BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair S
2005-2006 Regular Session B
3
3
SB 33 (Battin)
As Amended April 14, 2005
Hearing date: April 19, 2005
Penal Code
JM:br
LEWD CONDUCT WITH CHILDREN
LIMITING AND PROHIBITING PROBATION
HISTORY
Source: National Association to Protect Children
Prior Legislation: SB 1803 (Battin) - 2004; failed passage in
Senate Public Safety
Support: California District Attorneys Association; California
State Sheriffs' Association; California Correctional
Supervisors Association; Responsible Citizens Inc;
PORAC; City of El Cerrito; Rape Treatment Center at
Santa Monica-UCLA; Oxnard Police Department; Rainbow
Community Center of Contra Costa County; Valencia
Pediatric Associates; A Minor Consideration; Incest
Survivors Speakers Bureau; Mothers of Lost Children;
California Protective Parents Association; Feminist
Majority; California Alliance Against Domestic
Violence; Bikers Against Child Abuse; California
Women's Law Center; Solano County Board of Supervisors;
numerous private citizens
Opposition:California Judges Association; California Attorneys
for Criminal Justice; California Public Defenders
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Association; American Civil Liberties Union
KEY ISSUES
EXISTING LAW LIMITS OR PROHIBITS PROBATION FOR A DEFENDANT
CONVICTED OF LEWD CONDUCT WITH, OR CONTINUOUS SEXUAL ABUSE OF, A
CHILD UNDER THE AGE OF 14.
(CONTINUED)
PENAL CODE SECTION 1203.066 ALLOWS PROBATION FOR A PERSON CONVICTED
OF INTRA-FAMILY LEWD CONDUCT OR CONTINUOUS SEXUAL ABUSE THAT
INVOLVED "SUBSTANTIAL SEXUAL CONDUCT" (SPECIFIC SEX ACTS OR
MASTURBATION BY THE DEFENDANT OR CHILD), MULTIPLE VICTIMS OR
PORNOGRAPHY, UNDER DETAILED CONDITIONS, INCLUDING THAT PROBATION IS
IN THE BEST INTERESTS OF THE CHILD AND THE PERSON CAN BE
SUCCESSFULLY REHABILITATED.
SHOULD THIS PROBATION ELIGIBILITY BE ELIMINATED?
SHOULD THE STANDARDS FOR TREATMENT PROGRAMS FOR DEFENDANTS CONVICTED
OF INTRA-FAMILY LEWD CONDUCT AND CONTINUOUS SEXUAL ABUSE BE
ELIMINATED, LEAVING INSTEAD TREATMENT AND PROBATION STANDARDS FOR
SEX OFFENDERS GENERALLY, WITH AN ADDITIONAL DIRECTIVE THAT
DEFENDANTS WHO ARE RELATED TO THE VICTIM MUST LEAVE THE VICTIM'S
HOME UNTIL THE COURT FINDS THAT RETURN OF THE DEFENDANT IS IN THE
BEST INTERESTS OF THE CHILD?
UNDER EXISTING LAW, A PERSON WHO IS GRANTED PROBATION UNDER SECTION
1203.066 FOR NON-FORCED OR NON-COERCED INTRA-FAMILY LEWD CONDUCT OR
CONTINUOUS SEXUAL ABUSE IS NOT SUBJECT TO A ONE-STRIKE SENTENCE.
SHOULD THIS LIMITED AND SPECIFIC ONE-STRIKE EXCEPTION BE EFFECTIVELY
ELIMINATED THROUGH ELIMINATION OF THE NECESSARY AND CORRESPONDING
PROBATION ELIGIBILITY PROVISION?
SHOULD A PERSON'S ELIGIBILITY FOR PROBATION FOR LEWD CONDUCT BE
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DETERMINED BY SPECIFIC ALLEGATIONS OF STATUTORY PROVISIONS
CONCERNING INELIGIBILTY, RATHER THAN INELEGIBILITY FLOWING FROM THE
NATURE OF THE OFFENSE CHARGED?
EXISTING LAW ALLOWS SPECIFIED DEFENDANTS CHARGED WITH PHYSICAL OR
SEXUAL ABUSE OF CHILDREN THE OPPORTUNITY TO ENTER GUILTY PLEA IN A
DEFERRED ENTRY OF JUDGMENT TREATMENT PROGRAM IN WHICH THE CHARGES
CAN BE DISMISSED AFTER AT LEAST FIVE YEARS HAVE PASSED.
SHOULD THIS DEFERRED ENTRY FOR ANY FORM OF CHILD ABUSE BE
ELIMINATED?
SHOULD INCEST BE DEFINED AS FORNICATION BETWEEN SPECIFIED BLOOD
RELATIVES OVER THE AGE OF 14, RATHER THAN THE EXISTING DEFINITION
WHICH DOES NOT REFER TO THE AGE OF THE PARTICIPANTS?
PURPOSE
The purposes of this bill are to 1) largely eliminate, in cases
involving sexual conduct with a child under 14, distinctions in
probation eligibility between defendants who are family members
of the victim and other defendants;2) eliminate probation
eligibility(in specified treatment programs) for persons
convicted of intra-family lewd conduct or continuous sexual
abuse that involved multiple victims, pornography or substantial
sexual conduct; 3) eliminate an exception to life terms under
the one-strike law for persons convicted of intra-family lewd
conduct and continuous sexual abuse who are granted probation;
4) require specific pleading and proof of allegations that make
defendants ineligible for probation in lewd conduct and
continuous sexual abuse convictions; 5) allow prosecutors to
negotiate plea agreements that leave defendants eligible for
probation in lewd conduct cases; 6) retain restrictions on the
perpetrator living in or returning to the home of the victim in
intra-family sexual abuse cases; 7) define incest (a straight
felony) as sexual intercourse between specified blood relatives
over the age of 14; and 8) eliminate deferred entry of judgment
programs in physical and sexual abuse cases.
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Lewd Conduct and Continuous Sexual Abuse of a Child, Generally
Existing law provides that any person who commits a lewd and
lascivious act with a child under the age of 14 years shall be
imprisoned in state prison for 3, 6 or 8 years. (Pen. Code
288.) In most cases the court can or must impose fully
consecutive terms for each separate act. (Pen. Code 667.6,
subds. (c) and (d).)
Existing law defines a lewd act with a child as:
Any touching (through clothing or on the skin) of a child
(by the defendant or by the child at the instigation of
the defendant).
Done for sexual gratification (of the perpetrator or the
child). (People v. Martinez (1995) 11 Cal.4th 434,
452.)<1>
Defined sex crimes (rape, oral copulation, etc.) may also
be charged as lewd conduct. (People v. Pearson (1986) 42
Cal.3d 351.)
Existing law defines two forms of lewd conduct: 1) Where the
crime is accomplished by force, fear, duress or menace. 2)
Where no force, fear, duress, etc., is used. The sentence for
the crime itself is the same whether or not force or duress
was used. However, numerous other consequences apply based on
whether or not the crime involved force or duress. (Pen. Code
288, subds. (a)-(b).)
Existing law , as interpreted by the courts, defines or describes
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<1> While lewd conduct generally involves sexually motivated
touching of a child's breasts, buttocks or external sexual
organs, lewd conduct may involve sexually motivated touching of
any part of the body with sexual intent. (People v. Martinez,
supra, 11 Cal.4th at 444.)
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force, duress and menace thus:
Force : The majority of cases hold that the element of
"force" is shown by force that allowed the defendant to
accomplish the act without the child's consent. (People v.
Neel (1993) 19 Cal.App.4th 1784.)
Duress : Direct or implied threat of force, violence, danger,
hardship or retribution sufficient to allow commission of the
act. The jury shall consider all of the circumstances in
determining whether duress was proved, including the age of
the victim and his or her relationship to the defendant.
(People v. Pitmon (1985) 170 Cal.App.3d 38, 47-51.) (e.g., a
threat to send a child to bed without dinner would appear to
constitute duress.)
Existing law provides that lewd conduct with a child of 14 or 15
years of age (regardless of whether or not force or fear was
used), where the defendant was more than 10 years older than the
victim, is an alternate felony-misdemeanor punishable by
imprisonment in the county jail for up to 1 year or in state
prison for "one, two or three years."<2> (Pen. Code 288,
subd. (c).)
Existing law provides that any person who lives with or has
recurring access to a child and who engages in three or more
acts of substantial sexual conduct or acts of lewd conduct with
a child under the age of 14 over a period of at least three
months' time is guilty of the felony of continuous sexual abuse
of a child, punishable by a prison term of 6, 12 or 16 years and
a fine of up to $10,000. (Pen. Code 288.5.)
Existing law provides where a defendant is charged with
continuous sexual abuse of a child, "no other felony sex offense
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<2> This is an unusual triad, as the standard low-term felony
sentence is 16 months.
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involving the same victim may be charged . . . unless the other
charged offense occurred outside the time period . . . or the
other offense is charged in the alternative. A defendant may be
charged with only one count . . . unless more than one victim is
involved in which case a separate count [of continuous sexual
abuse] may be charged for each victim." (Pen. Code 288.5,
subd. (c).)
