BILL ANALYSIS
SB 43
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Date of Hearing: June 14, 2005
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 43 (Battin) - As Amended: May 11, 2005
SUMMARY : Expands the Megan's Law Internet Web site maintained
by the Department of Justice (DOJ) and available to the public.
Specifically, this bill :
1)Adds specified felony child pornography offenses and annoying
or molesting a child under the age of 18 to the Megan's Law
Internet Web site.
2)Provides that the community of residence and zip code, not
specific home address, shall be included for persons convicted
of the specified child pornography offenses and annoying or
molesting a child under the age of 18.
3)Exempts defendants convicted of specified child pornography
offenses from inclusion in the Megan's Law internet web site
if the registrant submits to the DOJ a certified copy of a
probation report filed in court that clearly states the
depicted person was at least 16 years of age at the time of
the depiction. This exemption is applicable to the following
felony convictions:
a) Bringing or sending into California for sale or
distribution, or in California possessing, publishing,
printing, etc., any representation or image that contains
or incorporates any obscene matter, knowing that the matter
depicts a person under the age of 18 personally engaging in
or simulating sexual conduct, as defined. [Penal Code
Section 311.1.]
b) Knowingly sending or bringing into California for sale
or distribution, or in California possessing, publishing,
etc., any material, with intent to distribute for
commercial consideration, that contains any obscene matter,
knowing that the matter depicts a person under the age of
18 years engaging in or personally simulating sexual
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conduct, as defined. [Penal Code Section 311.2(b).]
c) Knowingly sending or bringing into California any
material that contains any matter, knowing that the matter
depicts a person under the age of 18 years engaging in or
personally simulating sexual conduct, as defined, without
regard to the obscenity of the matter or the commercial
consideration if the defendant has a prior conviction under
this subdivision. [Penal Code Section 311.2(c).]
d) Knowingly sending or bringing into California, or in
California possessing any image, etc., that contains or
incorporates in any manner a person under the age of 18
years personally engaging in or simulating sexual conduct,
as defined, with the intent to distribute or exhibit to, or
offer to distribute or exchange the matter with, a person
under 18 years of age. It is not necessary to prove
commercial distribution or that the matter is obscene in
order to establish a violation of this subdivision. [Penal
Code Section 311.2(d).]
e) Sexual exploitation of a child. (Penal Code Section
311.3.)
f) Employment or use of a minor to engage in, or assist in,
posing or modeling for the purpose of preparing matter that
contains depiction of sexual conduct by the minor. (Penal
Code Section 311.4.)
g) Advertising for sale or distribution matter depicting a
person under the age of 18 years engaging in or simulating
sexual conduct. (Penal Code Section 311.10.)
h) Possession or control of matter depicting a minor
engaging in, or simulating, sexual conduct, with a prior
conviction of specified child pornography laws. (Penal
Code Section 311.11.)
i) A felony conviction of annoying or molesting a child
under the age of 18 years. (Penal Code Section 647.6.)
EXISTING LAW :
1)Requires persons convicted of specified sex offenses to
register with the appropriate law enforcement agency within
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five working days of coming into, or changing, his or her
residence within any city, county, city and county, or campus
in which he or she temporarily resides. [Penal Code Section
290(a)(1)(A).]
2)States that registered sex offenders who are transients must
register, or re-register, within five working days from
release from incarceration, placement, or commitment, or
release on probation. [Penal Code Section 290(a)(1)(C)(i).]
3)Establishes a three-tiered system of identifying specified sex
offenders to the public, via the Internet, and provides
specific addresses for those convicted of offenses deemed most
serious. (Penal Code Section 290.46.)
