BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair S
2005-2006 Regular Session B
4
3
SB 43 (Battin)
As Amended March 10, 2005
Hearing date: April 5, 2005
Penal Code
AA:br
REGISTERED SEX OFFENDERS :
INTERNET DISCLOSURE
HISTORY
Source: Author
Prior Legislation: AB 488 (Parra) - Ch. 745, Stats. 2004
SB 1780 (Hollingsworth) - 2004; failed passage,
Senate Public Safety
SB 1550 (Battin) - 2004; failed passage, Senate
Public Safety
SB 422 (Florez) - 2003; died in Senate
Appropriations
SB 327 (Battin) - 2003; died in Senate Public
Safety (hearing postponed)
SB 721 (Battin) - 2001-2002 Session; died in Senate
Public Safety
AB 347 (Battin) - 1999-2000 Session; died in the
Assembly
AB 166 (Battin) - 1997-98 Session; died in the
Assembly
AB 2471 (Battin) - 1995-96 Session; died in the
Senate
(More)
SB 43 (Battin)
PageB
Support: California District Attorneys Association
Opposition:California Alliance Against Domestic Violence; ACLU;
California Public Defenders Association
KEY ISSUE
SHOULD FORCIBLE SPOUSAL RAPE, INCEST AND CHILD PORNOGRAPHY OFFENDERS
BE INCLUDED ON THE MEGAN'S LAW INTERNET WEB SITE?
PURPOSE
The purpose of this bill is to include forcible spousal rape,
incest and child pornography offenses on the Megan's Law
Internet Web site, as specified.
Under current law , the Department of Justice ("DOJ") is required
to make information about registered sex offenders available to
the public via an Internet Web site, as specified. (Penal Code
290.46.) DOJ is required to include on this Web site a
registrant's name and known aliases, a photograph, a physical
description, including gender and race, date of birth, criminal
history, any other information that the Department of Justice
deems relevant unless expressly excluded under the statute.
(Id.)
Current law additionally requires DOJ to include on its Internet
Web site the home address of persons who are required to
register as sex offenders for any of the following offenses:
Kidnapping a child under 14 to commit a lewd act;
Kidnapping to commit rape, sodomy, oral copulation, or
sexual penetration;
Rape by force or by threat to kidnap or inflict extreme
pain;
Rape or sexual penetration in concert;
Aggravated sexual assault of a child under 14 by a
(More)
SB 43 (Battin)
PageC
person more than 10 years older;
Sodomy of a child under 14 by a person more than 10
years older, by force, by threat to kidnap or inflict
extreme pain, or in concert;
Oral copulation of a child under 14 by a person more
than 10 years older, by threat to kidnap or inflict extreme
pain, or in concert;
Sexual penetration of a child under 14 by a person more
than 10 years older, by force, by threat to kidnap or
inflict extreme pain, or in concert;
Felony lewd or lascivious conduct with a child under 14
or a dependent adult;
Continuous sexual abuse of a child under 14; and
Sexually Violent Predator, as specified. (Penal Code
290.46(b)(2).)
This bill would add forcible spousal rape, as specified, to the
list of offenses for which the home address of a sex offender
registrant is listed on the DOJ Web site.<1>
Current law requires the DOJ Web site of registered sex
offenders to include ZIP Code information, instead of home
address information, for persons who are required to register as
sex offenders for any of the following offenses:
Assault with intent to commit a sex crime;
Felony sexual battery;
Rape of an unconscious, disabled, or intoxicated victim;
Felony enticement of a child under 18 for prostitution;
Felony inducement of a sex crime by fraud or fear;
Procurement of a child under 16 for a lewd act;
Abduction of a child under 18 for purposes of
--------------------------
<1> Specifically, this bill would add Penal Code 262 (a)(1)
to this list: "(a) Rape of a person who is the spouse of the
perpetrator is an act of sexual intercourse accomplished under
any of the following circumstances: (1) Where it is
accomplished against a person's will by means of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another."