Deferred Entry of Judgment in Cases of Sexual Acts with a Child;
Counseling Programs in Child Abuse Matters Not Involving Sexual
Misconduct
Existing law provides that, except in sexual abuse cases, the
prosecutor may, in lieu of prosecution , refer a person suspected
of abusing or neglecting a child, to the county social services
or probation department for counseling or psychological
treatment and related necessary services. Prosecutors must
consult with the social service or probation department prior to
making such referral. (Pen. Code 1000.12, subd. (b).)
Existing law (Pen. Code 1000.12, subd. (c)(1)) provides that
in a case in which a minor is the victim of "an act of
molestation or sexual abuse" the prosecutor, in lieu of trial ,
may move the court to defer entry of judgment as to a defendant
who pleads guilty to all charges and enhancements. The court
can accept or reject the agreement between the defendant and the
prosecutor. Prosecutors are not required to offer deferred
entry to an eligible defendant. (People v. Andreotti (2001) 91
Cal.App.4th 1263.) (It appears that this program is seldom
used.)
In deferred entry for sexual abuse cases, the prosecutor shall
compose eligibility standards, including, at a minimum:
Deferred entry is in the best interests of the child.
Rehabilitation is feasible in a recognized program, as
defined by Pen. Code 1203.066, designed to the abuse
involved in the charges.
No threat of harm to the victim.
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No charges under Pen. Code 208, subd. (b) (lewd conduct
by force or duress), 288a (oral cop.), 288.5 (continuous
sexual abuse of a child) or sexual penetration, or any crime
involving force or duress.
Deferred entry must include these terms:
Defendant may not use/possess illegal drugs or associate
with drug users or sellers.
Defendant must submit to search and seizure.
Unification with family or unsupervised contact with
victim prohibited except on recommendation of treatment
program, motion of the prosecutor and order of the court.
Existing law (Pen. Code 1000.13) includes the following
additional requirements for deferred entry in a case of sexual
abuse of a child:
Defendant must make written agreement with the
prosecutor.
Defendant must be related to the victim.
No prior felony sex crime or sexual misdemeanors
involving children.
No prior violent felony convictions and prison free
during past 10 years.
No prior unsuccessful diversion program, probation or
parole within past 10 years.
No prior referral under this program.
Prosecutors "may impose additional relevant criteria".
Existing law provides that upon 1) successful completion of the
deferred entry treatment program, 2) the positive recommendation
of the treatment provider, and 3) the motion of the prosecutor,
the court shall dismiss the charges against the defendant.
Dismissal can be ordered no sooner than 5-years after referral
for treatment. (Pen. Code 1000.12, subd. (c)(1).)
Existing law provides that upon failure of treatment, the court
shall enter judgment and impose sentence. (Pen. Code 1000.12,
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subd. (c)(2).)
Under existing law , it is an open question as to whether a
person who successfully completes a deferred entry of judgment
program under Penal Code Section 1000.12 and 1000.13 is required
to register as a sex offender, as the person's plea does not
ripen into a judgment. The Attorney General has concluded that
a person who successfully completes deferred entry of judgment
is required to register as a sex offender. It should be noted
that the deferred entry statutes for drug offenses specifically
provide (Pen. Code 1000.1, subd. (d)) that a guilty plea for a
person who successfully completes deferred entry is not
considered a "conviction" for any purpose. A similar provision
is not included in Section 1000.12 for deferred entry in lewd
conduct cases.
Under existing decisional law - a recent decision of the
California Supreme Court (People v. Laino) - a guilty plea to
lewd conduct in a deferred entry program would appear to be a
prior conviction for purposes of the Three Strikes law. The
stay of "imposition of judgment" does not affect the nature of a
prior conviction for purposes of Three Strikes. (Pen. Code
1170.12, subd. (b)(1).) The decision in Laino may raise complex
issues about what constitutes a conviction, the court in that
case held: "[O]nce we are satisfied that a defendant's factual
guilt was established in the foreign state, and once we are
satisfied that such conviction constitutes a strike under our
three-strikes law, that prior crime will count here." (People
v. Laino (2004) ___ Cal.4th ____, emphasis added.)
This bill eliminates deferred entry of judgment in child abuse
cases of all kinds.
This bill provides that the prosecution cannot refer any
defendant charged with "sexual abuse or molestation of a minor
victim" to the county social services or probation department
for counseling of treatment in lieu of prosecution.
This bill does allow the prosecutor to refer a defendant charged
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with "physical" abuse of a minor to the county social services
or probation department for counseling of treatment in lieu of
prosecution.
Probation Prohibitions and Limitations in Sex Offenses against
Children Generally
Existing law , through a bewildering series of cross-references
and inter-related statutes, does not specifically prohibit
probation for a person convicted of lewd conduct without force
or duress, unless the defendant is a stranger to the child and
did not believe that the child was under the age of 14.
Probation is prohibited in other cases unless the defendant is a
relative of the victim and other requirements are met. (Pen.
Code 1203.065, 1203.066 and 1203.067.)
Existing law states general eligibility and program requirements
for a person who is eligible for probation for specified sex
crimes, including lewd conduct. (Pen. Code 1203.067.)
Existing law provides that before a person convicted of lewd
conduct may have his sentence suspended, the court must obtain a
report from a "reputable psychiatrist, reputable psychologist
who meets the standards of Penal Code Section 1027,<3> or from a
recognized treatment program pursuant to Penal Code Section
1000.12 or 1203.066, as to the mental condition" of the
defendant. (Pen. Code 288.1.)
Existing law includes the following requirements for a grant of
probation in Section 1203.067 (for a person who is not subject
to numerous probation prohibitions in other statutes):
Evaluation of defendant by a diagnostic facility of the
Department of Corrections (90 day maximum) or a similar
evaluation by the probation department.
Court hearing to determine if the defendant would pose a
threat to the victim.
Psychiatric or psychological evaluation to consider threats to
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<3> Doctoral degree and at least 5 years of experience.
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the victim or the defendant's potential for positive response
to treatment.
Court must order defendant placed in a sex offender treatment
program, if available.
Existing law (Pen. Code 1203.066), with limited exceptions,
prohibits probation for any person convicted of lewd conduct
with a child under the age of 14 (Pen. Code 288) or continuous
sexual abuse of a child (Pen. Code 288.5).
Existing law provides that the court may not, in the interests
of justice under Section 1385, strike any factual finding that
would prohibit probation under Section 1203.066. In particular,
a person is not eligible for probation where one of the
following is shown:
The crime was committed by force, duress, or fear of immediate
injury to victim or another person.
The victim suffered bodily injury.
The defendant was a stranger to the child or befriended the
child in order to commit the crime, unless the defendant
reasonably believed the victim was under the age of 14.
The defendant has been previously convicted of one of
(numerous) specified sex crimes.
Crime was committed during a kidnapping.
More than one victim involved.
The crime involved substantial sexual conduct (masturbation of
victim or defendant, penetration of vagina or rectum, oral
copulation).
Obscene matter or matter depicting minors engaged in sexual
conduct (actual or simulated) used in the commission of the
offense.
Existing law provides that "the existence of any fact that
would make a person ineligible for probation [under section
1203.066] shall be alleged in the accusatory pleading
(complaint or information)" and admitted by the defendant or
found true by the jury or the court. (Pen. Code 1203.066,
subd. (d).)
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Existing decisional law provides that "in enacting Section
1203.066 it appears that the Legislature intended that state
prison be the sentencing norm in child molestation cases, meeting
the criteria in subdivision (a), and that the defendant bear the
burden of persuading the court to depart from that norm by
granting probation." (People v. McLaughlin (1988) 203 Cal.App.3d
1037, 1039.)
Existing law provides that a defendant convicted of lewd and
lascivious conduct that did not involve force or duress<4>,
but that did involve "substantial sexual contact," more than
one victim, or the use of pornography, is eligible for
probation only under the following, limited circumstances:
Defendant is the victim's parent, stepparent, relative or
member of the victim's household.
A grant of probation is in the best interests of the child.
Rehabilitation is feasible and the defendant is amenable to
rehabilitation.
The defendant must immediately be placed in a recognized
treatment program for child molesters.
Defendant must be removed from home until court determines
best interests of the child allows defendant to return.
The treatment program must meet strict standards, including
demonstration of "expertise in the treatment of children who
are victims of child abuse, their families and offenders."
The program must provide "an integrated program or treatment
and assistance to victims and their families." (Pen. Code
1203.066, subds. (c) and (e).) The fact that a defendant is
statutorily eligible for probation does not mean that the
court must grant probation. The court makes such a
determination after weighing all applicable factors.
Existing law allows a prosecutor to challenge a grant of
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<4> Existing law denies probation for any person convicted of
lewd conduct committed by force, violence, duress or menace.
(Pen. Code 1203.066, subd. (a)(1).)
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probation by means of a petition for writ of mandate or
prohibition. (Pen. Code 1238, subd. (d).) In a sentencing
scheme such as that in 1203.066 - where a prison term is
presumed to be the appropriate disposition - a grant of
probation would be improper unless the record establishes that
the defendant meets the requirements of any exception.
This bill eliminates the limited eligibility for probation set
out in Section 1203.006, subdivisions (c) and (e), for
intra-family lewd conduct.
This bill eliminates the standards and requirements for
treatment programs providing treatment to convicted defendants
in intra-family lewd conduct cases.
This bill provides that persons convicted of lewd conduct and
granted probation must be treated in a program that meets
general requirements for sex-offender probation treatment
programs (as found in Pen. Code 288.1, 1027 and 1203.067),
not the special requirements and standards for specified
intra-family matters.