4)States that specific home addresses shall be provided
regarding persons convicted of the following offenses [Penal
Code Section 290.46(b)(2)]:
a) Kidnapping for the purpose of committing lewd or
lascivious acts of a child under the age of 14 years by
enticing, persuading or seducing by false promises, etc.,
that child to go out of the United States, state or county,
or into another part of the same county [Penal Code Section
207(b)];
b) Kidnapping to commit rape, spousal rape, oral
copulation, sodomy or sexual penetration [Penal Code
Section 209(b)];
c) Rape 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 another [Penal Code
Section 261(a)(2)];
d) Rape accomplished against the victim's will by
threatening to retaliate in the future against the victim
or any other person and there is a reasonable possibility
that the perpetrator will execute the threat [Penal Code
Section 261(a)(6)];
e) Rape or penetration of genital or anal openings by a
foreign object, by force or violence and against the will
of the other person, either personally or by aiding and
abetting another person (Penal Code Section 264.1);
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f) Aggravated sexual assault of a child under 14 years of
age and 10 or more years younger than the offender (Penal
Code Section 269);
g) Sodomy with a person under the age of 14 and more than
10 years younger than the offender [Penal Code Section
286(c)];
h) Sodomy accomplished against the victim's will by means
of force or fear of immediate and unlawful bodily injury on
the victim or another person, or where the act is
accomplished by threatening to retaliate in the future
against the victim or any other person and there is a
reasonable possibility that the perpetrator will execute
the threat [Penal Code Section 286(d)];
i) Lewd or lascivious acts upon or with the body of a child
under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child provided that the act
is a felony [Penal Code Section 288(a)];
j) Felony lewd or lascivious acts upon or with the body of
a child under the age of 14 years by use of force,
violence, duress, menace or fear of immediate and unlawful
bodily injury on the victim or another person [Penal Code
Section 288(b)];
aa) Lewd or lascivious acts upon or with the body of a child
under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child provided that the act
is a felony, the victim is a child of 14 or 15 years, and
the perpetrator is at least 10 years older than the child
[Penal Code Section 288(c)];
bb) Oral copulation with a person under 14 years of age and
more than 10 years younger than the perpetrator [Penal Code
Section 288a(c)];
cc) Oral copulation accomplished against the victim's will
by means of force or fear of immediate and unlawful bodily
injury on the victim or another person; or where the act is
accomplished against the victim's will, by threatening to
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retaliate in the future against the victim or any other
person, and there is a reasonable possibility that the
perpetrator will execute the threat; or where the victim is
incapable, because of a mental disorder or developmental or
physical disability of giving legal consent, and this is
known or reasonably should have been known to the accused
[Penal Code Section 288a(d)];
dd) Continuous sexual abuse of a child (Penal Code Section
288.5);
ee) Commission of an act of sexual penetration accomplished
against the victim's will by means of force or duress, fear
of immediate and unlawful bodily injury on the victim or
another person, or by threatening to retaliate in the
future against the victim or any other person, and there is
a reasonable possibility that the perpetrator will execute
the threat [Penal Code Section 289(a)]; and,
ff) Participation in an act of sexual penetration with
another person who is under 14 years of age and who is more
than 10 years younger than the perpetrator. [Penal Code
Section 289(j).]
5)Provides that the above information shall also be provided on
the Internet Web site as to any person who has ever been
adjudicated a sexually violent predator, as defined. [Penal
Code Section 290.46(b)(3).]
6)States that the DOJ shall make available to the public via the
Internet Web site the offender's name 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, but not the specific
address, for persons convicted of the following offenses:
a) Assault with intent to commit rape, sodomy, oral
copulation, rape in concert with another, lascivious acts
upon a child, or penetration of genitals or anus with a
foreign object (Penal Code Section 220);
b) Felony sexual battery (Penal Code Section 243.4);
c) Rape where a person is incapable because of a mental
disorder or developmental or physical disability, of giving
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legal consent, with no prior or subsequent conviction of a
sex offense requiring registration [Penal Code Section
261(a)(1)];
d) Rape where a person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled
substance, and this condition was known or should have been
known by the accused, with no prior or subsequent
conviction of a sex offense requiring registration [Penal
Code Section 261(a)(3)];
e) Rape where the person is at the time unconscious of the
nature of the act, and this is known to the accused, with
no prior or subsequent conviction of a sex offense
requiring registration [Penal Code Section 261(a)(4)];
f) Felony inveiglement of an unmarried female under 18 for
purposes of prostitution (Penal Code Section 266);
g) Felony unlawful intercourse, sexual penetration, oral
copulation or sodomy where the victim's consent is procured
by fraudulent representation made with the intent to create
fear (Penal Code Section 266c);
h) Procurement of a child under the age of 16 for lewd or
lascivious acts, as defined (Penal Code Section 266j);
i) Abduction of a person under the age of 18 years for the
purpose of prostitution (Penal Code Section 267);
j) Participation in the act of sodomy by a person over the
