BILL ANALYSIS Ó
AB 832
Page A
Date of Hearing: April 7, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
832 (Cristina Garcia) - As Introduced February 26, 2015
As Proposed to be Amended in Committee
SUMMARY: Provides that "sexual assault" for purposes of
reporting incidents of abuse under the Child Abuse Neglect and
Reporting Act (CANRA) does not include voluntary acts of sodomy,
oral copulation, or sexual penetration, unless it involves a
person who is 21 years of age or older engaging in these acts
with a minor who is under 16 years of age.
EXISTING LAW:
1)Establishes CANRA for the purpose of protecting children from
abuse and neglect. (Pen. Code, § 11164.)
2)Defines "child" under CANRA to mean a person under the age of
18 years. (Penal Code Section 11165.)
3)Enumerates categories of persons who are mandated reporters
under the Act. (Pen. Code, § 11165.7, subd. (a).)
AB 832
Page B
4)Requires, except as provided, a mandated reporter to make a
report to a specified agency whenever the mandated reporter,
in his or her professional capacity or within the scope of his
or her employment, has knowledge of or observes a child whom
the mandated reporter knows or reasonably suspects has been
the victim of child abuse or neglect. The mandated reporter
shall make an initial report to the agency immediately or as
soon as is practicably possible by telephone and shall prepare
and send, fax, or electronically transmit a written follow up
report within 36 hours of receiving the information concerning
the incident. The mandated reporter may include with the
report any nonprivileged documentary evidence the mandated
reporter possesses relating to the incident. (Pen. Code, §
11166, subd. (a).)
5)Defines "reasonable suspicion" to mean that it is objectively
reasonable for a person to entertain a suspicion, based upon
the facts that could cause a reasonable person in a like
position, drawing, when appropriate, on his or her training
and experience, to suspect child abuse or neglect. (Pen.
Code, § 11166, subd. (a)(1).)
6)Provides that any mandated reporter who fails to report an
incident of known or reasonably suspected child abuse or
neglect as required by this section is guilty of a misdemeanor
punishable by up to six months confinement in a county jail or
by a fine of $1,000 or by both that imprisonment and fine. If
a mandated reporter intentionally conceals his or her failure
to report an incident known by the mandated reporter to be
abuse or severe neglect under this section, the failure to
report is a continuing offense until a specified agency
discovers the offense. (Pen. Code, § 11166, subd. (c).)
7)Defines "child abuse or neglect" under CANRA to include
physical injury or death inflicted by other than accidental
means upon a child by another person, sexual abuse as defined,
neglect as defined, the willful harming or injuring of a child
or the endangering of the person or health of a child as
AB 832
Page C
defined, and unlawful corporal punishment or injury as
defined. (Pen. Code, § 11165.6.)
8)States that "sexual abuse" means sexual assault or sexual
exploitation. (Pen. Code, § 11165.1.)
9)Defines "sexual assault" as conduct in violation of one or
more of the following crimes: rape, statutory rape involving a
person who is 21 years of age or older with a minor who is
under 16 years of age, rape in concert, incest, sodomy with a
person who is under 18 years of age, lewd or lascivious acts
upon a child who is under 14, or who is 14 or 15 years of age
by a person who is at least 10 years older than the child,
oral copulation, sexual penetration, or child molestation, as
specified. (Pen. Code, § 11165.1, subd. (a).)
10)Provides that unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse
of the perpetrator, if the person is a minor (statutory rape).
For the purposes of this section, a "minor" is a person under
the age of 18 years and an "adult" is a person who is at least
18 years of age. (Pen. Code, § 261.5, subd. (a).)
11)States that it is a misdemeanor for any person who engages in
an act of unlawful sexual intercourse with a minor when there
is not more than a three year age difference. (Pen. Code, §
261.5, subd. (b).)
12)Provides that it is an alternate felony/misdemeanor for any
person who engages in an act of unlawful sexual intercourse
with a minor when there is more than a three year age
difference, punishable by imprisonment in a county jail not
exceeding one year, or by imprisonment in county jail for 16
months, two, or three years. (Pen. Code, § 261.5, subd. (c).)
13)States that any person 21 years of age or older who engages
in unlawful sexual intercourse with a minor who is under 16
years of age is guilty of an alternate felony/misdemeanor
punishable by imprisonment in a county jail not exceeding one
AB 832
Page D
year, or by imprisonment in county jail for two, three, or
four years. (Pen. Code, § 261.5, subd. (d).)
