BILL ANALYSIS
AB 2976
Page 1
Date of Hearing: April 25, 2006
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2976 (Mountjoy) - As Introduced: February 24, 2006
FOR VOTE ONLY
SUMMARY : Creates the "Child Sexual Abuse, Exploitation, and
Rape Reporting and Deterrence Act of 2006", which requires
specified medical personnel to promptly report to a law
enforcement or child protective service agency their knowledge
that a minor has contracted a sexually transmitted disease (STD)
or is pregnant. Specifically, this bill :
1)Requires all licensed medical personnel, including physicians,
physician assistants, nurses, nurse practitioners, and
pharmacists to report, within 24 hours, the reportable
information to a law enforcement or child protective service
agency their knowledge or reasonable suspicion that a minor
has contracted a STC or is pregnant.
2)States that reports that a minor has contracted a STD or is
pregnant may be made to a police or sheriff's department, a
district attorney's office, a county child protective service,
the California Highway Patrol, or a state Attorney General's
office.
3)States that an agency receiving a report shall communicate the
report within 24 hours to the appropriate agency to conduct an
investigation, which must be completed within one week; and
requires the agency to protect the minor from further sexual
abuse and prosecute those responsible.
4)Makes a violation of the reporting requirement a misdemeanor,
punishable by up to six months in the county jail; by a fine
not to exceed $1,000; or by both.
5)States that a failure to report suspected child abuse by
licensed medical personnel shall be reported to the
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appropriate licensing boards and shall be considered grave
unprofessional conduct.
6)Provides that a third willful failure to comply with this act
is felony, punishable by imprisonment in the state prison for
16 months, 2 or 3 years.
7)States that failure to comply with this act constitutes
grounds for a cause of action against any person who fails to
comply for damages suffered by a minor, his or her family, or
his or her guardian.
8)Requires the district attorney of each county and the Attorney
General to prepare an annual report to the Legislature on the
number and disposition of reports of sexual abuse of minor
children made under this act.
9)States that any physician or surgeon performing an abortion on
a minor shall retain sufficient tissue from the aborted fetus
to permit DNA testing to determine paternity and submit the
tissue to the district attorney in the county where the
abortion was performed.
10)States that the tissue shall be preserved, along with
sufficient documentation to adequately identify the tissue and
establish a chain of custody, for a period of four years.
11)States that the tissue shall be made available upon court
order for the purpose of determining paternity and
establishing the guilt and innocence of the accused in any
criminal action regarding sexual crimes relating to the
aborted pregnancy.
12)States that no claim may be paid by the Medi-Cal program or
any other program subsidized by the State of California for
any abortion performed on a minor child unless the claim for
payment is accompanied by proof that the reporting
requirements of the Child Sexual Abuse, Exploitation, and Rape
Reporting and Deterrence Act of 2006 have been fulfilled and
that the submission of tissue to the district attorney has
been completed.
13)Makes numerous findings and declarations.
EXISTING LAW :
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1)Requires that any mandated reporter who has knowledge of, or
observes, a child and in his or her professional capacity or
within the scope of his or her employment whom he or she knows
or reasonably suspects has been the victim of child abuse
shall report that information immediately to specified law
enforcement or child protection agencies. [Penal Code Section
11166(a).]
2)Requires that reports of suspected child abuse or neglect
shall be made by a mandated reporter to any police or
sheriff's department, a county probation department if
designated by the county to receive mandated reports, or the
county welfare department. (Penal Code Section 11165.9.)
3)Defines "mandated reporter" as specific child-care custodians,
health practitioners, law enforcement officers, and other
medical and professional persons. (Penal Code Section
11165.7.)
4)Provides that any mandated reporter who fails to report an
instance of known or reasonably suspected child abuse or
neglect as required is guilty of a misdemeanor, punishable by
up to six months in the county jail; by a fine of $1,000; or
by both imprisonment and fine. [Penal Code Section 11166(b).]
5)Requires specified reporting agencies to forward to the
Department of Justice (DOJ) a report of every case of
suspected child abuse or neglect which is determined not to be
unfounded; and if a previously filed report proves to be
unfounded, the DOJ shall be notified in writing and shall not
retain that report. [Penal Code Section 11169(a).]
6)Requires a specified health practitioner who provides services
to a patient whom he or she reasonably suspects is suffering
from any wound or other physical injury resulting from
assaultive or abusive conduct to notify local law enforcement
and prepare a written report. (Penal Code Section 11160.)
