BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2569 Hearing Date: June 28, 2016
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|Author: |Melendez |
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|Version: |May 27, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|AA |
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Subject: Registered Sex Offenders; Megan's Law
HISTORY
Source: Author
Prior Legislation:AB 1844 (Fletcher) - Ch. 219, Stats. of 2010
AB 1323 (Vargas) - Ch. 722, Stats. of 2005
AB 488 (Parra) - Ch. 745, Stats. of 2004
Support: California Alliance of Child and Family Services;
California National Organization for Women; California
Protective Parents Association; City of Hemet; City of
Murrieta; City of Richmond; Crime Victims United of
California; Incest Survivors' Speakers Bureau of
California; STAND! For Families Free of Violence;
United Advocates for Children of California
Opposition:California Attorneys for Criminal Justice; California
Civil Liberties Advocacy; California Public Defenders
Association; California Reform Sex Offender Laws;
Legal Services for Prisoners with Children; one
individual
Assembly Floor Vote: 78 - 0
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PURPOSE
The purpose of this bill is to provide that, before certain
intra-familial sex offenders who have been granted probation can
be excluded from public disclosure on Megan's Law, 1) they would
be required to have been on probation for at least one year, and
2) a local assistance center for victims and witnesses, as
specified, would be required to speak to the victim to determine
if granting the exemption would be in the best interest of the
victim.
Current law generally requires persons convicted of specified
sex offenses to register with law enforcement where they reside
for life, as specified. (Penal Code § 290 et seq.)
Current law generally requires that the Department of Justice
("DOJ") make available information concerning persons who are
required to register as a sex offender to the public via an
internet website, as specified. (Pen. Code § 290.46.)
Current law provides that persons required to register for
certain enumerated sex offenses may file an application with DOJ
for exclusion from the Internet Web site. "If the department
determines that the person meets the requirements of this
subdivision, the department shall grant the exclusion and no
information concerning the person shall be made available via
the Internet Web site described in this section. He or she bears
the burden of proving the facts that make him or her eligible
for exclusion from the Internet Web site. However, a person who
has filed for or been granted an exclusion from the Internet Web
site is not relieved of his or her duty to register as a sex
offender pursuant to Section 290 nor from any otherwise
applicable provision of law." (Penal Code § 290.46(e).) No
person may be excluded unless he or she is determined to have a
risk level of low or moderate low risk according to the State
Authorized Risk Assessment Tool for Sex Offenders (SARATSO).
(Penal Code § 290.46(e)(4).)
Current law authorizes this exemption for the following
offenses:
A. A felony violation of sexual battery (Penal Code §
243.4(a).)
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B. Misdemeanor child annoyance (Penal Code § 647.6.)
C. Felony crimes relating to obscene matter depicting a
minor, as specified (Penal Code §§ 311.1, 311.2 (b), (c)
or (d), or 311.3, 311.4, 311.10, or 311.11), if the person
submits a certified copy of a probation report filed in
court that clearly states that all victims involved in the
commission of the offense were at least 16 years of age or
older at the time of the commission of the offense. (Penal
Code § 290.46(e).)
Current law additionally authorizes this exemption for certain
intra-familial crimes, as follows:
Where the offender was the victim's parent, stepparent,
sibling, or grandparent, the crime did not involve either
oral copulation or penetration of the vagina or rectum of
either the victim or the offender by the penis of the other
or by any foreign object, and the offender successfully
completed probation, as clearly demonstrated by a certified
copy of an official document, as specified; or
The offender was the victim's parent, stepparent,
sibling, or grandparent, the crime did not involve either
oral copulation or penetration of the vagina or rectum of
either the victim or the offender by the penis of the other
or by any foreign object, and the offender is on probation
at the time of his or her application, as clearly
demonstrated by a certified copy of official documents, as
specified. (Penal Code § 290.46(e)(2)(D).)
This bill would require, in the cases of intra-familial abuse
described above, that an offender who is on probation at the
time of his or her application have been on probation for at
least one year prior to the granting of his or her application.
Current law provides that if, subsequent to his or her
application, 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 Internet Web site shall be terminated. (Penal Code §
290.46(e)(2)(D)(iii).)
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Current law provides that, for purposes of this subparagraph,
"successfully completed probation" means that during the period
of probation the offender neither received additional county
jail or state prison time for a violation of probation nor was
convicted of another offense resulting in a sentence to county
jail or state prison. (Penal Code § 290.46(e) (2) (D)(iv).)
This bill would require additionally that, prior to DOJ granting
an application under this subparagraph, a local assistance
center for victims and witnesses, established pursuant to
Article 2 (commencing with Section 13835) of Chapter 4 of Title
6 of Part 4 shall speak to the victim to determine if granting
the exemption would be in the best interest of the victim.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
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Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
The author states:
As statistics show, the most common sex crimes
committed against children are committed by a family
member, someone the child knows and trusts. Since
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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.