(More)
SB 43 (Battin)
PageD
prostitution;
Sodomy of an unconscious, disabled, or intoxicated
victim;
Sodomy of a child under 16 by a person over 21;
Oral copulation of an unconscious, disabled, or
intoxicated victim;
Oral copulation of a child under 16 by a person over 21;
Sexual penetration of an unconscious, disabled, or
intoxicated victim;
Sexual penetration of a child under 16 by a person over
21; and
Child annoyance. (Penal Code 290.46(d)(2).)
This bill would add the following offenses to this list:
Incest (Penal Code 285);<2> and
Specified child pornography offenses.<3>
COMMENTS
1. Stated Need for This Bill
The author states in part:
Sex crimes such as spousal rape and incest have both been
considered in the past as crimes not necessarily harmful to
the public. Sexual assault in the family is destructive
and very real problem and society cannot continue to ignore
these cyclical and dysfunctional behaviors. The community
needs to become aware of these dangerous predators and
victims need to know the law will stand behind them and
protect them.
-------------------------
<2> Specifically, Penal Code 285: "Persons being within the
degrees of consanguinity within which marriages are declared by
law to be incestuous and void, who intermarry with each other,
or who commit fornication or adultery with each other, are
punishable by imprisonment in the state prison."
<3> Specifically: Penal Code 311.1; 311.2(b), (c), and (d);
311.3; 311.4; 311.10; and 311.11.
(More)
SB 43 (Battin)
PageE
SB 43 would also include individuals involved in child
pornography or exploitation of a child for purposes of sex
and certain types of indecent exposure involving children.
Distribution of child pornography and adult obscenity has
expanded exponentially with advances in computer technology
and increased availability and popular use of the Internet.
It is no longer enough to depend on our public safety
officers alone to combat this horrendous network of
predators. Our community needs to play a greater role in
awareness and intolerance of sex crimes.
2. What This Bill Would Do
As explained above, the Department of Justice ("DOJ") operates a
"Megan's Law" Internet Web site which lists designated
registered sex offenders in California. This bill would require
the following additional information to be included on this Web
site:
forcible spousal rape, for which a registrant's home
address must be disclosed on the Web site;
incest, listing ZIP code and other identifying
information about persons required to register because
of an incest conviction; and
specified child pornography offenses to the Megan's
Law Web site for which ZIP code information, as well as
other identifying information about a registrant, is
made public.
3. Spousal Rape
This bill would list the home address and other specified
identifying information on the Megan's Law Web site for
persons convicted of rape of a person who is the spouse of the
perpetrator where "it is accomplished against a person's will
by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person of
(More)
SB 43 (Battin)
PageF
another." (Penal Code 262(a)(1).)
Spousal rape was made a crime in California in 1979. (AB 546
(Mori) Ch. 994, Stats. 1979, 2.) As explained by one
commentator:
The traditional definition of rape in the United
States most commonly was, "sexual intercourse with
a female not his wife without her consent." . . .
(T)his provided husbands with an exemption from
prosecution for raping their wives a "license to
rape." The foundation of this exemption can be
traced back to statements made by Sir Matthew Hale,
Chief Justice in 17th century England. Hale wrote,
"The husband cannot be guilty of a rape committed
by himself upon his lawful wife, for by their
mutual matrimonial consent and contract, the wife
hath given herself in kind unto the husband which
she cannot retract." This established the notion
that once married, a woman does not have the right
to refuse sex with her husband. This rationale
remained largely unchallenged until the 1970's when
some members of the women's movement argued for the
elimination of the spousal exemption because it
failed to provide equal protection from rape to all
women.<4>
In California, there are 177 persons who are required to
register as sex offenders for spousal rape under Penal Code
Section 262(a)(1).
---------------------------
<4> Raquel Kennedy Bergen, Ph.D., Marital Rape (St. Joseph's
University, Department of Sociology Publication Date: March
1999); obtained online at:
http://www.vaw.umn.edu/documents/vawnet/mrape/mrape.html#id75212
(citations omitted).
