BILL ANALYSIS SB 1997 Date of Hearing: June 14, 1994 Counsel: Judith M. Garvey ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bob Epple, Chair SB 1997 (Russell) - As Amended: May 12, 1994 ISSUE: SHOULD A PERSON CONVICTED OF A SPECIFIED FELONY OFFENSE, WHERE THE OFFENSE WAS COMMITTED AS PART OF A CEREMONY, RITE, OR ANY SIMILAR OBSERVANCE, BE PUNISHED BY AN ADDITIONAL TERM OF THREE YEARS? DIGEST Under current law, any person convicted of certain felony offenses, including, for example, the kidnapping of a child under the age of 14 years, is punished by an enhancement or a term in addition to the punishment prescribed for the base crime. (Penal Code sections 667.8 and 667.85.) This bill: 1) Provides that any person convicted of certain felony offenses where š the offense was committed as part of a ceremony, rite, or any similar observance, the person shall be punished by an additional term of three years. 2) Defines "a ceremony, rite, or any similar observance" and creates š specified exemptions. 3) Provides that the enhancement charged shall be proven by the testimony š of two witnesses, or of one witness and corroborating circumstances. COMMENTS 1) Purpose. According to the author: Child abuse where rituals are involved cause far greater trauma to the victim. Enhancement of penalties will bring punishment more in line with the extent of victim trauma. It legitimizes concerns of many in law enforcement who have been investigating these cases for years. 2) Offenses. When a person is convicted of any of the following š offenses where the offense was committed as part of a ceremony, rite, or any similar observance, the person shall be punished by an additional three years: - continued - SB 1997 Page 1 SB 1997 a) It is unlawful to willfully cause or permit a child to suffer, or to inflict unjustifiable physical pain or mental suffering on a child, or having the care or custody of any child to willfully cause or permit the child or its health to be injured, or to willfully cause or permit the child to be placed in a situation that its person or health is endangered. If the act is performed under circumstances or conditions likely to produce great bodily harm or death, it is an alternate felony/misde- meanor, punishable by two, four, or six years in state prison or up to one year in county jail. If the circumstances or conditions are not likely to produce great bodily harm or death, the crime is a misdemeanor punishable by up to six months in county jail. (Penal Code section 273a.) b) It is an alternate felony/misdemeanor, punishable by two, four, or six years in state prison or up to one year in county jail, to willfully inflict cruel or inhuman corporal punishment or injury resulting in a traumatic condition upon a child. (Penal Code section 273d.) c) It is a felony punishable by three, six, or eight years in state prison to commit a lewd or lascivious act on a child under the age of 14, with the intent of arousing the lust of the child. A similar act on a child of age 14 or 15, when the defendant is at least 10 years older than the child, is punishable by one, two, or three years in prison or up to one year in county jail. (Penal Code section 288.) 3) Lack of Cross-References. This bill creates a new enhancement. š However, it is not cross referenced into Penal Code section 1170.1 - the main sentencing section. Whenever an enhancements is created, it is supposed to be cross referenced as follows: to require its imposition, to allow it to be stricken in the interest of justice, be pled and proven (a requirement of due process) and be exempt from double-the-base term limits. This failure to cross-reference has sparked a large amount of unnecessary litigation. See, e.g.: People v. Eddahabi (1988) 198 Cal.App.3d 1135. 4) Definitions. For purposes of this bill, "a ceremony, rite, or any š similar observance" means any of the following: a) Actual or simulated torture, mutilation, or sacrifice of any š warm-blooded animal or human being. b) Forced ingestion, injection, or other application of any narcotic, drug, hallucinogen, or anesthetic for the purpose of dulling sensitivity, cognition, recollection of, or resistance to any criminal activity. c) Forced ingestion, or external application, of human or animal š urine, feces, flesh, blood, bones, body secretions, nonprescribed - continued - SB 1997 Page 2 SB 1997 drugs, or chemical compounds. d) Involvement of the child in a mock, unauthorized or unlawful š marriage ceremony with another person or representation of any force or deity, followed by sexual contact with the child. e) Placement of a living child into a coffin or open grave containing a human corpse or remains. f) Unlawful dissection, mutilation, or incineration of a human corpse. 