This bill does not change the provisions in existing law that a
defendant convicted of intra-family lewd conduct be removed from
the home of the victim and not returned unless and until it is
in the best interests of the child for the defendant to return.
This bill provides that, except for a violation of subdivision
(b) of Section 288, the prosecutor must specifically plead and
prove a fact that makes a person ineligible for probation under
Penal Code Section 1203.066. The allegation must specifically
reference Section 1203.066.
This bill would not prohibit probation where a fact that would
render a person ineligible for probation - multiple victims for
example - is only established because two victims or more are
named in the charging document and not specifically alleged
pursuant to Section 1203.066.
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This bill does not appear to eliminate the limited possibility of
probation (under Pen. Code 288.1 and 1203.067) where a person
who is not a stranger to the child is convicted of non-forced,
non-coerced lewd conduct, if other prohibiting factors (force or
duress, substantial sexual conduct, multiple victims, etc.) do not
apply. It thus it appears that a family member (or other
non-stranger) who commits non-forced or non-coerced lewd conduct
could be granted probation in such a case if this bill is enacted.
The probation requirements in 1203.067 are not as strict or
extensive as in deferred entry of judgment ( 1000.12-1000.13) or
probation under Section 1203.066 in existing law.
Domestic Violence Probation and Treatment Laws
Existing law (Pen. Code 1203.097.)includes detailed rules and
requirements for domestic violence treatment programs for
probationers. Some requirements include:
Probation must last at least three years.
Probationers must engage in counseling and perform community
service.
Probation orders must include protective orders for the
victim.
The probation department must fully investigate the
defendant's background and suitability for domestic violence
probation.
The program of treatment and probation must include skills and
knowledge that would bring the probationer to avoid future
abusive conduct.
One Strike Sex Crime Law and Related Matters
Existing law includes the "one-strike" sex crime sentencing law
that provides sentences of 15 years or 25 years-to-life in
certain sex crimes if specified circumstances in aggravation are
found to be true. (Pen. Code 667.61.)
Existing law states that the qualifying sex crimes under the
"one-strike" sex law are forcible rape, forcible spousal rape,
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rape by a foreign object, forcible sodomy, forcible oral
copulation, lewd and lascivious acts with a child under the age
of 14 accomplished by force or duress, and lewd and lascivious
acts with a child under the age of 14 accomplished by other than
force or duress where the defendant is not eligible for
probation. (Pen. Code 667.61, subd. (c).)
Existing law provides that if one of the enumerated aggravating
factors set out in Section 667.61, subdivision (d), is found to
be present, then the qualifying sex offense is punishable by a
term of 25 years-to-life. (Pen. Code 667.61, subd. (a).)
Single Factor - 25 years-to-life:
Defendant was previously convicted of one of the qualifying
sex offenses
Defendant kidnapped the victim substantially increasing the
risk of harm
Defendant inflicted aggravated mayhem or torture
The crime involved residential burglary with the intent to
commit a sex offense
Existing law provides if one of the enumerated aggravating
factors in Section 667.61, subdivision (e) is found to be
present, the qualifying sex offense is punishable by a term
of 15 years-to-life. If the crime involves two or more of
these factors, the defendant shall receive a term of 25
years-to-life. (Pen. Code 667.62, subds. (a)-(b).)
One Factor - 15 years-to-life; Two Factors - 25 years-to-life
Defendant committed the offense in the course of a
residential burglary
Defendant kidnapped the victim
Defendant personally used a dangerous or deadly weapon
Defendant inflicted great bodily injury
The victim was tied or bound
The crime involved more than one victim
The defendant administered a controlled substance by force,
violence or fear. (Pen. Code 667.61, subd. (e).)
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Existing law includes an exception for one-strike eligibility
in cases where a defendant charged with non-forced, non-coerced
lewd conduct (Pen. Code 288, subd. (a)) is eligible for
probation under the strictly limited circumstances set out in
Penal Code Section 1203.066. (Pen. Code 667.61, subd.
(c)(7).) As noted above, these circumstances include:
Intra-family molest; probation for the defendant is in the best
interests of the child; rehabilitation is feasible; defendant
is amenable to rehabilitation; defendant must immediately be
placed in a recognized treatment program for child molesters;
defendant removed from the home; treatment program must meet
strict standards of expertise and quality. As noted above in
the paragraphs describing Section 1203.066, the fact that a
defendant is statutorily eligible for probation does not mean
that the court must grant probation. The court makes such a
determination after weighing all applicable factors.
This bill eliminates the exclusion from one-strike penalties for
persons who are charged with lewd conduct in specified
intra-family forms of lewd conduct involving substantial sexual
conduct, multiple victims or pornography, but who are eligible
for probation under the limited circumstances set out in Penal
Code Section 1203.066.
This bill does not eliminate the provision in the one-strike law
(Pen. Code 667.61) excluding from one-strike life terms
defendants who qualify for probation under Section 1203.066,
subdivision (c)), although the bill as amended on April 14, 2005,
rewrites subdivision (c) as a procedural provision on pleading
and proof requirements for probation ineligibility factors.
Apart from the limitations on and requirements for probation in
lewd conduct cases, Section 1203.066 includes an exhaustive list
of factors that make a defendant ineligible for probation - use
of force or duress, use of a weapon, commission of the offense by
a stranger to the victim where the perpetrator does not believe
the victim is under the age of 14, etc.
This bill appears to eliminate the exception from a one-strike
life sentence applicable to a person convicted of lewd conduct
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who is granted probation under Section 1203.066, subdivision
(c).
Incest Laws
Existing law provides that it is a felony for specified blood
relatives (those who could not legally marry) to commit
fornication or adultery with one another. This felony is
punishable by imprisonment in state prison for 16 months, 2
years or 3 years and a fine of up to $10,000. (Pen. Code
285.)
Existing law defines incestuous marriages thus: "Marriages
between parents and children, ancestors and descendants of every
degree [grand and great-grand relatives] and between brothers
and sisters of the half as well as the whole blood, and between
uncles and nieces or aunts and nephews, are incestuous, and void
from the beginning . . ." (Fam. Code 2200.)
Existing law appears to include no special prohibitions or
limitations on probation for persons convicted of incest; a
person convicted of incest is not subject to a life term under
the one-strike law. Incest is not listed as serious or violent
felony subject to the Three Strikes law.
This bill would define criminal incest as fornication or
adultery by specified blood relatives who are 14 years of age or
older.
This bill appears intended to eliminate the possibility of a
guilty plea to incest as reasonably related to a charge of lewd
conduct in intra-family child molest cases.
COMMENTS
1. Need for This Bill
According to the author:
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The vast majority of child sexual abuse is . . .
committed by adults in a child's . . . circle of
trust. This abuse takes a . . . devastating toll
on children. Yet California has virtually
decriminalized child sexual abuse within the
family.
In 1980 and 1981, the Legislature held . . . hearings
on the issue of child molestation. The transcripts . .
. tell an alarming story of influence by a single sex
offender lobby, Parents United, a treatment
organization for incest perpetrators. Its "treatment
model" was to put the victim into therapy with the
offender, treating what it called the "incestuous
family" - perpetrator, spouse and victim. The aim,
group leader Hank Giaretto testified, was family
reunification. Giaretto claimed to have reunited
perpetrators with victims 90 percent of the time. . ."
As some in the Catholic Church would claim two decades
later about pedophile priests, Parents United . . .
claimed that "the father offender" was not a
"pedophile" at all, but rather a "situational offender"
who was different. "We need to be careful," Giaretto
told lawmakers, "not to take the situational offender,
the father offender who has had, usually, a very
outstanding career in industry and in his place in the
community, and mix him up with the type of offender,
the predator, the type of fellow who stalks his victims
. . ."
. . . The victory of family reunification advocates
came . . . just when advocates were making important
advances in toughening laws against domestic violence
and ensuring that marital rape was prosecuted.
California's response to similar crimes against
children moved in the opposite direction. California
laws essentially treat children as chattel, and sexual
exploitation of children in the family as a private
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"family matter."
Since 1981, there have been two separate standards of
justice for California children who are sexually
exploited by adults: mandatory prison for those who
victimize strangers . . . and probation and therapy for
those who 'grow their own victims.' In fact,
California Department of Justice statistics indicate
that since California decriminalized incest, over
50,000 convicted child molesters - representing about
60% of all convictions for the crimes of "lewd and
lascivious acts" and "continuous sexual abuse" have
avoided serving any prison time.
. . . California has codified preferential treatment for
intra-familial child sexual abuse in three statutes. PC
1203.066 contains an intentional sentencing loophole for
family members, waiving prison sentences for even the
most severe and ongoing forms of child molestation if
the victim lives in the perpetrator's household. PC
1000.12 and 1000.13 create similar preferential
treatment exclusively for incest perpetrators, allowing
"deferred entry of judgment," followed by the dropping
of all charges.
SB 33 makes substantial changes to all three of these
statutes, while also amending PC 285, the Incest
statute. . . . It follows a recent push to reform
incest laws in North Carolina (2002), Arkansas (2003)
and Illinois (2003). These states . . . [have] more
progressive and enlightened child sexual abuse laws
than California.
The author provided an additional argument from Dr. Bruce
D. Perry, a Houston-based psychiatrist at the ChildTrauma
Academy, and a witness on former versions of this bill:
[There is no disagreement] that the seduction, rape and
sexual assault of a minor should be considered a crime.
