BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 978 (DeSaulnier)
As Introduced February 11, 2014
Hearing date: April 22, 2014
Penal Code
AA:mc
SEX CRIMES:
VICTIM SUPPORT
HISTORY
Source: Alameda County District Attorney
Prior Legislation: SB 835 (McCorquodale) - Ch. 999, Stats. 1991
Support: California District Attorneys Association; California
Police Chiefs Association
Opposition:Secular Coalition for California (unless amended)
KEY ISSUE
SHOULD HOSPITALS BE AUTHORIZED TO DIRECTLY CONTACT A LOCAL RAPE
VICTIM COUNSELING CENTER WHEN A POSSIBLE SEXUAL ASSAULT VICTIM COMES
TO THE HOSPITAL?
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PURPOSE
The purpose of this bill is to authorize hospitals, with consent
of a victim, to contact the local rape victim counseling center
when a victim of an alleged sex crime comes to the hospital.
Current law requires that a "law enforcement officer, or his or
her agency, shall immediately notify the local rape victim
counseling center, whenever a victim of an alleged (sex crime)
violation<1> . . . is transported to a hospital for any medical
evidentiary or physical examination. The victim shall have the
right to have a sexual assault counselor, as defined in Section
1035.2 of the Evidence Code, and a support person of the
victim's choosing present at any medical evidentiary or physical
examination. (Penal Code § 264.2(b).)
This bill would amend this provision to provide that the
hospital may notify the local rape victim counseling center,
when the victim of the alleged violation of one of these sex
crimes is presented to the hospital for the medical or
evidentiary physical examination, upon approval of the victim.
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
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<1> Specifically, the crimes enumerated in Penal Code sections
261 (rape), 261.5 (unlawful intercourse with a minor), 262
(spousal rape), 286 (sodomy), 288a (oral copulation), or
289(foreign object rape).
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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
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
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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
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
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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:
Under Penal Code 264.2 (b)(1) states, "The law
enforcement officer, or his or her agency, shall
immediately notify the local rape victim counseling
center, whenever a victim of an alleged violation of
Section 261, 261.5, 262, 286, 288a, or 289 is
transported to a hospital for any medical evidentiary
or physical examination."
But sometimes victims go directly to the hospital for
a medical or physical examination. The hospital then
has to call law enforcement that then has to call the
rape victim counseling center. This bill would make
it easier on the victim and the hospital by taking out
that additional step and allowing for the hospital to
call the rape victim counseling center directly.
In 2011, the Legislature passed and the Governor
signed, SB 534 (Corbett), to authorize Violence
Against Women Act (VAWA) funds to be used for forensic
medical examinations for victims and survivors of
sexual assault, as long as a law enforcement officer
notifies the local rape victim counseling center so
the victim can receive counseling services.
Currently, law enforcement officers assigned to a
sexual assault case, are required to immediately
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notify the local rape victim counseling center,
whenever a victim of an alleged rape or an alleged
violation is transported to a hospital for a physical
exam. However, not all victims want to interact with
law enforcement, many opt out from receiving
counseling.
2. What This Bill Would Do
As explained above, this bill would authorize hospitals to
contact the local rape victim counseling center when a victim of
an alleged sex crime comes to the hospital. The victim would
have to approve the contact.
3. Background: Best Practices
A year ago, the Office on Violence Against Women in the U.S.
Department of Justice published "A National Protocol for Sexual
Assault Medical Forensic Examinations Adults/Adolescents" (2d
Ed.). The forward to this protocol noted in part:
This second edition of the National Protocol for
Sexual Assault Medical Forensic Examinations provides
detailed guidelines for criminal justice and health
care practitioners in responding to the immediate
needs of sexual assault victims. We
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know that effective collection of evidence is of
paramount importance to successfully prosecuting sex
offenders. Just as critical is performing sexual
assault forensic exams in a sensitive, dignified, and
victim-centered manner.<2>
With respect to involving advocates, the protocol explained in
part:
In many jurisdictions, sexual assault victim advocacy
programs and other victim service programs offer a
range of services before, during, and after the exam
process. . . . Ideally, advocates should begin
interacting with victims in a language the victims
understand prior to the exam, as soon after disclosure
of the assault as possible. Victims who come to exam
sites in the immediate aftermath of an assault are
typically coping with trauma, anticipating the exam,
and considering the implications of reporting. . . .
Advocates can offer a tangible and personal connection
to a long-term source of support and advocacy.
Community-based advocates, in particular, have the sole
purpose of supporting victims' needs and wishes.
Typically, these advocates are able to talk with
victims with some degree of confidentiality, depending
on jurisdictional statutes, while statements victims
make to examiners become part of the medical forensic
report. When community-based advocates support victims,
examiners can more easily maintain an objective stance.
In addition, civil attorneys may be able to help
victims assess legal needs and options, including
privacy, safety, immigration, housing, education, and
employment issues.
. . .
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<2> A National Protocol for Sexual Assault Medical Forensic
Examinations Adults/Adolescents (2d Ed.), Office on Violence
Against Women in the U.S. Department of Justice
https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf.
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Contact the victim service/advocacy program
immediately. Utilize a system in which exam facility
personnel, upon initial contact with a sexual assault
patient, call the victim service/advocacy program and
ask for an advocate to be sent to the exam site (unless
an advocate has already been called). Prior to
introducing the advocate to a patient, exam facility
personnel should explain briefly, in a language the
patient understands, the victim services offered and
ask whether the victim wishes to speak with the onsite
advocate. Note that some jurisdictions require that
patients be asked whether they want to talk with an
advocate before the advocate is contacted. If
possible, victims should be allowed to meet with
advocates in a private place prior to the exam.
Ideally, a patient should be assisted by the same
advocate during the entire exam process.
. . .
Make sure that the first responding health care
providers attend to patients' initial medical needs and
arrange for an on-call advocate to offer onsite
support, crisis intervention, and advocacy. It may be
useful to give patients the option of speaking with an
advocate via a 24-hour crisis hotline (if one exists)
until an advocate arrives.<3>
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<3> Id. (footnotes omitted.)