BILL ANALYSIS
AB 114
Page 1
Date of Hearing: March 15, 2005
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 114 (Cohn) - As Amended: March 8, 2005
As Proposed to be Amended in Committee
SUMMARY : Provides that in a criminal prosecution for child
abuse evidence of a defendant's prior acts of domestic violence
may be admitted to prove the defendant's conduct, as specified.
Specifically, this bill :
1)States that in a prosecution involving child abuse evidence of
the defendant's prior acts of domestic violence is admissible
as evidence unless the court determines that the probative
value is substantially outweighed by the probability that its
admission will create a substantial danger of undue prejudice,
as specified.
2)Defines "child abuse" as an act proscribed by specified Penal
Code sections:
a) Willful harm or injury to a child (Penal Code Section
273a);
b) Corporal punishment or injury of a child (Penal Code
Section 273d); and,
c) Continuous sexual abuse of a child (Penal Code Section
288.5).
3)Further defines "child abuse" as sexual abuse, assault or
sexual exploitation of a child or any act described in this
section. (Penal Code Section 11165.1.)
4)Expands the definition of "domestic violence" in the Penal
Code to include the definition of "domestic violence" in the
Family Code if the act occurred no more than five years before
the charged offense, subject to an evidentiary hearing
regarding probative value of the evidence. This adds children
AB 114
Page 2
and persons related by consanguinity or affinity within the
second degree which are not currently within the Penal Code
definition. (Family Code Section 6211.)
EXISTING LAW :
1)Provides that, with certain exceptions, evidence of a person's
character or a trait of his or her character, whether in the
form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct, is inadmissible when
offered to prove his or her conduct on a specified occasion.
(Evidence Code Section 1101.)
2)States that the court may, in its discretion, exclude evidence
if its probative value is substantially outweighed by the
probability that its admission will necessitate undue
consumption of time or create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.
(Evidence Code Section 352.)
3)Defines "domestic violence" in the Penal Code as abuse
committed against an adult or a minor who is a spouse, former
spouse, cohabitant, former cohabitant, or person with whom the
suspect has had a child or is having or has had a dating or
engagement relationship. Defines "abuse" as intentionally or
recklessly causing or attempting to cause bodily injury or
placing another person in reasonable apprehension of imminent
serious bodily injury to him or herself, or another. (Penal
Code Section 13700.)
4)Defines "domestic violence" in the Family Code as abuse
perpetrated against a spouse or former spouse, a cohabitant or
former cohabitant, a person with whom the respondent is having
or has had a dating or engagement relationship, a person with
whom the respondent has had a child, a child of a party or a
child who is the subject of an action under the Uniform
Parentage Act, where the presumption applies that the male
parent is the father of the child to be protected, or any
other person related by consanguinity or affinity within the
second degree. (Family Code Section 6211.)
5)Provides that "affinity," when applied to the marriage
relation, signifies the connection existing in consequence of
marriage between each of the married persons and the blood
relatives of the other. (Family Code Section 6205.)
AB 114
Page 3
6)Defines "abuse" as intentionally or recklessly causing or
attempting to cause bodily injury, sexual assault, to place
another person in reasonable apprehension of imminent serious
bodily injury to that person or to another, or to engage in
behavior that has been or could be enjoined pursuant to Family
Code sections relative to protective orders. (Family Code
Section 6203.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill will
help to protect victims of family violence by allowing prior
evidence of domestic violence to be heard in a child abuse
case. In a violent home, violence does not discriminate by
age and frequently it is perpetrated against both the mother
and the children. This bill allows for juries to know all of
the facts regarding an abuser's history of violence towards
the entire family, recognizing the issue of family violence."
2)Background : According to background information provided by
the author, "Currently, if a defendant in a child abuse case
has a prior history of domestic violence, that information is
not admissible in court. This bill will allow for juries to
hear prior evidence of domestic violence in a child abuse
case. This recognizes the prevalence of domestic violence
perpetrated against all family members, not just children or
adults but both. This bill closes a loophole regarding
admissibility of evidence in family violence cases.
"Men who batter their wives are likely to assault their
children. The battering of women who are mothers usually
predates the infliction of child abuses. (Citations omitted.)
At least one-half of all battering husbands also batter their
children. (Citations omitted.)"