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Further, my limited understanding of the underlying
principles of justice in our society suggests that we
are in general agreement that the severity of the
offense should be a key consideration when considering
. . . Yet this is not the case currently in California.
Just the opposite. I believe this must be because we
in the profession have failed to convey the destructive
nature of incest and intra-familial sexual abuse.
From a purely developmental (mental health)
perspective, if the law were to impose penalties to
reflect the actual harm inflicted by sexual abuse, the
law would make it a greater offense to violate your own
child. The very core of what it means to trust, to
associate power with safety, to form . . . healthy
relational skills required to be a successful friend,
employee, spouse and parent are undermined by childhood
sexual abuse within the family.
Our well-intentioned efforts to rehabilitate offenders
and "re-unite" families often fail miserably. Sexual
exploitation and abuse of your children is not the kind
of pathology that will change with parent training . .
. insight oriented therapy or any of our well-intended
but only partly effective therapeutic efforts. The
cost of these therapeutic failures is a lifetime of
pain, misery and fear . . .
2. Probation Grants for Intra-Family Lewd Conduct and Continuous
Sexual Abuse of a Child Appear to be Uncommon
The author states that since 1981 50,000 of persons have been
granted probation for lewd conduct or continuous sexual abuse of
a child. The Department of Justice does not publish statistics
specifically tracking grants of probation in lewd conduct and
continuous sexual abuse cases. The assertion that 50,000 people
have been granted probation since 1981 (approximately 2,100 per
year statewide) appears to have been extrapolated or estimated
from various tables and charts published by DOJ. DOJ staff
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notes that one could not likely determine the proportion of
defendants granted probation that successfully completed
probation, as opposed to those who were committed to prison
following revocation of probation.
One cannot determine from this data how many people were
granted probation under the special programs for relatives
convicted of intra-family lewd conduct as set out in Penal Code
Section 1203.067, subdivision. (c), the probation eligibility
law eliminated by this bill.
Data from the California Department of Justice does indicate that
defendants are granted probation under Section 1203.066,
subdivision (c) very rarely. In particular, 127 persons have
applied to be excluded from being listed on the Megan's Law
Internet Website because they were granted probation under
1203.066 and continued to register for 10 years and were not
convicted of a felony. 18,000 offenders convicted of lewd
conduct or continuous sexual abuse were notified that they were
eligible to apply for the exclusion if they had been granted
probation under Section 1203.066. This would appear to indicate
that grants of probation under Section 1203.066 - the probation
program eliminated by this bill - are very limited. Probation
for lewd conduct offenders is likely to be granted pursuant to
Sections 1203 and 1203.067, not 1203.066, the section amended by
this bill.
Arguably, any excessive leniency in granting probation in child
sexual abuse matters occurs in programs other than the
intra-family probation program eliminated by this bill.
This bill would not necessarily alter the rate of lewd conduct
cases in which defendants are granted probation. This bill
effectively limits or eliminates the limited discretion of
courts to give probation to defendants and increases the ability
and power of prosecutors to negotiate plea bargains under which
a lewd conduct defendant would get probation. (See, Comment #6
on changes in power of prosecutors and courts.)
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In many cases, probation would be granted only where the
original charges were reduced through plea negotiations. For
example, force and duress in lewd conduct is often not difficult
to prove. Persons guilty of forced or coerced lewd conduct are
not eligible for probation.
WOULD THIS BILL ACTUALLY SIGNIFICANLTY ALTER THE PROPORTION OF
LEWD CONDUCT CASES IN WHICH DEFENDANTS ARE GRANTED PROBATION?
ASSUMING THAT PROBATION HAS BEEN IMPROPERLY GRANTED IN SOME
PROPORTION OF CHILD SEXUAL ABUSES CASES, IS THE SOURCE OF SUCH
PROBLEM THE PROGRAM FOR INTRA-FAMILY SEXUAL ABUSERS FOUND IN
PENAL CODE SECTION 1203.066, OR RATHER PROBATION GRANTED UNDER
OTHER PENAL CODE PROVISIONS?
3. Arguments Concerning a Culture of Acceptance of Abuse Created
by Existing Laws Creating Limited Probation Eligibility in
Intra-Family Child Molest Cases
In discussions with Committee staff, representatives of the
sponsor have argued that the existing laws allowing limited
grants of probation in intra-family lewd conduct cases involving
substantial sexual conduct, multiple victims or the use of
pornography create a culture of acceptance of such crimes.
Essentially, the sponsor and the courts have come to understand
that these cases are not particularly serious, or at least that
they should not be treated with the gravity they deserve.
This culture of acceptance brings courts to allow defendants to
obtain probation even where probation should not be granted
under the terms of the governing statute. Further, this culture
brings courts to allow probationers to return to the family home
and live with the victim prematurely and when it should never be
allowed.
The sponsor argues that child victims are pressured to accept
the crime and to accept the offender back into the home. After
the offender has been returned to the home, perhaps not
intending to stop sexually abusing the victim, the child-victim
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comes to believe that complaining about abuse would not be taken
seriously. Further, the offender often has inherent power in
the family that the minor lacks.
As noted, below, prison sentences for lewd conduct can be
extremely severe. Under the "one-strike" law, life sentences
are possible. Apart from the one-strike law, multiple
punishment and consecutive sentencing is not limited in sex
crimes cases. As such, the family of a child victim could put
great pressure on the child to recant when the family realizes
that a family member is facing a possible life sentence. The
family could refuse to cooperate with the prosecution and could
even flee the jurisdiction. This could put victims is grave
danger. Pressure on the child in such circumstances could be
severe.
DO THE EXISTING PROBATION ELIGIBILITY RULES IN INTRA-FAMILY LEWD
CODUCT CASES INVOLVING SUBSTANTIAL SEXUAL CONDUCT, MULTIPLE
VICTIMS OR PORNOGRAPHY CREATE A CULTURE OF ACCEPTANCE OF SUCH
CONDUCT BY PROSECUTORS AND THE COURTS?
DOES THE CURRENT PROBATION ELIGIBILTY SYSTEM PUT PRESSURE ON
LEWD CONDUCT VICTIMS TO ACCEPT THE OFFENDER BACK INTO THE HOME
AND TO NOT REPORT LATER ABUSE?
AS ARGUED BY THE AUTHOR AND SPONSORS, DOES INTRA-FAMILY SEXUAL
ABUSE OF A CHILD CAUSE UNIQUE PSYCHOLOGICAL HARM TO A VICTIM
THAT WOULD NOT FLOW FROM A CRIME COMMITTED BY A STRANGER?
4. Intra-Family Molest Probation Eligibility (as an Exception to
the Prohibition of Probation for Lewd Conduct with a Child)
Original Hearings on Probation for Intra-Family Molests
The court in People v. Groomes (1993) 14 Cal.App.4th 84, quoted
and paraphrased the court in People v. Jeffers (1987) 43 Cal.3d
984, as to policy debate about the possibility of probation for
defendants convicted of intra-family lewd conduct:
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Section 1203.066 was enacted in 1981 upon passage of
the Roberti-Imbrecht-Rains-Goggin Child Sexual Abuse
Prevention Act (Stats. 1981, ch. 1064, 1-6, pp.
4093-4096). In People v. Jeffers (1987) 43 Cal.3d 984,
the Supreme Court examined and extensively discussed
the act's legislative history. The court referred to
testimony before the Joint Committee for Revision of
the Penal Code (1979-1980 Reg. Sess.) (hereafter Joint
Committee) on the subject of child sexual abuse. The
court noted that several witnesses distinguished
pedophile offenders from those characterized as
intra-familial regressive offenders. (See People v.
Jeffers, supra, at pp. 993-996.) The Joint Committee
was told that attempts at rehabilitating pedophile
offenders had not been successful, and mandatory prison
terms were needed. On the other hand, attempts at
rehabilitating regressive offenders, incestuous or
intra-family offenders, had been successful. In
addition to successful rehabilitation programs, there
were other reasons why mandatory prison terms for
regressive offenders are not desirable. Witnesses and
victims were less likely to testify against close
family members or household members and risk
destruction of the family unit .
As the court in Jeffers recognized: " If an intra-family
molester is imprisoned there could be a loss of
financial support for the family, the victim could be
blamed by other family members, and the victim's mother
might abandon the victim in favor of the molester . If a
prison sentence is mandatory, there could also be a
reluctance of prosecuting authorities to file charges,
knowing the consequences for the family. The
authorities might prefer to treat the problem as a
juvenile or family law matter rather than as a criminal
matter, even though criminal prosecution, without a
mandatory prison term, would be preferable. [Citation.]
Effective rehabilitation is more difficult in prison
because the other family members cannot participate. (at
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pp. 60-61.)" (People v. Jeffers, supra, 43 Cal.3d at p.
995, fn. omitted, underlining added.)
Specific Criticisms by Proponents of Existing Programs -
Evaluation and Treatment Standards Issues
Proponents have argued that children are often pressured into
agreeing with or supporting a grant of probation. They argue
that where an intra-family child molester is returned to the
family, often years after the incident, and the person molests
the original victim or another child, the victim would be very
reluctant to report the second incident of abuse. Proponents
explain low reported recidivism rates for lewd conduct through
the asserted phenomenon of reluctance to report repeated abuse.
