BILL ANALYSIS Ó AB 2536 Page 1 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. AB 2536 Page 2 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 AB 2536 Page 3 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: AB 2536 Page 4 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 AB 2536 Page 5 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. AB 2536 Page 6 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 AB 2536 Page 7 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. AB 2536 Page 8 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. AB 2536 Page 9 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 AB 2536 Page 10 Legal Services for Children Los Angeles LGBT Center Public Counsel Restorative Schools Vision Project Analysis Prepared by:Sophia Kwong Kim / ED. / (916) 319-2087