14)States, except as provided in provisions of law related to
lewd and lascivious conduct with minors under the age of 14,
any person who participates in an act of sodomy with another
person who is under 18 years of age shall be punished by
imprisonment in the state prison, or in a county jail for not
more than one year. (Pen. Code, § 286, subd. (b)(1).)
15)Makes any person over 21 years of age who participates in an
act of sodomy with another person who is under 16 years of age
guilty of a felony, except as provided in provisions of law
related to lewd and lascivious conduct with minors under the
age of 14. (Pen. Code, § 286, subd. (b)(2).)
16)States, except as provided in provisions of law related to
lewd and lascivious conduct with minors under the age of 14,
any person who participates in an act of oral copulation with
another person who is under 18 years of age shall be punished
by imprisonment in the state prison, or in a county jail for
not more than one year. (Pen. Code, § 288a, subd. (b)(1).)
17)Provides that any person over 21 years of age who
participates in an act of oral copulation with another person
who is under 16 years of age is guilty of a felony, except as
provided in provisions of law related to lewd and lascivious
conduct with minors under the age of 14. (Pen. Code, § 288a,
subd. (b)(2).)
18)States, except as provided in provisions of law related to
lewd and lascivious conduct with minors under the age of 14,
any person who participates in an act of sexual penetration
with another person who is under 18 years of age shall be
punished by imprisonment in the state prison or in a county
jail for a period of not more than one year. (Pen. Code, §
289, subd. (h).)
19)States, except as provided in provisions of law related to
AB 832
Page E
lewd and lascivious conduct with minors under the age of 14,
any person over 21 years of age who participates in an act of
sexual penetration with another person who is under 16 years
of age shall be guilty of a felony. (Pen. Code, § 289, subd.
(i).)
20)Defines "sexual penetration" as the act of causing the
penetration, however slight, of the genital or anal opening of
any person or causing another person to so penetrate the
defendant's or another person's genital or anal opening for
the purpose of sexual arousal, gratification, or abuse by a
foreign object, substance, instrument, or device, or by any
unknown object. (Pen. Code, § 289, subd. (k)(1).)
21)States that any person who willfully and lewdly commits any
lewd or lascivious act, including any of the acts constituting
other crimes as provided, upon or with the body, or any part
or member thereof, of a child who is under the age of 14
years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that
person or the child, is guilty of a felony and shall be
punished by imprisonment in the state prison for three, six,
or eight years. (Pen. Code, § 288, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 832 creates
a clear, uniform, and non-discriminatory standard for mandated
reporters to follow when reporting instances of consensual
sexual expressions amongst minors. Clear and consistent
reporting requirements would ensure that reporters are more
confident and knowledgeable about what needs to be reported
and result in increased safety for our youth.
"AB 832 would treat all consensual sexual activity the same
way that sexual intercourse is treated for the purposes of
child abuse reporting. All activity that is exploitive or
AB 832
Page F
coercive in nature would remain a mandated report."
2)CANRA and Reportable Incidents of Sexual Assault: CANRA was
established in 1981 for the purpose of protecting children
from abuse and neglect. The law imposes a mandatory reporting
requirement on individuals whose professions bring them into
contact with children. These professionals are called
mandated reporters for purposes of CANRA. Whenever a mandated
reporter, in his or her professional capacity or within the
scope of his or her employment, has knowledge of or observes a
child whom the mandated reporter knows or reasonably suspects
has been the victim of child abuse or neglect.
A mandated reporter must report an incident of child abuse by
telephone to a police or sheriff's department or a county
probation or welfare department immediately or as soon as
practically possible, and then prepare and submit a written
follow up report within 36 hours of receiving the information
concerning the incident. A mandated reporter who fails to
report an incident of known or reasonably suspected child
abuse or neglect is guilty of a misdemeanor.
Under CANRA, child abuse includes sexual abuse. Not all sexual
conduct involving a minor constitutes sexual abuse requiring a
mandated reporter to report the incident. (Planned Parenthood
Affiliates v. Van de Kamp (1986) 181 Cal. App. 3d 245.) In
Planned Parenthood Affiliates, the petitioners sought to
enjoin implementation of CANRA following an opinion of the
Attorney General which held that the statute imposed on
professionals and others a duty to report any sexual activity
of minors under the age of 14 years as child abuse.