5) Sexual Assault on a Child. This bill makes the enhancement applicable to a felony violation of any sexual offense against a child under 14 years of age. The bill does not define what a sexual offense is in proposed section 667.83(a)(2). Should not proposed Penal Code section 667.83 be amended to delete proposed subdivision (a)(2) contained on page two, lines 15-16 of this bill? Since this type of conduct may occur in kidnapping cases, should not kidnapping be included as well as a specified offense? The bill already refers to child molesting a child under 14 (i.e. a violation of section 288). The act of child molesting in violation of section 288 almost always - but not necessarily - includes the distinct crimes of rape, sodomy, foreign object rape, unlawful sexual intercourse (statutory rape), and oral copulation. See: People v. Pearson (1986) 42 Cal.3d 351, 355 Should the list of the underlying crimes for which this enhancement applies to be limited to cases where the victim of the offense is under 14 and the underlying offenses are one of the following: kidnapping (Penal Code section 207), rape (Penal Code section 261), rape in concert (Penal Code section 264.1), sodomy (Penal Code section 286), oral copulation (Penal Code section 288a), child molesting (Penal Code section 288), and foreign object rape (Penal Code section 289)? Should the list of the underlying crimes for which this enhancement applies continue to include a violation of Penal Code section 273a (willful cruelty or unjustifiable punishment of a child) or Penal Code section 273d (corporal punishment or injury of a child)? Should inclusion be limited to cases where the victim of the offense is under 14 years of age? 6) Exceptions. This bill does not apply to: a) Lawful agricultural, animal husbandry, food preparation, or wild game hunting and fishing practices and specifically the branding or identification of livestock. b) The lawful medical practice of circumcision or any ceremony related thereto. c) Any state or federally approved, licensed, or funded research project. - continued - SB 1997 Page 3 SB 1997 7) Evidence. The enhancement charged in violation of subdivision (a) shall be proven by the testimony of two witnesses, or of one witness and corroborating circumstances. 8) Author's Meeting with Law Enforcement Personnel. According to the š author, the following points were made: a) Randy Cerney, California Ritual Crime Investigators Association stated that "even though ritualistic crime in its varying forms are a small percentage of the overall picture of criminality we see in the law enforcement field, it is very important to have properly trained investigators who can objectively focus on the criminal aspects of a case, and with the specialized knowledge of occultic beliefs and practices, be able to investigate these types of cases." b) Ed Szendry, Supervising Investigator of the Butte County District Attorney's Office stated: "Until society as a whole recognizes the reality and severity of these offenses, and that understanding is translated into laws tailored to deal with the problem, we may need to concentrate our efforts on the support of the victims, rather than being able to effectively deal with the perpetrators. Even after all these years, there is still a great deal of ignorance in society and the criminal justice system regarding molest and other crimes against children." c) Alfonso Valdez, Investigator with the Orange County District šAttorney's Office stated: "Some of the gang members incorporated these ceremonies into protection rituals before starting out on retaliation shootings. The rituals involved the sacrifice of small animals, usually cats and the drinking of blood, urine and wine mixtures. Still another group calling themselves "white supremacists" told me of killing animals in ritual sacrifice to worship Satan. Juveniles told me of ritual sex magic ceremonies in the form of sex orgies to worship Satan. Free drugs and alcohol were offered to lure prospective members. Currently, I have spoken to a number of juveniles who call themselves witches and belong to covens. These witches practice ritual magic in an effort to control their destiny and the fate of others. The practitioners believe in the ritual." The author notes that in addition to these statements, he "also has over 150 articles and books on the subject in his files, as well as many hundreds of letters from People in California who believe this issue needs to be addressed, through legislation at the state level. The author states that these crimes can happen anywhere, in the parents' home, relatives' homes, neighbors' homes, in day care centers, in churches, in schools, in city and state parks late at night, in isolated barns in rural areas, and even in graveyards, to name but a few." - continued - SB 1997 Page 4 SB 1997 The author states the perpetrators include "witches, voodoo and santeria religious, pedophile groups such as NAMBLA, neo-nazi white supremacists, adolescent gangs, prison gangs, serial killers, drug/biker groups, thrill seekers, organized crime and cults