(More)
SB 43 (Battin)
PageG
Listing the home addresses and other identifying information
about persons convicted of spousal rape on the Megan's Law Web
site necessarily would disclose, by deduction, the identity and,
in some cases, the home address of their victims, who by
definition are their spouses. Opponents argue that this bill
will harm victims:
(V)ictims of cohabitant or marital rape may
continue to live with their abusers after the
conviction, or may reunite after the offender is
released. Marital rapists are sometimes sentenced
to felony probation rather than incarceration, in
which case the couple may never actually live
apart. In situations where the victim and
offender are living together after the conviction,
posting the offender's home address on the
Internet will most likely cause major problems for
the victim, as well as invading her privacy.<5>
The information contained on the Megan's Law Internet Web site
is solely for the purpose of protecting the public. The extent
to which persons who have been convicted of spousal rape
threaten the safety of the general public is difficult to
assess.
Most researchers of marital rape agree that rape
in marriage is an act of violence - an abuse of
power by which a husband attempts to establish
dominance and control over his wife. While the
research thus far reveals no composite picture of
a husband-rapist, these men are often portrayed as
jealous, domineering individuals who feel a sense
of entitlement to have sex with their "property."
Given this, women appear to be particularly at
risk for being raped by their partners under some
--------------------
<5> Nancy K.D. Lemon, J.D., Board Member, California Alliance
Against Domestic Violence, letter in opposition to SB 43 dated
February 24, 2005, on file with the Committee.
(More)
SB 43 (Battin)
PageH
circumstances. As was previously indicated, women
who are battered are at greater likelihood of
being raped by their partners. Additionally,
pregnancy appears to be a factor that places women
at higher risk for both physical and sexual abuse.
Being ill or recently discharged from the
hospital are also risk factors for women. As
research with battered women has previously
revealed, women are at particularly high risk of
experiencing physical and sexual violence whey
they attempt to leave their abusers for this
represents a challenge to their abusers' control.
Finkelhor and Yllo found that two thirds of the
women in their sample were sexually assaulted at
the end of the relationship. Other researchers
have found that women who are separated or
divorced from their partners appear to be at high
risk for sexual abuse. Some researchers have
noted other risk factors including drug and
alcohol use by the abuser, and previous
experiences of sexual abuse among the victims.
However, these factors are perceived as more
controversial and the research is far from
conclusive.<6>
WOULD THIS BILL, BY DISCLOSING THE IDENTITY AND, POTENTIALLY,
THE HOME ADDRESSES OF VICTIMS, DO MORE HARM THAN GOOD?
DOES THE RISK POSED TO THE SAFETY OF THE GENERAL PUBLIC BY
PERSONS WHO HAVE BEEN CONVICTED OF SPOUSAL RAPE OUTWEIGH THE
POTENTIAL HARM TO VICTIMS OF INCLUDING SPOUSAL RAPE ON THE
MEGAN'S LAW INTERNET SITE?
4. Incest
Current law provides that, "(p)ersons being within the degrees
---------------------------
<6> Id. (citations omitted)
(More)
SB 43 (Battin)
PageI
of consanguinity within which marriages are declared by law to
be incestuous and void, who intermarry with each other, or who
commit fornication or adultery with each other, are punishable
by imprisonment in the state prison." (Penal Code 285) In
California, there are 720 persons who are required to register
for an incest conviction.
This bill would require persons convicted of incest to be
included on the Megan's Law Web site; under this bill, their ZIP
code, but not their home address, would be disclosed. Because
of the specific nature of a 285 conviction, inclusion of these
registrants would necessarily disclose that their victim is a
family member. As indicated by the small number of persons
required to register for this particular offense, most incidents
of incest are charged under other sections of the Penal Code,
such as 288 - child molestation.
The author and/or the Committee may wish to explore with
prosecutors when a case would be charged under 285 versus other
statutes that carry higher penalties, and whether the nature of
these cases suggest that the potential danger of persons
convicted of this offense outweighs the potential harm of
publicly disclosing the identity of their victim.
