BILL ANALYSIS
AB 1688
Page 1
Date of Hearing: March 2, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1688 (Jeffries) - As Introduced: January 26, 2010
SUMMARY : Requires a person convicted of concealing a
camcorder, motion picture camera, or photographic camera of any
type to secretly videotape, film, photograph, or record by
electronic means, another, identifiable person under or through
the person's clothing, without the person's consent or
knowledge, with the intent to arouse, appeal to, or gratify the
lust, passions, or sexual desires of that person, and invade the
privacy of that other person, under circumstances in which the
other person has a reasonable expectation of privacy to register
pursuant to the Sex Offender Registration Act.
EXISTING LAW :
1)States that any person who uses a concealed camcorder, motion
picture camera, or photographic camera of any type, to
secretly videotape, film, photograph, or record by electronic
means, another, identifiable person under or through the
clothing being worn by that other person, for the purpose of
viewing the body of, or the undergarments worn by, that other
person, without the consent or knowledge of that other person,
with the intent to arouse, appeal to, or gratify the lust,
passions, or sexual desires of that person and invade the
privacy of that other person, under circumstances in which the
other person has a reasonable expectation of privacy is guilty
of a misdemeanor. [Penal Code Section 647(j)(2).]
2)Generally requires persons convicted of enumerated sex
offenses to register within five working days of coming into a
city or county, with specified law enforcement officials in
the city, county or city and county where he or she is
domiciled, as specified. (Penal Code Section 290.)
3)Requires that registration generally must be updated annually,
within five working days of a registrant's birthday. [Penal
Code Section 290.012 (a).]
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4)Provides in some instances, registration must be updated once
every 30 or 90 days, as specified. (Penal Code Sections
290.011 and 290.012.)
5)Provides every person, as specified, for the rest of his or
her life while residing in, or if he or she has no residence,
while located within California, or while attending school or
working in California, shall be required to register with the
chief of police of the city in which he or she is residing, or
if he or she has no residence, is located, or the sheriff of
the county if he or she is residing, or if he or she has no
residence, is located, in an unincorporated area or city that
has no police department, and, additionally, with the chief of
police of a campus of the University of California, the
California State University, or community college if he or she
is residing, or if he or she has no residence, is located upon
the campus or in any of its facilities, within five working
days of coming into, or changing his or her residence or
location within, any city, county, or city and county, or
campus in which he or she temporarily resides, or, if he or
she has no residence, is located. [Penal Code Section
290(b).]
6)Requires registrants to provide the following information when
they register or reregister (Penal Code Section 290.015):
a) A statement in writing signed by the person, giving
information as shall be required by DOJ and giving the name
and address of the person's employer, and the address of
the person's place of employment if that is different from
the employer's main address;
b) The fingerprints and a current photograph of the person
taken by the registering official;
c) The license plate number of any vehicle owned by,
regularly driven by, or registered in the name of the
person;
d) Notice to the person that, in addition to other
specified requirements, he or she may have a duty to
register in any other state where he or she may relocate;
and,
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e) Copies of adequate proof of residence, as specified.
7)Provides that any person who is required to register based on
a misdemeanor conviction who willfully violates any
requirement of the Act is guilty of a misdemeanor punishable
by imprisonment in a county jail not exceeding one year.
[Penal Code Section 290.018(a).]
8)Mandates that transient registrants who willfully fail to
comply with the requirement of registering no less than every
30 days is guilty of a misdemeanor, punishably by jail for at
least 30 days, but not exceeding six months. A person who
willfully fails to comply with the requirement that he or she
re-register no less than every 30 days shall not be charged
with this violation more often than once for a failure to
register in any period of 90 days. Any person who willfully
commits a third or subsequent violation of the (transient
registration requirements) shall be punished (based on their
underlying offense, as described above). [Penal Code Section
290.018 (g).]
9)States that the failure to provide information required on
registration and re-registration forms of Department of
Justice, or the providing of false information, are crimes
punishable by imprisonment in a county jail for a period not
exceeding one year. [Penal Code Section 290.018(j).]
10)Prohibits any person for whom sex offender registration is
required to reside within 2,000 feet of any public or private
school, or park where children regularly gather. [Penal Code
3003.5(b).]
11)States that nothing in this law shall prohibit municipal
jurisdictions from adopting local ordinances which further
restrict the residency of any person for whom registration as
a sex offender is required. [Penal Code Section 3003.5(c).]