Statistics also show that children who are sexually
abused have a higher risk of committing crime
throughout their life. Young boys who were molested
are 19% more likely to commit burglary, 25% more
likely to commit armed robbery and grand theft, and
41% more likely to commit assault than other young
boys who were not sexually abused. Preventing sex
offenders to continue with their crimes will prevent
others from leading a life of crime and will overall
decrease the recidivism rate in our state.
2.Sex Offender Registration and the Megan's Law Website
California has had a sex offender registry since 1947. As
explained by a 2014 report by the California Sex Offender
Management Board<1>, the original purpose of sex offender
registration was to assist law enforcement in tracking and
monitoring known sex offenders since they were viewed as
the group most likely to commit another sex offense.
In 2004, legislation enacted "Megan's Law," to provide an
Internet-based resource for the public to become aware of
known sex offenders in their neighborhoods and communities.
Exempting a narrow category of offenders from the publicly
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<1>
http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Backgroun
d%20Paper%20FINAL %20FINAL%204-2-14.pdf
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available registry was included in the original Megan's Law
legislation in 2004, and the following year these
provisions were revised and tightened. As explained in a
2005 analysis by this Committee:
When the Legislature required the Department of
Justice last year to establish a Megan's Law Web site
containing information about registered sex offenders
in California, the legislation created a limited
category of offenders who could apply to be exempted
from disclosure on the Internet (although would
continue to be subject to all other registration and
public disclosure laws). The intent of these
provisions with respect to persons who receive
probation for intrafamilial molestation was explained
in the Committee analysis of AB 488 (Parra and
Spitzer), Ch. 745, Stats. 2004 as follows:
This bill would allow persons who are eligible
for, granted and have successfully completed
probation pursuant to Penal Code Section 1203.066
to apply to be excluded from Internet listing.
This is a very narrow category of non-violent,
intra-familial offenders convicted of child
molestation who, unlike all other sex offenders,
are eligible for probation. (Penal Code §§
1203.065; 1203.166.) In some instances, these are
cases that can be prosecuted only because family
member witnesses are willing to cooperate with
prosecutors because of the availability of
probation. . . .
. . . Members may wish to consider whether an
approach more narrowly crafted than current law would
assure the public safety interests of Megan's Law
without unnecessarily exposing families where little
value in terms of enhanced public safety is likely to
be gained. For example, an approach that specifically
excludes all penetration offenses, including oral
copulation, is limited only to cases involving a
parent, stepparent, sibling or grandparent, and
applies only to cases where probation has been granted
and not violated, may promote and balance these
interests. These types of true incest cases (limited
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for these purposes to fondling and masturbation-type
offenses) are predicated on a closer familial
relationship where the offender is more likely to live
with the victim and recidivism rates are low.
. . . With respect to the bill now before the
Committee, members may wish to consider the extent, if
any, to which the identity of victims might be
disclosed if these particular offenders are included
on the Megan's Law Web site, and whether the risk of
this disclosure - which may include home address - is
outweighed by the potential public and child safety
risk posed by these offenders.<2>
Current law strictly limits, and largely prohibits,
probation for child sex crimes. For offenses which are not
expressly excluded from probation eligibility by law,
probation in child molestation cases may be granted only if
the following terms and conditions are met:
(A) If the defendant is a member of the victim's
household, the court finds that probation is in the
best interest of the child victim.
(B) The court finds that rehabilitation of the
defendant is feasible and that the defendant is
amenable to undergoing treatment, and the defendant is
placed in a recognized treatment program designed to
deal with child molestation immediately after the
grant of probation or the suspension of execution or
imposition of sentence.
(C) If the defendant is a member of the victim's
household, probation shall not be granted unless the
defendant is removed from the household of the victim
until the court determines that the best interests of
the victim would be served by his or her return. While
removed from the household, the court shall prohibit
contact by the defendant with the victim, with the
exception that the court may permit supervised
contact, upon the request of the director of the
----------------------
<2> Analysis of AB 1323 (Vargas), Senate Committee on Public
Safety (June 28, 2005).
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court-ordered supervised treatment program, and with
the agreement of the victim and the victim's parent or
legal guardian, other than the defendant.
(D) If the defendant is not a member of the victim's
household, the court shall prohibit the defendant from
being placed or residing within one-half mile of the
child victim's residence for the duration of the
probation term unless the court, on the record, states
its reasons for finding that this residency
restriction would not serve the best interests of the
victim.
(E) The court finds that there is no threat of
physical harm to the victim if probation is granted.
(Penal Code § 1203.066.)
