BILL NUMBER: SB 43 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Battin
JANUARY 4, 2005
An act to amend Section 209.46 of the Penal Code relating to sex
offenders.
LEGISLATIVE COUNSEL'S DIGEST
SB 43, as introduced, Battin. Megan's Law: applicable offenses.
Existing law requires the Department of Justice, on or before July
1, 2005, to make specified information about certain sex offenders
available to the public via an Internet Web site, including a
photograph, physical description, and criminal history, and to update
that information on an ongoing basis. This information also includes
the home address of specified offenders and the community of
residence and ZIP Code of others. Existing law also provides that
certain offenders with less serious sexual offense histories, as
specified, may apply to the Department of Justice for exclusion from
the Internet Web site.
This bill would add persons who have been convicted of spousal
rape accomplished by use of force or violence to the list of
offenders whose home addresses are to be made available on the
Internet Web site. This bill would also add persons convicted of
incest, various offenses involving obscene matter depicting a minor
or matter depicting a minor engaging in or simulating sexual conduct,
sexual exploitation of a child, and indecent exposure to the list of
offenders whose communities of residence and ZIP Codes will be made
available on the Internet Web site.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 290.46 of the Penal Code is amended to read:
290.46. (a) On or before the dates specified in this section, the
Department of Justice shall make available information concerning
persons who are required to register pursuant to Section 290 to the
public via an Internet Web site as specified in this section. The
department shall update the Web site on an ongoing basis. All
information identifying the victim by name, birth date, address, or
relationship to the registrant shall be excluded from the Web site.
The name or address of the person's employer and the listed person's
criminal history other than the specific crimes for which the person
is required to register shall not be included on the Web site. The
Web site shall be translated into languages other than English as
determined by the department.(b) (1) On or before July 1, 2005, with
respect to a person who has been convicted of the commission or the
attempted commission of any of the offenses listed in this
subdivision or the statutory predecessors of any of these offenses,
or any offense which, if committed or attempted to be committed in
this state, would have been punishable as one or more of the offenses
listed in this subdivision, the Department of Justice shall make
available to the public via the Internet Web site his or her names
and known aliases, a photograph, a physical description, including
gender and race, date of birth, criminal history, the address at
which the person resides, and any other information that the
Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a).
(2) This subdivision shall apply to the following offenses:
(A) Subdivision (b) of Section 207.
(B) Subdivision (b) of Section 209, except kidnapping to commit
robbery.
(C) Paragraph (2) or (6) of subdivision (a) of Section 261.
(D) Paragraph (1) of subdivision (a) of Section 262
.
(E) Section 264.1.
(E)
(F) Section 269.
(F)
(G) Subdivision (c) or (d) of Section 286.
(G)
(H) Subdivision (a), (b), or (c) of Section
288, provided that the offense is a felony.
(H)
(I) Subdivision (c) or (d) of Section 288a.
(I)
(J) Section 288.5.
(J)
(K) Subdivision (a) or (j) of Section 289.
(3) This subdivision shall also apply to any person who has ever
been adjudicated a sexually violent predator as defined in Section
6600 of the Welfare and Institutions Code.
(c) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in paragraph (2) or the statutory
predecessors of any of these offenses, or any offense which, if
committed or attempted to be committed in this state, would have been
punishable as one or more of the offenses listed in this
subdivision, the Department of Justice shall make available to the
public via the Internet Web site his or her names and known aliases,
a photograph, a physical description, including gender and race, date
of birth, criminal history, the community of residence and ZIP Code
in which the person resides, and any other information that the
Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a). However, the address at which
the person resides shall not be disclosed until a determination is
made that the person is, by virtue of his or her additional prior or
subsequent conviction of an offense listed in paragraph (2) of
subdivision (a) of Section 290, subject to this subdivision. On or
before July 1, 2006, the Department of Justice shall determine
whether any person convicted of an offense listed in paragraph (2)
also has one or more prior or subsequent convictions of an offense
listed in paragraph (2) of subdivision (a) of Section 290, and, for
those persons, the Department of Justice shall make available to the
public via the Internet Web site the address at which the person
resides.
(2) This subdivision shall apply to the following offenses,
provided that the person has one or more prior or subsequent
convictions of an offense listed in paragraph (2) of subdivision (a)
of Section 290:
(A) Section 220, except assault to commit mayhem.
(B) Paragraph (1), (3), or (4) of subdivision (a) of Section 261.
(C) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 286.
(D) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 288a.
(E) Subdivision (b), (d), (e), or (i) of Section 289.
(d) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in this subdivision or the statutory
predecessors of any of these offenses, or of any offense which, if
committed or attempted to be committed in this state, would have been
punishable as one or more of the offenses listed in this
subdivision, the Department of Justice shall make available to the
public via the Internet Web site his or her names and known aliases,
a photograph, a physical description, including gender and race, date
of birth, criminal history, the community of residence and ZIP Code
in which the person resides, and any other information that the
Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a) or the address at which the
person resides.
(2) This subdivision shall apply to the following offenses:
(A) Section 220, except assault to commit mayhem, with no prior or
subsequent conviction of an offense listed in paragraph (2) of
subdivision (a) of Section 290.
(B) Subdivision (a) of Section 243.4, provided that the offense is
a felony.