like the branch davidians, and the recently exposed groups like "the family", an offshoot of children of God, a California sect." 9) AOR Study and SCR 8. This committee asked the Assembly Office of Research (AOR) to examine the issues and policy recommendations raised by SCR 8 (Russell) with respect to "ritual child abuse" in California. SCR 8 would create an advisory committee on ritual child abuse and request the Attorney General to chair the 15 person committee. The committee, appointed under the auspices of the Attorney General, would define and study the prevalence, if any, of ritual child abuse, with regard to problems in investigating and prosecuting ritual child abuse offenses, and determine whether ritual child abuse should be a separate legal category. Members of the committee would be drawn from various law enforcement agencies, trial judges, the medical and therapeutic fields, welfare services and other agencies. 10) AOR Recommendations. AOR recommends the Legislature exercise š extreme caution to avoid delivering an emotional, imprecise issue into the hands of individuals who may want to exploit it for professional, political or religious reasons. AOR concluded it to be "questionable whether there is a need for a commission at all. There appear to be ample laws already on the books to deal with any issue of child abuse that society may now face. Cases of ritual child abuse are said to include murder, child molestation, kidnaping, terrorism, child abuse, rape and cannibalism, to name a few. All of these are covered by statue. Local law enforcement agencies appear to be well equipped currently to handle child abuse cases. AOR found "it appears that there is tremendous controversy over whether ritual child abuse even exists. Many therapists continue to charge that repressed memories, multiple personalties and other psychological traumas are evidence or ritual child abuse. A growing body of mainstream therapists and law enforcement authorities, however, says there is no evidence of ritual child abuse. These authorities say that such a commission would thus open itself to needless sniping from both sides, and in the end, be able to prove almost nothing, as indeed law enforcement agencies have been unable to do when they have brought cases such as the McMartin Preschool case, or the Akiki case, or the Olympia, Washington, case to trial." "There is also the danger that such a commission, born in such emotional circumstances, could be used for political purposes. The McMartin Preschool trial, for instance, is widely viewed to have been forced on the Los Angeles County District Attorney by a deputy who was interested in running against his boss for the office." AOR concluded if such a commission is brought into existence, it would - continued - SB 1997 Page 5 SB 1997 be more prudent to amend the resolution to provide that appointment of members of the commission be made equally by the Speaker of the Assembly, the President Pro Tempore of the Senate, and the Governor." 11) AOR Findings - Law Enforcement. The AOR report made the following findings: a) "Lt. Thomas Brouton, the officer in charge of juvenile crimes in the San Francisco Police Department, says that as long as he has been in charge of his unit, he has never seen a case of ritual child abuse or satanic murder and sacrifice. There are no missing children, no missing babies, Lt. Brouton says. The department deals with 80 to 100 cases of child sexual abuse a month. But, he says 99 percent of the cases involve relatives, babysitters, or close friends of the family. "There is actually no evidence at all that any child abuse is connected to religion or cults," Lt. Brouton says." b) Officials of the L.A. County Sheriff's Office who train child sexual abuse officers across the state say that they have uncovered little or no evidence of ritual child abuse anywhere, and certainly nowhere on a scale that has been reported by individuals who allege widespread satanic cabals and practices throughout the United States. c) Gene Tunney, the Sonoma District Attorney, who has had to deal extensively with allegations of ritual child abuse -- and in fact has been accused by therapists and child protection groups of covering up such abuse -- says that in 20 years in office, he has never seen a case of ritual child abuse. He also says that in meetings with fellow district attorneys throughout California, none has ever seen evidence of ritual child abuse." 