7)Provides that an unmarried minor may give consent to the
furnishing of hospital or medical care related to the
prevention and treatment of pregnancy, and that the consent of
the parent or parents of such minor shall not be necessary to
authorize such care. (Civil Code Section 34.5.)
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8)Provides that a minor 12 years of age or older who may have
come in contact with a communicable disease may give consent
to the furnishing of hospital or medical care related to the
diagnosis and treatment of such disease; and the consent of
the parent, parents, or legal guardian shall not be necessary
to authorize care. (Civil Code Section 34.7)
9)Requires that any mandated reporter who has knowledge of, or
observes, a child and in his or her professional capacity or
within the scope of his or her employment whom he or she knows
or reasonably suspects has been the victim of child abuse
shall report that information immediately to specified law
enforcement or child protection agencies. [Penal Code Section
11166(a).]
10)Requires that reports of suspected child abuse or neglect
shall be made by a mandated reporter to any police or
sheriff's department, a county probation department if
designated by the county to receive mandated reports, or the
county welfare department. (Penal Code Section 11165.9.)
11)Defines "mandated reporter" as specific child-care
custodians, health practitioners, law enforcement officers,
and other medical and professional persons. (Penal Code
Section 11165.7.)
12)Provides that any mandated reporter who fails to report an
instance of known or reasonably suspected child abuse or
neglect as required is guilty of a misdemeanor, punishable by
up to six months in the county jail; by a fine of $1,000; or
by both imprisonment and fine. [Penal Code Section 11166(b).]
13)Requires specified reporting agencies to forward to DOJ a
report of every case of suspected child abuse or neglect which
is determined not to be unfounded; and if a previously filed
report proves to be unfounded, the DOJ shall be notified in
writing and shall not retain that report. [Penal Code Section
11169(a).]
14)Requires a specified health practitioner who provides
services to a patient whom he or she reasonably suspects is
suffering from any wound or other physical injury resulting
from assaultive or abusive conduct to notify local law
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enforcement and prepare a written report. (Penal Code Section
11160.)
15)Provides that an unmarried minor may give consent to the
furnishing of hospital or medical care related to the
prevention and treatment of pregnancy, and that the consent of
the parent or parents of such minor shall not be necessary to
authorize such care. (Civil Code Section 34.5.)
16)Provides that a minor 12 years of age or older who may have
come in contact with a communicable disease may give consent
to the furnishing of hospital or medical care related to the
diagnosis and treatment of such disease; and the consent of
the parent, parents, or legal guardian shall not be necessary
to authorize care. (Civil Code Section 34.7.)
17)States that it is unlawful for any person to use any aborted
product of human conception, other than fetal remains, for any
type of scientific or laboratory research or for any other
kind of experimentation or study, except to protect or
preserve the life and health of the fetus. "Fetal remains," as
used in this section, is defined as a lifeless product of
conception regardless of the duration of pregnancy. A fetus
shall not be deemed to be lifeless for the purposes of this
section unless there is an absence of a discernible heartbeat.
[Health and Safety Code Section 123440(a).]
18)States that at the conclusion of any scientific or laboratory
research or any other kind of experimentation or study upon
fetal remains, the fetal remains shall be promptly interred or
disposed of by incineration. Storage of the fetal remains
prior to the completion of the research, experimentation, or
study shall be in a place not open to the public, and the
method of storage shall prevent any deterioration of the fetal
remains that would create a health hazard. Nothing in this
section shall apply to public or private educational
institutions. Violation of this section is a misdemeanor.
[Health and Safety Code Section 123445(a) and (b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement . According to the author, "This bill, the
Child Sexual Abuse, Exploitation, and Rape Reporting and
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Deterrence Act of 2006, is a common-sense measure to protect
minor children from sexual abuse, exploitation, and rape by
helping to ensure that those who have evidence of such crimes
report that evidence to child protective agencies who have the
responsibility, legal authority, resources, and training to
investigate such evidence, and prosecute sexual predators and
thus deter others from committing such crimes against minor
children.
