BILL ANALYSIS                                                                                                                                                                                                    







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

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          SB 926 (Beall)                                              
          As Amended: March 17, 2014 
          Hearing date:  April 29, 2014
          Penal Code
          AA:sl

                                   CHILD SEX CRIMES:

                               STATUTE OF LIMITATIONS  


                                       HISTORY

          Source:  Author

          Prior Legislation: SB 111 (Alquist) - Ch. 479, Stats. 2005
                        
          Support: American Association or Marriage and Family Therapy;  
                   California Police Chiefs Association; California  
                   Protective Parents Association; Child Abuse Listening  
                   Mediation; Child Abuse Prevention Center; Consumer  
                   Attorneys of California; Crime Victims United of  
                   California; Restorative Justice International; Santa  
                   Clara County District Attorney; individuals

          Opposition:California Attorneys for Criminal Justice; Legal  
                   Services for Prisoners with Children; Taxpayers for  
                   Improving Public Safety


                                         KEY ISSUE
           
          SHOULD ONE OF THE STATUTES OF LIMITATIONS PERIODS FOR PROSECUTING  




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                                                             SB 926 (Beall)
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          SEX CRIMES COMMITTED AGAINST A CHILD BE LENGTHENED?

          
                                       PURPOSE

          The purpose of this bill is to extend one of the statutory  
          limitation periods for prosecuting sex crimes committed when a  
          victim was under the age of 18, from any time up to the victim's  
          28th birthday to any time up to the victim's 40th birthday.  
           Criminal Statute of Limitations Generally
          
          Under current law  , statutes of limitations for the commencement  
          of criminal actions generally are based on the term of the  
          sentence, the type of offense, or the nature of the victim, as  
          specified below.

                 Prosecution for a crime punishable by death, life  
               imprisonment, life imprisonment without the  
               possibility of parole, or the embezzlement of public  
               funds may be commenced at any time.<1>  (Penal Code   
               799.)

                 Prosecution for crimes punishable by imprisonment  
               for eight years or more, as specified, and not  
               otherwise covered must be commenced within six years  
               after commission of the offense.  (Penal Code  800.)

                 Prosecution for crimes punishable by  
               imprisonment in the state prison or as a jail  
               felony, as specified, must be commenced within  
               three years after commission of the offense.   
               (Penal Code  801.)

                 Prosecution for crimes involving fraud, breach of a  
               fiduciary duty, embezzlement of funds from an elder or  
               dependent adult, or misconduct by a public official  
             -----------------------
          <1>  Punishment for murder, attempted premeditated and  
          deliberate murder, kidnapping for purposes of robbery,  
          extortion, or certain sex offenses are punishable by life in  
          prison.  (Penal Code  190 and 209.)



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               must be commenced within four years after discovery of  
               the crime or within four years after completion,  
               whichever is later.  (Penal Code  801.5.)

                 Prosecution for crimes involving elder or dependent  
               abuse must be commenced within five years after  
               commission of the offense.  (Penal Code  801.6.)

                 Prosecution for misdemeanor crimes involving  
               molesting a child under the age of 14 years or sexual  
               misconduct with a patient must be commenced within  
               three years after commission of the offense.  For most  
               other misdemeanors, prosecution generally must be  
               commenced within one year after commission of the  
               offense.  (Penal Code  802.)

           Statute of Limitations for Sex Crimes

            Current law  provides that the prosecution for a felony sex  
          offense subject to mandatory sex offender registration, as  
          specified, must be commenced within 10 years after commission of  
          the offense.  (Penal Code  801.1.)

           Current law provides that the prosecution for inducing a minor  
          to pose in connection with the production of a representation of  
          sexual activity involving a minor, must be commenced within 10  
          years of the date of production of the pornographic material.   
          (Penal Code  801.2.)

