BILL ANALYSIS Ó
AB 2536
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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