BILL ANALYSIS Ó
AB 2569
Page A
Date of Hearing: April 19, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2569 (Melendez) - As Introduced February 19, 2016
SUMMARY: Eliminates the authorization for an offender who
commits a specified sexual offense against a victim who is the
child, stepchild, sibling, or grandchild of the offender (the
"interfamilial exemption") from being eligible for exclusion
from the Megan's Law Website. Specifically, this bill:
1)Eliminates the opportunity for an offender who has been
convicted of the commission or attempted commission of felony
sexual battery, misdemeanor child molestation, or other
specified sexual offenses, to apply to the Department of
Justice (DOJ) for exclusion from the Megan's Law Website.
2)Prevents an offender who has been convicted of the commission
or attempted commission of an offense for which the offender
is on probation at the time of his or her application or has
successfully completed probation, from applying for exclusion
from the Megan's Law Website if he or she submits a certified
copy of an official court document, as specified, that clearly
demonstrates that the offender was the victim's parent,
stepparent, sibling, or grandparent, and the crime did not
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involve specified sexual offenses.
EXISTING LAW:
1)Provides that an offender may apply for an interfamilial
exclusion if they were convicted of specified offenses, submit
proper paperwork, and clearly demonstrate that they are the
victim's parent, stepparent, sibling, or grandparent, and the
offense did not involve oral copulation or sexual penetration,
as specified. Clarifies that if subsequent to the application
for interfamilial exclusion, the offender commits a violation
of probation resulting in his or her incarceration in county
jail or state prison, his or her exclusion, or application for
exclusion, from the Megan's Law Website shall be terminated.
Additionally requires that for the application to be granted,
the offender must have a State Authorized Risk Assessment Tool
for Sex Offenders (SARATSO) showing a risk of re-offense of
low to low-moderate. (Pen. Code § 290.46.)
2)Requires persons convicted of specified sex offenses to
register for life, or reregister if the person has been
previously registered, upon release from incarceration,
placement, commitment, or release on probation. States that
the registration shall consist of all of the following (Pen.
Code, § 290.015, subd. (a).):
a) A statement signed in writing by the person, giving
information as shall be required by DOJ and giving the name
and address of the person's employer, and the address of
the person's place of employment, if different from the
employer's main address;
b) Fingerprints and a current photograph taken by the
registering official;
c) The license plate number of any vehicle owned by,
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regularly driven by or registered in the name of the
registrant;
d) Notice to the person that he or she may have a duty to
register in any other state where he or she may relocate;
and,
e) Copies of adequate proof of residence, such as a
California driver's license or identification card, recent
rent or utility receipt or any other information that the
registering official believes is reliable.
3)States every person who is required to register, as specified,
who is living as a transient shall be required to register for
the rest of his or her life as follows:
a) He or she shall register, or reregister if the person
has previously registered, within five working days from
release from incarceration, placement or commitment, or
release on probation, pursuant to Penal Code Section
290(b), except that if the person previously registered as
a transient less than 30 days from the date of his or her
release from incarceration, he or she does not need to
reregister as a transient until his or her next required
30-day update of registration. If a transient is not
physically present in any one jurisdiction for five
consecutive working days, he or she shall register in the
jurisdiction in which he or she is physically present on
the fifth working day following release, as specified.
Beginning on or before the 30th day following initial
registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall
register with the chief of police of the city in which he
or she is physically present within that 30-day period, or
the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no
police department, and additionally, with the chief of
police of a campus of the University of California, the
California State University, or community college if he or
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she is physically present upon the campus or in any of its
facilities. A transient shall reregister no less than once
every 30 days regardless of the length of time he or she
has been physically present in the particular jurisdiction
in which he or she reregisters. If a transient fails to
reregister within any 30-day period, he or she may be
prosecuted in any jurisdiction in which he or she is
physically present.
b) A transient who moves to a residence shall have five
working days within which to register at that address, in
accordance with Penal Code Section 290(b). A person
registered at a residence address in accordance with that
provision who becomes transient shall have five working
days within which to reregister as a transient in
accordance with existing law.
c) Beginning on his or her first birthday following
registration, a transient shall register annually, within
five working days of his or her birthday, to update his or
her registration with the entities described in existing
law. A transient shall register in whichever jurisdiction
he or she is physically present on that date. At the 30-day
updates and the annual update, a transient shall provide
current information as required on the DOJ annual update
form, including the information.
d) A transient shall, upon registration and
re-registration, provide current information as required on
the DOJ registration forms, and shall also list the places
where he or she sleeps, eats, works, frequents, and engages
in leisure activities. If a transient changes or adds to
the places listed on the form during the 30-day period, he
or she does not need to report the new place or places
until the next required re-registration. (Pen. Code, §
290.011, subds. (a) to (d).)