Petitioners claimed the law violated the constitutional right
to privacy of such minors and placed professionals in
circumstances in which they would be forced to choose between
compliance with the law and fidelity to their ethical duties
to preserve patients' confidential medical histories. (Id. at
pg. 257.)
In order to explore legislative intent behind CANRA, the court
AB 832
Page G
reviewed the Act in light of other statutes that relate to
sexual conduct by minors. Various statutes give minors the
right to consent to the prevention or treatment of pregnancy
(Fam. Code, § 6925, formerly Civ. Code, § 34.5); the right to
consent to treatment of sexually transmitted diseases (Fam.
Code, § 6926, formerly Civ. Code, § 34.8); and the right to
consent to treatment for rape or sexual assault (Fam. Code, §§
6927 and 6928, formerly Civ. Code, §§ 34.9 and 34.10).
Existing statutes also provide minors a privilege of medical
record confidentiality. (Civ. Code, §§ 56 et seq.) (Planned
Parenthood Affiliates, supra, 181 Cal. App. 3d at p. 269.)
The court found that an interpretation of the law that
requires mandated reporters, which include physicians and
counselors, to report all instances of sexual conduct by
minors, regardless of suspected child abuse, would
unjustifiably interfere with a minor's right to confidential
reproductive health care. (Id. at pp. 270-271.)
A part of the court's analysis also involved discussion of a
prior challenge to CANRA's inclusion of statutory rape as the
statute was written at the time. At the time, Penal Code
Section 261.5 prohibited any act of intercourse with an
unmarried woman under 18, regardless of whether the act is
voluntary. The California Supreme Court ordered the case
transferred to the First District Court of Appeal with
directions to issue the alternative writ of mandate, staying
operation and enforcement of the reporting law insofar as it
applied to conduct in violation of section 261.5. Shortly
thereafter, the Legislature deleted section 261.5 from the
CANRA statutes and concluded that "'[the] existing provisions
of law are causing the overreporting of various acts unrelated
to child abuse . . . creating a detrimental impact upon the
efforts of the Legislature to deal with the problem of child
abuse.'" (Planned Parenthood Affiliates, supra, 181 Cal. App.
3d at p. 272, citing the analysis by the Assembly Committee on
AB 832
Page H
Criminal Justice (May 9, 1981).) <1>
The court held that the legislative intent of CANRA was "to
allow the trained professional to determine an abusive from a
nonabusive situation. Instead of a blanket reporting
requirement of all activity of those under a certain age, the
professional can make a judgment whether a minor is having
voluntary relations or is being sexually abused." (Id. at p.
272.) The court found that, although Penal Code Section 288
(lewd and lascivious conduct with a minor under the age of 14)
is included in CANRA, the inclusion of this section did not
render all sexual conduct of such minors child abuse per se,
and that mature minors under 14 enjoyed the same presumptive
constitutional right to sexual privacy as adults. The court
reasoned that the CANRA "provisions contemplate criminal acts
of child abuse causing trauma to the victim; they do not
contemplate the voluntary sexual associations between young
children under the age of 14 who are not victims of a child
abuser and are not the subjects of sexual victimizations."
(Id. at p. 267.)
Therefore, the court concluded that "[t]he de facto voluntary
sexual conduct among minors under the age of 14 may be ill
advised, but it is not encompassed by section 288. The
inclusion of that statute in the reporting law does not
mandate reporting of such activity. (Id. at p. 276.)
Likewise, in 2013, the Department of Consumer Affairs (DCA)
evaluated the issue of whether CANRA requires practitioners to
report all conduct by minors that fall under the definition of
sodomy and oral copulation. Relying on case law, including
Planned Parenthood Affiliates v. Van de Kamp, supra, and the
legislative intent behind CANRA, DCA concluded that mandated
--------------------------
<1> CANRA's definition of "sexual assault" currently includes
statutory rape involving a person who is 21 years of age or
older with a minor who is under 16 years of age. (Pen. Code, §
11165.1, subd. (a); Pen. Code, § 261.5, subd. (d).) This was
added to the section by AB 327 (Havice), Chapter 83, Statutes of
1997.