These criticisms raise issues about whether standards for
granting probation should be tightened and greater scrutiny made
in probation applications in cases where the offender is not the
natural parent. Perhaps the court should be directed to
consider independent, expert evaluations of the child; perhaps
independent counsel should be appointed to represent the child.
SHOULD STANDARDS BE TIGHTENED FOR TREATMENT PROGRAMS?
SHOULD PROBATION DEPARTMENTS AND THE COURT BE DIRECTED TO
CONSIDER WHETHER OR NOT THE DEFENDANT CULTIVATED THE
RELATIONSHIP WITH THE VICTIM'S PARENT IN ORDER TO GAIN ACCESS TO
THE VICTIM?
SHOULD AN INDEPENDENT EXPERT EVALUATION OF THE CHILD VICTIM BE
REQUIRED IN LEWD CONDUCT CASES WHERE THE DEFENDANT IS ELIGIBLE
FOR DEFERRED ENTRY OR PROBATION?
SHOULD COURTS HAVE DISCRETION TO APPOINT COUNSEL FOR THE CHILD?
GIVEN THE INHERENT PRESSURE ON CHILDREN TO RECANT OR REFUSE TO
COOPERATE IN INTRA-FAMILY MOLEST CASES, WILL ELIMINATION OF
PROBATION AND DEFERRED ENTRY OF JUDGMENT MAKE SUCH PRESSURE
PARTICULARLY INTENSE (AS THE OFFENDER MAY FACE A LIFE TERM) AND
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ALLOW MORE OFFENDERS TO GO UNPUNISHED AND UNTREATED, THEREBY
INCREASING THE INCIDENCE OF CHILD MOLESTS?
Prosecutor's Ability to Challenge Improper Grant of Probation
under Section 1203.066
A prosecutor has specific statutory authority to challenge an
improper grant of probation by a writ of prohibition or mandate.
(Pen. Code 1238.) While a reviewing court would review the
challenge under an abuse of discretion standard, the court's
discretion must be exercised within the framework of the
existing law. Under Section 1203.066, a prison sentence is
presumed to be the correct sentence. Thus, a grant of probation
must be consistent with that assumption. For these reasons it
appears that a defendant would have more difficulty challenging
denial of probation under Section 1203.066 than would a
prosecutor in challenging a grant of probation.
A 1993 case held that prison is presumed to be the correct
sentence for lewd conduct, regardless of the probation
provisions in Section 1203.066, subdivision (c): "[T]he
Legislature has declared that imprisonment is the normal
sentence if a defendant has engaged in substantial sexual
conduct with a child under the age of 11 years . . . Only when a
defendant can establish he or she meets all the criteria of . .
. of Section 1203.066 can probation be ordered. This court has
previously held that a defendant has the burden to present
evidence showing that he is entitled to consideration for
probation under subdivision (c) of Section 1203.066." (People
v. Groomes (1993) 14 Cal. App. 4th 84, 89, citations omitted.)
DOES EXISTING LAW GIVE PROSECUTOR'S REASONABLE ABILITY TO
CHALLENGE AN IMPROPER GRANT OF PROBATION IN A LEWD CONDUCT CASE
UNDER SECTION 1203.066?
5. Elimination of Special Standards and Requirements for Programs
Dealing with Intra-Family Lewd Conduct and Continuous Sexual
Abuse
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This bill eliminates the special requirements and standards for
treatment programs for defendants convicted of intra-family
sexual misconduct with children younger than 14 years of age.
The only separate or special requirements for probation in
intra-family that would remain if this bill is enacted are those
requiring the victim to leave the home of the victim until the
court determines it is in the best interests of the child for
the offender to return and there are prohibitions or limits on
contact between the offender and the victim during the period of
probation.
The special requirements in existing law, requirements that must
be met where the defendant is charged with lewd conduct
involving multiple victims, pornography or substantial sexual
conduct, include:
Defendant must be the victim's parent, stepparent, relative
or member of the victim's household.
A grant of probation is in the best interests of the child.
Rehabilitation is feasible and the defendant is amenable to
rehabilitation.
The defendant must immediately be placed in a recognized
treatment program for child molesters.
Defendant must be removed from home until court determines
best interests of the child allows defendant to return.
The treatment program must meet strict standards, including
demonstration of "expertise in the treatment of children who
are victims of child abuse, their families and offenders."
The program must provide "an integrated program or treatment
and assistance to victims and their families." (Pen. Code
1203.066, subds. (c) and (e).) The fact that a defendant is
statutorily eligible for probation does not mean that the
court must grant probation. The court makes such a
determination after weighing all applicable factors.
If this bill is enacted, the defendant's eligibility for
probation would be determined by the specific charges filed and
allegations made by the prosecutor and plea negotiations. The
court could approve or not any plea bargain. In addition, Penal
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Code Section 1203.067 would require:
Evaluation of defendant by a diagnostic facility of
the Department of Corrections (90 day maximum) or a
similar evaluation by the probation department.
Court hearing to determine if the defendant would
pose a threat to the victim.
Psychiatric or psychological evaluation to consider
threats to the victim or the defendant's potential for
positive response to treatment.
Court must order defendant placed in a sex offender
treatment program, if available.
Representatives of the California District Attorneys Association
(CDAA) have acknowledged that statutory standards for treatment
intra-family probation programs (1203.066, subd. (c)) are more
strict and detailed than under more general probation treatment
programs ( 1203.067) for offenders convicted of other sex
offenses for which probation is allowed.
However, CDAA argued that the same programs and treatment
professionals deliver treatment under each program.
Intra-family sexual abusers, CDAA argues, will receive
substantially the same treatment if the special probation
treatment programs for intra-family abusers are eliminated by
this bill.
WILL THE ELIMINATION OF SPECIAL REQUIREMENTS AND STANDARDS FOR
TREATMENT PROGRAMS FOR PERSONS PLACED ON PROBATION AFTER A
CONVICTION FOR INTRA-FAMILY SEXUAL CONDUCT WITH CHILDREN UNDER
THE AGE OF 14 WEAKEN TREATMENT PROGRAMS AND PLACE VICTIMS AT
RISK?
6. General Issues Concerning the Increase in Power of Prosecutors
(Relative to Judges) in This Bill and Previous Initiatives and
Bills
Prosecutors' Charging Discretion and Plea Bargaining Power
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This bill eliminates specified probation and deferred entry of
judgment programs in intra-family molest cases and thus appears
to expand the application of the one-strike (life term) sex
crime sentencing law to such cases. Existing law prohibits
probation in many felony sex crimes, particularly any crimes
that involve force or duress. This bill thus continues an
approximately 20-year trend in California criminal law.
Increased sentences generally shift power to prosecutors.
The steady increase in crimes and penalties over the past
decades has greatly enhanced prosecutors' leverage in plea
bargaining. Policy analysts, academic writers and the media
often focus on the surface of a new sentencing law - assuming
that expanded sentences will be uniformly imposed. This ignores
that prosecutors have very wide charging and plea bargaining
discretion. "The prosecutorial power is, indeed, mighty."
(People v. Andreotti (2001) 91 Cal.App.4th 1263, 1273 -
prosecutor has sole discretion to refuse to offer deferred entry
of judgment to an eligible defendant charged with lewd conduct.)
Prosecutors can initially seek maximum penalties and then accept
a plea to a lesser charge. A defendant facing a life-term
sentence under the one-strike law is much more likely to plead
guilty to a lesser offense than the one originally charged, or
that could be charged, in return for a guarantee that he or she
will avoid a life-term. In this way prosecutors may be able to
avoid trials in cases where they have difficulty proving the
charges beyond a reasonable doubt.
Attempts to limit plea bargaining have had very limited success
in practice. In a case in which a serious felony is charged,
Penal Code Section 1192.7 only allows plea bargaining where the
charges may be difficult to prove or the plea will not result in
a substantial change in sentence. However, in virtually every
case, only the prosecutor can make a judgment as to whether or
not a case may be difficult to prove. While judges must accept
or reject plea bargains - essentially because a plea bargain
affects the traditional discretion of the court to impose
sentence - the prosecutor has very wide discretion in charging
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plea bargaining.
Pleading and Proof Issues
This bill changes pleading and proof requirements - facts
about a lewd conduct or continuous sexual abuse case that
make a defendant ineligible for probation - under Penal Code
Section 1203.066. These changes were requested by the
California District Attorneys Association (CDAA). CDAA
argues that these changes give them more power and
flexibility to offer or prohibit probation in an appropriate
case for persons convicted of sex crimes against children.
The major effect of the changes will be in giving prosecutors
authority and discretion to allow or prohibit probation to a
defendant convicted of non-forced or non-coerced lewd conduct
involving more than one victim. Under existing law, CDAA
argues, if the defendant is a relative of the victims, two
sisters for example molested by their grandfather, the court can
grant the defendant probation after the court makes the findings
required in subdivision (c) of Section 1203.066. Where, for
example, the child's soccer coach committed non-forced or
non-coerced lewd conduct with two sisters, the prosecutor would
be barred from offering probation or recommending to the court
that the defendant receive probation. That is because under the
terms of Section 1203.066 the "fact" that the defendant
committed crimes against more than one victim rendered the coach
ineligible for probation. The charging document - which names
two separate victims - necessarily establishes the fact of
multiple victims, thus rendering the defendant ineligible for
probation, even where the prosecutor believes the defendant
should receive probation. In order to make the defendant
eligible for probation, only one victim could be listed in the
charging document.