           Statute of Limitations for Felony Sex Crimes against Minors
          
           In addition to the 10-year statute of limitations applicable  
          above,  current law  authorizes a criminal complaint to be filed  











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          in specified child sex crime<2> cases as follows:

               A. If the crime is alleged to have been committed  
          against a person when that person was under the age of 18,  
          prosecution may commence any time up to the victim's 28th  
          birthday (Penal Code  801.1); or

               B. Within one year of the date a person of any age reports  
          to a California law enforcement agency that he or she, while  
          under the age of 18 years, was a victim of a sex crime, as  
          specified, if all of the following occur:

                  1.        The limitation period specified in  
                    Section 800, 801, or 801.1, whichever is later,  
                    has expired;

                  2.        The crime involved substantial sexual  
                    conduct, as specified, excluding masturbation  
                    that is not mutual; and,

                  3.        There is independent evidence that  
                    corroborates the victim's allegation.<3>  If the  
                    victim was 21 years of age or older at the time  
                    of the report, the independent evidence shall  
                    clearly and convincingly corroborate the victim's  
                    allegation.  (Penal Code  803 (f).); or

               C. Within one year of the date on which the identity of the  
          suspect is conclusively established by DNA testing, if both of  
          ---------------------------
          <2>  The applicable sex crimes are:  rape (Penal Code  261);  
          sodomy (Penal Code  286); child molestation (Penal Code  288);  
          oral copulation (Penal Code  288a); continuous sexual abuse of  
          a child (Penal Code  288.5); and forcible sexual penetration  
          (Penal Code  289 and 289.5 (under prior law), as specified  
          (Penal Code  289.5).
          <3>  Current law provides that no "evidence may be used to  
          corroborate the victim's allegation that otherwise would be  
          inadmissible during trial.  Independent evidence does not  
          include the opinions of mental health professionals."  (Penal  
          Code  803 (f)(3).)



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          the following conditions are met:

                  1.        The crime is one that is subject to  
                    mandatory sex offender registration, as  
                    specified; and,

                  2.        The offense was committed prior to  
                    January 1, 2001, and biological evidence  
                    collected in connection with the offense is  
                    analyzed for DNA type no later than January 1,  
                    2004, or the offense was committed on or after  
                    January 1, 2001, and biological evidence  
                    collected in connection with the offense is  
                    analyzed for DNA type no later than two years  
                    from the date of the offense.  (Penal Code   
                    803 (g).)

           This bill  would amend Penal Code section 801.1 to increase  
          the base period for prosecuting a sex crime against a  
          victim under the age of 18, from any time up to the  
          victim's 28th birthday, to any time up to the victim's 40th  
          birthday.  

           This bill  would provide that its provisions shall only  
          apply to crimes that were committed on or after January 1,  
          2015, or for which the statute of limitations that was in  
          effect prior to January 1, 2015, has not run out as of  
          January 1, 2015.

                    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  




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          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 that 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.  
            

          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 requiring the state to reduce its prison  
          population to 137.5 percent of design capacity.  The State  
          submitted 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 opposed the  
          state's motion, arguing 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 % inmate population cap by December 31,  
          2013.  

          The Three-Judge Court then ordered, on April 11, 2013, 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."  On September 16, 2013, the State asked the  
          Court to extend that deadline to December 31, 2016.  In  
          response, the Court extended the deadline first to January 27,  
          2014 and then February 24, 2014, and ordered the parties to  




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          enter into a meet-and-confer process to "explore how defendants  
          can comply with this Court's June 20, 2013 Order, including  
          means and dates by which such compliance can be expedited or  
          accomplished and how this Court can ensure a durable solution to  
          the prison crowding problem."

          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  
          following interim and final population reduction benchmarks:

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   


          In a status report to the Court dated February 18, 2014, the  
          state reported that as of February 12, 2014, California's 33  
          prisons were at 144.3 percent capacity, with 117,686 inmates.   
          8,768 inmates were housed in out-of-state facilities.

          The ongoing prison overcrowding litigation indicates that prison  
          capacity and related issues concerning conditions of confinement  
          remain unresolved.  While real gains in reducing the prison  
          population have been made, even greater reductions may be  
          required to meet the orders of the federal court.  Therefore,  
          the Committee's consideration of ROCA bills -bills that may  
          impact the prison population - will be informed by the following  
          questions:

                 Whether a measure erodes realignment and impacts the  
               prison population;
                 Whether a measure addresses a crime which is directly  




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               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.