4)Provides that willful violation of any part of the
registration requirements constitutes a misdemeanor if the
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offense requiring registration was a misdemeanor, and
constitutes a felony of the offense requiring registration was
a felony or if the person has a prior conviction of failing to
register. (Pen. Code, § 290.018, subds. (a)&(b).)
5)Provides that within three days thereafter, the registering
law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the DOJ. (Pen. Code § 290.015, subd. (b).)
6)States that a misdemeanor failure to register shall be
punishable by imprisonment in a county jail not exceeding one
year, and a felony failure to register shall be punishable in
the state prison for 16 months, two or three years. (Pen.
Code, § 290.018, subds. (a)&(b).)
7)Provides that the DOJ shall make available information
concerning persons who are required to register as a sex
offender to the public via an internet website. The DOJ shall
update the website on an ongoing basis. Victim information
shall be excluded from the website. (Pen. Code § 290.46.)
The information provided on the website is dependent upon what
offenses the person has been convicted of, but generally
includes identifying information and a photograph of the
registrant.
8)Generally prevents the use of the information on the Web Site
from being used in relation to the following areas: (Pen.
Code, § 290.46, subd. (l)(2).)
a) Health insurance;
b) Insurance;
c) Loans;
d) Credit;
e) Employment;
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f) Education, scholarships, or fellowships;
g) Housing or accommodations; and
h) Benefits, privileges, or services provided by any
business establishment.
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "As statistics
show, the most common sex crimes committed against children
are committed by a family member, someone the child knows and
trusts. Since 2011, over 1000 sex offenders have been
excluded from the Megan's Law website with nearly half of
those exclusions being from the family member exemption. The
intent of Megan's Law is to provide the public with the
information on the whereabouts of sex offenders so communities
may protect themselves and their children. If the intent of
Megan's Law is to protect the public against sex offenders,
yet we are allowing the exclusion of people who are committing
sex crimes against their own kin; then the intent of Megan's
Law is not being met under the current law. We cannot
continue to keep sexual predators and pedophiles hidden from
the public. It heavily contradicts the main purpose of
Megan's Law: to keep families safe."
2)Sex Offender Registration and the Megan's Law Website:
According to a 2014 report by the California Sex Offender
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Management Board<1>, the intent of registration was to assist
law enforcement in tracking and monitoring sex offenders since
they were viewed as the group most likely to commit another
sex offense. It was thought that having their names and
addresses known to law enforcement and with the expansion of
community notification also available to the public would
dissuade them from committing a new offense, enable members of
the public to exercise caution around them, enable law
enforcement to monitor them and, if necessary, solve new sex
offense cases more readily. Although research suggests that
use of a registry may help law enforcement solve sex crimes
against children involving strangers more quickly, United
States DOJ statistics tell us that most crimes against
children (about 93%) are committed not by a stranger but by a
person known to the child and his or her family, usually an
acquaintance or family member.
Since 1947, earlier by far than any other state, California
has required "universal lifetime" registration for persons
convicted of most sex crimes. (Pen. Code, § 290.) Though every
other state has instituted some form of registration since
then, California is among only four states which require
lifetime registration for every convicted sex offender, no
matter the nature of the crime or the level of risk for
reoffending. Almost all other states use some version of a
"tiering" or "level" system which: 1. recognizes that not all
sex offenders are the same, 2. provides meaningful
distinctions between different types of offenders and 3.
requires registration at varying levels and for various
periods of time. There are nearly 100,000 registrants today
in California, a number accumulated over the past 66 years
since the Registry was created in 1947. In 2004 California
began to provide pictures and other identifying information on
the Megan's Law website for about 80% of registrants.