As amended on April 14, 2005 the bill effectively provides that
a fact of probation ineligibility must be specifically alleged
with reference to Penal Code Section 1203.066. Thus, in a the
example of a soccer coach, the prosecutor could charge the coach
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with lewd conduct involving each victim but leave the coach
eligible for probation by not specifically alleging that the
multiple victims preclude probation under Section 1203.066. If
the prosecutor believed that the coach should not get probation,
the multiple victim factor could be specifically alleged. The
same considerations and actions could be applied to lewd conduct
committed by relatives.
CDAA noted that where lewd conduct involved force or duress
and the prosecutor charged the defendant with lewd conduct by
force or duress pursuant to Penal Code Section 288,
subdivision (b), the terms of the bill would not allow a
defendant to be granted probation. That is because the fact
of force or duress - a fact that prohibits probation by the
terms of Section 1203.066 - is necessarily included in a
charge under Penal Code Section 288, subdivision (b).
DO THE PLEADING AND PROOF PROVISIONS IN THIS BILL ALLOW
PROSECUTORS TO DETERMINE WHETHER OR NOT TO OFFER PROBATION TO
DEFENDANTS IN LEWD CONDUCT CASES THAT DO NOT INVOLVE FORCE, BUT
IN WHICH THE CRIMES INVOLVED FACTS THAT CAN BE USED TO PROHIBIT
PROBATION UNDER SECTION 1203.066?
WOULD ENACTMENT OF THIS BILL RESULT IN MORE CASES IN WHICH A
DEFENDANT RECEIVES PROBATION BECAUSE OF A WEAKNESS IN THE
PROSECUTOR'S CASE, RATHER THAN BECAUSE THE DEFENDANT DESERVES
LENIENCY AND TREATMENT?
Probation Limitations - Transfer of Power and Discretion from
Judges to Prosecutors
This bill eliminates the limited availability of probation for
persons convicted of lewd conduct in non-forced, non-coerced
intra-family molest cases in which the court grants probation
according to strict standards after the court making numerous
required findings. Arguably, this takes power from judges and
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gives it to prosecutors. Similar transfers of power occurred
with "Proposition 21" in juvenile law, particularly as to
determinations whether minors should be tried as adults.
Limiting the discretion of courts to grant probation arguably
means that any amelioration of a sentence or disposition must
generally be at the beginning of a case - in the plea bargaining
stage. Elimination of probation, including limited probation
within the context of a treatment program, gives the court less
power and discretion than it would otherwise have. It can be
argued that amelioration of a disposition is best left for the
sentencing phase of a case, as at this point the parties and the
court will know much more about the defendant and the facts of
the case. Practicing attorneys and judges know that cases often
do not turn out as might have been expected in the investigation
phase.
EXCEPT FOR CHARGES OF FORCED OR COERCED LEWD CONDUCT, DOES THIS
BILL GIVE PROSECUTORS THE ABILITY TO CONTROL WHETHER A PERSON IS
ELIGIBLE FOR PROBATION BASED ON WHETHER OR NOT THE CHARGES
INCLUDE A SPECIAL ALLEGATION THAT THE DEFENDANT IS INELGIBLE FOR
PROBATION?
DOES THIS BILL TAKE SIGNIFICANT AUTHORITY CONCERNING PROBATION
FOR DEFENDANTS CONVICTED OF LEWD CONDUCT FROM JUDGES AND GIVE
THAT AUTHORITY TO PROSECUTORS?
DOES THIS BILL NARROWLY EXPAND THE ABILITY OF PROSECUTORS TO
ALLOW NON-RELATIVES TO GET PROBATION IN CASES INVOLVING MULTIPLE
VICTIMS AND OTHER CASES WHERE, UNDER EXISTING LAW, THE CRIMINAL
CHARGE ITSELF COULD ESTABLISH THE FACTS ESTABLISHING
INELIGIBILITY FOR PROBATION?
Incest Law Changes - Affect on Probation and Life Term
Sentencing Eligibility for Persons Originally Charged with
Lewd Conduct
Under existing law, incest is defined without reference to the
age of the participants. This bill changes the incest law to
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define the crime as occurring between persons over the age of
14. It appears that no special probation limitations apply to
incest convictions. Further, incest is not classified as a
one-strike eligible crime, unlike most forms of lewd conduct.
Further, incest is not defined as a serious felony, and thus
does not constitute a prior qualifying "strike" under the Three
Strikes law.
It is likely that the changes in this bill are designed to
eliminate or limit the ability of prosecutors and defense
counsel to agree to a plea to incest as a compromise where the
defendant has been charged with intra-family lewd conduct with a
child. That is, in an intra-family lewd conduct case where the
prosecutor may have difficulty obtaining a conviction, the
prosecutor and the defendant could construct a plea bargain
involving a plea to a charge of incest in exchange for a
dismissal of the lewd conduct charge. The convicted defendant
would be eligible for probation under general rules and would
not be subject to a life term under the one-strike law.
However, as incest is a straight felony, a person who is
convicted of incest in the current case, and who has been
previously convicted of serious or violent felonies (as defined
in law), would be subject to a sentence under the Three Strikes
law.
Lewd conduct with a child under 14 is a felony, with a prison
sentence of 3, 6 or 8 years. Lewd conduct with a minor who is
14 or 15, where the adult is more than 10 years older than the
minor, is an alternate felony-misdemeanor. Lewd conduct with
minors who are 16 or 17 years old is not defined as a crime.
Sexual conduct between an adult and a minor who is 16 or 17 can
be prosecuted in a number of ways. Unlike incest, most of these
crimes may not be felonies. Annoying or "molesting" a child
with sexual intent (Pen. Code 647.6) is a misdemeanor for a
first-time conviction. Annoying a child with sexual intent
after trespassing in a residence is an alternate
felony-misdemeanor and annoying a child under the age of 14 by a
person with specified prior convictions is a felony.
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Unlawful sexual intercourse (colloquially described as statutory
rape) is defined in a complex manner. Where the participants
are separated by no more than three years in age, unlawful
sexual intercourse is a misdemeanor. In other cases, the crime
can be a felony. (Pen. Code 261.5.) Of course, if an adult
used force or coercion to accomplish sexual intercourse with a
minor, the adult could be prosecuted for rape, a felony with a
prison sentence of 3, 6, or 8 years.
Other, specific kinds of sexual activity between adults and
children are defined as crimes. These crimes include oral
copulation, sodomy and sexual penetration. (Pen. Code 288a,
286 and 289.)
7. Elimination of Deferred Entry for Physical Abuse Cases
This bill eliminates deferred entry of judgment in all cases of
abuse of minors, physical abuse and sexual abuse. In a deferred
entry of judgment program, a defendant pleads guilty to a
charged crime and is then placed in a supervised treatment and
probation program. If the person successfully completes the
program, the case will be dismissed after a period of time.
Deferred entry of judgment allows the court to monitor a
defendant's progress in treatment and on probation.
Arguably, deferred entry of judgment programs can be valuable in
cases where a parent with mental health, substance abuse
problems or family trauma can receive counseling and treatment.
Such programs could be particularly valuable where the defendant
is not the actual abuser of the child, but rather was prosecuted
for allowing another person to abuse her or his child. In such
cases, the parent may have been abused by her partner.
ASSUMING, ARGUENDO, THAT DEFERRED ENTRY OF JUDGMENT SHOULD NOT
BE GRANTED IN SEXUAL ABUSE CASES, SHOULD SUCH PROGRAMS - WHICH
INVOLVE SUCCESSFUL COMPLTEION TREATMENT AND COUNSELING BEFORE A
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DEFENDANT'S GUILTY PLEA CAN BE DISMISSED - BE ELIMINATED IN
PHYSICAL ABUSE CASES, PARTICULARLY WHERE THE DEFENDANT WAS NOT
THE ACTUAL ABUSER OF THE CHILD?
8. Child Molestation Study Cited by Author in Urging Passage of
Previous Bill Recommends Early Diagnosis and Treatment
In urging passage of a similar bill in 2003 - SB 1803 (Battin) -
the author cited a study of child abuse by noted researchers and
therapists, Dr. Gene Abel, M.D. and Nora Harlow. The study has
been published in a book entitled The Stop Child Molestation
Book. An outline of the book, with excerpts, has been published
by the Child Molestation Research and Prevention Institute
(CMRP), of Atlanta, Georgia. Dr. Abel is affiliated with the
medical schools at Emory and Morehouse in Atlanta. Harlow, a
therapist and business manager of Abel's assessment
organization, is associated with CMRP.
Dr. Abel's General Statement of Problem and Solution -
Pedophilia as Cause, Early Diagnosis and Treatment
Recommended
Child molestation, because of its large numbers of
victims and because of the extent of damage to the
health of its victims, is a national public health
problem. To combat this public health problem we must
focus on the cause. People with pedophilia molest 88
percent of child sexual abuse victims. Early
diagnosis of this disorder, followed by effective
medicines and therapies, has the potential to save
children from being molested. . . . The disorder can
be diagnosed. Treatment with medicines and therapies
is effective.
Pedophilia Defined - Related Findings
The authors of the study referred to the criteria developed by
the American Psychiatric Association as to a diagnosis of
pedophilia. The symptoms were noted:
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Pedophile must be at least 16 years old.