AB 832
Page I
reporters are not required to report consensual sex between
minors of like age for any of the conduct listed as sexual
assault unless the practitioner reasonably suspects that the
conduct resulted from force, undue influence, coercion, or
other indicators of child abuse. Because sexual conduct of
minors that meet the definition of sodomy and oral copulation
must be treated the same as all other conduct listed in the
section (i.e. Penal Code Section 288), only instances
involving acts that are nonconsensual, abusive or involves
minors of disparate ages, conduct between minors and adults,
and situations where there are indicators of abuse.
Accordingly, DCA stated that it was not necessary to amend the
statute or remove sodomy or oral copulation from CANRA. (See
DCA, Memorandum on the Evaluation of CANRA Reform Proposal
Related to Reporting Consensual Sex Between Minors (Apr. 11,
2013).)
As stated in relevant case law and the DCA memo, mandated
reporters are not required to report all sexual conduct by
minors listed in the CANRA statutes under the definition of
"sexual assault." Rather, mandated reporters must use their
judgment in determining which situations may involve child
abuse. However, several mandated reporters have expressed
that the statute is confusing as written and may lead to
discrimination against minors who participate in sexual
conduct that is not covered by the statutory rape statute.
Thus, the intent of this bill is to specify in statute that
the reporting requirements under CANRA do not require mandated
reporters to report voluntary acts of sodomy, oral copulation
and sexual penetration between persons who are 16 years or
older and a person who is under 21 years of age, which mirrors
how the statute treats statutory rape between persons who are
16 years or older and a person who is under 21 years of age.
3)Argument in Support: According to Equality California,
"Mandated reporting law currently requires mandated reporters
to make a child abuse report anytime they reasonably believe
that a youth has been the victim of sexual assault or coerced
AB 832
Page J
into sexual activity in any way. AB 832 will not change that.
AB 832 simply proposes to amend the definition of sexual abuse
so that all sexual activity among young people is treated the
same under California's definition of child abuse and
reporting law.
"We support AB 832 because it will increase access to critical
preventive health and mental health care services for young
people; will allow reporters and child welfare to focus on
youth who truly are abused or at risk of abuse; and will
eliminate a law that has a discriminatory impact and is rooted
in discriminatory and outdated beliefs."
4)Argument in Opposition: According to the California District
Attorneys Association, "This bill would remove from the
definition of 'sexual assault' in the in the Child Abuse and
Neglect Reporting Act any consensual sodomy, oral copulation,
or sexual penetration between those 16 years or older and
under 21 years of age. In other words, mandated reporters
would not have to report suspected 'child abuse or neglect' as
provided in Penal Code section 11165.1 under the definition of
sexual assault unless that conduct is between a person who is
21 years of age or older and a minor who is under 16 years of
age.
"Consensual sexual conduct between a 16 year old and a 20 year
old is still a misdemeanor. We believe that removing that
category from the mandated reporter statute is bad policy.
The purpose of the Child Abuse and Neglect Reporting Act is to
protect children from abuse and neglect and to 'do whatever is
necessary to prevent psychological harm to the child victim.'
Removing this category from the Act goes against its very
purpose."
5)Related Legislation:
a) AB 1001 (Maienschein), would make it a misdemeanor to
impede or interfere with the making of a report of
suspected child abuse or neglect by a mandated reporter. AB
AB 832
Page K
1001 is being heard by the Committee today.
b) AB 1207 (Lopez), would require the Department of Social
Services to develop and disseminate information to
specified employees of child day care centers and home
licensees that care for children regarding the duties of
mandated reporters under CANRA.
c) SB 332 (Block) would authorize a mandated reporter to
make a report to a school district police department. SB
332 is pending hearing by the Senate Committee on Public
Safety.
d) SB 478 (Huff), would authorize, until January 1, 2021,
certain county welfare agencies to develop a pilot program
for Internet-based reporting of child abuse and neglect, as
specified. SB 478 is pending hearing by the Senate
Committee on Public Safety.
6)Prior Legislation: AB 1505 (Garcia), of the 2013-2014
Legislative Session, would have excluded from the definition
of reportable "sexual assault" under CANRA acts of sodomy or
oral copulation, unless the act involves either a person over
21 years of age or a minor under 16 years of age. AB 1505
failed passage in the Committee on Appropriations.
REGISTERED SUPPORT / OPPOSITION:
Support
American Association for Marriage and Family Therapy, California
Division
American Civil Liberties Union of California
California Public Defenders Association
Equality California
Gerry Grossman Seminars
National Center for Youth Law
AB 832
Page L
144 private individuals
Opposition
California District Attorneys Association
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744