BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 382|
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THIRD READING
Bill No: AB 382
Author: Ammiano (D), et al
Amended: 8/17/09 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 7/7/09
AYES: Leno, Cedillo, Hancock, Steinberg, Wright
NOES: Benoit, Huff
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 65-9, 5/11/09 - See last page for vote
SUBJECT : Corrections: inmate sexual orientation and
gender identity
SOURCE : Equality California
DIGEST : This bill (1) makes specified legislative
findings, (2) requires that the Department of Corrections
and Rehabilitations (CDCR) inmate classification and
housing assignment procedures take into account
"self-reported safety concerns related to the sexual
orientation and gender identity of the inmate or ward"
along with other risk factors, (3) prohibits CDCR from
requiring any inmate or ward to disclose or report his/her
sexual orientation or gender identity at any time, (4)
specifies that a disclosure or report shall not be
discredited solely because it was not provided at an
earlier point in time, (5) prohibits CDCR from disciplining
CONTINUED
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or otherwise punishing an inmate or ward if the inmate or
ward fails to disclose or report his/her sexual orientation
or gender identity during all or part of his/her term of
commitment, and (6) states that nothing in this section
shall be construed to require or justify expansion or
construction of CDCR facilities.
ANALYSIS : Existing federal law establishes the Prison
Rape Elimination Act to establish a zero-tolerance standard
for the incidence of prison rape in prisons in the United
States; develops and implements national standards for the
detection, prevention, reduction, and punishment of prison
rape; increases the available data and information on the
incidence of prison rape; increases the accountability of
prison officials who fail to detect, prevent, reduce, and
punish prison rape; protects the Eighth Amendment rights of
federal, state, and local prisoners; increases the
efficiency and effectiveness of federal expenditures; and
reduces the costs that prison rape imposes on interstate
commerce. (42 USC 15601)
Existing law requires CDCR to review informational
handbooks regarding sexual abuse in detention published by
outside organizations. Upon approving the content thereof,
handbooks provided by one or more outside organizations
shall be made available to inmates and wards. (Section
2635 of the Penal Code)
Existing law requires CDCR inmate classification and
housing assignment procedures to take into account risk
factors that can lead to inmates and wards becoming the
target of sexual victimization or of being sexually
aggressive toward others. Relevant considerations include:
age, whether the offender is a violent or non-violent
offender, and whether the inmate has a history of mental
illness. (Section 2636(a) of the Penal Code)
Existing law requires that CDCR ensure that staff members
intervene when an inmate or ward appears to be the target
of sexual harassment or intimidation. (Section 2636(b) of
the Penal Code )
Existing law requires that CDCR shall ensure that its
protocols for responding to sexual abuse include all of the
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following:
1. The safety of an inmate or ward who alleges that he/she
has been the victim of sexual abuse shall be immediately
and discreetly ensured. Staff shall provide the safest
possible housing options to inmates and wards who have
experienced repeated abuse. Housing options may include
discreet institution transfers.
2. Inmates and wards who file complaints of sexual abuse
shall not be punished, either directly or indirectly,
for doing so. If a person is segregated for his/her own
protection, segregation must be nondisciplinary.
3. Any person who knowingly or willfully submits inaccurate
or untruthful information in regards to sexual abuse is
punishable pursuant to department regulations.
4. Under no circumstances is it appropriate to suggest that
an inmate should fight to avoid sexual violence or to
suggest that the reported sexual abuse is not
significant enough to be addressed by staff.
5. Staff shall not discriminate in their response to
inmates and wards who are gay, bisexual, or transgender
who experience sexual aggression, or report that they
have experienced sexual abuse.
6. Retaliation against an inmate or ward for making an
allegation of sexual abuse shall be strictly prohibited.
(Section 2637(a)-(f) of the Penal Code)
Existing law requires that thoughtful, confidential
standards of physical and mental health care shall be
implemented to reduce the impact of sexual abuse on inmates
and wards in CDCR that include all of the following:
1. Victims shall receive appropriate acute-trauma care for
rape victims, including, but not limited to, treatment
of injuries, HIV/AIDS prophylactic measures, and, later,
testing for sexually transmittable diseases.
