BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 33|
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UNFINISHED BUSINESS
Bill No: SB 33
Author: Battin (R)
Amended: 8/31/05
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-1, 4/19/05
AYES: Alquist, Poochigian, Cedillo, Margett
NOES: Migden
NO VOTE RECORDED: Perata, Romero
SENATE APPROPRIATIONS COMMITTEE : Not relevant
SENATE FLOOR : 34-1, 6/2/05
AYES: Aanestad, Ackerman, Alarcon, Alquist, Ashburn,
Battin, Bowen, Campbell, Cedillo, Chesbro, Cox, Denham,
Ducheny, Dunn, Dutton, Escutia, Figueroa, Florez,
Hollingsworth, Kehoe, Kuehl, Lowenthal, Machado,
Maldonado, Margett, McClintock, Ortiz, Perata,
Poochigian, Runner, Simitian, Soto, Speier, Torlakson
NOES: Migden
NO VOTE RECORDED: Morrow, Murray, Romero, Scott, Vincent
ASSEMBLY FLOOR : Not available
SUBJECT : Lewd conduct with children
SOURCE : National Association to Protect Children
(PROTECT)
DIGEST : Senate Floor Amendments of 6/2/05 remove the
CONTINUED
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provisions of the bill that were inserted into the bill
while it was on the Senate Appropriations Suspense File.
As amended, this bill is exactly the same as when it passed
the Senate Public Safety Committee. It (1) largely
eliminates, 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) eliminates 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) eliminates 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) requires specific pleading and
proof of allegations that make defendants ineligible for
probation in lewd conduct and continuous sexual abuse
convictions, (5) allows prosecutors to negotiate plea
agreements that leave defendants eligible for probation in
lewd conduct cases, (6) defines incest (a straight felony)
as sexual intercourse between specified blood relatives
over the age of 14, and (7) eliminates deferred entry of
judgment programs in physical and sexual abuse cases.
Assembly Amendments delete provisions in the bill relative
to Section 288.1 of the Penal Code dealing with a defendant
who is a member of the victim's household and instead
delete the option of the court receiving a report relative
to the mental condition of the defendant, as specified.
ANALYSIS : Existing law provides that it is a felony for
persons within the degrees of consanguinity within which
marriages are declared by law to be incestuous and void to
commit fornication or adultery with one another.
This bill provides that it is a felony for persons within
specified degrees of consanguinity who are 14 years of age
or older to commit fornication or adultery with one
another.
Existing law provides that any person convicted of
committing any lewd or lascivious act upon a child under 14
years of age shall not have his/her sentence suspended
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until the court obtains a report as to the mental condition
of that person from a reputable psychiatrist or
psychologist, or from a recognized treatment program.
This bill deletes the option of receiving a report from a
recognized treatment program.
Existing law provides that, in lieu of prosecuting a person
suspected of committing an act of abuse or neglect
involving a minor victim, the prosecuting attorney may
refer that person for counseling and psychological
treatment.
This bill specifies that these provisions only apply to a
person suspected of committing physical abuse or neglect.
Existing law also provides that, in lieu of trial, the
prosecuting attorney may make a motion to defer entry of
judgment with respect to any crime charged in which a minor
is a victim of an act of molestation or sexual abuse, upon
written agreement between the prosecuting attorney and the
suspect, if he/she is a family member of the victim, the
person has no prior violent or sexual felony convictions,
and no adverse diversion or counseling history, as
specified, provided that rehabilitation is feasible, there
is no threat of harm to the minor, the charged offense is
not a lewd or lascivious act or any other sexual offense
committed by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury, the defendant
pleads guilty and completes an approved treatment program,
five years after which, the court shall dismiss the charges
against the defendant.
This bill repeals these provisions.
Existing law provides that a person who is convicted of
committing lewd and lascivious acts upon a child or
engaging in continuous sexual abuse of a child, if the
violation involved more than one victim, substantial sexual
conduct with a victim who was under 14 years of age, or the
use of obscene matter depicting sexual conduct, as
specified, shall be ineligible for probation, a suspended
sentence, nor shall any of the charges against him or her
be dismissed, as specified, unless the court makes several
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findings including that the defendant is the victim's
parent or relative, grant of probation is in the best
interest of the child, rehabilitation of the defendant is
feasible, and there is no threat of physical harm to the
child.
This bill instead provides that probation shall not be
granted to, nor shall the execution or imposition of
sentence be suspended for any person convicted of
committing these offenses if the existence of any fact
required to prove the allegation is alleged in the
accusatory pleading and either admitted by the defendant or
found to be true by the trier of fact. Further, for the
existence of any fact relating to lewd and lascivious acts
against multiple victims, in order for these provisions to
apply, the allegation must specifically reference these
provisions. The bill specifies the conditions under which
a person convicted of lewd and lascivious acts upon a child
or continuous sexual abuse of a child may be granted
probation.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2005-06 2006-07
2007-08 Fund
Incarceration Costs likely in excess of $200
annually General
SUPPORT : (Verified 9/5/05)
National Association to Protect Children (PROTECT) (source)
A Minor Consideration
Alison Arngrim, Actress and Activist
Bikers Against Child Abuse
California Association for Nurse Practitioners
California Alliance Against Domestic Violence
California Coalition Against Sexual Assault
California Commission on the Status of Women
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California Correctional Supervisors Organization
California District Attorneys Association
California Judicial Investigative Task Force
California Police Activities League
California Protective Parents Association
California State Sheriffs' Association
California Women's Law Center
Center for Family Connections
Child Trauma Academy/Dr. Bruce Perry, M.D., Ph.D. - senior
pediatric psychology consultant to the United States
government
Courageous Kids Network
Crime Victims United of California
El Cerrito City Council
Equality Campaign
Feminist Majority
Gloria Allred, Attorney-at-Law
Incest Survivors Speakers Bureau
International Child Abuse Network
Justice for Children
Los Angeles Rape Foundation
Los Angeles City Attorney
Los Angeles District Attorney
Mothers Against Predators
Mothers of Lost Children
National Council of Jewish Women, California State Public
Affairs
National Organization for Women, San Fernando
Valley/Northeast Los Angeles Chapter
Oxnard Police Department
Peace Officers Research Association of California
Prevent Child Abuse California
Punks Protect Kids
Punk Voter
Rainbow Community Center of Contra Costa County
Rape Treatment Center, Santa Monica UCLA Medical Center
Responsible Citizens, Inc.
Riverside County Sheriff (pending letter)
San Francisco District Attorney
Santa Monica City Council
Sisters of Perpetual Indulgence, Los Angeles
Solano County Board of Supervisors
Survivors' Network of those Abused by Priests
Survivorship
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United for Justice
Valencia Pediatric Associates
ARGUMENTS IN SUPPORT : According to the author, "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."
The bill's sponsor, National Association to Protect
Children, 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 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.
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.
RJG:mel 9/6/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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