12)Requires persons who register as a sex offender, who apply
for or accept a position as an employee or volunteer with any
person, group, or organization where the registrant would be
working directly and in an unaccompanied setting with minor
children on more than an incidental and occasional basis or
have supervision or disciplinary power over minor children,
shall disclose his or her status as a registrant, upon
application or acceptance of a position, to that person,
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group, or organization. A violation of the aforementioned is
a misdemeanor punishable by imprisonment in a county jail for
not exceeding six months, by a fine exceeding $1,000, or by
both that imprisonment and fine. [Penal Code Section
290.95(a) and (e).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Inappropriate
filming is already specified as a criminal act under state
law. AB 1688 simply specifies that upon conviction of this
offense, the guilty party must register as a sex offender.
This change in law is intended to prevent others from engaging
in such crude and criminal behavior."
2)Current Treatment of Voyeurs in Other States : All 50 states
have laws against voyeurism. Of the 50 states, only 13 have
made surreptitious photographing, videotaping, or filming a
registerable sex offense. These states include Delaware,
Georgia, Idaho, Illinois, Kansas, Louisiana, New York, North
Carolina, North Dakota, Ohio, South Carolina, Vermont, and
Washington. (Del. Code Ann. tit. 11 1335(a)(6)-(7), Ga.
Code Ann. 16-11-62, Id. Code 18-6609, Ill. Comp. Stat.
5/26-4, Kan. Stat. Ann. 21-4001, La. Rev. Stat. Ann.
14:283, N.Y. Pen. Law 250.50, N.C. Gen. Stat.
14-202(e)-(f), N.D. Cent. Code 12.1-2-12.2, OH Rev. Code Ann.
2907.08(e), S.C. Code Ann. 16-17-470, Vt. Stat. Ann. Tit.
13 2605, Wash. Rev. Code 9A.44.115.) Kansas, North
Dakota, Ohio, and South Carolina are the only states that
require sex offender registration upon a misdemeanor
conviction of surreptitious viewing. Kansas and Ohio,
however, further require that the victim is a minor. Thus,
North Dakota and South Carolina are the only states that have
enacted a statute similar to this bill.
3)Purpose and Requirements of Sex Offender Registration as
Proposed under this Bill : California was the first state to
require sex offender registration in 1947. The stated purpose
for sex offender registration is to deter offenders from
committing future crimes, provide law enforcement with an
additional investigative tool, and increase public protection.
[Wright v. Superior Court (1997) 15 Cal.4th 521, 526; Pleau,
Review of Selected 2007 California Legislation: Closing a
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Loophole in California's Sex Offender Registration Laws (2007)
38 McGeorge L. Rev. 276, 277; Hatton v. Bonner (2004) 365 F.
3rd 955, 961.] Penal Code Section 290 requires life-time
registration by persons convicted of specified sex crimes that
reside in, attend school or work in California. [Penal Code
Section 290(b).] Sex offenders are required to register
annually within five working days of his or her birthday.
(Penal Code Section 290.012.) If the offender has no fixed
address, he or she is required to register every 30 days.
[Penal Code Section 290.011(a).] A person is also required to
notify law enforcement of any change of address within five
days of moving. (Penal Code Section 290.013.) A person who
fails to register as a sex offender within the period required
by law is guilty of a felony punishable by 16 months, 2 or 3
years. [Penal Code Section 290.018(b).] The law also
requires sex offender registrants who apply for or accept a
position as an employee or volunteer with any person, group,
or organization where the registrant would be working directly
and in an unaccompanied setting with minor children on more
than an incidental and occasional basis or have supervision or
disciplinary power over minor children to disclose his or her
status as a registrant, upon application or acceptance of a
position, to that person, group, or organization. [Penal Code
Section 290.95(a).] A violation of the aforementioned is a
misdemeanor punishable by imprisonment in a county jail for
not exceeding six months, by a fine exceeding $1,000, or by
both that imprisonment and fine. [Penal Code Section
290.95(e).]
In 2006, California enacted "Jessica's Law" which prohibited sex
offenders from residing within 2,000 feet of any public or
private school, or park where children regularly gather
regardless of whether or not their underlying crime involved a
minor victim. [Penal Code Section 3003.5(b).] Municipal
jurisdictions were also afforded the ability to adopt any
additional local ordinances which further restrict the
residency of any person for whom registration as a sex
offender is required. [Penal Code Section 3003.5(c).]
This bill imposes all the aforementioned limitations upon
persons convicted of surreptitious viewing, a mere
misdemeanor. In addition thereto, this bill does not
differentiate between adult victims and minor victims, or a
first or subsequent offense. When imposing such stringent,
lifetime requirements and restrictions, it is important that
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they are targeted at those defendants which are the most
serious and protect the most vulnerable persons, i.e. minors.
Since this crime is currently a misdemeanor punishable by
imprisonment in the county jail not exceeding six months or by
a fine of $1,000 or both, the state has sent a clear message:
this is not a "serious" crime. In light of this fact, the
Committee should consider whether surreptitious viewing is
"serious" enough to make it applicable to the Sex Offender
Registration Act - a lifetime consequence.