age of 21 years with another person who is under 16 years
of age, with no prior or subsequent conviction of a sex
offense requiring registration [Penal Code Section
286(b)(2)];
aa) Committing an act of sodomy when the victim is at the
time incapable, because of a mental disorder or
developmental or physical disability, of giving legal
consent, and such fact is known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration [Penal
Code Section 286(c)(3)(g)];
bb) Committing an act of sodomy where the victim is
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prevented from resisting by an intoxicating or anesthetic
substance, or any controlled substance, and this condition
was known or reasonably should have been known to the
accused, with no prior or subsequent conviction of a sex
offense requiring registration [Penal Code Section
286(c)(3)(i)];
cc) Lewd or lascivious acts upon or with the body of a child
under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child, provided that the act
is a misdemeanor, the victim is a child of 14 or 15 years,
and the perpetrator is at least 10 years older than the
child [Penal Code Section 288(c)];
dd) Participation in an act of oral copulation by a person
over the age of 21 with another person who is under the age
of 16 years [Penal Code Section 288a(b)(2)];
ee) Committing an act of oral copulation when the victim is
unconscious of the nature of the act and this is known to
the person committing the act, with no prior or subsequent
conviction of a sex offense requiring registration [Penal
Code Section 288a(f)];
ff) Committing an act of oral copulation where the victim is
incapable, because of a mental disorder or developmental or
physical disability, of giving consent, and this is known
or reasonably should have been known to the accused, with
no prior or subsequent conviction of a sex offense
requiring registration [Penal Code Section 288a(g)];
gg) Committing an act of oral copulation where the victim is
prevented from resisting by any intoxicating or anesthetic
substance, or any controlled substance, and this condition
was known or reasonably should have been known to the
accused, with no prior or subsequent conviction of a sex
offense requiring registration [Penal Code Section
288a(i)];
hh) Committing an act of sexual penetration where the victim
is incapable, because of a mental disorder or developmental
or physical disability of giving legal consent, and this is
known or reasonably should have been known to the accused,
with no prior or subsequent conviction of a sex offense
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requiring registration [Penal Code Section 289(b)];
ii) Committing an act of sexual penetration when the victim
is unconscious of the nature of the act and this is known
to the person committing the act, with no prior or
subsequent conviction of a sex offense requiring
registration [Penal Code Section 289(d)];
jj) Committing an act of sexual penetration where the victim
is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this
condition was known or reasonably should have been known to
the accused, with no prior or subsequent conviction of a
sex offense requiring registration [Penal Code Section
289(e)];
aaa) Participation in an act of sexual penetration by a
person over the age of 21 years with another person who is
under the age of 16 years, with no prior or subsequent
conviction of a sex offense requiring registration [Penal
Code Section 289(i)]; and,
bbb) Annoying or molesting a child under the age of 18 years
(Penal Code Section 647.6).
7)States that use of the information disclosed on the Internet
Web site about sex offenders shall not be used for purposes
relating to any of the following [Penal Code Section
290.46(j)(2)]:
a) Health insurance;
b) Insurance;
c) Loans;
d) Credit;
e) Employment;
f) Education, scholarships, or fellowships;
g) Housing or accommodations; and,
h) Benefits, privileges, or services provided by any
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business establishment.
8)Allows specified offenders (those convicted of specified acts
of sexual battery or misdemeanor child molestation, and those
who have successfully completed probation) to file an
application with DOJ for exclusion from the Internet Web site.
[Penal Code Section 290.46(e)(2)(C).]
9)Provides that except in unusual cases where the interests of
justice would be served, probation shall not be granted to
specified offenders, including persons convicted of child
molestation and continuous sexual abuse of a child. [Penal
Code Section 1203(e)(5).]
10)States that except as provided, persons convicted of lewd and
lascivious acts with a child or continuous sexual abuse of a
child may not be granted probation. (Penal Code Section
1203.066.)
11)Provides that probation may be granted to persons convicted
of the following offenses if the curt makes specific findings
[Penal Code Section 1203.066(c)]:
a) A person convicted of child molestation or continuous
sexual abuse against a child and against more than one
victim;
b) A person who, during child molestation or continuous
sexual abuse of a child, has substantial sexual contact
(defined as penetration of the vagina or rectum, as
specified) with a victim who is under 14 years of age;
c) A person who, during child molestation or continuous
sexual abuse of a child, used obscene matter, as defined,
or matter depicting sexual conduct, as defined; and the
court finds all of the following:
i) The defendant is the victim's natural or adoptive
parent, stepparent, relative, or is a member of the
victim's household who has lived in the victim's
household;
ii) A grant of probation is in the best interest of the
child;
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iii) Rehabilitation of the defendant is feasible, as
specified;
iv) The defendant is removed from the household until
the court determines that the best interests of the child
would be served by returning the defendant to the
household of the victim; and,
v) There is no threat of physical harm to the child
victim if probation is granted.