Sexual fantasies about or interest in children aged 13 or
younger.
Sexual fantasies and urges must have lasted for at least six
months.
Pedophilia typically develops early.
Child molesters who were sexually abused as children are the
most active in abusing children.
Pedophiles commit 95% of the incidents of child sexual abuse.
Recommendation of the Study - Effective Testing, Medication
and Therapy Treatment
The authors concluded: "If we are to have a significant impact
on reducing the number of children who suffer this public health
problem [of child sexual abuse] we have to test, medicate and
provide effective treatment for people with the disorder
pedophilia - especially teenagers who are developing the
disorder."
IN LIGHT OF RECENTLY PUBLISHED RESEARCH, WILL LIMITING TREATMENT
AND INCREASING INCARCERATION EXACERBATE THE PROBLEM OF SEXUAL
ABUSE OF CHILDREN, PARTICULARLY IN INTRA-FAMILY CASES WHERE A
HIGH PERCENTAGE OF THESE CRIMES OCCUR?
9. Widely Accepted Diagnostic Tools for Predicting
Recidivism - STATIC 99 - Factors Concerning Intra-Family
Molests - Less Likely Recidivism than Other Cases
According to the Department of Mental Health (DMH), the "STATIC
99" is a widely accepted diagnostic tool for predicting
recidivism by persons convicted of sex crimes. The tool was
developed in Canada and is used throughout North America. The
STATIC 99 is an important component of the DMH review of persons
who face possible commitment as sexually violent predators.
The identified risk factors for recidivism identified in the
STATIC 99 are, as follows:
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Young offender (18-25).
Lack of intimate partners (intimate partnerships of 2 years
or more lessen recidivism).
Non-sexual violence.
Prior convictions for non-sexual violence.
Prior sex offenses (very important predictor of future
criminal behavior).
Prior criminal sentencing - 4 or more separate sentencings.
Convictions for "non-contact" sex offense (exhibitionism,
obscene telephone calls, obscene material).
Unrelated victims - perpetrators who were not related to
their victims are more likely to re-offend.
Stranger victims - perpetrators who preyed on strangers are
more likely to re-offend.
Male victims - perpetrators who committed crimes against
male victims are more likely to re-offend.
While it may be of little comfort to a victim who has been
abused by a parent or relative in multiple cases, it thus
appears that offenders eligible for probation under Section
1203.066 appear to be at substantially lower risk than are
other sexual offenders for re-offense as measured by the STATIC
99. This is especially true for those eligible for probation
under Section 1203.066 as opposed to young offenders without
strong family ties who targeted strangers and had a significant
criminal record. Such persons have relatively stable,
long-term intimate relationships, such as an intact marriage.
They may be well past the prime ages for re-offending. Many
such persons have little or no criminal history and no history
of violence against others. By definition, their crimes were
not committed against strangers.
10. Canadian Government Public Safety Agency Meta-Analysis of
Sexual Recidivism Studies
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In February 2004, the Department of Public Safety and Emergency
Preparedness Canada (comparable to U.S. Dept. of Justice and
Homeland Security) published an analysis of 95 separate sexual
offender recidivism studies "involving more than 31,000 sexual
offenders and close to 2000 recidivism predictions." The study
concluded: "most sexual offenders are never reconvicted for
another sexual offence. [Sic]" The study noted a number of
factors strongly associated with recidivism and recommended that
resources be applied accordingly.
A summary of the research stated:
Question: Which sexual offenders are most likely to
re-offend?
Background: New offences [sic] by known sexual
offenders invoke considerable public concern. Most
sexual offenders are never reconvicted for another
sexual offence, but some are much more likely to
recidivate than others. Previous research has
identified a number of static, historical factors
associated with recidivism risk (e.g., prior offences,
age). Much less is known about dynamic (potentially
changeable) factors - the factors needed for effective
treatment and community supervision. As well, experts
have disagreed about how to combine risk factors into
an overall evaluation. Some experts recommend the
actuarial approach in which a mechanical method of
combining the risk factors is specified in advance;
other evaluators prefer to use their experience and
skill to produce unique judgments for each case.
Method: The results of 95 different recidivism
studies were summarized. These studies, produced
between 1943 and 2003, included more than 31,000
sexual offenders and close to 2,000 recidivism
predictions. Two independent raters coded each study.
Results were considered valid if consistent findings
were observed in at least three different studies.
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Answer: The sexual offenders most likely to sexually
reoffend had deviant sexual interests and antisocial
orientations (history of rule violation, lifestyle
instability, and antisocial personality). Some of the
variables identified in the study have the potential of
being useful targets for intervention, such as sexual
preoccupations, conflicts in intimate relationships,
hostility, and emotional identification with children .
For the prediction of violent non-sexual recidivism and
general (any) recidivism, the most important factor was
antisocial orientation. General psychological problems
(e.g., anxiety, depression) and clinical presentation
(e.g., denial, motivation for treatment) had little or
no relationship with sexual or general recidivism.
Actuarial risk instruments were consistently more
accurate than unguided professional opinion for
predicting sexual, violent non-sexual and general
recidivism.
11. Compilation of Research and Experience of California
Coalition on Sexual Offending
The California Coalition on Sexual Offender (CCOSO) is a
professional association of those who treat, manage, evaluate
and supervise sexual offenders. CCOSO members include
researchers, mental health providers, attorneys, law enforcement
officers, probation officers, community agencies and others.
CCOSO has provided the Committee with a review of relevant
research, literature and responses from members on issues raised
by this bill.
CCOSO concluded that empirical research suggests that
treatment completion correlates with lower recidivism for
sex offenders generally. We have no reason to suspect that
this pattern is different for incest offenders [in the
broad sense of intra-family sexual offenders] than for
other sexual offender classifications.
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Limited empirical data and anecdotal reports from treatment
programs suggest that incest offenders [broadly defined]
make good probationers and good treatment candidates when
agencies [probation, child welfare etc.] work
cooperatively, but they tend to exit treatment prematurely
when supervisory agencies fail to actively collaborate with
and support treatment programs.
CCOSO noted:
[Sex offenders reoffend at] "manifest relatively low
recidivism rates." . . . Recidivism studies comparing
incest offenders to other sex offenders have generally
found that incest offenders reoffend at a significantly
lower rate than comparison groups. A Federal Study for
Sex Offender Management document (Bynum, 2001) states
that mentally disordered incestuous offenders
recidivated at a five-year rate of 6% compared to 43%
for opposite-gender extra-familial offenders and 54%
for same-gender extra-familial offenders (Sturgeon &
Taylor, 1980). Another study published two decades
later reported sexual recidivism among incest offenders
at 6.4% after approximately six and one-half years in
the community (Firestone, et al. 1999.)
Studies also indicate that incestuous offenders seem
to respond well to treatment. . . . Marshall
reported 2.9% sexual recidivism for treated incest
offenders four years after discharge, compared to 7%
for incest offenders . . . who could not receive
treatment (Marshall and Barabeee, 1988). A large
meta-analysis found 4% sexual recidivism for treated
incestuous offenders compared to 12.5% for untreated
comparison groups.
CCOSO noted that critics have asserted that child-molesting is a
life-long preoccupation and that most studies do not follow
child molesters for long periods of time. However, several
studies have addressed these issues:
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A study followed 115 child molesters after release from a
treatment program for sexually dangerous persons. Twenty-five
years later, 68% of these men had not come to the attention of
authorities.
Another long-term study found a sexual recidivism rate of 35%
for 191 offenders. It does not appear that the study considered
whether the offenders had been given treatment and did not
distinguish between intra-family offenders and others.
A third study considered intra-family offenders as a separate
category. Using court appearances as the criterion for
recidivism, the authors found a 25-year recidivism rate of 50%
for intra-family offenders and rates of 79% (female victims) and
74% (male victims) for sexual misconduct outside the family.
CCOSO noted that critics have asserted that many sexual offenses
are not reported. Further, official records may underestimate
crimes based on sexual histories supplied by offenders in
treatment programs.
Nevertheless, CCOSO concluded: True intra-family offenders
likely have lower recidivism rates that other sex offenders and
could make excellent candidates for community placement and
treatment.
DOES RESEARCH AND CLINICAL EXPERIENCE INDICATE THAT INTRA-FAMILY
SEXUAL OFFENDERS HAVE LOWER RATES OF RECIDIVISM THAN OTHER
OFFENDERS?
DO INTRA-FAMILY SEXUAL OFFENDERS MAKE BETTER TREATMENT
CANDIDATES THAN OTHER SEXUAL OFFENDERS?
DOES RESEARCH INDICATE THAT THE STATE COULD REASONABLY OFFER
PROBATION TO INTRA-FAMILY OFFENDERS IN SOME CIRCUMSTANCES WHERE
THE STATE WOULD NOT OFFER PROBATION TO OTHER OFFENDERS?
WHAT IS THE EXTENT OF UNDER-REPORTING OF SEXUAL CRIMES,
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PARTICULARLY INTRA-FAMILY CRIMES?
12. Sex Offender Treatment and Control in the Community -
Promising Studies and Analyses
The LAO 1999-2000 Budget Analysis include the following analysis
of treatment and control programs:
Correctional professionals and experts on deviant
sexual criminal behavior are in general agreement that
no treatment program can "cure" a person with criminal
sexual tendencies. However, there is growing . . .
evidence suggesting that some therapies, often
referred to as "cognitive-behavioral treatment" or
"relapse prevention," can enable some high-risk sex
offenders in prison or on parole to learn how to curb
their impulses to commit further criminal acts.