(C) Paragraph (1), (3), or (4) of subdivision (a) of Section 261,
with no prior or subsequent conviction of an offense listed in
paragraph (2) of subdivision (a) of Section 290.
(D) Section 266, provided that the offense is a felony.
(E) Section 266c, provided that the offense is a felony.
(F) Section 266j.
(G) Section 267.
(H) Section 285.
(I) Paragraph (2) of subdivision (b), or
subdivision (f), (g), or (i), of Section 286, with no prior or
subsequent conviction of an offense listed in paragraph (2) of
subdivision (a) of Section 290.
(I)
(J) Subdivision (c) of Section 288, provided
that the offense is a misdemeanor.
(J)
(K) Paragraph (2) of subdivision (b), or
subdivision (f), (g), or (i), of Section 288a, with no prior or
subsequent conviction of an offense listed in paragraph (2) of
subdivision (a) of Section 290.
(K)
(L) Subdivision (b), (d), (e), or (i) of
Section 289, with no prior or subsequent conviction of an offense
listed in paragraph (2) of subdivision (a) of Section 290.
(L)
(M) Section 311.1.
(N) Subdivisions (b), (c), and (d) of
Section 311.2.
(O) Section 311.3.
(P) Section 311.4.
(Q) Section 311.10.
(R) Section 311.11.
(S) Su b d
i vision 1 of Section 314.
(T) Section 647.6.
(e) (1) If a person has been convicted of the commission or the
attempted commission of any of the offenses listed in this
subdivision or the statutory predecessors of any of these offenses,
or of any offense which, if committed or attempted to be committed in
this state, would have been punishable as one or more of the
offenses listed in this subdivision, and he or she has been convicted
of no other offense listed in subdivision (b), (c), or (d) other
than those listed in this subdivision, that person may file an
application for exclusion from the Internet Web site with the
Department of Justice. If the department determines that the person
meets the requirements of this subdivision, the department shall
grant the exclusion and no information concerning him or her shall be
made available via the Internet Web site described in this section.
He or she bears the burden of proving the facts that make him or her
eligible for exclusion from the Internet Web site. However, a person
who has filed for or been granted an exclusion from the Internet Web
site is not relieved of his or her duty to register as a sex offender
pursuant to Section 290 nor from any otherwise applicable provision
of law.
(2) This subdivision shall apply to the following offenses:
(A) A felony violation of subdivision (a) of Section 243.4.
(B) Section 647.6, provided the offense is a misdemeanor.
(C) An offense listed in subdivision (b), (c), or (d) if the
offender is eligible for, granted, and successfully completes
probation pursuant to Section 1203.066 of the Penal Code.
(f) The Department of Justice shall make a reasonable effort to
provide notification to persons who have been convicted of the
commission or attempted commission of an offense specified in
subdivision (b), (c), or (d), that on or before July 1, 2005, the
department is required to make information about him or her available
to the public via an Internet Web site as specified in this section.
The Department of Justice shall also make a reasonable effort to
provide notice that he or she may be eligible for exclusion from the
Internet Web site if he or she may have been convicted of an offense
for which exclusion is available pursuant to subdivision (e).
(g) Notwithstanding Section 6254.5 of the Government Code,
disclosure of information pursuant to this section is not a waiver of
exemptions under Chapter 3.5 (commencing with Section 6250) of Title
1 of Division 7 of the Government Code and does not affect other
statutory restrictions on disclosure in other situations.
(h) (1) Any person who uses information disclosed pursuant to the
Internet Web site to commit a misdemeanor shall be subject to, in
addition to any other penalty or fine imposed, a fine of not less
than ten thousand dollars ($10,000) and not more than fifty thousand
dollars ($50,000).
(2) Any person who uses information disclosed pursuant to the
Internet Web site to commit a felony shall be punished, in addition
and consecutive to any other punishment, by a five-year term of
imprisonment in the state prison.
(i) Any person who is required to register pursuant to Section 290
who enters the Web site is punishable by a fine not exceeding one
thousand dollars ($1,000), imprisonment in a county jail for a period
not to exceed six months, or by both that fine and imprisonment.
(j) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment.
(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105 and
11105.3, Section 8808 of the Family Code, Sections 777.5 and 14409.2
of the Financial Code, Sections 1522.01 and 1596.871 of the Health
and Safety Code, and Section 432.7 of the Labor Code.
(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a court
sitting without a jury, not exceeding three times the amount of
actual damage, and not less than two hundred fifty dollars ($250),
and attorney's fees, exemplary damages, or a civil penalty not
exceeding twenty-five thousand dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the information available via the Internet Web site in violation of
paragraph (2), the Attorney General, any district attorney, or city
attorney, or any person aggrieved by the misuse is authorized to
bring a civil action in the appropriate court requesting preventive
relief, including an application for a permanent or temporary
injunction, restraining order, or other order against the person or
group of persons responsible for the pattern or practice of misuse.
The foregoing remedies shall be independent of any other remedies or
procedures that may be available to an aggrieved party under other
provisions of law, including Part 2 (commencing with Section 43) of
Division 1 of the Civil Code.
(k) On or before July 1, 2006, and every year thereafter, the
Department of Justice shall make a report to the Legislature
concerning the operation of this section.
(l) The Department of Justice and its employees shall be immune
from liability for good faith conduct under this section.