BILL ANALYSIS
AB 984
Page 1
Date of Hearing: January 12, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 984 (Nava) - As Amended: January 7, 2010
SUMMARY : Eliminates the requirement that a victim be under the
age of 14 when making it a crime for a person to fail to report
to police an instance when he or she witnesses a murder, rape,
or specified lewd and lascivious acts.
EXISTING LAW :
1)States that any person who reasonably believes that he or she
has observed the commission of any of the following offenses
where the victim is a child under the age of 14 years shall
notify a peace officer: murder, rape, and specified lewd and
lascivious acts committed by force or fear. (Penal Code
Section 152.3).
a) The reporting shall not be construed to affect
privileged relationships as provided by law.
b) The duty to notify a peace officer imposed is satisfied
if the notification or an attempt to provide notice is made
by telephone or any other means.
c) Failure to notify as required is a misdemeanor and is
punishable by a fine of not more than $1,500, by
imprisonment in a county jail for not more than six months,
or by both that fine and imprisonment.
d) The requirements of this section shall not apply to the
following:
i) A person who is related to either the victim or the
offender, including a husband, wife, parent, child,
brother, sister, grandparent, grandchild, or other person
related by consanguinity or affinity.
ii) A person who fails to report based on a reasonable
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mistake of fact.
iii) A person who fails to report based on a reasonable
fear for his or her own safety or for the safety of his
or her family.
2)Provides that in any case in which the defendant, voluntarily
acting in concert with another person, by force or violence
and against the will of the victim, committed an act of rape
or sexual assault, either personally or by aiding and abetting
the other person, that fact shall be charged in the indictment
or information and if found to be true by the jury, upon a
jury trial, or if found to be true by the court, upon a court
trial, or if admitted by the defendant, the defendant shall
suffer confinement in the state prison for five, seven, or
nine years. (California Penal Code Section 264.1).
3)Provides that every person who, after a felony has been
committed, harbors, conceals or aids a principal in such a
felony, with the intent that said principal may avoid or
escape from arrest, trial, conviction or punishment, having
knowledge that said principal has committed such a felony or
has been charged with such a felony or convicted thereof is an
accessory to the felony and is guilty of an alternate
felony/misdemeanor. (Penal Code Sections 32 and 33.)
4)Provides that it is a crime for any person having knowledge of
the actual commission of a crime to take money or property of
another, or any gratuity or reward, or any engagement or
promise thereof upon any agreement or understanding to
compound or conceal a crime or abstain from any prosecution
thereof or to withhold any evidence thereof. The penalty for
such crime is an alternate felony/misdemeanor if the crime
being concealed was punishable by death or life in prison or
any other felony and a six-month misdemeanor if the crime
being concealed was a misdemeanor. (Penal Code Section 153.)
5)Imposes specified requirements on a mandated reporter, as
defined, with respect to the observation and reporting of
physical abuse of an elder or dependent adult, with failure to
report punishable as a misdemeanor. (California Welfare and
Institutions Code Sections 15630 and 15634.)
6)Provides for the reporting of actual or suspected physical or
other abuse, as defined, of an elder or dependent adult by
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specified persons and entities, including care custodians, and
imposes various requirements on state and local agencies in
processing, investigating, and reporting on these reports.
(Welfare and Institutions Code 15600 et seq.)
7)Provides that a health care practitioner, child care provider,
child protective agency employee, child visitation monitor,
firefighter, animal control or humane society officer who
reasonably suspects that a child has been abused must report
such suspected child abuse to a child protective agency. Any
commercial film and photographic print processor who observes
photographic material which depicts a child under age 16
engaged in an act of sexual conduct must report the instance
of suspected child abuse. (Penal Code Section 11166.)
8)Provides that any person who commits a lewd or lascivious act
with the intent of arousing sexual desires by use of force,
violence, menace or fear of immediate and unlawful bodily
injury on the victim or another person is guilty of a felony.
[Penal Code Section 288(b)(1).]
9)Defines assault as an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.
(Penal Code Section 240.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "On October
24th, 2009, a young woman, only 16 years old, left her high
school dance to get a ride from her father when she joined
some young men and began drinking with them. They soon began
their assault. Several of the men beat her, robbed her, and
began repeatedly raping her while people looked on without
taking any action.