12)Provides that offenders who are granted exclusion from the
Internet Web site are not relieved of their duty to register
as sex offenders. [Penal Code Section 290.46(e)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement: According to the author, "Adding child
pornography crimes to the Megan's Law Web site should be
extremely helpful to parents given the insidious harm that
this crime entails. It makes even more sense to add these
crimes when one considers the fact that child pornography
offenses tend to be indicators of future harmful behavior.
"The policy behind this issue is very clear: Megan's Law
information is vital for the protection and education of our
society. Giving citizens more information will better inform
them as to the dangers that may exist in their communities."
2)Background : According to background information supplied by
the author, this bill would require "the DOJ to manually
review the criminal history records to determine whether the
offense was a felony or a misdemeanor. In addition, because
this bill provides for exclusion from the Internet for persons
who submit a probation report that clearly states that the
depicted person was at least 16 years of age, DOJ would have
to establish a tracking system to deal with these exclusions,
develop, and review applications."
It is questionable whether all probation reports on child
pornography offenders specifically include information on the
age of the person depicted in the material at the time of the
depiction. The inclusion of such information may vary widely
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from county to county and may even vary within a county
depending on the style of the writer of the probation report.
If such information was included in a particular probation
report, it may remain unclear what steps were taken by the
probation officer to verify the accuracy of the information.
3)Child Pornography : The author states that the purpose of this
bill is adding child pornography crimes to the Megan's Law
Internet site. It is arguable that, in and of itself, "child
pornography" is an inherently vague term. By comparison, many
of the statutes cited above refer to 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 to the age of 18. In addition, sexual
conduct under Penal Code Section 311.11 is defined broadly.<1>
Thus, for example, Penal Code Section 311.11 would be
violated by possession of an image depicting a 17-year-old
engaging in simulated masturbation while clothed. Many
parents of teen-aged children might reasonably argue that this
could include many popular music videos.
4)Exceptions to Application of Child Pornography Laws : The
complexity of this issue is further illustrated by exceptions
to its application; see, e.g., Penal Code Section 311.11. 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
---------------------------
<1>Penal Code Section 311.11 pertains to depictions of "engaging
in or simulating sexual conduct," which is defined to as "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."
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would be routine or unremarkable in rated films or in material
that might be accepted as "art" constitutes a crime under
Penal Code 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 the
interpretation of Penal Code Section 311.11 that would likely
be accepted by many judges and juries adjudicating these
matters.
The exclusion language amended into thus bill recently, which
would require DOJ to exclude from the Web site persons who
submit a certified copy of a probation report filed in court
that clearly states the depicted person was at least 16 years
of age at the time of the depiction, would provide a very
narrow exception. However, the exclusion language begs the
question: if it is a felony to possess or distribute
materials depicting sexual conduct by minors under the age of
18 years and so serious as to require inclusion in the
publicly accessible Megan's Law Web site, is it not
inconsistent to exclude those felons who, by chance,
circumstance, or mere luck, depicted a minor who was 16 years
at the time of depiction, rather than 15 years and 10 months
of age? If the author is correct that child pornography
offenses tend to be indicators of future harmful behavior,
what academic or documented law enforcement studies exist to
support the distinction made by the exclusions proposed by
this bill?
There does not appear to be any serious, peer-reviewed and
generally accepted studies or statistics that indicate that
parents need the Megan's Law Web site to protect them from
"the insidious harm" that child pornography entails only in
instances involving minors under the age of 16 years. If the
"insidious harm" is somehow diminished when the depicted minor
becomes 16 years old such that the public no longer has the
need to know the identities of the felons depicting such
minors, is there a need to cease punishing such pornographers
as felons? Looking at the issue from a different perspective,
is the parent of a victimized 16-year-old minor likely to
resent his or her inability to protect his or her child from
the "insidious harm" because that pornographer was excluded
from the publicly accessible Internet Web site?