Experts on this subject indicate that, to be
effective, such programs must (1) be tailored
especially for sex offenders, (2) be structured to
progress through multiple phases, (3) address
individual problems such as addiction to drugs or
alcohol that may be related to their pattern of
criminal behavior, (4) be of sufficient duration and
intensity to be effective, and (5) have a strong
"aftercare" component to ensure there is not a return
to criminality after their release to the community.
Medication treatments that can reduce the intensity of
an offender's sexual impulses are used in conjunction
with relapse-prevention therapy for particular cases.
(Informed consent and medical protocols have been used
in these instances.)
Even as California has been scaling back its sex offender
treatment programs, such as SOTEP, a number of other states have
been expanding such programs for their prison inmates and
parolees. Relapse prevention programs have proven successful in
reducing the rate of sexual reoffending of sex offenders in the
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States of Alaska, Washington, Arizona, and Oregon, as well as in
Canada.
13. Recidivism Studies Comparing Persons Convicted of Sex Crimes
and Other Offenders
In recent years, many bill authors and supporters have asserted,
with ostensible certainty and authority, that recidivism rates
for sex offenders is incredibly high or shocking. Such
assertions assume there are few distinctions or differences
among persons who have been convicted of sex crimes. However,
as noted by the above quoted Canadian government meta-analysis,
current research and practice distinguishes carefully among
persons convicted of sex crimes. The widely used "STATIC-99,"
in measuring or predicting risk of re-offense, indicates that
the risk of re-offense varies widely among sex offenders. Thus,
even assuming high rates of recidivism among sex offenders with
certain characteristics, such rates cannot be applied to all
persons convicted of a sex crime.
LAO 1999-2000 Budget Analysis - Falling Arrest Rates for Lewd
Conduct, 1990-1997
[T]he number of reported sex crimes and arrests . . . have
declined in recent years. The number of reported rapes,
for example, dropped from 12,700 in 1990 to about 10,200 in
1997 - a decrease of almost 20%. The number of adults
arrested for felony child molestations was about 3,900 in
1990, but in 1997 was 3,200 - a decrease of about 17
percent. Significant declines in adult arrests have also
been documented during the 1990's for such misdemeanor sex
crimes as indecent exposure, annoying children, possession
of obscene matter, and lewd conduct . California Attorney
General Crime Statistics - Steady Arrest Rates (Avg. 4,300)
from 1993-2000.
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The Attorney General (Criminal Justice Statistics Center)
has reported arrests for lewd and lascivious conduct -
child molest - from 1993 through 2002. Arrests (for adults
and juveniles) have risen and fallen from between a high of
4,776 in 1993 and a low of 4,050 in 1998. Arrests in 2002
were 4,504, approximately 200 less than in 1993.
Arrest numbers for adults are:
Lewd Conduct Arrests for Adults, 1998-2002
-----------------------------------------
|1998 |1999 |2000 |2001 |2002 |2003 |
|------+------+------+------+------+------|
|3,073 |3,188 |3,179 |3,353 |3,392 |3,199 |
-----------------------------------------
Total Adult Felony Sex Crime Arrests, 1998-2002. (This
table excludes forcible rape, which is classified as
violent crime.)
-----------------------------------------
|1998 |1999 |2000 |2001 |2002 |2003 |
|------+------+------+------+------+------|
|7,377 |7,742 |7,597 |7,750 |7,811 |7,766 |
| | | | | | |
-----------------------------------------
Arrests for all sex crimes, however, dropped and then rose
quickly from 1993 to 2002. Thus, the proportion of lewd
conduct arrests has dropped within the class of all sex
offenses from 1993 to 2002. This drop continued from 2002
to 2003 when lewd conduct arrests fell 5.7%.
Prison Population of Lewd Conduct Inmates - Rising Numbers,
1997-2001
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----------------------------------------------------------------
|1997 |1998 |1999 |2000 |2001 |
|------------+------------+------------+------------+------------|
|5,790 |5,935 |6,302 |6,561 |7,142 |
| | | | | |
----------------------------------------------------------------
Second and Third Strike Inmates - Lewd Conduct - Approx.
950
-----------------------------------------------------------------
|Second Strikers |Third Strikers |Total |
|with Parole |(life term) | |
|Returns | | |
|---------------------+---------------------+---------------------|
|736 |251 |987 |
| | | |
-----------------------------------------------------------------
Lewd conduct constitutes a prior strike conviction. Third
strike inmates must serve a life term with a minimum of 25 years
before parole. Second strike inmates serve a doubled term. A
defendant normally subject to a term of 16 years would receive a
term of 32 years with a two-strike sentence. Under Three
Strikes, lewd conduct inmates typically serve relatively long
terms and thus can be expected to grow as a proportion of total
inmates in state prison.
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DO PROSECUTORS OR THE AUTHOR HAVE DATA AS TO THE PERCENTAGE
OF LEWD CONDUCT CASES IN WHICH DEFENDANT'S RECEIVE
PROBATION OR DEFERRED ENTRY OF JUDGMENT?
DOES THE AUTHOR HAVE DATA AS TO THE FAILURE RATE IN
PROBATION AND SPECIFIC RECIDIVISM RATES OF PERSONS IN
PROGRAMS THAT WOULD BE ELIMINATED BY THIS BILL?
IF THE INCIDENCE OF LEWD CONDUCT CRIMES IS DRIVEN BY RECIDIVISM,
WOULD THE ARREST RATE FOR LEWD CONDUCT BE EXPECTED TO DROP (IT
HAS REMAINED RELATIVELY STEADY) AS MORE LEWD CONDUCT INMATES ARE
HELD IN PRISON FOR LONGER PERIODS OF TIME?
14. Federal Recidivism Study (Released Inmates Followed for Three
Years) - Sex Offenders have Lower Rates of Recidivism
A study published in 2003 by the U.S. Bureau of Justice
Statistics has been widely cited as authority for assertions
that sex offenders have incredible or shocking rates of
recidivism. However, the study does not make such claims. In
fact, as measured by the study, sex offenders have lower rates
of recidivism than do other offenders. The study did make the
finding that (former prison inmate) sex offenders were more
likely to commit a future sex crime than were other former
inmates, although the non-sex crime inmates were significantly
more likely to commit new crimes overall. This is consistent
with one of the basic principles underlying the STATIC-99 that
past behavior is an important predictor of future behavior.
Overall Arrest Rates of Sex Offenders - 20% Lower than Other
Offenders
Compared to non-sex offenders released from state prison, sex
offenders had a lower overall arrest rate. When arrests for
any type of crime (not just sex crimes) were counted, the study
found that 43% (4,163 of 9,691) of the 9,691 released sex
offenders were rearrested. The overall arrest rate for the
262,420 released non-sex offenders was higher, 68% (179,391 of
262,420).
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Felony Arrest Rate of Non-sex Offenders was 10% Higher for
Non-Sex Offenders
Re-arrest offense was a felony for about 75% of the . . . sex
offenders. By comparison, 84% of . . . non-sex offenders
were charged with a felony.
Sex Offenders were More Likely to Commit a New Sex Crime than
Other Offenders.
The only higher rate of re-offense for sex offenders was as to
sex offenses. That is, although sex offenders have a lower rate
of recidivism than other offenders, a recidivist sex offender is
more likely to commit another sex crime than is a non-sex
offender. Reconviction Rates - 24% higher for non-sex
offenders.
Sex offenders - 3.5% were reconvicted for a new sex offense.
Sex offenders - 24% were reconvicted of a new offense (of any
type, including sex offenses).
Non-sex offenders - 47.8% were reconvicted of a new crime.
Re-arrest Rates for New Sex Crime - Released Sex Offenders as
Compared to Non-Sex Offenders
Sex offenders - 5.3% arrested for any kind of sex crime
Non-sex offender - 1.3% arrested for any kind of sex crime
Child molest sex offenders - 3.3% arrested for new child molest
Child molest offender - 5.1% arrested for any sex crime
Statutory rape offender - 5.0% arrested for any sex crime
All sex offenders - 2.2% arrested for new child molest
Non-sex offenders - (approx.) .05% arrested for new child molest
Rapists - 5% arrested for sex crime, 2.5 for rape
Sexual assaulters - 5.5% arrested for new sex crime
Prior Criminal History of Prison Inmates, Non-sex Offenders
have Twice the Number of Arrests and Prison Records
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Sex offenders - 4.5 prior arrests (on average)
Non-sex offenders - 8.9 prior arrests
Sex-offenders - 23.7% prior prison terms
Non-sex offenders - 44.3% prior prison terms
Federal Recidivism Study - Summary
As noted above, the only higher recidivism rate for sex
offenders as compared to other offenders is for the commission
(generally as measured by arrests) of a new sex crime. In sum,
sex offenders who commit new crimes are more likely to commit a
new sex crime than non-sex offenders who commit new crimes,
although non-sex offenders are significantly more likely to
commit new crimes, per se. Further, sex offender inmates are
more likely to commit a new non-sex crime (24%) than a new sex
crime (3.5%). The study also noted other factors included in
STATIC-99, including that a history of child molesting (by
persons imprisoned for molest or rape, etc.) had a greater
likelihood of committing later child molests.
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