4)Do Sex Offender Registration Laws Work ? Current sex offender
restrictions affect one's residence, employment, family, and
even freedom if he or she fails to register accordingly.
Understanding the costs and benefits of a law is crucial to
determining its rationality. The benefits of residency
restrictions are two-fold. At one level, communities benefit
from knowing that they do not have sex offenders living in
specified areas. This provides security. Theoretically, the
second benefit of residency laws would be that they prevent
some sex offenses from occurring. However, empirical evidence
demonstrates that these laws do not prevent a majority of sex
crimes. "Ninety percent of child victims know their offender,
with almost half of the offenders being a family member. Of
sexual assaults against people age 12 and up, approximately
80% of the victims know the offender." [Office of the
Attorney General, Facts About Sex Offenders
(as
Jan. 7, 2010).] These findings not only undermine the stated
purpose of residency and sensitive site boundary laws, but
also render false the sense of security.
The perceived "benefits" of residency restrictions come with
monetary, psychological, and ethical costs. [See Levenson
(2005) Sex Offender Residence Restrictions: A Report to the
Florida Legislature.] The obvious costs include those
associated with identifying, monitoring, arresting,
prosecuting, and imprisoning sex offenders who violate broad
residency laws. There are also other less obvious social
costs. Perhaps the most compelling of these costs is that
police resources will be spread thin by voluminous monitoring
obligations, leaving fewer resources. Other costs include a
potential loss of labor from sex registrants unable to obtain
jobs upon disclosing their status as registrants.
Additionally, communities incur other subtle costs by
disenfranchising a substantial sector of their population.
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Feelings of disenfranchisement, rejection, hatred, and neglect
negatively affect the mental states of those individuals
forced to live on the fringes of society. [See Pinard &
Thompson, Offender Reentry and the Collateral Consequences of
Criminal Convictions: An Introduction (2006) 30 N.Y.U. Rev.
L. & Soc. Change 585.] This large-scale rejection often
causes the sex offender to harbor reciprocal feelings towards
society, sometimes to the point where the offender's feelings
of civic responsibility - including the duty to follow laws -
dissipate. (Ibid.) When people are denied the rights of
citizens, some may feel like they have proportionally fewer
duties of citizenship. (Ibid.) As sex offenders are forced
farther and farther from densely populated areas and required
to find housing from an increasingly small number of options
that comply with residency restrictions, they are more likely
to become homeless and transient. Homelessness and transience
increase the risks of psychological and treatment problems and
the costs of monitoring and tracking the sex offenders.
(Ibid.)
According to the California Sex Offender Management Board (SOMB)
January 2009 report,
"The vast majority evidence and research conducted to date does
not demonstrate a connection between where an offender lives
and recidivism. Since the expansion of residency restrictions
in California in 2006, the availability of suitable housing
for sex offenders has plummeted. As a result, the number of
sex offenders registering transient has dramatically
increased. The body of literature and research to date
indicates that a lack of stable and appropriate housing can
contribute to recidivism." [SOMB, Progress Report (Jan. 2009)
p. 8 (as of Feb. 19, 2010).]
5)Constitutionality of Sex Offender Registration : Both the
California and the United States Supreme Court have ruled
that, generally, sex offender registration laws do not run
afoul of constitutional prohibitions against ex post facto,
double jeopardy and cruel and unusual punishment. [In re Leon
Casey Alva (2004) 33 Cal. 4th 254; Smith v. Doe (2003) 538
U.S. 84.] In making such a finding, both courts applied the
Mendoza-Martinez test which outlines several guiding factors
in determining whether a law is punitive. The factors include
whether the "regulatory scheme" has been regarded in history
and tradition as punitive, imposes an affirmative disability
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or restraint, promotes the traditional aims of punishment, has
a rational connection to a non-punitive purpose, or is
excessive with respect to its purpose. The state may not make
publicity and stigma an integral part of the objective of such
regulation. [Kennedy v. Mendoza-Martinez (1963) 372 U.S.
144.] Sex offender registration has been viewed as a
non-punitive regulatory scheme because it is designed only to
keep law enforcement and to some extent, the public aware of
dangers.
For the most part, Megan's Law has been remarkably resilient to
constitutional challenges. While few courts have held that
retroactive community-notification provisions are punitive and
thus violate the Ex Post Facto Clause, the overall legal trend
has been to find community notification regulatory and not
punitive in nature. However, several courts have enjoined
community-notification provisions under the Fourteenth
Amendment, holding that states must provide minimum
due-process protections, such as hearings and a state burden
of clear-and-convincing evidence for those hearings, before
infringing upon either state privacy rights or the right not
to be defamed by the government. The courts generally
recognized that the increased burden on the state was
necessitated by the relatively serious liberty interest of the
registrant when compared to the insubstantial value of
community notification to the state. As stated by the 3rd
Circuit:
"An erroneous underestimation of an individual's dangerousness
will not necessarily result in harm to protected groups . . .