Is using the age of 16 years for exclusion from the Megan's Law
Web site an arbitrary determination, especially in view of the
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fact that the child pornography laws prohibit matter depicting
minors under the age of 18 years engaging in, or simulating,
sexual conduct?
5)Are the Exclusion Provisions Reasonable and Workable ? Penal
Code Section 1203 et seq. discusses the various aspects of
probation. Penal Code Section 1203.10 discusses reports to
the court as ordered produced by adult probation officers.
The probation officer shall "inquire into the antecedents,
character, history, family environment, and offense of [the
defendant], and when directed, the report shall contain
recommendation for or against release of such person on
probation."
Penal Code Section 1203.10 further requires probation officers
to keep a complete and accurate record and the following
information about the probationer: age, sex, nativity,
residence, education, habit of temperance, marital status,
conduct employment and occupation of both the probationer and
his or her parents. These records must be maintained for five
years after termination of probation, after which the
probation officer may destroy any records and papers in his or
her possession relating to the case.
There is no specific requirement that probation reports document
the age of persons depicted in materials determined to be
child pornography. Moreover, even if a probation officer
attempted to do so, it would seem to be a difficult task
involving determining with certainty the identity of the
depicted person, locating the depicted person, ascertaining
the date the media was created, and the age of the depicted
person on that date. To the extent the depicted person is
unknown to the defendant and the media is in wide circulation,
the task of determining with certainty the age of the depicted
person appears virtually impossible, particularly for an
overworked probation officer with a large caseload.
6)The Purpose of Megan's Law : 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
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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."
7)The Law Enforcement Perspective : Others argue the link
between child pornography and molestation is more clear. In
testimony before Congress in 2002, the Chief for the Federal
Bureau of Investigation'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 United States 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% have been
determined to be child molesters."
In addition, in November 2000, Dr. Andres E. Hernandez, 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
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criminal justice system.<2>
8)Reliability of Law Enforcement Data : According to Ron Kokish,
a researcher, author, professor, and licensed family therapist
and board-certified clinical social worker from California,
"Law enforcement data asserting that child pornography is a
marker for pedophilia is largely anecdotal, often relies upon
reversed probabilities, is rarely subjected to peer review,
and must be considered unreliable." Kokish points out that
law enforcement's mission is to protect the public, not to
collect scientific data. "Postal inspectors claim to have
'strong evidence' that many people they apprehend for
possession of child pornography have also committed hands-on
sex crimes against children. None of their material is peer
reviewed and none of it is even published in any detail. The
published material gives little hint how they know these men
have molested children.
"What I did find was arrest data for child pornography and very
strong assertions in newsletter and press release formats.
[I] was impressed by the way the Postal Inspector responsible
for collecting their data talked about the issue. If what he
says is mostly accurate, subjecting their information to
scientific analysis might produce some meaningful evidence.
Then again, it might not. I think the Postal Inspector data
is interesting and warrants scientific inquiry if the agency
will make it available to interested social scientists. In
its present form, it warrants absolutely no conclusions.
---------------------------
<2>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 )
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9)"[In conclusion,] child pornography use may be a marker for
child molesting, but the burden of proof falls to those who
would make that assertion, and to date, they have not met it
to any significant degree."
10)The American Bar Association Center on Children and the Law :
A report, "Child Pornography: The Criminal Justice System
Response", issued by the American Bar Association and the
National Center for Missing and Exploited Children in March
2001, states that "accurate estimates [of child pornography]
are difficult because no valid and reliable methodology has
been devised to measure the amount of child pornography,
especially on the Internet. Attempts to quantify the problem
are hindered by the difficulty of discerning the ages of those
featured in pornographic images." (Emphasis added.)
The report concluded, "While a good deal is known about the
impact of child sexual abuse on children, little is known
about the specific long-term impact of sexual exploitation,
especially child pornography. Research is also scarce on
treatment programs specific to the needs of the sexually
exploited children. Without thorough examination and
evaluation of law enforcement, child welfare, and service
provision efforts, the justice system cannot accurately
understand the scope, effects or causes of child sexual
exploitation.
"Consequently extensive research should be conducted on . . .
the characteristics of adults and others perpetrating the
crimes. Longitudinal studies and evaluations tracking
responses from law enforcement and service communities should
be pursued.
