BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 20, 2016


                           ASSEMBLY COMMITTEE ON EDUCATION


                              Patrick O'Donnell, Chair


          AB 2536  
          (Chau) - As Amended April 13, 2016


          SUBJECT:  Pupil discipline and instruction:  sexting


          SUMMARY:  Adds to the definition of bullying via an electronic  
          act "an act of sexting" and requires instruction on sexual  
          health to include information on sexting.  Specifically, this  
          bill:  


          1)Defines "sexting" as the dissemination of, or the solicitation  
            or incitement to disseminate, a photograph or other visual  
            recording by a pupil to another pupil or to school personnel  
            by means of an electronic act with the purpose or effect of  
            humiliating or harassing a pupil.  Specifies that a photograph  
            or other visual recording shall include the depiction of a  
            nude, semi-nude, or sexually explicit photograph or other  
            visual recording of a minor where the minor is identifiable  
            from the photograph, visual recording, or other electronic  
            act.  


          2)Specifies that "sexting" does not include a depiction,  
            portrayal, or image that has any serious literary, artistic,  
            educational, political, or scientific value or that involves  
            athletic events or school-sanctioned activities.









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          3)Requires sexual health education and HIV prevention education  
            to include information about sexting, including, but not  
            limited to, the following:


             a)   The legal consequences and penalties for sharing  
               sexually suggestive or explicit materials, including, but  
               not limited to, applicable federal and state statutes.
             b)   The nonlegal consequences of sharing sexually suggestive  
               or explicit materials, including, but not limited to, the  
               effect on relationships, loss of educational and employment  
               opportunities, and being barred or removed from school  
               programs and extracurricular activities.


             c)   The potential, based upon the unique characteristics of  
               cyberspace and the Internet, of long-term and unforeseen  
               consequences for sharing sexually suggestive or explicit  
               materials, and the importance of safe and responsible use  
               of technology in identifying and reducing unhealthy sexual  
               behaviors such as sexting.  


             d)   The possible connection between bullying and  
               cyber-bullying and pupils sharing sexually suggestive or  
               explicit materials.





          4)Defines "sexting" for the purpose of sexual health education  
            as sending or receiving sexually explicit messages, images, or  
            videos by means of an electronic communication.


          5)Finds and declares that the sending of sexually explicit  
            photographs, videos or messages is an increasingly prevalent  








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            issue among teenagers and expresses the intent of the  
            Legislature that a suspension or expulsion for sexting occurs  
            after school administrators first use other means of  
            corrections.  


          EXISTING LAW: 


          1)Provides that a pupil may be suspended or expelled for  
            committing any of a number of specified acts.  (Education Code  
            (EC) Sections 48900, 48900.2, 48900.3, 48900.4, 48900.7)

          2)Defines "bullying" to mean any severe or pervasive physical or  
            verbal act or conduct, including communications made in  
            writing or by means of an electronic act, and including one or  
            more acts committed by a pupil or group of pupils as defined  
            in EC Sections 48900.2, 48900.3, or 48900.4, directed toward  
            one or more pupils that has or can be reasonably predicted to  
            have the effect of one or more of the following:

             a)   Placing a reasonable pupil or pupils in fear of harm to  
               that pupil's or those pupils' person or property.   
             b)   Causing a reasonable pupil to experience a substantially  
               detrimental effect on his or her physical or mental health.
             c)   Causing a reasonable pupil to experience substantial  
               interference with his or her academic performance.
             d)   Causing a reasonable pupil to experience substantial  
               interference with his or her ability to participate in or  
               benefit from the services, activities, or privileges  
               provided by a school.  (EC 48900)

          3)Defines "electronic act" to mean the creation and transmission  
            of a communication, originated on or off the schoolsite, by  
            means of an electronic device, including, but not limited to,  
            a telephone, wireless telephone, or other wireless  
            communication device, computer, or pager, including, but not  
            limited to, any of the following:









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             a)   A message, text, sound, or image.
             b)   A post on a social network Internet Web site including,  
               but not limited to:
               i)     Posting to or creating a burn page.  "Burn page"  
                 means an Internet Web site created for the purpose of  
                 having one or more of the effects specified under the  
                 definition of bullying.
               ii)    Creating a credible impersonation of another actual  
                 pupil for the purpose of having one or more of the  
                 effects specified under the definition of bullying.  
                 "Credible impersonation" means to knowingly and without  
                 consent impersonate a pupil for the purpose of bullying  
                 the pupil and such that another pupil would reasonably  
                 believe, or has reasonably believed, that the pupil was  
                 or is the pupil who was impersonated.
               iii)   Creating a false profile for the purpose of having  
                 one or more of the effects specified under the definition  
                 of bullying. "False profile" means a profile of a  
                 fictitious pupil or a profile using the likeness or  
                 attributes of an actual pupil other than the pupil who  
                 created the false profile.  (EC 48900)

          4)Specifies that an electronic act shall not constitute  
            pervasive conduct solely on the basis that it has been  
            transmitted on the Internet or is currently posted on the  
            Internet.  (EC 48900)

          FISCAL EFFECT:  Unknown


          COMMENTS:  Under existing law, a principal or a superintendent  
          may suspend or recommend expulsion of a pupil for committing any  
          of a number of specified acts, including bullying and bullying  
          via an electronic act (cyberbullying).  "Bullying" is defined as  
          any severe or pervasive physical or verbal act or conduct,  
          including communications made in writing or by means of an  
          electronic act, and including one or more acts committed by a  
          pupil or group of pupils engaging in sexual harassment, hate  
          violence, harassment, threats, or intimidation, directed toward  








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          one or more pupils that has or can be reasonably predicted to  
          cause fear and have an impact on a student's physical and mental  
          health, academic performance, or a student's ability to  
          participate in school and school activities.  


          The author states, "A joint study by the National Campaign to  
          Prevent Teen and Unplanned Pregnancy, and CosmoGirl found that  
          20% of teens (ages 13-19) and 33% of young adults (ages 20-26)  
          had shared a nude or semi-nude picture by text or online  
          posting.  Teen girls were slightly more likely to do so than  
          boys, and 11% of young teen girls (ages 13-16) said they had  
          sent suggestive photos of themselves.  While some view sexting  
          as a new norm of adolescent sexuality, the act itself exposes  
          teens to acts of bullying or harassment when their intimate  
          images are taken without their knowledge or disseminated without  
          their consent.  Unfortunately, some teenagers have committed  
          suicide because of the effect of sexting."


          Harassment, discrimination, intimidation and bullying can create  
          a school climate of fear and disrespect that can result in  
          conditions that negatively affect learning. What may start out  
          as consensual may turn into bullying if an image is shared by  
          one party or if a third party shares a private image.  This  
          occurred in 2009, when an Ohio teen hanged herself after being  
          harassed by classmates who circulated a nude photo she had sent  
          to a boyfriend.  In a similar situation in late 2009, a  
          13-year-old girl in Florida also hanged herself after being  
          bullied and harassed when a topless photo of herself she sent to  
          a boy was spread by another girl to others within her own school  
          and to nearly schools.  Both girls reported being called names  
          and taunted by classmates. In Newtown, Connecticut, three  
          students were arrested in January and accused of involvement in  
          a sexting ring.  Sexually explicit images and videos of other  
          students were circulated, sometimes for money.  CNN reported  
          that law enforcement credited school officials for their quick  
          action that contained the spread of explicit media.      









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          Sending a nude image in and of itself may have legal  
          implications, but does not necessarily constitute an action  
          leading to suspense or expulsion.  Under current law and the  
          definition established by the bill, the sharing of an image is  
          one that is intended or leads to harassment that affects a  
          student's ability to engage in school.           


          Is sexting already covered under bullying by means of an  
          electronic act?  Current law defines "bullying" as one or more  
          acts by a pupil or group of pupils engaging in sexual  
          harassment, hate violence, harassment, threats, or intimidation.  
           Bullying via an "electronic act is the transmission of a  
          communication, including, but not limited to, a message, text,  
          sound, or image by means of an electronic device, including, but  
          not limited to, a telephone, wireless telephone or other  
          wireless communication device, computer, or pager.  Sexting is a  
          form of cyberbullying that is already covered by existing law.   
          What this bill does is to establish a definition for sexting.   
          This provision is substantially similar to SB 919 (Lieu),  
          introduced in 2011.  The bill passed the Senate and this  
          Committee with no "No" votes and was later held in the Assembly  
          Appropriations Committee suspense file.