                                      COMMENTS

          1.  Stated Need for This Bill

           The author states in part:

               Current law . . . allows the prosecution for certain  
               egregious sex crimes against children to be commenced  
               any time prior to the victim's 28th birthday.  Well  
               documented medical literature demonstrates that  
               victims of childhood sexual abuse (CSA) need more time  
               to report their abuse to law enforcement.  Ample time  
               to report will prevent perpetrators from waiting out  
               the statute of limitations to avoid prosecution and  
               prevent further acts of CSA.  Sexual predators have  
               shown high rates of recidivism. SB 926 will give  
               victims more time to report their abusers to law  
               enforcement, which will allow law enforcement to stop  
               sexual predators from continuing to abuse children. .  
               . .  

               . . .    Numerous surveys and studies show that CSA  
               victims do not report their abuse until decades later,  
               if ever.  Only 12% of the child sexual abuse cases in  
               a nationally represented survey of 4,008 American  
               women were ever reported to authorities.   This study  
               mimicked earlier studies of a lack of reporting of CSA  
               by the general population.  Several studies show that  
               more than 90% of abuse is never reported to any form  




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               of authority or social agency.   As many as 33% of  
               women and 42% of men never report childhood sexual  
               abuse.  

               . . .   CSA is not reported by victims for a host of  
               reasons.  These include,1) threats of harm to a victim  
               or victim's family; 2) children often do not recognize  
               the wrongfulness of the conduct especially when the  
               perpetrator is someone they know and trust; 3) victims  
               are often ashamed and embarrassed; 4) they fear that  
               they will not be believed; 5) they suppress the  
               memories of the abuse because it creates so much pain  
               and they would rather forget; and 6) in some very few  
               cases, they repress the memory which is later  
               recovered when triggered by some event or situation. .  
               . .  
                
               . . .   Numerous studies have documented both the  
               immediate and long term physical and psychological  
               injuries and harm that results from the abuse of a  
               child. . . .     

               . . .  Sexual predators show a high propensity of  
               reoffending:

               (There are) numerous studies documenting this  
               propensity in sexual offenders:

               "?Perpetrators of child sexual abuse remain at risk of  
               reoffending long after the abuse occurs. 'Inducing a  
               child to have sex does not depend on any overwhelming  
               physical or sexual prowess but rather on verbal  
               manipulation-an ability that, of course, does not  
               recede with normal aging' Robert Dickey et al., Age as  
               a Differential Characteristic of Rapists, Pedophiles,  
               and Sexual Sadist, 28 J. Sex & Marital Therapy 211,  
               213 (2002)."

               "?Unlike most violent offenders, child molesters do  
               not "age out" of criminality. Hanson analyzed data  




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               from 4,673 sexual offenders and found that the  
               'recidivism rate of the extra-familial child molesters  
               showed relatively little decline until after 50.' R.  
               Karl Hanson, Recidivism and Age: Follow-Up Data from  
               4,673 Sexual Offenders, 17 J. Interpersonal Violence  
               1046, 1045 (2002).  

               "Studies with longer follow-up periods find  
               substantially higher rates of recidivism, and reaffirm  
               the fact that molesters pose long-term risks of  
               reoffending. A study by Hanson et al. tracked 197  
               convicted child molesters, most of them for more than  
               fifteen years, and found that 42% were convicted of a  
               subsequent sexual and/or violent offense. R. Karl  
               Hanson, Long-Term Recidivism of Child Molesters, 61 J.  
               Consulting and Clinical Psychol. 646, 648 (1993).  

          2.  What This Bill Would Do; Current Limitations "Windows"

           As explained above, this bill would change one of the statutory  
          limitation periods for prosecuting child sex crimes, from up to  
          the victim's 28th birthday to up to the victim's 40th birthday.   
          This time period is only one limitations period applicable to  
          sex crimes, including sex crimes against children.  The law  
          currently provides four statutory "windows" for commencing  
          prosecutions of sex crimes.