WOULD THIS BILL, BY DISCLOSING THE IDENTITY OF VICTIMS, DO MORE
HARM THAN GOOD?
DOES THE RISK POSED TO THE SAFETY OF THE GENERAL PUBLIC BY
PERSONS WHO HAVE BEEN CONVICTED OF INCEST OUTWEIGH THE POTENTIAL
HARM TO VICTIMS OF INCEST ON THE MEGAN'S LAW INTERNET SITE?
5. Child Pornography
This bill would require that persons required to register for
specified child pornography convictions be included on the
(More)
SB 43 (Battin)
PageJ
Megan's Law Website; under this bill, their ZIP code, but not
their home address, would be disclosed.
The offenses this bill would add to Megan's Law are:
Specified conduct or contact, as specified, with any
obscene matter, knowing that the matter depicts a person
under the age of 18 years personally engaging in or
personally simulating sexual conduct, as specified (Penal
Code 311.1);<7>
Specified conduct relating to materials with the intent to
distribute for commercial consideration of any obscene
matter, knowing that the matter depicts a person under the
age of 18 years personally engaging in or personally
simulating sexual conduct, as specified (Penal Code
311.2(b));
Specified conduct relating to materials with the intent
to distribute or exhibit to, or to exchange with, a person
18 years of age or older knowing that the matter depicts a
person under the age of 18 years personally engaging in or
personally simulating sexual conduct, as specified (Penal
Code 311.2 (c));
Specified conduct relating to materials with the intent
to offer, distribute or exhibit to, as specified, a person
under 18 years of age, knowing that the matter depicts a
person under the age of 18 years personally engaging in or
personally simulating sexual conduct, as specified (Penal
Code 311.2(d));
Knowingly developing, duplicates, prints, or exchanges
any representation of information, data, or image, as
specified, that contains or incorporates in any manner, any
film or filmstrip that depicts a person under the age of 18
years engaged in an act of sexual conduct (Penal Code
--------------------------
<7> The statute expressly applies to anyone who "knowingly
sends or causes to be sent, or brings or causes to be brought,
into this state for sale or distribution, or in this state
possesses, prepares, publishes, produces, develops, duplicates,
or prints any representation of information, data, or image," as
specified.
(More)
SB 43 (Battin)
PageK
311.3);
Knowingly , hiring, employing, or using a minor to do or
assist in doing any of the acts described above concerning
distributing child obscenity under Penal Code Section
311.2, as specified (Penal Code 311.4);
Advertising for sale or distribution any obscene matter
knowing that it depicts a person under the age of 18 years
personally engaging in or personally simulating sexual
conduct, as defined in Section 311.4 (Penal Code 311.10);
and
Sending, importing, producing or duplicating, with the
intent to distribute, any obscene matter depicting a person
under the age of 18 engaged in actual or simulated "sexual
conduct", as specified. (Penal Code 311.11)
The crime described in Section 311.11 is not defined in terms of
"child pornography" - an inherently vague term. Rather, Section
311.11 concerns depictions of actual or simulated "sexual
conduct" by any person under the age of 18. None of the "child
pornography" offenses raised by this bill are limited to young
children - they all extend to conduct involving minors up
(More)
to the age of 18. In addition, sexual conduct under Section
311.11 is defined broadly.<8> Thus, for example, Section 311.11
would be violated by possession of an image depicting a
17-year-old engaging in simulated masturbation while clothed;
arguably, this could include many popular music videos.
The complexity of Section 311.11 is further illustrated by
exceptions to its application. The section does not apply to
"drawings, figurines, statutes, or any film rated by the Motion
Picture Association of America [MPAA]." Possession of
depictions of conduct that perhaps would be routine or
unremarkable in rated films or in material that might be
accepted as "art," constitutes a crime under Section 311.11 if
the depictions do not appear in such contexts. For example, an
unrated documentary or other accurate depiction of relatively
common behavior of high school students likely would be criminal
under a broad interpretation of Section 311.11.