"Police think that there were up to 10 attackers and anywhere
from 15 to 20 people stopping to watch. Authorities said
people took photos, laughed and some joined in as the girl was
repeatedly assaulted. People came and went and no one called
the police.
"Under current law, had the victim of this rape been under 14
years of age, observers would have been committing a
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misdemeanor punishable by a fine of not more than $1,500,
imprisonment for up to 6 months, or both. The victim in this
case was 16, which means that the observers of her attack were
not held accountable.
"This bill removes the age threshold that requires an observer
to report the act of a murder, rape or crime described in
Penal Code 288(b)(1) against a person."
2)Rape in Concert : The author's statement indicates that this
bill has been introduced to respond to the onlookers of the
October 24, 2009 incident in Richmond, California. The
statement indicates that many of the onlookers took photos,
laughed, and joined in as the victim was assaulted. The
California Penal Code attempts to addresses this scenario with
a "rape in concert" provision:
"Penal Code Section 264.1 provides that in any case in which the
defendant, voluntarily acting in concert with another person,
by force or violence and against the will of the victim,
committed an act of rape or sexual assault, either personally
or by aiding and abetting the other person, that fact shall be
charged in the indictment or information and if found to be
true by the jury, upon a jury trial, or if found to be true by
the court, upon a court trial, or if admitted by the
defendant, the defendant shall suffer confinement in the state
prison for five, seven, or nine years."
Those who encouraged, or joined in, the rape are guilty of rape
in concert and face up to nine years in prison.
3)No General Legal Duty to Aid Others : Under the current legal
system, dating back to the foundation of common law in the
Magna Carta, there has been no legal duty to aid others in
peril. The entire system of criminal laws and civil laws have
been developed with that principal in mind. Creating a legal
duty to aid others can have significant impacts on other
aspects of criminal and civil law which should not be ignored.
Citing LaFave and Scott, a Dayton Law Journal article notes that
generally speaking:
"One has no legal duty to aid another person in peril, even when
that aid can be rendered without danger or inconvenience to
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himself. He need not shout a warning to a blind man headed
for a precipice or to an absent-minded one walking into a
gunpowder room with a lighted candle in hand. He need not
pull a neighbor's baby out of a pool of water . . . though the
baby is drowning . . . A moral duty to take affirmative
actions is not enough to impose a legal duty to do so."
[Briggs, David C. "The Good Samaritan is Packing" An Overview
of the Broadened Duty to Aid Our Fellowman, With The Modern
Desire To Possess Concealed Weapons (Winter 1997) 22 Dayton L.
Rev. 225, 227, citing Wayne R. LaFave &Austin W. Scott, Jr.
Criminal Law 203 (2nd ed. 1986).]
However, the law review article goes on to say that while LaFave
and Scott are technically correct: "[c]riminal law is filled
with obligations ascribing legal duties to all of us based
upon the consensus of our elected officials as to what they
believe is morally appropriate." Seven major areas where a
duty to aid are discussed:
a) A duty to act based upon a relationship of the parties;
b) A duty to act based upon contract;
c) A duty based upon a voluntary assumption of care;
d) A duty may arise from the fact that the person created
the risk from which the need for protection arose;
e) A duty can arise from a special relationship that makes
a non-acting partner criminally responsible for the actor's
criminal action;
f) A duty can arise from the fact that one owns the real
property upon which the victim is injured; and,
g) The duty to act and the resulting criminal liability for
failing to act, based upon statute.
This bill imposes the last of the above duties. The Dayton
Law Review article asks the following: "If we have no legal
duty based upon any familial, contractual, consensual or
propriety obligation, should we have an obligation based upon
a moral imperative to come to the aid of another?"
A number of different countries and states have chosen to
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answer the above question with "yes" and imposed a duty to aid
and provide criminal penalties for failure to do so. These
statutes are divided into three types: duty to aid statutes
that cover both "Acts of God" and Acts of criminal agents,
duty to report a felony in progress and a victim in need, duty
to report only specific types of criminal behavior.
4)Exceptions to the Reporting Requirement : The bill creates a
series of exceptions to the reporting requirement.