                 The first window is the general limitations period  
               for prosecuting sex crimes, which is 10 years from when  
               the crime was committed.<4>  (Penal Code  801.1 (b).)

                 The second window, which this bill proposes to  
               change, applies if the crime is alleged to have been  
               committed against a person when that person was under  
               the age of 18, in which case prosecution may commence  




             ------------------------
          <4>   This limitations period was established by AB 1667 (Kehoe)  
          (Ch. 368, Stats. 2004.)






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               any time up to the victim's 28th birthday.<5>  (Penal  
               Code  801.1.).   

                 A third window allows that when the 10-year  
               limitations period has lapsed, a criminal complaint may  
               be filed within one year of the date a person of any  
               age reports to law enforcement that they were a victim  
               of a child sex crime, if a) the crime involved  
               "substantial sexual conduct", as specified;<6> and b)  
               there is independent evidence that corroborates the  
               victim's allegation, which must be proved by clear and  
               convincing evidence if the victim is 21 years of age or  
               older at the time of the report.<7>  (Penal Code  803  
               (f).)

                 A fourth window is available at all times:  a  
               criminal complaint may be filed within one year of the  
               date on which the identity of a suspect is conclusively  
               established by DNA testing in sex crime cases if the  
             ------------------------
          <5>   This limitations period was established by SB 111  
          (Alquist) (Ch. 479, Stats. 2005.)
          <6>  "Substantial sexual conduct" for purposes of this section  
          cross-references Penal Code Section 1203.066 (b), excluding  
          "masturbation that is not mutual."  "Substantial sexual conduct"  
          is penetration of the vagina or rectum of either the victim or  
          the offender by the penis of the other or by any foreign object,  
          oral copulation, or masturbation of either the victim or the  
          offender.  ( 1203.066 (b).)  "Masturbation of either the victim  
          or the offender" means "any touching or contact, however slight,  
          of the genitals of either the victim or the offender."  (People  
          v. Chambless (1999) 74 Cal.App.4th 773 [defendant touched girl's  
          vagina and made her touch his penis].)  Mutual masturbation  
          shown where defendant rubbed Vaseline on a boy's penis.  (People  
          v. Lamb (1999) 76 Cal.App.4th 664, 678-679.)
          <7>   This limitations period was established by AB 78  
          (Alquist)(Ch. 235, Stats. 2001) and amended by AB 1667  
          (Kehoe)(Ch. 368, Stats. 2004).






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               DNA is analyzed in a timely manner, as specified.<8>   
               (Penal Code  803 (g).)
           
          3.  Operation of and Public Policy Behind the Statute of  
            Limitations; Policy Questions Raised by This Bill
           
          The statute of limitations requires commencement of a  
                                                                          prosecution within a certain period of time after the commission  
          of a crime.  A prosecution is initiated by filing an indictment  
          or information, filing a complaint, certifying a case to  
          superior court, or issuing an arrest or bench warrant.  (Penal  
          Code  804.)  The failure of a prosecution to be commenced  
          within the applicable period of limitation is a complete defense  
          to the charge.  The statute of limitations is jurisdictional and  
          may be raised as a defense at any time, before or after  
          judgment.  (People v. Morris (1988) 46 Cal.3d 1, 13.)  The  
          defense may only be waived under limited circumstances.  (See  
          Cowan v. Superior Court (1996) 14 Cal.4th 367.)

