BILL ANALYSIS
SB 33
Page 1
Date of Hearing: August 17, 2005
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Judy Chu, Chair
SB 33 (Battin) - As Amended: June 2, 2005
Policy Committee: Public
SafetyVote: 4-1
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill eliminates, in cases involving sexual conduct with a
child under age 14, distinctions in probation eligibility and
sentencing between defendants who are family members of the
victim and other defendants, and increases the scope of the
incest laws. Specifically, this bill:
1)Eliminates a prosecutor's option to seek deferred entry of
judgment in specified child molestation or sexual abuse cases
pending the defendant's successful completion of a treatment
program following his or her plea of guilty.
2)Deletes the court's discretion to impose a sentence including
probation on intra-familial sex offenders upon the court's
making of specified findings on the record.
3)Provides prosecutors the discretion to preclude probation in
intra-familial child sexual molestation cases by specifically
alleging ineligibility for probation in the accusatory
pleading.
4)Expands the definition of the crime of incest by adding
related persons who are 14 years of age or older to the list
of persons who are subject to imprisonment in state prison for
specified acts, including the commission of fornication or
adultery with each other.
FISCAL EFFECT
1)Unknown significant annual GF costs, potentially in the range
SB 33
Page 2
of $35 million, for increased state prison commitments in lieu
of probation.
There is little solid data regarding the number of familial
sex abuse offenders who receive probation in lieu of state
prison. Several prosecutors suggest this figure could be in
the range of several hundred commitments. Extrapolating from
about 1,500 offenders committed to state prison annually for
child sexual abuse (without force), if this bill results in an
additional 200 offenders serving prison time in lieu of
probation, the annual GF costs would be about $35 million in
five years, assuming a mid-term sentence of six years and 85%
sentence credit (for violent felonies).
Another way of estimating the potential universe of offenders
who may receive prison in lieu of parole as a result of this
bill is to reference the number of registered sex offenders
convicted of intra-familial offenses who have applied for
exclusion from the Megan's Law web site under provisions of
law that allow exclusion for specified familial offenders who
received probation. Department of Justice (DOJ) data indicate
that as of this month, DOJ had granted 764 of 6,061
applications for exclusion from the Megan's Law web site for
eligible sex offender registrants who were granted and
successfully completed probation following a conviction of
specified intra-familial child sexual molestation cases.
These (growing) figures indicate that the number of persons
who annually receive probation in lieu of prison is
significant.
2)Inestimable costs/savings to state and local social services
agencies to the extent this bill helps or hinders family
reunification and victim recovery.
COMMENTS
1)Rationale . According to the author, "California law makes
prison mandatory for sexually assaulting a child under 14 when
certain aggravating factors have been committed. However, the
law includes an intentional loophole when the victim is a
SB 33
Page 3
child in the perpetrator's household. Thus, if an offender
has "substantial sexual conduct" with a child next door,
prison is mandatory. But if his victim is his own child,
step-child or any child in the home, he is eligible for
probation and treatment instead of prison, even if he has
committed continuous rape of a young child. California law
also creates an exception that allows family members to be
uniquely eligible for "deferred entry of judgment" - which can
result in charges being dropped and no record of the crime.
"Because California does not collect data on child sexual
abuse by the familial relation or household status of the
offender, there are no reliable statistics on the prevalence
of preferential sentencing in intra-familial sexual abuse
cases. However, anecdotal evidence - as well as the testimony
of over 40 organizations endorsing Senate Bill 33 - suggests
that it is a problem and is an extremely important child
protection policy issue.
"In fiscal terms, the issue is clear: if the people of
California have decided that the protection of some children
from child sexual abuse is an important and legitimate goal of
public spending, then that same protection should be extended
to other children also."
2)Supporters , including law enforcement and a variety of child
sexual abuse-related groups, contend that offenders who molest
family members should be treated no differently than offenders
who molest non-family members, and should not be allowed
deferred entry of judgment or probation, despite prosecutorial
and judicial discretion and regardless of the many attendant
requirements. As stated by the CA Women's Law Center, "By
removing preferential sentencing for intra-familial abusers,
along with provisions for diverting perpetrators from prison
to family therapy, [this] bill offers equal protection for
child sexual abuse victims without regard to the familial
relation of the offender and the victim. It will also send an
important message that child sexual abuse is a crime and that
the safety and protection of children should be the foremost
goal of California law."
The California Alliance Against Domestic Violence states,
"(Current) law mandates prison time for adults who molest
SB 33
Page 4
children, yet offers probation and therapy if the victim is a
minor in the household. It is a sentencing loophole for family
members. This bill would eliminate the incest exception. This
bill would protect children from predators where predators
would least be expected to exist, in their own families."