The bill now before the Committee concerns the intra-family
crimes eligible for probation, which under current law are
required to have these limitations in order to not be
publicly listed on Megan's Law:
the offender was the victim's parent, stepparent,
sibling, or grandparent;
the crime did not involve either oral copulation or
penetration of the vagina or rectum of either the
victim or the offender by the penis of the other or by
any foreign object; and
the offender was granted probation and successfully
completed it, or the offender is on probation at the
time of the application to not be listed on the public
Megan's Law site.
This bill would apply two additional restrictions to this
category of exemptions from public disclosure on Megan's
Law:
This bill would require that an offender who is on
probation at the time of his or her application have
been on probation for at least one year prior to the
granting of his or her application; and
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This bill would require that before DOJ could grant
an application, a local assistance center for victims
and witnesses, which in California often are located
in the offices of district attorneys, "shall speak to
the victim to determine if granting the exemption
would be in the best interest of the victim."
1.Potential Equal Protection Issue
Members may wish to consider whether this bill would pose a
constitutional question relating to equal protection
because it could result in two similarly situated
registrants confronted with different outcomes - one
subject to the public Megan's Law website, another not -
potentially based on the determination of a victim.
It is not completely clear from the bill how its victim
notification proposal would work. A victim/witness center
speaking with a victim clearly would be a prerequisite to
DOJ granting an exemption. What is not clear from the
language is whether a victim's objection would affect or
determine the DOJ action. To the extent it would, members
may wish to consider whether that would violate equal
protection.
2.Policy Considerations for This Bill
There are a number of policy considerations members of the
Committee and the author may wish to discuss concerning
this bill, including:
Would public safety be improved if a parent,
stepparent, sibling or grandparent who has been
granted probation for child molestation is disclosed
on the Megan's Law website during his or her first
year of probation?
How would requiring an intra-familial offender who
has been granted probation to be disclosed on the
public Megan's Law website for the first year of
probation affect the victim?
Would public disclosure that a parent, stepparent,
sibling, or grandparent has been convicted of child
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molestation unnecessarily expose a child victim to
further anguish and emotional pain?
Would the public safety benefit of public exposure
outweigh any potential negative impact on the child?
How would requiring an intra-familial offender who
has been granted probation to be on the public Megan's
Law website for the first year of probation affect the
rehabilitation of the offender?
Would the public safety benefit of this disclosure
outweigh any potential negative impact on the ability
of the offender to successfully rehabilitate?
Would this bill discourage the reporting of
intra-familial abuse by family members because it
would assure the public disclosure of the crime and
the family for at least some period of time?
Would requiring a victim/witness center to speak to
a victim about a Megan's Law exemption be good for the
victim, who in these cases are children?
Should a child victim be put in the position of
determining whether his or her parent, stepparent,
sibling or grandparent should be publicly disclosed on
Megan's Law?
Would this provision be somewhat redundant, since
for an offender to be granted probation in these cases
the court must make certain findings that probation
would be in the best interest of the victim?
Would this bill violate equal protection to the
extent it would give victims the decision making
authority to not allow an otherwise eligible offender
to be excluded from the public Megan's law website?
1.Background
As explained in the Assembly Public Safety Committee
analysis of this bill, there are about 98,000 registered
sex offenders on California's registry. About 76,000 live
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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.
A 2014 background paper prepared by the California Sex
Offender Management Board summarized the research on what
is known about sex offenders and effective sex offender
management:
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 offender registration laws and this
has resulted in a constantly growing body of research
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that has 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
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to enter and complete such a program. <3>
6. Author Amendments
The author intends to offer the following amendments in
Committee:
The Department of Justice, which receives application,
shall contact the local assistance center for victims and
witnesses in the county of conviction for the registrable
sex offense.
Once the Department of Justice submits the request for
the local assistance center for victims and witnesses to
contact the victim, written determination of the victim's
best interest is due to Department of Justice within 60
days after the Department of Justice contacts the center.
If the victim is unable to be located, refuses to
partake in interview, or the local assistance center for
victims and witnesses does not interview victim and submit
determination within 60 days, the offender will be granted
exclusion if statutory criteria are met.
Reconsideration of the exclusion application can be
granted only after 3 months from the denial of the last
exclusion application.
If there are multiple offenses committed by the offender
against multiple victims, one local assistance center for
victims and witnesses shall consider the familial situation
and find that it would be in the best interest of all
victims in the case to deny the application for exclusion.
If offenders commit an offense in another state and want
to apply for exclusion, the local assistance center for
victims and witnesses in the county in which the offender
is registered on the date the exclusion application is
filed must contact the victim and determine if it is in the
best interest of the victim to grant or deny the
application for exclusion.
Notwithstanding subdivision (m) of 290.46 exclusion
applications already granted prior to the effective date of
AB 2569 shall not be subject to reconsideration.
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<3> A Better Path to Community Safety (2014), California Sex
Offender Management Board (citations omitted)
(http://www.casomb.org
/docs/Tiering%20Background%20Paper%20FINAL%20FINAL%204-2-14.pdf)
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