"Sexual abuse of minors is criminal conduct and must be
reported to law enforcement personnel, district attorneys,
child protection authorities, and to parents and guardians in
order to protect minors from sexual abuse and especially from
the continuation of sexual abuse. Persons who have knowledge
of, or have reason to suspect, that a minor has, or is,
suffering from sexual abuse and who fail to report the sexual
abuse are aiding and abetting criminal conduct and are
engaging in criminal conduct by facilitating repeated sexual
abuse of a minor child, and the potential abuse of many other
children.
"This bill is a simple, common-sense measure to protect
children and punish and deter the increasing numbers of sexual
abusers, predators and rapists who are not being exposed and
prosecuted for their crimes."
2)Notification of Minor's Pregnancy : This bill requires medical
personnel, including physicians, physician assistants, nurses,
and nurse assistants, to promptly report to a law enforcement
agency or child protective agency their knowledge or
reasonable suspicion that a minor has contracted a STD or is
pregnant. Under the Child Abuse and Neglect Reporting Act
(CANRA), physicians, nurses and other health-care
professionals who have knowledge of, or observe, a child and
in their professional capacity or within the scope of their
employment whom they know or reasonably suspect has been the
victim of child abuse shall report that information
immediately to specified law enforcement or child protection
agencies. [Penal Code Section 11166(a).]
As noted above, existing law requires health-care professionals
to report suspected child abuse to the appropriate agency; the
determination as to what constitutes child abuse is left to
the judgment of the trained health professional. This bill
conclusively presumes pregnant minors or minors who have
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contracted STDs have been sexually abused. This bill removes
the ability of health-care professionals to draw a distinction
between abusive and non-abusive sexual relations. Under
CANRA, failure to report suspected child abuse, including
sexual abuse, is a misdemeanor. Should healthcare
professionals be required to report a minor who is pregnant or
who has contracted a STD to law enforcement agency or child
protection agency regardless of the circumstances? Should the
determination by health-care professionals as to what
constitutes sexual abuse be left to the judgment of the
professionals?
3)Violates Minor's Right to Medical Privacy : In the case of
Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.
App. 3d 181, petitioners challenged an Attorney General
opinion that CANRA imposed on health-care professionals and
others a duty to report any sexual activity of a minor under
the age of 14. Petitioners claimed that the law violated the
constitutional right to privacy of the minor and placed
professionals in circumstances in which they would be forced
to choose between compliance with the law and fidelity to
their ethical duties to preserve patients' confidential
medical histories. The court of appeal ruled in favor of the
petitioners, holding that the legislative intent of CANRA was
to leave the distinction between abusive and non-abusive
sexual relations to the judgment of those professionals who
deal with children and who, by virtue of their training and
experience, are particularly well suited to such judgments.
Finally, the court held that the Attorney General's opinion
violated constitutional rights as to sexual and informational
privacy.
In People v. Ex Rel. Eichenberger v. Stockton Pregnancy Control
Medical Clinic, Inc . (1988) 203 Cal. App. 3d 225, the court
held that CANRA does not currently require the reporting of
voluntary sexual conduct between minors under the age of 18
where both are of a similar age. The court held that an
injunction was overbroad since it required a report even where
a medical practitioner might reasonably believe that the
medical condition might have been caused by sexual activity
exempt from reporting. However, since the minor's boyfriend
was an adult and CANRA requires the reporting of lewd and
lascivious acts between a minor and an adult of disparate age
constituting suspected sexual abuse, the court entered a
modified injunction enjoining the clinic from refusing to
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report reasonable suspicions of sexual abuse. Clearly, the
mandatory reporting by health professionals of a minor who is
pregnant or who has contracted a STD - unless it is the result
of suspected child sexual abuse or a violation of law -
violates the minor's constitutional right to medical
information privacy.
4)Attorney General Report to the Legislature : Under CANRA,
health-care and other professionals are required to report
suspected instances of child abuse to law enforcement or other
governmental agencies. After investigation, reports
determined not to be unfounded are forwarded to the DOJ and
lodged in a statewide computer data bank. [Penal Code Section
11169(a).] This bill requires the Attorney General and the
district attorney of each county to prepare an annual report
to the Legislature on the number and disposition of reports of
sexual abuse of minor children made under this act.
However, this bill does not contain any provisions for the
transmission of this information from the law enforcement
agencies that receive the report of child sexual abuse to the
DOJ and the district attorney of each county and it would,
therefore, be impossible for these agencies to report
information to the Legislature which is not in their
possession.