"The criminal justice system should also pursue greater
community involvement in developing prevention efforts. It
should support the development of or increase in available
treatment for victims and services for at risk youth including
prevention and early intervention. The progress of law
enforcement and service providers should be examined and
studied so that successful programs can be replicated
nationally and in other countries."
11)The Likelihood that Child Pornography Offenders Will Later
Commit a Contact Sexual Offense is Unknown : An April 2005
article by Michael C. Seto (University of Toronto, Canada, and
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Center for Addiction and Mental Health,) and Angela W. Eke,
(Behavioral Sciences Research Unit Ontario Provincial Police,
and York University, Canada,) published in Sexual Abuse: A
Journal of Research and Treatment , Vol. 17, "The Criminal
Histories and Later Offending of Child Pornography Offenders",
examined a sample of 201 adult male child pornography
offenders to identify potential predictors of later offenses.
Of the sample, 56% had a prior criminal record, 24% had prior
contact sexual offenses, and 15% had prior child pornography
offenses. One-third of the sample were concurrently charged
with other crimes at the same time they were charged with the
child pornography offenses.
According to the authors of this study, "Unfortunately, there
are no published data on the future offending of child
pornography offenders. In fact, there have been only a few
empirical studies on the characteristics of individuals who
are charged with the possession, distribution, or production
of child pornography."
"This study is the first ever to report on the later offending
of a sample of child pornography offenders. 17% of the
follow-up sample of 201 offenders had offended again in some
way within an average of approximately 2.5 years after their
release to the community, and 4% committed a new contact
sexual offense.
"Child pornography offenders with prior criminal records were
significantly more likely to offend again in any way during
the follow-up period. Child pornography offenders who had
committed a prior or concurrent contact sexual offense were
the most likely to offend again, either generally or sexually.
"As we predicted, and as would be expected based on generalist
theories of crime, there was a significant difference in later
offending between child pornography offenders classified into
groups according to the extent of their other criminal
behavior.
"Child pornography offenders who had ever committed a contact
sexual offense were the most likely to re-offend. These group
differences could be detected even though the overall rate of
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sexual recidivism was low (4%.)
"Only one of the offenders with only child pornography offenses
committed a contact sexual offense in the follow-up period.
More of this group of offenders might subsequently commit a
sexual offense as the duration of the follow-up period
increases, but our finding does contradict the assumption that
all child pornography offenders are at very high risk to
commit contact sexual offenses involving children. (Emphasis
added.)
"Three-quarters of our total follow-up sample did not have any
known history of contact sexual offending, which is consistent
with data from another Canadian sample of child pornography
offenders (Seto et. al., 2005) and American samples of child
pornography offenders (Federal Bureau of Investigation press
release, retrieved from
http://www.fbi.gov/pressrel/pressrel02/cm031802.htm , July 30,
2003.
"One limitation of our study is that we had access to only
official records, so we did not have data on psychological
variables that would be relevant to understanding child
pornography offenders. Of particular interest are variables
that reflect anti-sociality (e.g.., anti-social attitudes and
beliefs, anti-social personality traits, childhood and
adolescent history of conduct problems) and atypical sexual
interests (e.g., self-reported interests, sexual history,
phallometric testing.)
"Another limitation is that we were only able to study
individuals who had been charged and convicted of child
pornography offenses. We did not have data from child
pornography users who had not come into contact with the
criminal justice system. Research on child pornography users
that takes advantage of methods to increase participant
recruitment and honest disclosure (e.g., anonymous Internet
surveys, certificates of confidentiality) could be very
illuminating. The ideal study design would recruit
non-criminal, non-clinical pedophiles from the community.
"Studying men who possess child pornography would allow us to
study pedophilia in a group that is less criminal, on average,
than correctional samples of sex offenders and perhaps less
clinically impaired than individuals who are assessed in
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clinical settings. We would be able to determine what factors
distinguish men who have pedophilic sexual interests and do
not act on them and those who do act upon them by initiating
sexual contacts with children.
"Current theories of sexual offending would suggest that men who
go on to have sexual contacts with children will be higher on
indicators of anti-sociality (early conduct problems,
anti-social personality traits, criminal history, etc.,) than
those who do not."
12)Legislation Premised Upon Anecdotal Evidence : An article
published by the American Bar Foundation Journal of Law and
Social Inquiry questions the wisdom of Legislation enacted
without benefit of accurate information. In 27 Law & Soc.