3)Is it necessary or appropriate to limit judicial discretion in
these cases? This bill removes a court's discretion to impose
a sentence including probation on intra-familial sex
offenders. The sentencing judge hears the evidence, evaluates
the witnesses, reviews the psychiatrist's/psychologist's
report, the probation report, any victim impact statements,
and arguments from both the prosecutor and the defendant's
attorney before imposing sentence. Presumably the judge,
charged with the responsibility of imposing the appropriate
sentence, is best positioned to determine what that sentence
should be.
If a court does grant probation in intra-familial sexual
molestation cases, the court must find that rehabilitation of
the defendant is feasible; that the defendant is amenable to
treatment and the defendant must be placed in a recognized
treatment program. The court must also require the defendant
to be removed from the home of the victim until the court
determines the best interests of the victim would be served by
returning the defendant to the home. A report from a
psychiatrist or psychologist is required to consider these
factors and must be submitted to the court.
Moreover, under current law, a prison sentence is presumed to
be the correct sentence. In any appeal regarding denial of
probation, the defendant must overcome the presumption that
prison is the appropriate sentence.
4)Opponents , including the CA Judges Association, CA Attorneys
for Criminal Justice (CACJ), the CA Public Defenders
Association, and the ACLU cite concerns regarding the lack of
data demonstrating that current prosecutorial and judicial
discretion is being abused.
The Judges Association states, "?we believe this bill is an
unnecessary infringement upon the traditional discretionary
functions of public prosecutors and the courts. It has been
the experience of our members that the provisions [this bill]
seeks to amend are used judiciously and only in those rare
SB 33
Page 5
cases where some additional alternatives to incarceration are
in the best interest of the victim, the community, and the
offender. We are unaware of any evidence to suggest that
either prosecutors or judicial officers are abusing their
discretion or abdicating their responsibility to guarantee
public safety. By eliminating or restricting the discretion of
district attorneys and judges, the courts will be less able to
fashion appropriate dispositions in often complex cases of
intra-familial abuse."
CACJ states, "Under these extremely limited circumstances,
offenders can be placed in treatment and maintained on
probation in the community?. No legitimate arguments exist to
deprive trial courts of the discretion to allow family members
to be treated in the community. No rational justification
exists for categorically insisting that all sex offenders be
sentenced to prison. An overwhelming experience of courts,
probation officers, prosecutors, and defense attorneys is that
the vast majority of family molests lead to successful
treatment and favorable community management."
The Public Defenders Association state, "By taking away
prosecutorial discretion to offer alternatives such as
counseling, deferred entry of judgment, and probation, we are
concerned that several unintended consequences are likely to
occur. Examples of this might be that prosecutors will be less
likely to charge cases in which there is a strong suspicion of
child abuse but the evidence does not ensure a conviction;
child victims will be less likely to report sexual abuse if
they understand that they will be sending a family member to
prison; other family members will be more likely to pressure
children to not report or to recant when they learn that
instead of getting counseling for the offending family member
they are sending the individual to prison."
5)Current law :
a) States that any person who commits a lewd or lascivious
act with a child under the age of 14 years shall be
imprisoned in the state prison for three, six or eight
years.
b) Defines "continuous sexual abuse of a child" as three or
SB 33
Page 6
more acts of substantial sexual conduct with a child under
the age of 14 years, or three or more acts of lewd and
lascivious conduct with a child under the age of 14 years,
over a period of not less than three months in duration.
Continuous sexual abuse of a child is punishable by
imprisonment in the state prison for 6, 12, or 16 years.
c) Provides "one-strike" sentencing of 15-years or
25-years-to-life in certain sex crimes if specified
circumstances in aggravation are found to be true.
d) Provides that persons convicted of intra-familial child
molestation may be granted probation if the court makes all
of the following findings:
i) The defendant is the victim's parent, or member of
the victim's household or relative.
ii) Probation for the defendant is in the best interests
of the child.
iii) Rehabilitation is feasible and the defendant is
placed in a recognized treatment program immediately
after the grant of probation.
iv) The defendant is removed from the household of the
victim until the court determines the best interests of
the child would be served by returning the defendant
home.
v) There is no threat of physical harm to the child
victim if probation is granted.
e) Provides that, in lieu of trial, the prosecutor may make
a motion to the court to defer entry of judgment on any
conviction in which a minor is the victim of molestation or
sexual abuse, provided the defendant pleads guilty to all
crimes and enhancements charged. Provides for the
defendant's referral to a treatment program. States that
upon successful completion of the treatment program, as
specified, but no sooner than five years from the date of
the defendant's referral, the court shall dismiss the
charges against the defendant. For deferred entry in a
case of child sexual abuse the defendant must:
SB 33
Page 7
i) Make a written agreement with the prosecutor.
ii) Must be related to the victim.
iii) Must have no prior felony sex crime or sexual
misdemeanors involving children.
iv) Must have no prior violent felony convictions or
prison time the past 10 years.
v) Must have no unsuccessful diversion program,
probation or parole within 10 years.
vi) Must have no prior referral under this program.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081