          In 1984, the California Law Revision Commission published a  
          series of recommendations to revise the statute of limitations.   
          The impetus for reform derived from numerous changes made to the  
          statute by the Legislature - there were 11 legislative  
          enactments amending the felony statute of limitations in 14  
          years.  The Commission commented, "[t]his simple scheme has been  
          made complex by numerous modifications . . . the result of this  
          development is that the California law is complex and filled  
          with inconsistencies."  The Commission described the rationale  
          of the statute:

              The statute of limitations is simply a societal  
              declaration that it will no longer pursue a criminal  
              after a certain period of time.  The period selected  
              may be somewhat arbitrary but still achieves  
              society's purpose of imposing an outside limit that  
              recognizes the staleness problem, that requires that  
              crime must come to light and be investigated within a  
              reasonable time, and that represents the point after  

              ----------------------
          <8>   This limitations period was enacted by AB 1742 (Correa)  
          (Ch. 235, Stats. 2000.)



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              which society declares it no longer has an interest  
              in prosecution and seeks repose.

          The three principal policy reasons for felony limitations  
          statutes include:

                      Staleness  :  The statute of limitations  
                 protects persons accused of crime:  (i) from  
                 having to face charges based on evidence that  
                 may be unreliable, and (ii) from losing access  
                 to the evidentiary means to defend against the  
                 accusation.  With the passage of time, memory  
                 fades, witnesses die or otherwise become  
                 unavailable, and physical evidence becomes  
                 unobtainable or contaminated.

                      Prompt Investigation  :  The statute of  
                 limitations imposes a priority among crimes for  
                 investigation and prosecution.  The deadline  
                 serves to motivate the police and to ensure  
                 against bureaucratic delays in investigating  
                 crimes.

                      Repose  :  The statute of limitations  
                 reflect society's lack of desire to prosecute  
                 for crimes committed in the distant past.  The  
                 interest in repose represents a societal  
                 evaluation of the time after which it is  
                 neither profitable nor desirable to commence a  
                 prosecution.

          These principals are reflected in court decisions.  The United  
          States Supreme Court has stated that statutes of limitations are  
          the primary guarantee against bringing overly stale criminal  
          charges.  (United States v. Ewell (1966) 383 U.S. 116, 122.)   
          There is a measure of predictability provided by specifying a  
          limit beyond which there is an irrebutable presumption that a  
          defendant's right to a fair trial would be prejudiced.  Such  
          laws reflect legislative assessments of relative interests of  
          the state and the defendant in administering and receiving  




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          justice.  More recently, in Stogner v. California (2003) 123  
          S.Ct. 2446, the Court underscored the basis for statutes of  
          limitations:

              Significantly, a statute of limitations reflects a  
              legislative judgment that, after a certain time, no  
              quantum of evidence is sufficient to convict.  And  
              that judgment typically rests, in large part, upon  
              evidentiary concerns - for example, concern that the  
              passage of time has eroded memories or made witnesses  
              or other evidence unavailable.<9>

          Members and the author may wish to discuss this bill in the  
          context of these broader policy considerations, including:

          WOULD THIS BILL AFFECT THE AVAILABILITY AND RELIABILITY OF  
          EVIDENCE IN CHILD SEX CRIME CASES AND, IF SO, HOW?

          WOULD THIS BILL AFFECT THE REPORTING AND INVESTIGATION OF CHILD  
          SEX CRIME CASES AND, IF SO, HOW?

          WOULD THIS BILL AFFECT THE SUCCESSFUL PROSECUTION OF CHILD SEX  
          CRIME CASES AND, IF SO, HOW?

          4. Changes to the Statute of Limitations for Sex Crimes Against  
          Children
           
          In the late 1980s, lawmakers across the country became  
          increasingly aware of the issue of child sex abuse.  "The  
          problem of sexual abuse of children has, over the past two  
          decades, increasingly preoccupied our nation's pundits,  
          academics, and parents, and communities have begun to turn to  
          legislation to assuage their fears and protect their children.   
          As laws requiring registration by sex offenders have become  
          commonplace, some legislatures have also sought to redress  
          sexual crimes that have long gone unprosecuted, either because  
          the victims had repressed their memories of the abuse or  




          ---------------------------
          <9>  Stogner, supra, 123 S.Ct. at 2452 (citations omitted).