Inquiry 529 (Summer 2002), states "the speakers relied on
inaccurate actuarial / risk-based discourse to play up the sex
offender's dangerousness, their ultimate goal aimed at
constructing the sex offender as uniquely threatening even in
comparison to the run-of-the-mill felon. Thus, in each
debate, at least one speaker pointed to unspecified
'scientific studies' which confirm that 'those who commit acts
of sexual violence against children have the highest rate of
recidivism among all criminals and crimes.' (Lampson, Cong.
Rec. 1997, H7630.)
"Congressman McCollum described the recidivism rate of
registerable sex offenders at '10 times greater than other
criminals.' (Cong. Rec. 1996b, H11132), and Congresswoman
Jackson-Lee argued that 'it is a known fact that the
scientific community has concluded that most pedophiles cannot
control themselves.' (Cong. Rec. 1996b, H11134.)
"Senator Gramm cited the same 10-fold recidivism rate, here
compared to convicted robbers and again without indicating
where this figure originates, as he notes that 'sexual
predators have a recidivism rate that is higher than any other
known class of criminal activity.' (Cong. Rec. 1996c, S3423.)
The foregoing comments were made in the United States Congress
in a discussion of Megan's Law, and according to the author,
are illustrative of emotion-based lawmaking: "The policies
developed here are clearly not based on a careful assessment
of the most effective interventions to enhance children's
safety and well-being?. The level of emotional response,
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coupled with the breadth and associated costs of the enacted
laws, suggest that the lawmakers are not only looking for the
easy vote, but also expressing a more deeply felt discomfort
about the pervasive threat of 'sex offenders'." 21 Law & Soc.
Inquiry 529, supra.
Inasmuch as there is no documented body of scientific study
regarding the recidivism rate of sex offenders, or the
likelihood that people convicted of child pornography offenses
are a similar risk to the children in the community as the
most serious offenders already listed on the new DOJ Internet
Web site, does this bill fall within the reasonable arguments
of the above-cited journal that policies should be based on a
careful assessment of the most effective interventions to
enhance children's safety, rather than on a purely emotional
response?
Should additional scientific studies on this issue be researched
or conducted before the scope of the brand new Internet
Megan's Law Web site is further expanded?
13)Is This Bill Timely ? California only recently placed its
Megan's Law database on the Internet, making it more easily
accessible to members of the public. Penal Code Section
290.46(k) provides that the DOJ shall, on or before July 1,
2006 and every year thereafter, report to the Legislature
regarding the operation of the Megan's Law Internet
provisions. Since the law was only enacted last session,
there has been no report to the Legislature to date and none
is due for another year.
Therefore, there is no documented evidence that the current
internet database has problems so significant as to require a
piecemeal approach to expanding the new law. Moreover, there
is little if any evidence of even an anecdotal nature that the
current Megan's law database is failing to accomplish the
goals of the law that implemented the Internet-based sex
offender registry.
The goal of the Megan's Law Internet Web site is to protect the
public. In view of the paucity of evidence that child
pornography offenders are likely to commit new and more
serious sex offenses against children, is there a legitimate
reason to add child pornography offenders to the Megan's Law
Internet Web site at this time? Notwithstanding the author's
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assertion that child pornography offenses tend to be
indicators of future harmful behavior, the one scientific
study conducted on this issue clearly states that this is not
the case.
As stated in the Seto and Eke study, supra, there are no
published data on the future offending of child pornography
offenders. In fact, there have been only a few empirical
studies on the characteristics of individuals who are charged
with the possession, distribution, or production of child
pornography." The study concluded that the likelihood that
child pornography offenders will later commit a contact sexual
offense is unknown, while at the same time confirming the
relatively low recidivism rate; only 4% committed a new
contact sexual offense.
14)Argument in Support : According to the Peace Officers
Research Association of California (PORAC), "This legislation
adds additional heinous acts with minors to the internet list
that is available to the public, so as to inform persons
living in any given neighborhood or when making decisions
where to relocate their family, the information needed to
insure they are moving to a safe neighborhood."
15)Arguments in Opposition :
a) The California Alliance Against Domestic Violence
states, "Sex offenders are less likely to be sent back to
prison than the rest of the prison population. And when
they are sent back, it is rarely for another sex crime."
