of this Committee's jurisdiction.



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          .  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 opposed 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.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  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; 
             "    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.





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                                      COMMENTS

          1.  Amendments

           This bill was heard in the Senate Committee on Governance and  
          Finance on April 24, 2013, where the author agreed to take the  
          following amendments in this Committee:

                 Commence allocation of tax revenues only after an  
               appellate court ratifies the tax.  
                 Allow BOE 180 days to prepare for the tax to be  
               administered effectively.  
                 Specify that owners, not operators, are liable for the  
               tax.  
                 Delete language allowing reimbursement from customers.
                 Cap any one group's annual allocation of tax proceeds to  
               20% percent.
                 Delete the term "community-based."
                 Add a 10-year sunset.



          2.  Stated Need for This Bill

           The author states:

               Over the years, California's Rape Crisis Centers have  
               been severely impacted by repeated decreases in  
               funding and increases in the demand of services for  
               sexual assault victims.  Currently, $45,000 is  
               allocated annually from the state's General Fund for  
               programs that serve sexual assault survivors.  Last  
               year, more than 30,000 survivors received services  
               which equates to approximately $1.42 per survivor.   
               Due to the small amount of funding provided by the  
               state, these centers are unable to meet the needs of  




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               all the survivors.

               SB 782, the Sexual Assault Victim Equity Act, seeks to  
               ameliorate some of the known secondary effects  
               associated with the connection between alcohol use,  
               the sexually oriented business experience, and sexual  
               assault.  SB 782 imposes a $10 fee per customer on  
               California sexually oriented businesses that serve  
               alcohol or permit alcohol consumption.

               We must make a commitment to sexual assault and rape  
               survivors that they will not be alone as they heal  
               from any of the physical and emotional trauma they may  
               suffer. 

          3.  Allocation Under This Bill
           
          As explained in detail above, this bill would provide for the  
          allocation of the new revenues it would generate for a list of  
          efforts relating to sexual assault prevention and survivors.    
          The bill would require competitive grants for all but the  
          following two categories:

         " intervention services related to sexual assault survivors and  
               rape prevention programs provided by rape crisis centers;  
               and
         " grants and contracts with "a statewide organization organized  
               and operated as described in Section 501(c)(3) of the  
               Internal Revenue Code that has the primary purpose of  
               ending sexual violence in this state, for programs for the  
               intervention and prevention of sexual violence, outreach  
               programs, training, and technical assistance to and support  
               of California rape crisis centers, as stipulated in Section  
               13837 of Penal Code, and other organizations funded by the  
               Sexual Assault Treatment and Prevention Fund to prevent and  
               intervene in sexual violence in underserved communities."    
                







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          Members may wish to discuss why competitive grants would be  
          inappropriate for these two categories of funding recipients.  

          SHOULD SOME BUT NOT ALL OF THIS FUNDING BE ALLOCATED BY  
          COMPETITIVE GRANTS?

          In addition, members may wish to discuss whether there is more  
          than one statewide nonprofit organization that fulfills the  
          category described in the second bullet above.  If not, members  
          may wish to discuss whether designating (essentially by  
          description) one organization to receive this funding is similar  
          to the voluntary contribution elections made by taxpayers to  
          designate amounts on their tax returns to charitable funds.  If  
          not, members may wish to consider the purpose, policy and effect  
          of directing these funds to one non-profit organization.  

          WOULD THIS BILL PROVIDE GUARANTEED FUNDING TO ONE NONPROFIT  
          ORGANIZATION?  IF SO, WHAT WOULD BE THE PURPOSE, POLICY AND  
          EFFECT IMPLICATIONS OF THIS PROVISION?

          4.  Support

           The Alameda County District Attorney, who is a co-sponsor of  
          this bill, submits that this bill "will create a long-term,  
          sustainable revenue stream to fund California rape crisis center  
          programs and related intervention and prevention services in the  
          state.  A fee on alcohol-serving sexually-oriented businesses  
          (strip clubs) would provide vital funding that would increase  
          the scope and breadth of treatment for rape and sexual assault  
          victims and prevent violence."

          5. Opposition

           CalSmallBiz, Taxpayers for Improving Public Safety, and the  
          Association of Club Executives of California, which oppose this  
          bill, argue that this measure is unconstitutional, and that  
          there is no nexus between the activity this bill would tax and  
          the programs it would fund.  They submit in part, "(t)here is no  
          evidence whatsoever that nudity plus alcohol leads to sexual  




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          violence against women."  These arguments pertain to the tax  
          provisions of the bill, which are outside the scope of this  
          Committee's jurisdiction.  In addition, opponents express  
          concern that this bill would have an adverse effect on women who  
          work in these clubs by reducing revenues to club owners and  
          thereby reducing pay or job losses if these clubs close.   
                                                                            Opponents also submit that the bill would create a "sole-source  
          funding mechanism."   

             
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