BILL ANALYSIS
SB 33
Page 1
SENATE THIRD READING
SB 33 (Battin)
As Amended August 31, 2005
Majority vote
SENATE VOTE :34-1
PUBLIC SAFETY 5-1 APPROPRIATIONS 17-0
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|Ayes:|La Suer, Ruskin, Dymally, |Ayes:|Chu, Sharon Runner, Bass, |
| |Spitzer, Hancock | |Berg, Calderon, Emmerson, |
| | | |Karnette, Klehs, Leno, |
| | | |Nakanishi, Nation, |
| | | |Oropeza, Laird, Saldana, |
| | | |Walters, Yee, Mullin |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Leno | | |
| | | | |
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SUMMARY : Changes the definition of "incest" and limits the
granting of probation in sentencing of child molestation and
continuous sexual abuse of a child, as specified. Specifically,
this bill :
1)Further defines the crime of "incest" to include related
persons who are 14 years of age or older who commit
fornication or adultery with each other.
2)Limits provisions of existing law that allow prosecutors to
seek deferred entry of judgment and referral to counseling in
lieu of criminal prosecution in any case involving a minor
victim to cases of physical abuse or neglect.
3)Limits the court's ability to grant probation to a person
convicted of child molestation or continuous sexual abuse of a
child when the probation ineligibility factors are not pled or
proven. In such a case, probation may be granted only if the
following terms and conditions are met:
a) If the defendant is a member of the victim's household,
the court finds probation is in the best interest of the
child victim;
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b) The court finds that rehabilitation of the defendant is
feasible, the defendant is amenable to treatment, and
placed in a recognized treatment program designed to deal
with child molestation immediately after the grant of
probation or imposition of sentence;
c) If the defendant is a member of the victim's household,
the defendant must be removed from the household and
contact between the defendant and victim prohibited except
as narrowly permitted and with the agreement of the victim;
and,
d) The court finds there is no threat of physical harm to
the victim if probation is granted.
4)Requires the court to state on the record its reasons for
whatever sentence the court imposes.
5)States that no victim shall be compelled to participate in a
program or counseling, and no program may condition a
defendant's enrollment on participation by the victim.
6)Requires that recognized treatment programs include specified
components, including substantial expertise in the treatment
of child abuse; a treatment regimen designed to specifically
address the offense; the ability to serve indigent clients;
and, adequate and specified reporting requirements to the
probation department and to the court.
EXISTING LAW :
1)Provides 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.
2)States that "continuous sexual abuse of a child" is defined as
three or 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.
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3)Provides for 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.
4)Provides limited exceptions to the one-strike sex law for
specified persons convicted of specified intra-familial child
molestation offenses. Provides that such persons may be
granted probation if the court makes all of the following
findings:
a) The defendant is the victim's parent, or member of the
victim's household or relative;
b) Probation for the defendant is in the best interests of
the child;
c) Rehabilitation is feasible and the defendant is placed in
a recognized treatment program immediately after the grant
of probation;
d) The defendant is removed from the household of the victim
until the court determines that the best interests of the
child would be served by returning the defendant to that
household; and,
e) There is no threat of physical harm to the child victim if
probation is granted.
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis:
1)Unknown, significant annual General Fund (GF) costs,
potentially in the range 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 lie of
probation, the annual GF costs would be about $35 million in
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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 familiar offenders who
received probation. Department of Justice (DOJ) data indicate
that of this month, DOJ 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 of hinders family
reunification and victim recovery.
COMMENTS : According to the author, "[As stated on the PROTECT
Web site, describing familial sexual abuse of children,] 'They
were betrayed by an adult who should have loved and protected
them, then they were betrayed again by California law.'
"As stated earlier, under current California law, if a person
molests a stranger, he or she is considered predatory and go to
prison. But if a person harms another person close to him or
her, that person can receive therapy. It is inappropriate, and
harmful to the children involved, for society to pretend that
one offender can be cured while the other must be removed for
our protection.
Please see the policy committee analysis for full discussion of
this bill.
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744
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FN: 0012587