2. Health practitioners who conduct or encounter an inmate
or ward suffering from problems that might indicate
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sexual abuse, such as trauma, sexually transmissible
diseases, pregnancy, or chronic pain symptoms, shall ask
whether the patient has experienced sexual abuse.
3. Practitioners should strive to ask frank,
straightforward questions about sexual incidents without
shaming inmates or displaying embarrassment about the
subject matter.
4. Confidential mental health counseling intended to help
the victim to cope with the aftermath of abuse shall be
offered to those who report sexual abuse. Victims shall
be monitored for suicidal impulses, posttraumatic stress
disorder, depression, and other mental health
consequences.
5. Any adult inmate in mental health counseling for any
reason shall be entitled to speak confidentially about
sexual abuse. (Section 2638(a)-(e) of the Penal Code)
Existing law requires CDCR to ensure that the following
procedures are performed in the investigation and
prosecution of sexual abuse incidents:
1. The provision of safe housing options, medical care, and
the like shall not be contingent upon the victim's
willingness to press charges.
2. Investigations into allegations of sexual abuse shall
include, when deemed appropriate by the investigating
agency, the use of forensic rape kits, questioning of
suspects and witnesses, and gathering of other relevant
evidence.
3. Physical and testimonial evidence shall be carefully
preserved for use in any future proceedings.
4. Staff attitudes that inmates and wards cannot provide
reliable information shall be discouraged.
5. If an investigation confirms that any employee has
sexually abused an inmate or ward, that employee shall
be terminated. Administrators shall report criminal
sexual abuse by staff to law enforcement authorities.
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6. Consensual sodomy and oral copulation among inmates is
prohibited by subdivision (e) of Section 286 and
subdivision (e) of Section 288a, respectively. Without
repealing those provisions, the increased scrutiny
provided by this article shall apply only to
nonconsensual sexual contact among inmates and custodial
sexual misconduct. (Section 2639(a)-(f) of the Penal
Code)
Existing law requires CDCR to keep statistics on the sexual
abuse of inmates and wards. Sexual abuse incidents shall
not be classified as "other" nor simply included in a
broader category of general assaults. Statistics shall
include whether the abuse was perpetrated by a staff member
or other inmate, the results of the investigation and any
resolution of the complaint by department officials and
prosecution authorities. The data shall be made available
to the Office of the Sexual Abuse in Detention Elimination
Ombudsperson. (Section 2640 of the Penal Code)
Existing law creates the Office of the Sexual Abuse in
Detention Elimination Ombudsperson in state government to
ensure the impartial resolution of inmate and ward sexual
abuse complaints:
1. The office shall be based within the Office of the
Inspector General. The duties of this office may be
contracted to outside nongovernmental experts.
2. The ombudsperson shall have the authority to inspect all
of CDCR institutions and to interview all inmates and
wards.
3. CDCR shall allow all inmates and wards to write
confidential letters regarding sexual abuse to the
ombudsperson.
4. Information about how to confidentially contact the
ombudsperson shall be clearly posted in all of CDCR
institutions.
5. The Office of the Inspector General shall investigate
reports of the mishandling of incidents of sexual abuse,
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while maintaining the confidentiality of the victims of
sexual abuse, if requested by the victim. (Section
2641(a)-(e) of the Penal Code)
Existing law requires that CDCR develop guidelines for
allowing outside organizations and service agencies to
offer resources to inmates and wards, including, but not
limited to, the following: (1) rape crisis agencies, (2)
hospitals, (3) gay rights organizations, (4) HIV/AIDS
service providers, (5) civil rights organizations, and (6)
human rights organizations. (Section 2642 of the Penal
Code)
This bill makes the following legislative findings:
1. The Legislature finds and declares that inmates and
wards of CDCR may be at a heightened risk of sexual
violence and abuse based on certain risk factors,
including being young, being lesbian, gay, bisexual, or
transgender, not having served a prior term of
commitment, or having a history of mental illness.