12) Medical Perspective. According to the author, the California š Medical Association stated "reliable estimates of the extent of ritualistic abuse are not available for several reasons. First of all, child protective agencies do not categorize child abuse reports according to whether or not there was ritualistic involvement. Second, there is not an agreed upon definition of ritualistic abuse, or even agreement of whether the phenomenon warrants a special term or label such as ritualistic. In addition, many professionals are unaware of this extreme form of maltreatment and fail to recognize indicators of ritualistic abuse in histories of child and adult victims. Another factor that prevents reliable reporting is that children are usually too terrified to disclose the ritualistic components of the abuse. The ritualistic aspects are often disclosed months or years after the child has revealed the sexually abusive acts and often after an investigation or therapy has ended. Another major obstacle to determining the extent of ritualistic abuse is the more horrible and bizarre the child's allegation, the less likely it is that the child victim will be believed. Ritualistic abuse of children continues to be an area - continued - SB 1997 Page 6 SB 1997 with many more questions than answers ... and needs to be addressed at the state level." 13) San Diego Grand Jury. The Grand Jury has found no evidence of satanic ritual child molestation in San Diego County. The 1993/94 Grand Jury concluded there is no justification for the further pursuit of the theory of satanic ritual child molestation in the investigation and prosecution of child sexual abuse cases. 14) Mental Health. Kenneth Lanning, behavioral science instructor and research unit of the FBI Academy published a paper that "any professional evaluating victims' allegations of ritualistic abuse cannot ignore the lack of physical evidence (no bodies or physical evidence left by violent murders), the difficulty in successfully committing a large-scale conspiracy crime (the more people involved in any crime conspiracy, the harder it is to get away with it), and human nature (intra-group conflicts resulting in individual self- serving disclosures are likely to occur in any group involved in organized kidnaping, baby breeding and human sacrifice). There are alternative explanations for why people who never met each other can tell the same story. It is interesting to note that, without having met each other, the hundreds of people who claim to have been abducted by aliens from outer space also tell stories and give descriptions of the aliens that are similar to each other. This is not to imply that allegations of child abuse are in the same category as allegations of abductions by aliens from outer space. It is intended only to illustrate that individuals who never met each other can sometimes describe similar events without necessarily have experienced them. ..." "Now it is up to mental health professionals not law enforcement to explain why victims are alleging things that don't seem to be true. Mental health professionals must begin to accept the possibility that some of that these victims are alleging just didn't happen, and that this area desperately needs study and research by rational, objective social scientists." The AOR report stated that "it is of utmost importance that, if a commission is appointed to examine the issue, it determine whether the phenomenon of ritual child abuse exists. It is equally important to determine if unethical or overly credulous therapists are exacerbating what in fact may not be a serious issue." 15) Recent Cases. The AOR report discusses the following two cases: a) McMartin. "The case of the Phyllis McMartin Preschool in Los Angeles is an example. In that case, allegations developed by therapists involved charges that hundreds of children were molested, that satanic rituals were performed in tunnels under the school, that children were thrown from helicopters and airplanes, that horses were beaten to death with bats and machetes. Ultimately seven teachers were indicted in more than 200 counts of child molestation. The trial, the longest in - continued - SB 1997 Page 7 SB 1997 U.S. history, cost $16 million. It was instigated by a mother afflicted by acute mental problems and who died of alcoholism. Students made allegations against one teacher who had not been hired by the school for a year and a half before the molestations allegedly occurred. The case was desperately thin. But a prosecution fueled at least in part by political considerations on the part of a candidate for Los Angeles District Attorney chose to push forward. It ended in two hung juries." b) Akiki. "A second case, involving a San Diego volunteer preschool teacher's aide, Dale Akiki, involved at least 200 claims by families who accused Akiki in 1989 of abusing children at Faith Chapel in Spring Valley, a San Diego suburb. Akiki was charged with 38 counts of oral copulation, animal mutilation, sodomy, water torture, terror and kidnaping. Many of the charges by the children were fanciful, and they cast serious doubt on the proposition that children never lie in describing their experiences with sexual abuse. They accused Akiki, his wife and another woman at the day care center of killing bunnies, a puppy, an elephant and a giraffe. They told tales of abuse by the movie