BILL ANALYSIS Ó
SB 838
Page 1
Date of Hearing: August 6, 2014
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
SB 838 (Beall) - As Amended: July 2, 2014
Policy Committee: Public Safety
Vote: 7-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill, titled Audrie's Law, makes several sentencing changes
related to specified sex offenses against an unconscious or
disabled person. Specifically, this bill:
1)Creates a one-year sentence enhancement and/or a fine of up to
$10,000 for any person convicted of a felony sex offense
requiring the person to register as a sex offender, who, with
intent to intimidate, humiliate, or bully the victim, uses
social media pertaining to the incident that resulted in the
conviction. For a misdemeanor offense, the increased penalty
is a fine of up to $5,000.
2)Adds to the list of serious felonies for which the public may
be admitted to juvenile court proceedings, specified sex
offenses in which the victim is prevented from resisting due
to being rendered unconscious by any intoxicating,
anesthetizing, or controlled substance, or when the victim is
at the time incapable, because of a disability, of giving
consent, and this circumstance is known or reasonably should
be known to the perpetrator.
(As this provision amends Prop 21, an initiative statute
approved by the voters on March 7, 2007, an amendment requires
a 2/3 vote on the floor.)
3)Requires a minor to complete a sex offender treatment program
when a minor is adjudged a ward of the court by reason of the
commission of rape, sodomy, oral copulation, or an act of
sexual penetration. In determining appropriate treatment, the
court shall consider the circumstances of the offense, as
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specified.
4)Adds to the list of offenses for which deferred entry of
judgment is not an option, specified sex offenses in which the
victim is prevented from resisting due to being rendered
unconscious by any intoxicating, anesthetizing, or controlled
substance, or when the victim is incapable, because of a
disability, of giving consent.
FISCAL EFFECT
1)Unknown, potentially significant ongoing GF costs for
increased state prison commitments. Hundreds of persons
required to register as sex offenders are sentenced to state
prison each year. For every 10 who receive a one-year
enhancement, the annual out-year cost would be $600,000,
assuming the state's per capita cost, and half that amount
assuming the marginal overcrowding cost.
2)Unknown, potentially significant state and local costs,
potentially state-reimbursable, to require juvenile sex
offenders to complete a sex offender treatment program. In
most counties, there are few, if any, juvenile sex offender
treatment programs, outside of the Department of Corrections
and Rehabilitation's Division of Juvenile Facilities. Absent
language requiring an offender to pay for treatment costs if
able, and absent treatment options, this bill could require
the creation of treatment programs and would require the state
or the county, depending on determinations by the Commission
on State Mandates, to shoulder the costs of program creation
as well as individual treatment. These costs could run from
the low hundreds of thousands of dollars to millions of
dollars, depending on the need of each county.
3)Unknown, likely minor state and local incarceration and
probation costs to the extent that additional offenders are
excluded from deferred entry of judgment. In many cases these
offenders would not qualify under current law.
4)Unknown, likely minor state trial court administrative costs
for opening additional juvenile cases to the public.
COMMENTS
1)Background. Fifteen-year-old Audrie Pott committed suicide in
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September 2012. As reported in the media, on September 2,
2012, Audrie attended a party where she and other teenagers
consumed alcohol. Audrie passed out in a bedroom. She awoke to
find her shorts down and arrows and circles and lewd comments
scribbled in Sharpie pens over her body. Audrie later learned
three boys at the party took photos of her body. It was
alleged that these photos went viral, but according to the San
Jose Mercury News, there was insufficient evidence to prove
the boys circulated the photos widely. On September 10, 2012,
eight days after the assault, Audrie hung herself in her
mother's bathroom and died two days later.
Because the offenders were adjudicated in juvenile court, the
proceedings were closed and there was/is no access to court
transcripts. Neither the attorney representing Audrie's
parents in the civil law suit or the deputy district attorney
who prosecuted the case could comment on the specifics of the
juvenile proceedings. According to the Mercury News coverage,
"sources close to the case" said the boys admitted to
felonies, including digital penetration and possession or
control of photos of Audrie, and two of the boys were ordered
to serve 30 days in juvenile detention and the third was
ordered to serve 45 days.
As noted in the Public Safety Committee analysis, because the
facts and circumstances of this case are not clear, it is
speculative as to whether the provisions of this bill would
have had any impact on the case.
2)Rationale . This bill addresses several aspects of the case,
including adding to the list of serious felonies for which the
public may be admitted to juvenile court proceedings, sex
offenses in which the victim is prevented from resisting due
to being rendered unconscious, and this circumstance is known
to the perpetrator.
According to the author, "Audrie's case, along with those of
other young women across the nation, has shed light on a
troubling pattern of social media being used to further
traumatize victims of sexual assault. Neither W&I code nor the
Penal code include an offense where the victim of any sexual
abuse or assault is further traumatized by an offender through
'cyber-bullying.'
"Photos of and messages about victims of these crimes have
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been posted on the Internet or shared through cell phone
photos to intimidate, harass, humiliate, and bully victims.
The use of online photos, messaging, or other social media
increases the terrible power of the crime's cruelty. The
nature of the crimes against Audrie, coupled with the growing
use of social media to bully victims, demands that our
statutes and codes be amended to reflect the severity of these
offenses."
3)The proposed sentence enhancement and fine are on top of
already significant penalties. For the enhancement to apply,
the person would have to be convicted of a felony sex offense
that requiring registration as a sex offender. The existing
punishments for felony sex offenses are very serious. For
example, sexual penetration against a victim unable to resist
because they are unconscious or intoxicated is a felony,
punishable by three, six or eight years in state prison. The
same punishment applies for the crimes of oral copulation or
sodomy of a person who is unable to resist because he or she
is unconscious or intoxicated.
Given the current punishment for felony sex offenses are already
significant, and given the state is struggling to meet the
federal court order to reduce prison overcrowding to 143% of
capacity by the end of August, and the final 137.5% order by
February of 2016, the value of a new sentence enhancement is
questionable.
4)Suggested sex offender treatment amendments . The author may
wish to consider amendments to the proposed mandatory sex
offender treatment to make treatment contingent upon program
availability, and to require the offender to pay for the
treatment, if able to do so.
5)Formal support and opposition generally refers to an earlier
version of the bill , which included a mandatory minimum
two-year out-of-home placement.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081