2. It is the intent of the Legislature in the enacting this
act to ensure that CDCR (1) recognizes that wards or
inmates may be at increased risk based on these factors,
and (2) provides vulnerable inmates or wards who are
determined to be at risk with heightened protection in
classification and housing decisions, without
automatically subjecting them to highly restrictive or
isolated settings or denying them access to programs and
services.
This bill requires that CDCR inmate classification and
housing assignment procedures take into account
"self-reported safety concerns related to the sexual
orientation and gender identity of the inmate or ward"
along with other risk factors listed in existing law that
can lead to inmates and wards becoming the target of sexual
victimization or of being sexually aggressive toward
others.
This bill provides that CDCR:
1. Shall not require any inmate or ward to disclose or
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report his or her sexual orientation or gender identity
at any time, and a disclosure or report shall not be
discredited solely because it was not provided at an
earlier point in time.
2. Is prohibited from disciplining or otherwise punishing
an inmate or ward if the inmate or ward fails to
disclose or report his/her sexual orientation or gender
identity during all or part of his or her term of
commitment.
This bill states that nothing in this section shall be
construed to require or justify expansion or construction
of CDCR facilities.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/17/09)
Equality California (source)
Asian Communities for Reproductive Justice
Asian and Pacific Islander Wellness Center
All of Us or None
California Coalition Against Sexual Assault
California Coalition for Women Prisoners
California Commission on the Status of Women
California Communities United Institute
Center for Health Justice
Justice Now
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
The Transgender, Gender Variant & Intersex Justice Project
Transgender Law Center
ARGUMENTS IN SUPPORT : According to the author:
"[AB 382] would add sexual orientation and gender
identity to the current list of factors that should be
considered when classifying and housing prisoners.
"One of the most important tools available to corrections
officials to prevent sexual assault is the use of
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appropriate prisoner classification and housing
protocols.
"While anyone can be a victim of sexual violence, in
prison typical victims are young, nonviolent, or
first-time offenders. Lesbian, Gay, Bisexual and
Transgender [LGBT] prisoners or those perceived to be
LGBT are also exceptionally vulnerable to violence.
"Sexual violence against prisoners who are LGBT is a
recurring problem that needs to be addressed.
"According to a recent study from the California
Department of Corrections and Rehabilitation, 67 percent
of LGBT inmates report being sexually assaulted by
another inmate, a rate 15 times higher than the overall
population.
"Our prisons have been the focus of recent attention and
litigation involving overcrowding and violence.
"Recognizing these problems, the Legislature enacted a
law in 2005 to require CDCR to consider certain risk
factors that can lead to inmates becoming the target of
sexual victimization including age, whether the inmate is
a violent or nonviolent offender, whether the inmate has
served a prior term, and whether the inmate has a history
of mental illness.
"Unfortunately, existing law does not provide specific
protections for LGBT inmates housed by CDCR.
"[AB 382] would simply add sexual orientation and gender
identity to a list of criteria that CDCR must consider
when classifying and housing prisoners."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Arambula, Beall, Tom Berryhill,
Block, Blumenfield, Brownley, Buchanan, Caballero,
Charles Calderon, Carter, Chesbro, Conway, Coto, Davis,
De La Torre, De Leon, DeVore, Emmerson, Eng, Evans,
Feuer, Fletcher, Fong, Fuentes, Furutani, Gaines,
Galgiani, Gilmore, Hagman, Hall, Harkey, Hayashi,
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Hernandez, Hill, Huber, Huffman, Jones, Krekorian, Lieu,
Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, Niello,
John A. Perez, V. Manuel Perez, Portantino, Price,
Ruskin, Salas, Saldana, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Yamada, Bass
NOES: Anderson, Bill Berryhill, Duvall, Fuller, Knight,
Logue, Miller, Nielsen, Silva
NO VOTE RECORDED: Blakeslee, Cook, Garrick, Jeffries,
Nestande, Villines
RJG:mw 7/23/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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