3)What This Bill Does : Generally, evidence of a person's
character, including specific conduct on a particular
occasion, is inadmissible when offered to prove his or her
conduct on a specified occasion. (Evidence Code Section
1101.) This type of evidence is sometimes called "propensity
AB 114
Page 4
evidence" because it involves a person's propensity to commit
certain kinds of acts. There are various exceptions to this
rule, including an exception for any criminal action in which
the defendant is accused of a domestic violence crime. In
such a case, evidence of the defendant's commission of other
acts of domestic violence is not barred by Evidence Code
Section 1101 unless its probative value is substantially
outweighed by the probability that its admission will
necessitate undue consumption of time or create substantial
danger of undue prejudice, confusing the issues, or misleading
the jury. (Evidence Code Section 1109.)
This bill expands the definition of "child abuse" for purposes
of allowing propensity evidence of violence in the form of
domestic violence in child abuse cases. However, under the
Family Code definition of domestic violence (Family Code
Section 6211), abuse against specified children already
constitutes domestic violence. If abuse against such children
or any person related by consanguinity (defined as a
relationship by descent from the same ancestor or blood
relationship, Webster's New World Dictionary) or affinity to
the second degree constitutes domestic violence and since
prior acts of domestic violence are already admissible in a
current prosecution for domestic violence, is this bill
necessary?
4)Sufficient Similarity between Child Abuse and Domestic
Violence ? Courts have generally held that despite the
prohibition against admitting evidence of an uncharged crime
to demonstrate a defendant's criminal propensity, such
evidence is admissible to show identity or the existence of a
common scheme or plan. "Evidence tending to establish a
common scheme or design should demonstrate not merely a
similarity in the results, but such a concurrence of common
features that the various acts are naturally to be explained
as caused by a general plan of which they are the individual
manifestations." [ People v. Caitlin , 26 Cal. 4th 81 (2001),
cert. den. 535 U.S. 976.]
Is there a sufficient "concurrence of common features" between
domestic violence and child abuse that both acts are naturally
explained as caused by a general plan of which they are
individual manifestations? The author's statement references
allowing "juries to know all of the facts regarding an
abuser's history of violence towards the entire family,
AB 114
Page 5
recognizing the issue of family violence."
Does this assume that the composition of the entire family is
the same in both the child abuse prosecution and in the prior
instance of domestic violence? Would it be a significant
difference if the domestic violence case involved a former
wife, but there were no instances of domestic violence as to
the current wife and mother of the victim in the current child
abuse prosecution? Would it be a factor if there was domestic
violence in a former marriage or specified relationship
committed by both the defendant and his former wife, but there
had been no domestic violence whatsoever in the current
marriage or specified relationship?
It should be noted that this bill discusses "evidence of a
defendant's commission of domestic violence," which could be
mere allegations, not charged and not proved, made by a party
completely unrelated to the current prosecution. In fact,
propensity evidence, or evidence of prior bad acts, generally
involves acts for which there has been no conviction.
5)Evidentiary Hearing : This bill provides for the court to
conduct a hearing on the proposed propensity evidence to
determine whether the evidence of prior domestic violence
should be admitted in the child abuse prosecution. The
hearing is for the purpose of determining if the probative
value is outweighed by the prejudicial effect on the
defendant. The courts have held that "the "prejudice"
referred to in Evidence Code Section 352 applies to evidence
which uniquely tends to evoke an emotional bias against
defendant as an individual and which has very little effect on
the issues. In applying Evidence Code Section 352,
"prejudicial" is not synonymous with "damaging." [See People
v. Popular (1999) 70 Cal.App.4th 1129, 1139; People v.
Jennings (2000) 81 Cal.App.4th 1301, 1315.]
Is evidence of prior domestic violence the type of evidence
likely to evoke an emotional bias against the defendant as an
individual, but have little effect on the issues in a child
abuse case? Certainly both domestic violence and child abuse
are issues which probably tend to evoke an emotional response
in many people.
6)Is This Bill Necessary ? Inasmuch as children are specified
victims of domestic violence under the Family Code and since
AB 114
Page 6
Penal Code Section 1109 already provides that evidence of a
defendant's commission of other domestic violence is not made
inadmissible in a prosecution for domestic violence subject to
an evidentiary determination by the court pursuant to Evidence
Code Section 352, supra, is this bill necessary?
7)Should Propensity Evidence be Allowed ? Is it good public
policy to create additional exceptions to the longstanding
principle that evidence of a person's character, including his
or her propensity to engage in a certain type of conduct, is
not admissible to support an inference that he or she behaved
in conformity with that character on a particular occasion?