( www.meganslaw.ca.gov )
--------------------------
<1>
http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Backgroun
d%20Paper%20FINAL%20FINAL%204-2-14.pdf
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There are about 98,000 registered sex offenders on
California's registry. About 76,000 live in California
communities and the other 22,000 are currently in custody. Of
these offenders, 80% are posted on the state's Megan's Law web
site with their full address or ZIP Code and other
information, depending upon the offense they committed. About
20% are not posted or are excluded from posting on the web
site by law, again depending on the conviction offense.
Posting on the web site does not take into account years in
the community without reoffending, the offender's risk level
for committing a new sexual or violent crime, or successful
completion of treatment. About one-third of registered
offenders are considered "moderate to high risk" while the
remaining two-thirds are "moderate to low risk" or "low risk."
Local police departments and sheriff's offices are charged
with managing the registration process. Registered sex
offenders must re-register annually on their birthdays as well
as every time they have a change of address. Transient sex
offenders re-register every 30 days and sexually violent
predators every 90 days. Registration information collected by
law enforcement is sent to the California Department of
Justice (DOJ) and stored in the California Sex and Arson
Registry. If an offender's information is posted online and
he fails to register or re-register on time, he will be shown
as "in violation" on the Megan's Law web site. When proof is
provided by local law enforcement to DOJ of a registrant's
death, he or she is removed from the registry. Every ten
years since the Registry was first established has been marked
by a dramatic increase in the number of registrants.
As noted above, the original goal of registration was to
assist law enforcement in tracking and monitoring sex
offenders. Over time, registration was expanded to include
community notification and also began to encompass a wider
variety of crimes and behaviors. Due to these changes,
research has focused on exploring the changes in sex 4 CASOMB
"Tiering Background Paper" offender registration laws and this
has resulted in a constantly growing body of research that has
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altered the perspective on sex offender registration. This
research has made it clear that:
The sexual recidivism rate of identified sex
offenders is lower than the recidivism rate of
individuals who have committed any other type of crime
except for murder.
Not all sex offenders are at equal risk to reoffend.
Low risk offenders reoffend at low rates, high risk
offenders at much higher rates.
It is possible to use well-researched actuarial risk
assessment instruments to assign offenders to groups
according to risk level. (i.e. Low, Medium, High.)
Risk of a new sex offense drops each year the
offender remains offense-free in the community.
Eventually, for many offenders, the risk becomes so low
as to be meaningless and the identification of these
individuals through a registry becomes unhelpful due to
the sheer numbers on the registry. Research has
identified differing time frames of decreased risk for
the various categories of offenders (i.e. low, medium,
high).
Research on both general and sexual offenders has
consistently indicated that focusing on higher risk
offenders delivers the greatest return on efforts to
reduce reoffending.
Completing a properly designed and delivered specialized sex
offender treatment program delivered within the context of
effective supervision reduces recidivism risk even further. In
California, all registered sex offenders on parole or
probation are now required by state law to enter and complete
such a program.
1)The Current Sex Offender Registration System and Megan's Law
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Website has Become too Unwieldy to be Effective for Law
Enforcement: Again, according to California's Sex Offender
Management Board, there are a number of problems with the
current system as a result of adding too many low-risk sex
offenders. California's system of lifetime registration for
all convicted sex offenders has created a registry that is
very large and that includes many individuals who do not
necessarily pose a risk to the community. The consequences of
these realities are that the registry has, in some ways,
become counterproductive to improving public safety. When
everyone is viewed as posing a significant risk, the ability
for law enforcement and the community to differentiate between
who is truly high risk and more likely to reoffend becomes
impossible. There needs to be a way for all persons to
distinguish between sex offenders who require increased
monitoring, attention and resources and those who are unlikely
to reoffend.
There are many unintended consequences and indirect costs
associated with sex offender registration.
Innocent families and children of offenders
(including victims of intra-familial sexual abuse)
also bear the consequences of lifetime registration
since they can often be identified by the public.
Adverse consequences also arise for employers,
landlords, neighbors and others.