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          because the victims had been afraid to come forward."<10>

          The California Legislature reflected this national concern.   
          In 1989, AB 782 (N. Waters) established a new maximum  
          limitation period for criminal complaints by a child under the  
          age of 18 for specified sex offenses.  In 1993, AB 290  
          (Boland) (Ch. 390, Stats. of 1993) was enacted to provide that  
          a criminal complaint may be filed within one year of the date  
          of a report to a law enforcement agency by a person of any age  
          alleging that he or she, while under the age of 18 years, was  
          the victim of sex abuse under specified circumstances.   
          Subsequent legislation expanded these provisions.<11>  As  
          explained above, during this period additional "windows" for  
          prosecuting child sexual abuse were created and expanded.<12>   
           

          In addition, California enacted legislation in the 1990s to  
          revive otherwise expired child sexual abuse cases to apply the  
          newly extended limitation periods to these old cases.<13>   
          These revival provisions, however, were struck down in 2003 by  
          the United States Supreme Court in Stogner v. United States,  
          supra.  In Stogner, the Court ruled that a law enacted after  
          expiration of a previously applicable limitations period  
          violates the Ex Post Facto Clause when it is applied to revive  
          a previously time-barred prosecution.  The Court concluded  
          that the statutory provision threatened the very kind of harm  
          that the Ex Post Facto Clause seeks to avoid.  The Court noted  
          that the statute deprived the defendant of the "'fair warning'  
          that might have led him to preserve exculpatory evidence," and  
          warned that "a Constitution that permits such an extension, by  
          allowing legislatures to pick and choose when to act  
          retroactively, risks both 'arbitrary and potentially  
          --------------------------
          <10> 117 Harv. L. Rev. 268 (November 2003), THE SUPREME  
          COURT, 2002 TERM: LEADING CASES:  1. CONSTITUTIONAL LAW:  
          2. EX POST FACTO CLAUSE.
          <11>  See AB 25X (Andal) (Ch. Ex. 46, Stats. 1994).
          <12>  See AB 78 (Alquist) (Ch. 235, Stats. 2001); AB 1742  
          (Correa) - Ch. 235, Stats. 2000.
          <13>  AB 2014 (Boland) (Ch. 130, Stats. 1996); AB 700 (Alby)  
          (Ch. 29, Stats. 1997).





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          vindictive legislation. . . .'"<14>

          In 2005, SB 111(Alquist) (Ch. 479, Stats. of 2005) created the  
          limitations window that allows specified sex offenses alleged  
          to have been committed when the victim was under the age of 18  
          to be commenced any time prior to the victim's 28th birthday.   
          This provision went into effect January 1, 2006.  It is this  
          provision this bill would change, to any time prior to the  
          victim's 40th birthday.

          Members of the Committee and the author may wish to discuss the  
          impact of the Alquist bill from 2005.  In addition, members may  
          wish to discuss how this bill might affect pressure to prosecute  
          cases, and how evidentiary concerns would affect the prosecution  
          of very old cases that are not time-barred, where the passage of  
          time has eroded memories, made witnesses unavailable, and where  
          DNA evidence is not present.<15>  
           
          5.  The Legislative History of Age 28
           
          Establishing the age of 28 years as a separate statutory bright  
          line for one statute of limitations period for prosecuting  
          childhood sex crimes occurred with the passage of SB 111  
          (Alquist) in 2005.  That measure was co-sponsored by the  
          Attorney General's Office, which at the time argued that tying  
          the statute of limitations in child sex abuse cases to victim  
          age reflected the most recent understanding of child sexual  
          ---------------------------
          <14>  Stogner, supra, at 2449-2450 (citations omitted).
          <15>   "A member in government service shall not institute or  
          cause to be instituted criminal charges when the member knows or  
          should know that the charges are not supported by probable  
          cause. If, after the institution of criminal charges, the member  
          in government service having responsibility for prosecuting the  
          charges becomes aware that those charges are not supported by  
          probable cause, the member shall promptly so advise the court in  
          which the criminal matter is pending."  Cal. State Bar, Rules of  
          Professional Conduct, Rule 5-110 Performing the Duty of Member  
          in Government Service.