villain Freddy Krueger and other horrific characters. Some said they were driven in a car to a house and a church, which were never located, by Akiki, who does not drive. The children said they were then returned after undergoing sexual abuse, without any other šchildren in the classes noticing." "Costing $2.5 million, the Akiki case was the longest and one of the most expensive ever for San Diego County taxpayers. Ultimately, after two and a half years in jail, Akiki was acquitted of all charges against him by a jury that deliberated for seven hours. Such charges, filed against innocent operators of preschools, discourage many qualified and motivated individuals from working with children. There were plenty of staff doubts in the San Diego District Attorney's Office about prosecuting the Akiki case form the first. Some children, for instance, accused Akiki of killing the giraffe in a nursery, while church was going on in a nearby room." 16) Opposition. The California Attorneys for Criminal Justice (CACJ) š oppose the penalty enhancement because "there has been no evidence that offenses against children done as a result of ritual practices have ever been committed. The Federal Bureau of Investigation, as well as the Grand Jury of San Diego County, have come to the conclusion that this type of crime does not exist. The recent acquittal in San Diego in a case alleging such child abuse is an example of the fallacy of this type of allegation. The sentence enhancements created in this legislation are unnecessary, dangerous, and have no factual basis. SOURCE: Sgt. Kurt Jackson, Beaumont Police Department Orange County District Attorney (DA) Investigator Alfonso Valdez - continued - SB 1997 Page 8 SB 1997 SUPPORT: California Sexual Assault Investigators Association, Inc. The Doris Tate Crime Victims Bureau Mothers Against Sexual Abuse The Humane Society of the United States San Francisco Child Abuse Council Concerned Women for America Ed Szendrey, Supervising Investigator, Butte County DA's Office William Grove, Detective, Fresno Police Department, President of the California Ritual Crime Investigators Association Gregory Mengell, Executive Director, Interstate Association for Stolen Children Kate Killeen, supervisor, Domestic Violence Unit, Sacramento District Attorney's Office Lou Webb, Fresno Police Department Sgt. Jay Crawford, Oakland Police Department Melinda Lake, Child Interview Specialist, Sacramento County District Attorney's Office John Yoshikawa, Sacramento County Child Protective Services, Sacramento Seriene Brown, Sacramento County Child Protective Services, Robin Ringstad, San Joaquin County, Child Advocacy Center Emergency Response social worker Frank Tenedora, Detective, Davis Police Department Jeffrey Ritschaw, Deputy District Attorney, Sacramento McBeth and Frederick Uhlman, Deputy Sheriffs, Sacramento Patricia Haynell, Senior Inspector, Contra Costa District Attorney's Office Richard Aromando, Barbara Bravos and Bill Myers, Detectives, Sacramento Sheriff's Child Abuse Bureau Larry Bryant, Criminal Investigator, Monterey County Sheriff's Office Ray Wisniewski, Deputy, Contra Costa Sheriffs Department Catherine Gould, Ph.D. - Clinical Psychology Paul Kelly, Ph.D, County of San Diego, Department of Health Services, Mental Health Services Sheila Brogna, Attorney at Law Mary K. Stroube, Attorney at Law Judy Lamb, LCSW, DHHS- Family Preservation and Child Protective Services, Sacramento County Monica Ortega and Jeffrey Rodrigues, Investigative Aides/Missing Person's Bureau, Sacramento County Sheriff's Department Kathleen DeFay, Court Investigator, Sacramento County Juvenile Court Linda Blair, Crime Scene Investigator, Sacramento County Sheriff's Department Maryl Cranford, Detective, Sacramento County Walt Baer, Brien Kennedy and David Anderson, Detectives, Child Abuse Bureau, Sacramento County Sheriff's Department Scott Jones and Timothy Durel, Deputy Sheriffs, Sacramento County Adrienne James, Ph.D. D. Simmons, Detective, Stockton Police Department - continued - SB 1997 Page 9 SB 1997 Thomas McKinnon, Jr., Supervising Investigator, American River Fire Department Jennifer Baues, MSW, U.C. Davis Medical Center, Child Protection Margo McKee, Social Worker Meredith Diane Moll, M.A., Department of Health & Human Services Mary Hebert, social service practitioner , San Joaquin County N. Chan, Sacramento County Department of Health & Human Services Sandra Pickans, Ministor of Christian Formation, Davis Community Church Shelly Mahlmann, MSW, San Joaquin County Woody Kerstiens, Protective Services Social Worker Lauren Ah-Tye, County of San Joaquin - Child Protective Services Kathryn Merrill, PSSW II, San Joanquin County Child Protective Services Connie Valentinne, M.S., Department of Rehabilitation, Sacramento Victoria Anderson, R.N. Ama Cadena, Counselor 50 private citizens OPPOSITION: The California Attorneys for Criminal Justice - continued - SB 1997 Page 10