Arguably, the risk is significant that the jury will convict
the defendant when propensity evidence is admitted because he
or she is a "bad" person and not because they find the
evidence regarding his or her guilt of the offense charged
necessarily convincing beyond a reasonable doubt.
This risk is arguably more serious where there is a greater
distinction between the propensity evidence and the charged
crime. Admission into evidence of prior acts of domestic
violence in a domestic violence prosecution may be more
relevant that admission of prior acts of violence involving a
stranger, e.g., armed robbery or prior acts of violence with
an acquaintance, such as a fight. Although all involve the
propensity for violence, the similarity between the acts is
otherwise non-existent, and it is unlikely that the propensity
evidence would be admissible.
Although domestic violence and child abuse may both involve
violence within a family, it is also quite possible to pose a
number of scenarios in which that is not the case. Permitting
a child to be placed in a situation in which the child's
health may be endangered is a form of child abuse (Penal Code
Section 273a) that may not involve violence of any kind. It
may also not involve a family or domestic situation.
"Domestic violence" includes the use of force or violence upon
a person with whom one has, or has had, a dating relationship
among other things. Is an alleged battery upon a former
girlfriend or boyfriend sufficiently similar to child abuse to
render the battery admissible in a child abuse prosecution?
Persons in a dating relationship are not necessarily members
of the same family, but the author's statement provides as the
purpose of this bill the recognition of "the prevalence of
domestic violence perpetrated against all family members, not
AB 114
Page 7
just children or adults but both. This bill closes a loophole
regarding admissibility of evidence in family violence cases."
With respect to familial relationships, does the "affinity"
language of the Family Code raise concerns about allowing this
propensity evidence in a child abuse prosecution? Is the
alleged, prior act of domestic violence any less serious if
committed against a person related by affinity to the third,
rather than second, degree? (For example, if the victim of
the prior alleged act is the defendant's sister-in-law, there
is a relationship by affinity to the second degree. On the
other hand, if the victim is the defendant's wife's aunt, the
relationship is by affinity to the third degree.) It could be
questioned what relevance alleged acts of domestic violence
against either of such persons has to do with a prosecution
for child abuse, particularly if the child is unrelated to any
of the parties.
By incorporating the Family Code definitions of domestic
violence, prior uncharged acts of domestic violence against
the defendant's wife's aunt would not be admissible whereas
prior acts of domestic violence against the defendant's
sister-in-law would be admissible. Yet, neither of these
persons may be a member of the defendant's household and have
no closer a relationship to the defendant than would a
stranger walking down the street. Is it reasonable to admit
into evidence in a child abuse prosecution alleged prior acts
of domestic violence as to a defendant's sister-in-law and to
exclude the same evidence of such acts as to an aunt by
marriage?
By incorporating the Family Code definitions of domestic
violence as to relationships by affinity, this bill ignores
the reality of many non-traditional family relationships and
the possible existence of prior acts of domestic violence in
such families. Does this bill contemplate treating alleged
prior acts of domestic violence against relatives of domestic
partners differently from alleged prior acts of domestic
violence against relatives of a spouse, in a child abuse
prosecution due to the affinity definition in Family Code
Section 6205?
8)Similarity of Domestic Violence and Child Abuse : Are the acts
of domestic violence and child abuse so inherently similar
AB 114
Page 8
that unproven acts of domestic violence have sufficient
probative value to overcome the prejudicial effect on the jury
in a child abuse prosecution?
Although this bill creates the opportunity for an evidentiary
hearing under Evidence Code Section 352, would passage of this
bill indicate to the courts a legislative intent to generally
make such evidence admissible?
The courts look to legislative history in interpreting statutory
language. For example, in People v. Rucker , (2005) Cal. App.
LEXIS 231, the court noted, "The Legislature was entitled to
conclude the domestic violence statutes should apply to a
range of dating relationships. The Legislature could
reasonably conclude dating relationships, even when new, have
unique emotional and privacy aspects that do not exist in
other social or business relationships and those aspects may
lead to domestic violence early in a relationship. An
individual who engages in domestic violence may have a pattern
of abuse that carries over from short-term relationship to
short-term relationship. As the legislative history of
Evidence Code Section 1109 indicates, the Legislature
recognized domestic violence is an ongoing problem. [See
People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 (Cal.