There has been a proliferation of residence
restrictions and exclusion zones for registered sex
offenders in many jurisdictions in California.
Violation of these can lead to criminal charges. The
obstacles posed by registration status prevent many
individuals from obtaining housing or employment and
becoming functioning, contributing, tax-paying members
of society.
There is reason to believe that registration
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policies, especially lifetime registration, keep some
victims, particularly family members of the offender,
from disclosing the abuse because they wish to avoid
the stigma that will impact their family and their own
lives for a very long time.
The presence nearby of one or more registered
sex offenders can drive down property values in a
neighborhood and make houses difficult to sell. If
the current registration system was effective in the
ways intended, these might be considered part of the
price to pay for the greater good. But, since the
current registry does not attain its intended
purposes, many of these unintended consequences are
without justification.
1)AB 1323 (Vargas) Created the Interfamilial Exemption from the
Megan's Law Website to Protect Victims of Sex Offenses from
Public Disclosure: AB 1323 (Vargas), Chapter 722 of the
Statutes of 2005 was a cleanup bill which was passed the year
after Megan's Law which was instituted in California as AB 488
(Para), Chapter 745 of the Statutes of 2004. According to
background information supplied by the author of AB 1323
(Vargas), as well as information provided by the California
Department of Justice at the time, the interfamilial exemption
was provided to protect the identity of minor victims of
interfamilial molestation. The publishing of the
perpetrator's name, offense, address, and photograph on the
Megan's Law website would also provide information to the
community that a reasonable person would piece together and
disclose the fact that a minor was in fact a victim of
molestation. At the time, the bill was supported by the
California State Sheriff's Association, the California
Probation Parole and Correctional Association, California
District Attorneys Association, and the San Bernardino County
Sheriff.
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The bill proponents argue that offenders can relocate and
reside with another family and might perpetrate the same crime
on an unknowing victim. Additionally, they argue that parents
of a friend of the minor victim are unable to check the
Megan's Law website to determine if their children are at risk
when they go and spend time at the house of a potential
offender. Opponents state that while some family members may
want to see the abuser posted online, many do not. Most
family members who offend against another family member
maintain some type of relationship with the victim and family
and may even reunify. Posting the name of the offender online
can disclose the victim's identity and/or cause continuing
embarrassment to the victim and whole family-not just the
abuser. The law was already amended as a part of Chelsea's
law, by the Department of Justice, to provide that DOJ can
only exclude offenders who are low and low-moderate risk, but
must post moderate-high risk and high risk offenders.
Interfamilial exempted offenders are registered as sex
offenders, however their identities are not posted on the
Megan's Law website. As a result, law enforcement has the
mandated requirements for monitoring the offenders without the
public disclosure of their identity. As stated previously,
the reason for the non-disclosure of the offender's identity
is to protect the identity of the victim.
2)Only Low to Low-Moderate Risk Offenders may be Granted an
Interfamilial Exemption: California passed Chelsea's Law in
2010 in the form of AB 1844 (Fletcher), Chapter 219, Statutes
of 2010. As a part of Chelsea's law the state adopted the
State Authorized Risk Assessment Tool for Sex Offenders
(SARATSO). SARATSO utilizes evidence-based practices to
measure the risk of re-offense of a particular offender.
Chelsea's Law imposed the following additional requirement on
persons applying for an interfamilial exclusion from the
Megan's Law website:
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"No person shall be excluded pursuant to this subdivision
unless the offender has submitted to the department
documentation sufficient for the department to determine
that he or she has a SARATSO risk level of low or
moderate-low." (Pen. Code § 290.46, subd. (e)(4).)
The term SARATSO refers to evidence-based, state authorized
risk assessment tools used for evaluating sex offenders. State
law established the SARATSO (State Authorized Risk Assessment
Tool for Sex Offenders) Review Committee, to consider the
selection of the risk assessment tools for California.
Research shows that the most accurate way of predicting
whether a sex offender will reoffend is by utilizing a
validated risk assessment instrument.
A collaborative approach to sex offender management, known as
the Containment Model, is used in California. Communication
and collaboration among the supervising officer, treatment
provider, and polygraph examiner are the heart of this model,
which relies on ongoing communication about risk.