CAADV cites international studies showing that studies of
sex offenders tend to show relatively low rates of
recidivism. "This legislation appears to be designed to
pander to constituent's fears rather than being based on a
rational approach to the problem."
b) The American Civil Liberties Union (ACLU) states, "The
ACLU strongly opposed the recent creation of the Internet
based notification system because, among other things, it
permits the posting of an ex-offenders name and information
without a finding the person poses a risk to the public.
We oppose any further expansion of this statute. We urge
Members of the Legislature to reject counter-productive
bills and focus their attention on providing services to
help ex-offenders reintegrate into the community."
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c) The California Public Defenders Association states,
"There is no evidence to suggest that Penal Code Section
290.46 is not accomplishing its goals and hence no evidence
that the law needs to be expanded. Listing individuals who
have been convicted of various crimes involving pornography
on the internet seems calculated to make them and their
families subject to community scorn rather than to be
related to enhancing public safety."
d) T he California Attorneys for Criminal Justice state, "It
is evident that the Legislature has fully scrutinized and
narrowly crafted the requirements for offenses to be
included in internet disclosure. The Legislature
purposefully eliminated from the internet disclosure of
those offenses for which no indication of predatory conduct
existed. The primary thrust of this bill is to broaden the
category of offenses for which disclosure is required
without any reliable or authoritative showing or
justification. The purpose of the internet site was to
identify predatory offenders who posed a risk to the
community. Nothing in the recent past demonstrates any
predatory characteristics for the offenses [proposed] to be
added.
"What is offered is speculative and undocumented opinion that
those offenders viewing child pornography constitute child
molesters. No evidence or specifics are submitted in
support of this proposition. Instead, the arguments in
favor contain a collection of speculative and
unsubstantiated beliefs in the effort to categorize and
lump together child pornography possessors with child
molesters. The absence of reliable, peer-reviewed,
scientifically validated conclusions is a glaring omission.
Science, as opposed to speculation, should be required
before augmenting the list.
"Interestingly in the effort to create the impression of
reasonableness, the inclusion of some enumerated child
pornography offenses creates the potential for exclusion
[from the internet site.] A criteria required for
exclusion is a certified copy of a probation report that
'clearly states' that the depicted person was 16 years of
age or older at the time of the depiction. Probation
reports for such offenses have no role or responsibility to
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characterize the age of the depicted person. Requiring
such a definitive factual determination in a probation
report as a condition for exclusion virtually eliminates
the possibility that anyone will ever obtain exclusion
under the criteria set forth.
"The legislation is unjustified and should be rejected as a
needless expansion of the class of people subjected to
Internet disclosure without any showing of societal
benefit."
16)Related Legislation :
a) AB 35 (Spitzer) failed passage in this Committee.
b) AB 438 (Parra) failed passage in this Committee.
c) AB 632 (Chu) is pending hearing by the Senate Public
Safety Committee.
d) AB 807 (La Suer) failed passage in this Committee.
e) AB 808 (La Suer) failed passage in this Committee.
f) AB 1422 (Bogh) is being held on the Assembly
Appropriations Committee's Suspense File.
17)Prior Legislation :
a) AB 488 (Parra), Chapter 745, Statutes of 2004.
b) SB 327 (Battin), of the 2003-04 Legislative Session, was
never heard by the Senate Public Safety Committee.
c) SB 422 (Florez), of the 2003-04 Legislative Session,
died in the Senate Appropriations Committee.
d) SB 1550 (Battin), of the 2003-04 Legislative Session,
failed passage in the Senate Public Safety Committee.
e) SB 1780 (Hollingsworth), of the 2003-04 Legislative
Session; failed passage in the Senate Public Safety
Committee.
f) SB 721 (Battin), of the 2001-02 Legislative Session, was
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never heard by Senate Public Safety Committee.
g) AB 347 (Battin), of the 1999-2000 Legislative Session,
was never heard by the Assembly Appropriations Committee.
h) AB 166 (Battin), of the 1997-98 Legislative Session,
died in the Assembly Appropriations Committee's Suspense
File.
i) AB 2471 (Battin), 1995-96 Legislative Session, failed
passage in the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Correctional Supervisors Organization
California Peace Officers' Association
California State Sheriffs Association
Los Angeles District Attorneys Association
Office of the Attorney General
Peace Officers Research Association of California
Opposition
American Civil Liberties Union
California Alliance against Domestic Violence
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744