Rptr. 2d 208), quoting the Assembly Committee on Public Safety
analysis on SB 1876 (Solis) of the 1995-96 Legislative
Session, June 25, 1996, pp. 3-4, " 'The propensity inference
is particularly appropriate in the area of domestic violence
because on-going violence and abuse is the norm in domestic
violence cases. Not only is there a great likelihood that any
one battering episode is part of a larger scheme of dominance
and control, that scheme usually escalates in frequency and
severity. Without the propensity inference, the escalating
nature of domestic violence is likewise masked."]
This bill proposes allowing evidence of propensity in the form
of prior acts of domestic violence in a child abuse
prosecution. An appellate court reviewing admission of such
evidence is likely to give weight to the legislative history
and make a similar finding as that in the Rucker case; i.e.,
that the Legislature intended that prior acts of domestic
violence in fact show a propensity for child abuse. However,
depending upon the factual circumstances of a particular case,
that conclusion might well be incorrect.
9)Argument in Support :
AB 114
Page 9
a) Child Abuse Prevention Council of Contra Costa County :
According to the Child Abuse Prevention Council of Contra
Costa County, "This bill would allow for past evidence of
domestic violence to be admissible in child abuse cases.
This bill takes steps to help ensure the safety of children
by showing that patterns of violence exist."
b) American Federation of State, County, and Municipal
Employees (AFSCME) : According to AFSCME, "This bill will
protect children by allowing previous acts of domestic
violence, which reflect strongly on the character of a
defendant, to be introduced as part of the case against an
alleged abuser."
10)Argument in Opposition :
a) California Public Defenders Association (CDPA) :
According to CPDA, "CPDA opposes this bill, as it seeks to
convict persons who may be accused of child abuse allegedly
against a child who is not a member of the accused's
household and, indeed, even a child the accused does not
know, by misusing a prior conviction of an unrelated
battery on the accused's spouse.
"Established jurisprudence [see People v. Falsetta (1999) 21
Cal. 4th 903; People v. Harris (1998) 60 Cal.App. 4th 727]
requires a high degree of similarity between the prior act
and the current accusation for the general rule prohibiting
the admission of prior bad acts to prove current conduct to
not apply."
b) Family Law Section of the State Bar of California :
According to the Family Law Section of the State Bar of
California, "While the Family Law Executive Committee of
the State Bar strongly supports the goal of preventing
child abuse, it opposes this bill for a variety of reasons,
as set forth [below]:
i) "The concept of the inadmissibility of improper
character evidence is a coveted principle in the legal
profession. While it may be understandable that, for
example, evidence of prior abuse of an elder may be
relevant, under certain circumstances, in a case of abuse
of an elder, the proposed addition to Evidence Code
AB 114
Page 10
Section 1109 does not propose the same consistency.
Instead, it indicates that where a defendant is accused
of an offense involving child abuse, evidence of the
defendant's commission of domestic violence may be
admissible. While there may be some connection, they are
not so connected to warrant a breach of this coveted rule
of evidence.
ii) "The evidence which is sought to be allowable into
evidence is vague and all-encompassing, to wit:
'evidence of the defendant's commission of domestic
violence.' The language of this bill does not require
prior conviction, but prior commission. This could
include mere allegations of domestic violence -
allegations which are never proven. This is a frequent
occurrence and problem for families.
iii) "Under this bill, mere allegations of domestic
violence could be used against a defendant in a child
abuse case to prove that the alleged conduct of abusing a
child was in conformity with the defendant's character.
Essentially, the evidence could be used to show that
because the defendant may have been alleged to commit
domestic violence in the past, the defendant likely
perpetrated the child abuse in the present case, because
it is his or her 'character'.
iv) "Issues relating to domestic violence are seen and
adjudicated in family law, often on a daily basis, and
are within the special knowledge, training, experience,
or technical expertise of the Family Law Section of the
State Bar. The position advocated will promote justice
and the best interests of families."
11)Prior Legislation : AB 141 (Cohn), Chapter 116, Statutes of
2004, provided that propensity evidence regarding prior acts
of domestic violence was admissible in the prosecution of
domestic violence cases, including domestic violence involving
children, as specified.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County, and Municipal Employees
AB 114
Page 11
California Correctional Supervisors Organization
California District Attorneys Association
Child Abuse Prevention Council of Contra Costa County
Lambda Letters Project
Peace Officers Research Association of California
Sheriff, San Bernardino County
Opposition
California Public Defenders Association
Family Law Section, State Bar of California
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744