BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 7 8 2 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 (More) SB 782 (DeSaulnier) PageB 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 (More) SB 782 (DeSaulnier) PageC 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 (More) SB 782 (DeSaulnier) PageD 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. (More) SB 782 (DeSaulnier) PageE (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, (More) SB 782 (DeSaulnier) PageF 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 (More) SB 782 (DeSaulnier) PageG 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. (More) SB 782 (DeSaulnier) PageH . 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. (More) SB 782 (DeSaulnier) PageI 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 (More) SB 782 (DeSaulnier) PageJ 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." (More) 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 (More) SB 782 (DeSaulnier) PageL 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." ***************