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                                                             SB 926 (Beall)
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          abuse, and how victims respond to their abuse.

              If one looks at the surveys of adults . . . , one  
              finds that a large percentage had never disclosed  
              abuse before being surveyed, and the average age of  
              the respondents is 40.  On the other hand, there is  
              evidence that when 18-21 year olds are surveyed, they  
              are quite likely to continue denying abuse. . . .   
              (T)hese surveys (can) show how common it is for  
              reporting to occur much later than the current  
              ten-year cutoff requires.<16>

          The department cited the research set forth in an amicus brief  
          submitted to the U.S. Supreme Court by the American  
          Psychological Association and others in a 2003 case involving  
          the prosecution of a child sex abuse case<17>:

              Most childhood sexual abuse is never reported.  Only  
              12% of the child sexual assaults in a nationally  
              representative survey of 4,008 American women were  
              ever reported to authorities.  All of the incidents  
              consisted of substantial sexual conduct between the  
              molester and the victim . . . that involved the use  
              of force, or the threat of force or coercion.  This  
              low rate of reporting is similar to that found in  
              earlier studies of the general population. . . .

              One reason few cases of sexual abuse are reported to  
              law enforcement is that large percentages of victims  
              never disclose the abuse to anyone.  Another  
              national survey . . . questioned 3,220 American  
              women, and found that 28% of women who had been  
              ---------------------
          <16>   See Senate Committee on Public Safety analysis of SB 111  
          (Alquist), April 19, 2005.
          <17>  The case was Stogner v. California  (2003) 123 S.Ct. 2446,  
          in which the Court struck down California statute which intended  
          to revive otherwise time-barred child sex abuse prosecutions  
          based on ex post facto grounds.  The Stogner decision itself is  
          unrelated to the issues presented by this bill as before the  
          Committee.



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                                                             SB 926 (Beall)
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              sexually assaulted as children had never told anyone  
              about the assault prior to the survey, "not mothers,  
              best friends, or husbands."  These women had kept  
              their abuse a secret for an average of over  
              twenty-five years.  Among all women who disclosed  
              their abuse, nearly half waited more than eight  
              years to do so.

              Other surveys find similarly high rates of secrecy,  
              and men are just as likely as women - if not more  
              likely - to keep childhood sexual assault a secret.   
              Moreover, surveys underestimate long-term secrecy  
              because many abuse victims who have not disclosed  
              abuse to loved ones also fail to disclose to a  
              surveyor.

              Unfortunately, even when children muster the courage  
              to tell trusted adults about sexual abuse, or adults  
              otherwise learn of the abuse, the adults often fail  
              to report the offenses to law enforcement.  For  
              instance, mothers hearing their children's complaints  
              of sexual abuse often feel ambivalent about  
              contacting authorities; they often feel inadequate,  
              they may doubt the child, and they may fear or  
              distrust the police and social services.  They also  
              may feel pressure from family members, friends, and  
              the abuser to keep the abuse a secret. . . .

              The reasons victims delay reporting childhood sexual  
              abuse to authorities, if they report the abuse at  
              all, are numerous:  (1) offenders often threaten  
              their victims to remain silent, including threatening  
              to harm or kill the victims or their loved ones; (2)  
              children may not appreciate the wrongfulness of the  
              conduct, particularly when victimized by a trusted  
              adult; (3) victims often are ashamed of what has  
              transpired; and (4) victims often fear that they will  
              not be believed, and are afraid of the consequence of  
              disclosing the abuse.  These factors are not  
              exclusive and, in many cases, a combination of  




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                                                             SB 926 (Beall)
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              factors will influence the victim's decision not to  
              reveal the abuse.<18>

          As part of this Committee's consideration of SB 111 in 2005, the  
          analysis of that bill asked if "the unique nature of childhood  
          sexual abuse, and the unique vulnerability of child sex abuse  
          victims, warrant an extended statute of limitations as proposed  
          by this bill."   As passed by this Committee, the age in the  
          bill was 30, which was proposed when the bill was introduced;  
          the bill subsequently was amended to age 28 in the Assembly  
          Appropriations Committee.