ARE THE CHILD PORNOGRAPHY STATUTES SUFFICIENTLY NARROW TO
INCLUDE PERSONS ON THE MEGAN'S LAW WEB SITE WHO HAVE ENGAGED IN
SERIOUS CONDUCT RELATING TO CHILD PORNOGRAPHY?
SHOULD AN EXEMPTION FROM INCLUSION IN THE INTERNET SITE BE
AVAILABLE FOR PERSONS CONVICTED OF A SIMPLE POSSESSION OFFENSE
WHERE THEY CAN PROVE THE MINOR INVOLVED WAS 16 OR OLDER?
---------------------------
<8> Penal Code 311.11 pertains to depictions of "engaging in
or simulating sexual conduct," which is defined to mean "any of
the following, whether actual or simulated: sexual intercourse,
oral copulation, anal intercourse, anal oral copulation,
masturbation, bestiality, sexual sadism, sexual masochism,
penetration of the vagina or rectum by any object in a lewd or
lascivious manner, exhibition of the genitals or pubic or rectal
area for the purpose of sexual stimulation of the viewer, any
lewd or lascivious sexual act as defined in Section 288, or
excretory functions performed in a lewd or lascivious manner,
whether or not any of the above conduct is performed alone or
between members of the same or opposite sex or between humans
and animals. An act is simulated when it gives the appearance
of being sexual conduct."
(More)
SB 43 (Battin)
PageM
SHOULD THIS BILL BE NARROWED TO FELONY CONVICTIONS FOR THESE
CHILD PORNOGRAPHY OFFENSES?
As noted above, Megan's Law is intended solely for purposes of
public safety. The extent to which there is a link between
viewing or otherwise handling materials depicting actual or
simulated sexual or obscene conduct involving a minor under 18
and committing sex crimes against children is unknown. A March
19, 2001 Newsweek article on child pornography noted "which fans
of child porn will go on to molest a child is unknown, as is the
actual number of pedophiles in the general population." Dr.
Martin Kafka of the McLean Hospital in Belmont, Massachusetts,
told Newsweek: "Some who look at child pornography have no
history of molesting. They seem to control their urges."
Others argue the link is more clear. In testimony before
Congress in 2002, Unit Chief for the FBI's Crimes Against
Children Unit stated in part:
Our experience in the investigation of these crimes
also signals a strong correlation between child
pornography offenders and molesters of children. In
Operation Candyman, for example, of the 90 people
arrested thus far for their participation in the child
pornography e-group, 13 of them who chose to make
inculpatory statements admitted to molesting a
combined total of 48 children. . . .
My colleagues at the U.S. Postal Inspection Service
tell me that, according to statistics compiled from
their investigations, a frighteningly high percentage
of the child pornography offenders investigated were
also involved in the sexual molestation of children.
Their studies indicate consistently that, of the total
number of child pornographers investigated over the
past several years, nearly 40 percent have been
SB 43 (Battin)
PageN
determined to be child molesters.
In addition, in November 2000, Dr. Andres E.
Hernandez, PsyD., Director of the Sex Offender
Treatment Program, Federal Bureau of Prisons, FCI
Butner, presented the results of his study of child
pornography offenders . . . .This study, among other
things, explored the correlation between child
pornography offenses and actual child molestation.
Dr. Hernandez' data indicates that the majority of the
persons in his study convicted of child pornography
offenses actually molested significant numbers of
children without detection by the criminal justice
system. . . .<9>
SHOULD CHILD PORNOGRAPHY OFFENSES BE INCLUDED ON THE MEGAN'S LAW
WEBSITE TO PROMOTE PUBLIC SAFETY?
***************
---------------------------
<9> Testimony of Michael J. Heimbach, Crimes Against Children
Unit, Criminal Investigative Division, FBI, Before the
Subcommittee on Crime, Terrorism, and Homeland Security,
Committee on the Judiciary United States House of
Representatives May 1, 2002,"Internet Child Pornography."
( http://www.fbi.gov/congress/congress02/heimbach )