Specifically:
a) Related Persons : A person who is either related to the
victim or the offender, including spouses, parents,
children, brothers, sisters, grandparents, grandchildren or
other person related by consanguinity or affinity is not
required to report. However, this bill would require the
reporting of step-relations who are not legally adopted by
the family. Likewise the bill would require an individual
to report his or her domestic partner, but does not hold
the same standard to a spouse.
b) Mistake of Fact : A person who fails to report because
of a reasonable mistake of fact. For instance, this would
include any onlooker to the October 24, 2009 Richmond
incident who was unaware that the alleged victim failed to
consent or reasonably believed that the contact was
consensual.
c) Fear for Safety : A person who fails to report because
he or she has a reasonable fear for his or her safety or
that of their family is also exempted.
5)Impacts on Effective Law Enforcement :
a) Effect on Investigation by a Peace Officer : The Fifth
Amendment to the United States Constitution includes a
privilege against self-incrimination. Under the Miranda
rules, law enforcement officers must inform an in custody
criminal "suspect" of his or her right to remain silent and
to have an attorney. [Miranda v. Arizona (1966) 384 U.S.
436.] A "suspect" is a person upon whom investigating
officers have focused their attention as the likely
perpetrator of a crime. [People v. Stansbury (1993) 4
Cal.4th 1017, 1050-1054.] "Custody" generally means
detention by the police such that the person is not free to
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leave. [Id. at 1053-1054; People v. Esqueda (1993) 17
Cal.App.4th 1450.]
A person who is talking to a peace officer to report a crime
under this statute becomes a "suspect"- a likely
perpetrator of a crime. Thus, once a person becomes a
suspect, he or she cannot disclose what it was he or she
witnessed and when without incriminating himself or
herself.
Likewise, if a witness is located during the course of an
investigation who failed to report the crime, initially he
or she will be unable to provide law enforcement with a
statement without violating their Fifth Amendment right
against self-incrimination. For instance, when a person
witnesses a rape and fails to report the incident to law
enforcement and is later located. If law enforcement later
questions that person about what he or she saw related to
the incident, the witness potentially becomes another
defendant as he or she has committed a crime under this
bill. Any statement taken by the police would have to be
the after a Miranda warning from the investigating
officers. And, the witness could legally refuse to provide
information by invoking his or her right against
self-incrimination under the Fifth Amendment.
As stated above, the system of laws has been established
around NOT having a duty to aid others. By imposing a duty
to aid, other areas of the criminal justice system will be
impacted and potentially conflict. By potentially
requiring law enforcement to Mirandize all witnesses, and
by making potential witnesses potential defendants,
criminal investigations into the most serious of crimes
will be significantly impacted.
b) Effect on the Credibility of a Potential Witness : If a
district attorney uses a witness who did not report one of
these crimes, the district attorney will have to give the
witness immunity, or charge him or her with a crime. The
district attorney will be required to inform defense
counsel of any immunity deal and the witness will then be
subject to impeachment on cross-examination. Any effective
criminal defense attorney will utilize the fact that a
witness was given immunity for testimony to color the
testimony of the witness, thereby reducing the witness's
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credibility.
6)Arguments in Support :
a) The Riverside Sheriffs' Association states, "[a] 1999
California law makes it illegal not to report a witnessed
crime against a child under the age of 14, and is
punishable as a misdemeanor with up to 6 months in the
county jail and maximum fine of $1,500. AB 984 will remove
the victim's age threshold that requires and observer to
report the act of murder, rape, or other violent crime.
"On October 24, 2009 a young woman in Richmond, only 16
years old, left her high school dance to get a ride from
her father when she joined some young men and began
drinking with them. They soon began their assault.
Several of the men beat her, robber her, and began
repeatedly raping her while people looked on without taking
any action for 2 hours.
"Police believe there were up to 10 attackers and anywhere
from 15 to 20 people stopping to watch. Additionally,
authorities said people took photos, laughed, and some
joined in as the girl was repeatedly assaulted. People
came and went, and no one called the police.
"Because the victim was 16 at the time of the attack, law
enforcement could not hold accountable the numerous
witnesses to this brutal crime. They could not take them
in for questioning."
