BILL ANALYSIS Ó
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CONCURRENCE IN SENATE AMENDMENTS
AB
1682 (Mark Stone)
As Amended August 10, 2016
Majority vote
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|ASSEMBLY: | 76-0 | (April 14, |SENATE: | 38-0 |(August 16, |
| | |2016) | | |2016) |
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Original Committee Reference: JUD.
SUMMARY: Prohibits the secret settlement of childhood sexual
abuse and exploitation cases, as well as felony sex abuse cases,
as a matter of public policy. Specifically, this bill:
1)Expands the type of civil actions which cannot be the subject
of secret settlements to include not only acts that may be
prosecuted as felony sex offenses, but also the following:
a) An act of childhood sexual abuse, as defined in Penal
Code (PC) Section 340.1.
b) An act of sexual exploitation of a minor, as defined in
PC Section 11165.1, or conduct prohibited with respect to a
minor pursuant to PC Sections 311.1, 311.5, or 311.6.
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2)Corrects a cross-referencing error to the definition of
"personal identifying information" in existing law which
should refer to PC Section 530.55, rather than PC 530.5.
The Senate amendments:
1)Add sexual assault of an elder or dependent adult to the list
of offenses for which confidential settlements are prohibited
as against public policy.
2)Make other minor and clarifying changes.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: As a general rule, settlement agreements are useful
tools in civil litigation. They have been called the grease
that keeps the wheels of the civil justice system moving.
Settlements encourage timely resolution of claims and help the
parties avoid the expense of trial. Confidentiality provisions
within settlement agreements help parties avoid the trauma and
embarrassment of participating in a public trial.
However, a strong public policy argument can be made that secret
settlements are inappropriate in some cases, specifically
matters of concern to the public because they involve
particularly vulnerable victims, highly dangerous behavior, or
especially egregious conduct.
Some legal experts say that the usual rationales and
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incentives cited in support of secret settlements do
not fit priest abuse cases well. The victims were
generally children, who ought to receive special
protection; the abusers were often repeat offenders,
who should have been stopped; and criminal prosecution
of the priests was made all but impossible given the
central importance of the victim's testimony in rape
and other sexual abuse cases.
Prof. Stephen Gillers, who teaches legal ethics at New
York University Law School, says that the arguments
made against secret settlements in cases involving
widespread harm, called mass torts by lawyers, apply
with equal strength in this new setting. "Certain
kinds of harm are so serious," he says, "whether it's
criminal conduct by priests or exploding kitchen
appliances, that we should not let plaintiffs agree to
confidentiality." (Liptak, Adam. A Case that Grew in
Shadows, The New York Times, March 24, 2002.)
Nevertheless, confidentiality provisions are commonly included
in civil settlements. According to a number of sources, such
provisions were standard in dozens, if not hundreds, of
settlements of sexual abuse claims against priests around the
country, including in California. According to
Bishopaccountability.org, a group that tracks civil actions and
settlement of clergy sex abuse cases, there have been
"settlements involving 5,679 persons who allege sexual abuse by
Catholic clergy. These survivors are only one-third of the
15,235 allegations that the bishops say they have received
through 2009, and they are only 5% of the 100,000 United States
(U.S.) victims...estimated in a 1993 study. Important as these
settlements are, they represent a minority of known cases, and a
tiny fraction of all the abuse perpetrated by Catholic clergy."
(http://www.bishop-accountability.org/settlements/) According
to one California law firm that specializes in clergy sexual
abuse cases, more than 800 complaints have been filed in
California against the Catholic Church since 2003 and the Church
has settled a small percentage of those cases for a combined
total of more than $450 million.
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(http://www.childmolestationvictims.com/california-catholic-clerg
y-sexual-abuse-information/) Despite headlines focusing on
abusive priests in the Catholic Church, secret settlements
involving childhood sexual abuse are by no means limited to the
Catholic Church. Other recent examples where secret settlements
have occurred include community youth service organizations;
foster parents; administrators of homes for the mentally
disabled; professional athletes; youth swim coaches; a college
football coach; and pop stars.
Existing law prohibits the secret settlement of certain civil
actions in which the public has a strong interest. Because of
strong public policy concerns, existing law makes confidential
settlements either disfavored or prohibited in certain cases.
For example, it is the policy of the State of California that
confidential settlement agreements are disfavored in any civil
action based upon a violation of the Elder Abuse and Dependent
Adult Civil Protection Act (EADACPA). Likewise, Code of Civil
Procedure (CCP) Section 1002 prohibits the confidential
settlement of a civil action based on "an act that may be
prosecuted as a felony sex offense."
According to the author, this latter provision leaves a
dangerous loophole in the law. Specifically, the author
observes that many sexual abuse and exploitation offenses that
victimize minors are not felonies, or can easily be
characterized as non-felonies. This problem is exacerbated by
the fact that many of the offenses that establish a factual
basis for these civil actions are never referred to law
enforcement and never reviewed by prosecutors to determine
whether felony charges are appropriate. Such settlements also
perpetuate a two-tiered criminal justice system in which only
those without financial means to pay for the silence of their
victims are prosecuted in the criminal courts. According to the
author, all cases of childhood sexual abuse should be publically
handled by the courts.
According to the National Center for Victims of Crime, 28% of
all U.S. youth aged 14 to 17 years are sexually abused over the
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course of their lifetime. By shielding cases of sexual abuse
and exploitation from the public and law enforcement, secret
settlements unfairly allow sexual offenders, with the financial
means, to pay for the silence of their victims, to escape
criminal prosecution and potentially abuse other children.
While confidentiality agreements may help to facilitate
settlements of individual claims, they also put the public at
risk by hiding sexual predators from law enforcement and the
public at large. In the case of clergy sex abuse cases,
confidentiality provisions largely prevented the prosecution of
pedophile priests as statutes of limitations for filing criminal
charges expired. They allowed the continuing abuse of children
as priests were moved from parish to parish within the U.S., and
sometimes to churches outside of the country.
The public arguably has such a strong interest in the
prosecution of individuals who commit acts of childhood sexual
abuse and exploitation, as well as cases of sexual abuse of
elder and dependent adults, that the ordinarily useful tool of
confidentiality provisions in settlement agreements should not
be allowed in civil actions based upon those acts. Like
offenses that can be charged as felony sex offenses or
violations of EADACPA, secret settlements of these claims could
endanger the public, including other potential victims, and
allow perpetrators to escape criminal prosecution just because
they have the financial means to pay the cost of settlements.
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0004236
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