5)Failure to Comply : This bill makes violation of the reporting
requirement a misdemeanor punishable by up to six months in
the county jail and by a fine not to exceed $1,000.
Furthermore, violations are reported to the appropriate
licensing boards and are considered "grave unprofessional
conduct". A third willful failure to comply by a health
professional is a felony, punishable by imprisonment in the
state prison for 16 months, 2 or 3 years. Also, failure to
comply with this act constitutes grounds for a cause of action
against any person who fails to comply and for damages
suffered by a minor, his or her family, or his or her
guardian. Should a third failure to comply with the reporting
requirement of this act be a felony punishable by imprisonment
in the state prison?
6)Storing the Fetal Tissue : This bill requires that aborted
fetal tissue be collected from all women under the age of 18
and stored for a period of four years. Although California
does not provide statistics on the number of teenagers
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receiving abortions to the Center for Disease Control, Planned
Parenthood estimates that of the national average of teen
pregnancies ending in abortion is roughly 35%. Twenty-three
percent of all abortions performed in the United States are
performed on women under the age of 20. The total number of
abortion in this age group is about 307,000. (Planned
Parenthood Statistics regarding pregnancy and childbearing
among teens, available at www.ppacca.org). According to the
National Center for Health Statistics, Division of Vital
Statistics, Center for Disease Control, there were 50,222
teenage births in California in 2001(available at
www.statehealthfacts.org). Although this number of abortions
being performed is a national average, this bill would require
storing fetal tissue for all abortions performed on women
under the age of 18 in California for a period of four years.
That storage could involve thousands of samples and an
enormous cost. This bill provides no direction as to where
these samples will be stored and who will bear the costs.
7)Right of Mother to Determine Use of Fetal Tissue : A woman has
a right to decide how fetal tissue from her abortion is
treated. A woman's property right in controlling the eventual
disposition of her abortus is derived from her right to use,
enjoy, and determine the disposition of her own body.
[Jonathan Hersey, "Enigma of the Unborn Mother: Legal and
Ethical Considerations of Aborted Fetal Ovarian Tissue and Ova
Transplantations", 43 UCLA L. Rev. 159, 197. See Moore vs.
Regents of the University of California (1990) 793 P.2d 479,
496.] Not only does the mother have a privacy interest in
protecting information from whoever would be storing the
information but also in how the fetal tissue is used.
8)Prior Legislation . AB 1427 (Mountjoy) of the 2005 Legislative
Session required a physician or surgeon to retain the tissue
of an aborted fetus fro the purpose of DNA testing to
determine guilt or innocence of sexual crimes relating to the
pregnancy. AB 1427 failed passage in the Assembly Public
Safety Committee.
AB 930 (Mountjoy) of the 2003-2004 Legislative Session required
specified medical personnel to promptly report to a law
enforcement agency or child protective agency their knowledge
that a minor has contracted a sexually transmitted disease or
is pregnant. AB 930 failed passage in the Assembly Public
Safety Committee.
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9)Argument in Opposition .
The California Family Health Council argues, "Current law
requires that a health care provider must file a report to
local law enforcement when there is a reasonable suspicion of
child abuse. Clinicians take their responsibility for
reporting abuse very seriously, and file reports with
appropriate agencies if abuse is suspected for patients
whether they are minors or adults. Our clinicians are trained
to identify signs of abuse and coercion, and they are well
aware of the requirements of reporting laws, which currently
do not require that all minors be reported if there are
indications that they are sexually active. Such a mandate
would overload the system and prevent these agencies from
investigating and prosecuting real cases of sexual abuse. In
addition, to mandate this requirement would put at risk
current public health protections for minors in California."
REGISTERED SUPPORT / OPPOSITION :
Support
Concerned Women for America of California
Crime Victims United of California
Opposition
American Association of University Women
American Civil Liberties Union
American College of Obstetricians and Gynecologists
California Academy of Family Physicians
California Commission on the Status of Women
California Family Health Council
California Medical Association
California Nurses Association
California Welfare Directors Association
California Women Lawyers
County Welfare Directors Association of California
National Association of Social Workers, California Chapter
National Center for Youth Law
Planned Parenthood Affiliates of California
Planned Parenthood Golden Gate
Planned Parenthood of Pasadena
Planned Parenthood of Santa Barbara,
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Ventura and San Luis Obispo Counties
Planned Parenthood Shasta-Diablo
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744