In September 2013 the SARATSO Committee selected a new dynamic
risk tool, the Stable-2007/Acute-2007. Certified treatment
providers must continue to use the previous dynamic
instrument, the SRA-FVL, until being trained by a
SARATSO-approved trainer in 2013-2014 on the
Stable-2007/Acute-2007.
3)Suggested Amendment: The committee has suggested an amendment
that would balance a potential middle-ground between the
public's right to know and a victim's right to not be "outed"
as a victim of molestation. The committee has suggested that
rather than eliminating the interfamilial exemption
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completely, that:
Pen. Code § 290.46 require that the Department of Justice
Office of Victim Assistance must speak to the victim prior
to the granting of an exemption to determine if the
granting of the exemption is in the best interest of the
victim.
4)Contrary to the Thinking of the California Sex Offender
Management Board: On September 20, 2006, Governor Arnold
Schwarzenegger signed Assembly Bill 1015, which created the
California Sex Offender Management Board. AB 1015 had been
introduced by Assembly Members Judy Chu and Todd Spitzer and
passed the California Legislature with nearly unanimous
bipartisan support.
Because California is the most populated state in the Union and
has had lifetime registration for its convicted sex offenders
since 1947, California has more registered sex offenders than
any other state with about 88,000 identified sex offenders
(per DOJ, August 2007). Currently, the California Department
of Corrections and Rehabilitation (CDCR) supervises about
10,000 of those 88,000 sex offenders, of which about 3,200
have been designated as "high-risk sex offenders". (CDCR
Housing Summit, March 2007). Additionally, there are about
22,500 adult sex offenders serving time in one of 32 state
prisons operated by CDCR (California Sex Offender Management
Task Force Report, July 2007).
According to the Sex Offender Management Board, "Innocent
families and children of offenders (including victims of
intra-familial sexual abuse) also bear the consequences of
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lifetime registration since they can often be identified by
the public. Adverse consequences also arise for employers,
landlords, neighbors and others." California Sex Offender
Management Board (2014). A Better Path to Community Safety.
Available at:
( http://www.casomb.org/docs/Tiering%20Background%20Paper%20FINA
L%20FINAL%204-2-14.pdf).
5)Argument in Support: According to United Advocates for
Children and Families, "AB 2569 is aimed at addressing a
critical component missing in Megan's Law. Our statewide
Parent Partner Coalition supports AB 2569. Some of our members
have first-hand experience with a relative sexually abusing
our children. It compounds the hurt and trauma when that
person is excluded from registering as a sex offender and may
go on to hurt other family members. Many family members are to
shamed or afraid to let other family members know what
happened. According to the 'National Center for Victims of
Crime' (http://www.victimsofcrime.org) , "People who sexually
abuse children usually know the victims before making sexual
contact; Abusers can be anyone, even someone the victim used
to look up to, like, or trust, such as a neighbor, babysitter,
friend, or member of the family or household.
"About 90% of children who are victims of abuse know their
abuser. Only 10% of sexually abused children are abused by a
stranger. Approximately 30% of children who are sexually
abused are abused by family members. ( http://www.d2l.org/ ).
"Familial abuse effects the whole family for a longer time
because the abuser is often still around the family and victim
and becomes the 'secret' in the family. This causes discord
and suspicion within the family and extended family and the
victim is traumatized over and over again. We will continue to
support AB 2569."
6)Argument in Opposition: According to American Civil Liberties
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Union, "AB 2569, is a bill that seeks to eliminate the
authority for the Department of Justice to exclude a person on
the sex offender registry from disclosure of their information
on the internet if the person is a parent, stepparent, sibling
or grandparent of the victim, and specific criteria have been
met. While it may seem counter-intuitive, the purpose of this
provision is to protect the privacy and welfare of victims,
particularly minor victims, and it should not be eliminated.
"Under current law, a person who is required to register as a
sex offender may petition the Department of Justice to exclude
their personal information from posting on the internet if all
of the following conditions are met:
1) The person is the parent, stepparent, sibling or
grandparent of the victim;
2) The person has completed probation or is on probation,
meaning that he or she was not sentenced to state prison;
3) The offense did not involve oral copulation or
penetration of the genitals; and
4) The person has submitted "documentation sufficient for
the department to determine that he or she has a SARATSO
risk level of low or moderate-low."(Pen. Code sec.