7)Arguments in Opposition :
a) The American Civil Liberties Union states, "[t]he ACLU
regrets to inform you of our opposition to AB 984 that
expands upon an affirmative duty on people who have
witnessed certain crimes to notify police officers.
Failure to report is punishable as a misdemeanor punishable
by a fine of not more than $1,500 or imprisonment in county
jail for not more than six months or both.
"Americans value their liberty and the limitations of
government. This, our criminal justice system is based on
findings of wrongful intent and wrongful acts; exceptions
to this rule arise where there is prior fiduciary
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relationship between individuals - not included in this
measure. This bill does not require either wrongful intent
or a wrongful act; mere presence at the wrong place at the
wrong time makes someone a criminal if they fail to report
what he or she has seen.
"Encouraging individuals to report crimes is an important
societal goal; however, the state should affirmatively
reward individuals and communities who choose to report
crimes rather than make criminals out of innocent
bystanders who fail to report crimes. The goal of
increasing the reporting of crime may be reached by such
measures as (1) ensuring the protection of individuals who
report crimes, (2) improving relationships between
communities and law enforcement agencies; and (3)
increasing employment in economically depressed
neighborhoods so that individuals who commit crimes are
marginalized and chances of their crimes being reported
will be improved.
"In addition, there are problems with the details of the
measure. There are many other legitimate reasons for a
person's failure to report a crime other than being one of
the itemized relatives to the victim, a reasonable "mistake
of fact," or a "reasonable fear for his or her own safety
or the safety of his or her family." For example, people
may not comply with a requirement to report crimes because
of a fear of the safety of friends or a domestic partner or
they may be experiencing trauma or harm from witnessing the
crime itself. There are notice problems. How will the
public - non lawyers - know which crimes will lead to
criminal prosecution for failure to report? In addition,
people who are poor or homeless or who are recent
immigrants who don't speak English may not be able to feel
comfortable calling law enforcement officers."
b) The California Public Defenders Association states,
"[t]his bill would greatly expand the pool of potential
witnesses to a crime who could be prosecuted for failure to
immediately contact the police, resulting in fewer
community members who will be willing to cooperate in a
police investigation. We contend in fact, that
implementation of this measure will cause more witnesses to
deny that they saw anything to avoid prosecution.
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"AB 984 would create every incentive for witnesses not to
pay close attention to actual crimes occurring lest they
now face a legal obligation to report accurately every
detail or face state prison or 602 wardship. Without
reliable witnesses, the likelihood of an innocent person
being wrongly arrested and convicted will increase as well.
"Ultimately, when a violent crime is committed, public
safety is enhanced when accurate, reliable information is
acquired from witnesses who have no motive to lie and who
voluntarily come forward without duress of coercion. Many
crimes remain unsolved because witnesses fear retaliation,
prosecution, and sometimes immigration consequences.
"AB 984 gives rise to a whole host of procedural and
practical questions: Would the police officer taking the
report be simultaneously obligated to read Miranda rights
to the witness who is now a perpetrator under AB 984? What
about the situation where the police are not able to locate
the underlying perpetrator but can now refer for a criminal
filing a witness who admits to being present when the
alleged crime was committed? Will that person still be
prosecuted? And when other reluctant witnesses learn that
their fellow witnesses has been arrested and charged with a
crime, will they be more or less likely to come forward?
Will those witnesses with prior criminal records be the
ones who more often face prosecution for failure to report?
Will the duty to report under AB 984 be satisfied when
false or inaccurate information is report by a person who
does not disclose their motive to provide false
information?
"Instead of encouraging individuals to report crimes and
rewarding and protecting those fragile witnesses who choose
to step forward and speak to law enforcement about
traumatizing events they have witnessed, AB 984 would
instead make criminals out of innocent but frightened
bystanders."
8)Prior Legislation : AB 1422 (Torlakson), Chapter 477, Statutes
of 2000, created a misdemeanor offense after observing the
following crimes against a child under the age of 14: (a) a
lewd act on a child by force or fear, (b) rape, and (c)
murder.
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REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
Crime Victims United of California
Riverside Sheriffs' Association
Opposition
American Civil Liberties Union
California Public Defender's Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744