          Nine years after the passage of SB 111, members may wish to  
          consider:

          DOES THE UNIQUE NATURE OF CHILDHOOD SEXUAL ABUSE, AND THE UNIQUE  
          VULNERABILITY OF CHILD SEX ABUSE VICTIMS, WARRANT A STATUTE OF  
          LIMITATIONS PERIOD LONGER THAN WHAT WAS ENACTED 9 YEARS AGO?  

          IS 40 YEARS OF AGE A MORE APPROPRIATE AGE-BASED LIMITATION  
          PERIOD FOR THESE KINDS OF CRIMES THAN 28 YEARS OF AGE?

          WOULD 30 YEARS OF AGE, AS ORIGINALLY PROPOSED BY SB 111 AND THE  
          ATTORNEY GENERAL'S OFFICE IN 2005, BE A MORE APPROPRIATE  
          AGE-BASED LIMITATIONS PERIOD FOR THESE KINDS OF CRIMES THAN 28  
          OR 40 YEARS OF AGE?

          6.  Background:  Sex Offenders and Recidivism

           One of the preeminent researchers in the area of recidivism,  
          especially of sex offenders, is Dr. R. Karl Hanson, a Senior  
          Research Scientist at Public Safety Canada.  In a court  
          declaration filed in 2012, Dr. Hanson summarized his research as  
          follows:
          ---------------------------
          <18>  Brief of amici curiae American Psychological Association,  
          National Association of Counsel for Children, American  
          Professional Society on the Abuse of Children, and California  
          Professional Society on the Abuse of Children in Support of  
          Respondent in Stogner v. California, supra, dated February 19,  
          2003 (citations omitted).



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                                                             SB 926 (Beall)
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               My research on recidivism shows the following: 

               1. Recidivism rates are not uniform across all sex  
               offenders. Risk of re-offending varies based on  
               well-known factors and can be reliably predicted by  
               widely used risk assessment tools such as the  
               Static-99 and Static-99R, which are used to classify  
               offenders into various risk levels. 

               2. Once convicted, most sexual offenders are never  
               re-convicted of another sexual offence. 

               3. First-time sexual offenders are significantly less  
               likely to sexually re-offend than are those with  
               previous sexual convictions. 

               4. Contrary to the popular notion that sexual  
               offenders remain at risk of reoffending through their  
               lifespan, the longer offenders remain offence-free in  
               the community, the less likely they are to re-offend  
               sexually. Eventually, they are less likely to  
               re-offend than a non-sexual offender is to commit an  
               "out of the blue" sexual offence. 

                   a. Offenders who are classified as  low-risk  by  
                   Static-99R pose no more risk of recidivism than do  
                   individuals who have never been arrested fora  
                   sex-related offense but have been arrested for  
                   some other crime. 

                   b. After 10 - 14 years in the community without  
                   committing a sex offense,  medium-risk  offenders  
                   pose no more risk of recidivism than Individuals  
                   who have never been arrested Tor a sex-related  
                   offense but have been arrested for some other  
                   crime.







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                   c. After 17 years without a new arrest for a  
                   sex-related offense,  high-risk  offenders pose no  
                   more risk of committing a new sex offense than do  
                   individuals who have never been arrested for a  
                   sex-related offense but have been arrested for  
                   some other crime. 

               5. Based on my research, my colleagues and I recommend  
               that rather than considering all sexual offenders as  
               continuous, lifelong threats, society will be better  
               served when legislation and policies consider the  
               cast/benefit break point after which resources spent  
               tracking and supervising low-risk sexual offenders are  
               better re-directed toward the management of high-risk  
               sexual offenders, crime prevention, and victim  
               services.<19>


                                   ***************















          ---------------------------
          <19> Appendix D,  A Better Path to Community Safety Sex Offender  
          Registration in California "Tiering Background Paper" (2014)  
          California Sex Offender Management Board. (emphasis in  
          original).














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