290.46(e)(2)(D) and Pen. Code sec. 290.46(e)(4).)
"AB 2569 seeks to eliminate these provisions, thereby forcing
the public posting on the internet of offenders who meet these
criteria.
"The purpose of this exemption is to protect the privacy and
welfare of the victim, particularly minor victims, in these
cases. When the offender is a close family member -
specifically a parent, stepparent, sibling or grandparent -
public disclosure of information about the offender may result
in the disclosure of the identity of the victim. It is
important to note the very narrow set of offenders to whom this
exemption applies: those who have been granted probation, and
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thus not sentenced to state prison; who have committed offenses
involving only touching, not oral copulation or penetration;
and who have a low or moderate-low risk level. Together, these
criteria limit this posting exemption to the most low-level of
offenses between very close family members. In these
circumstances, it is highly likely that the offender and victim
continue to have a relationship. They may in fact live in the
same home, or the victim may regularly visit the home of the
offender.
"In these situations, exempting the offender's information from
public posting on the internet is necessary to protect the
privacy and welfare of the victim. If people know that your
sibling, parent or grandparent has been convicted of a sex
offense, you will likely face uncomfortable questions from
friends, acquaintances and even strangers.<2> Worse yet, you
could become the target of harassment for having a close family
member on the sex offender list and/or may be impacted by
harassment aimed at your family member, particularly if you
live in the same home. These problems already exist even with
the current exemption. A recent report of the California Sex
Offender Management Board states:
"Innocent families and children of offenders (including
victims of intra-familial sexual abuse) also bear the
consequences of lifetime registration since they can often be
identified by the public. Adverse consequences also arise for
employers, landlords, neighbors and others. . . .
"There is reason to believe that registration policies,
especially lifetime registration, keep some victims,
particularly family members of the offender, from disclosing
the abuse because they wish to avoid the stigma that will
impact their family and their own lives for a very long
---------------------------
---------------------------
<2> Levenson, J. S., & Tewksbury, R. (2009). Collateral damage:
Family members of registered sex offenders. American Journal of
Criminal Justice. Available at:
http://ilvoices.com/media/ea99d28960ec776bffff84beffffe415.pdf
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time.<3>
"Eliminating the existing exemption will make these problems
worse.
"The current exemption is narrowly tailored to a very limited
class of offenders who have committed the lowest level of
offense, who are at low risk of reoffending, and who have been
deemed appropriate for a grant of probation. If a person does
not meet all of these criteria, then their information will be
disclosed. The current exemption thus appropriately balances
the need for public safety with the need to protect the
privacy and welfare of the victim. For these reasons, we must
oppose AB 2569."
1)Prior Legislation:
a) AB 1844 (Fletcher), Chapter 219, Statutes of 2010, known
as Chelsea's Law, specified that the only people eligible
for an interfamilial exemption are those who can provide
evidence that they are low risk or low-moderate risk on a
SARATSO risk assessment.
b) AB 1323 (Vargas), Chapter 722 of the Statutes of 2005
was a cleanup bill which was passed the year after Megan's
Law which created the interfamilial exemption for the
protection of public disclosure of victims who suffered
molestation by immediately family members.
c) AB 488 (Para), Chapter 745 of the Statutes of 2004,
created the Megan's Law website.
--------------------------
<3>California Sex Offender Management Board (2014). A Better
Path to Community Safety. Available at:
http://www.casomb.org/docs/Tiering%20Background%20Paper%20FINAL%2
0FINAL%204-2-14.pdf
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REGISTERED SUPPORT / OPPOSITION:
Support
California Alliance of Child and Family Services
California Protective Parents Association
City of Hemet
City of Murrieta
Crime Victims United of California
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Incest Survivors Speakers Bureau of California
National Organization for Women of California
Stand! For Families Free of Violence
United Advocates for Children and Families
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Civil Liberties Advocacy
California Public Defenders Association
California Reform Sex Offender Laws
Legal Services for Prisoners with Children
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744
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