          Is sexting solely texting?  While the term "sexting" is  
          generally understood as the dissemination of images through  
          "texting," by placing the provision in the bullying section,  
          sexting will include dissemination through any electronic act.  




          Sexual health education.  This bill also requires schools to  
          provide information about the dangers of sexting.   A March 13,  
          2016 letter to parents from Los Angeles County Sheriff Jim  
          McDonnell highlight the potential dangers of sexting, warning  
          parents that "an act of love" for a boyfriend or girlfriend  








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          often end up on the Internet or in the hands of child predators.  
           He states, "Our youth need public figures and parents to work  
          together and provide information to our families about the  
          high-risk consequences of inappropriate photo sharing."  The  
          letter further states, "Parents should also understand the legal  
          jeopardy for teens sending nude photos over the Internet or  
          cellular device.  Directing someone to make, send, or possess  
          these photos is both a federal and state crime."  This bill  
          incorporates the dangers of sexting, including legal and  
          nonlegal consequences, unforeseen consequences of sharing  
          sexually suggestive or explicit materials, and the possible  
          connection between bullying and cyberbullying and pupils sharing  
          sexually suggestive or explicit materials, in sexual health and  
          HIV prevention education.  




          The definition for sexting established in the health education  
          section differs from the definition established in the  
          suspension/expulsion section.  Staff recommends changing the  
          definition of sexting in the health education section to be  
          consistent with the definition in the suspension/expulsion  
          section.




          Opposition of the bill state that they oppose "expansion of the  
          Education Code to punish and exclude a student because  
          exclusionary methods of school discipline are ineffective."   
          They believe that schools should focus instead on alternative  
          methods of discipline that are less punitive in order to change  
          behaviors, such as restorative justice practices.  Current law,  
          under Education Code 48900.5, already requires suspensions to  
          occur only after alternative corrections have been attempted.   
          This bill does not change that.          










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          Related legislation.  AB 329 (Weber), Chapter 398, Statutes of  
          2015, requires schools to provide comprehensive sexual health  
          education in grades 7-12, and modifies the currently required  
          components of sexual health education and HIV/AIDS prevention  
          education.


          Prior related legislation.  AB 256 (Garcia), Chapter 700,  
          Statutes of 2013, specifies, for the purposes of pupil  
          suspensions and expulsions, that bullying via an "electronic  
          act" means the creation and the transmission of a communication  
          by means of an electronic device, as specified, that was  
          originated on or off the schoolsite.


          AB 1732 (Campos), Chapter 157, Statutes of 2012, specifies that  
          bullying via an electronic act using a post on a social network  
          Internet Web site includes a posting to or creating a burn page,  
          creating a credible impersonation of another actual person, and  
          creating a false profile.  


          AB 746 (Campos), Chapter 72, Statutes of 2011, expands the  
          definition of bullying by means of an electronic act to include  
          a post on a social network Internet Web site.


          AB 1156 (Eng), Chapter 732, Statutes of 2011, authorizes  
          training in the prevention of bullying, gives priority for  
          interdistrict transfers to victims of bullying, and revises the  
          definition of bullying.


          SB 919 (Lieu), held in the Assembly Appropriations Committee  
          suspense file in 2011, would have added sexting as an act for  
          which a pupil may be suspended or expelled.









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          REGISTERED SUPPORT / OPPOSITION:




          Support




          None on file




          Opposition


          American Civil Liberties Union


          Anti-Defamation League


          East Bay Community Law Center


          Equal Justice Society


          Gay-Straight Alliance Network


          Lawyers' Committee for Civil Rights of the San Francisco Bay  
          Area








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          Legal Services for Children


          Los Angeles LGBT Center


          Public Counsel


          Restorative Schools Vision Project







          Analysis Prepared by:Sophia Kwong Kim / ED. / (916) 319-2087