. On the other hand, an overestimation of an individual's
dangerousness will lead to immediate and irreparable harm to
the offender: his conviction becomes public, he is officially
recorded as being a danger to the community, and the veil of
relative anonymity behind which he might have existed
disappears." [E.B. v. Verniero (1997) 119 F.3rd 1077;
Garfinkle, COMMENT: Coming of Age in America: The
Misapplication of Sex-Offender Registration and Community -
Notification Laws to Juveniles, (2003) 91 Calif. L. Rev. 163,
202.]
The California Court of Appeals for the 4th District held that
after the residency restrictions in Jessica's Law passed in
November of 2006, sex offender registration may no longer a
regulatory scheme but instead a form of punishment. The court
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stated:
"We conclude, based on our analysis of the salient
Mendoza-Martinez factors, Jessica's Law's residency
restriction has an overwhelming punitive effect. It
effectuates traditional banishment under a different name,
interferes with the right to use and enjoy real property near
schools and parks, and subjects housing choices to government
approval like parole or probation. It affirmatively restrains
the right to choose a home and limits the right to live with
one's family. It deters recidivism and comes close to imposing
retribution on offenders. While it has a non-punitive of
protecting children, it is excessive with regard to that
purpose. It would oust a person never convicted of any offense
against a child from his family home near a school or park,
forcing him to leave his family or consigning the family to
perpetually threatened transience. Relocation would be limited
to the few outskirts of town lacking a school or park. Yet the
residency restriction would allow a convicted child molester
to stroll past the school, eat ice cream in the park, and live
next door to small children-as long as he retreats at night to
housing far from a school or park. Building exclusion zones
around all schools and parks for all registered sex offenders
is excessively punitive.
"The severe punitive effect of Jessica's Law's residency
requirement clearly outweighs the proclaimed lack of
regulatory, non-punitive intent. [See Smith, supra, 538 U.S.
at p. 92 ('clearest proof' of punitive effect outweighs lack
of punitive intent).] We are not the first jurists to
recognize the overwhelming punitive effect of a residency
restriction. (See State v. Pollard, supra, 886 N.E.2d at p.
74 (residency restriction is punitive); Mikaloff, supra, 2007
WL 2572268 at pp. 9-10 (same); Leroy, supra, 828 N.E.2d at p.
793 (dis. opn. of Kuehn, J.) (same); Miller, supra, 405 F.3d
at p. 726 (conc. & dis. opn. of Melloy, J.) (same).]
"Because the residency restriction is punitive, its imposition
by the court increases the penalty for a nonsexual offense
beyond the prescribed statutory maximum based upon the jury
verdict alone. (Apprendi, supra, 530 U.S. at p. 490.) Thus,
the facts required to impose the residency restriction must be
found beyond a reasonable doubt by a jury." (Ibid.) [People
v. Mosley (2008) 168 Cal.App.4th 512, 533, cert. granted by
the California Supreme Court]. The lower court did not
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directly rule on the constitutionality of Jessica's Law or sex
offender registration and the California Supreme Court is
expected to rule in this issue this month.
By placing greater requirements on those who are required to
register as a sex offender, it would be more likely seen as
punitive by the courts. If the scheme is designed to gravely
disable the offender or is seen as a way to further punish sex
offenders, courts may re-examine sex offender registration
with the attitude that it is all designed to further the
punish the offender and require it be proven to the jury as an
additional penalty. This may result in some offenders
escaping registration.
6)Argument in Support : According to the Kings County District
Attorney, Ronald L. Calhoun, and the Orange County District
Attorney, Tony Rackauckas , " . . . despite being an overtly
sexually motivated offense, this crime does not require
offenders to register as a sex offender. Thus, the only way a
perpetrator who engages in this type of behavior will be
required to register as a sex offender would be if the
District Attorney prosecuting the case can prove possession of
child pornography or modeling or posing a child for sexual
gratification.
"These individuals are just as dangerous and as much of a threat
as those who currently are required to register. This
behavior, in fact, is often times a gateway to more direct and
severe sex offenses.
"The problems with charging a defendant with modeling or posing
a child is two-fold:
"First: under that law, the child must be 'engaged in sexual
conduct' within the meaning of Penal Code section 311.4. In a
scenario where a suspect, in an effort to arouse himself,
tapes a child underneath their clothing but where the child is
not simulating sexual acts, would never be required to
register as a sex offender for their crime.
"Second, this crime requires a sometimes difficult element of
the child being 'posed or modeled.' This makes a conviction
virtually unobtainable where a defendant videotapes a child
without the child's knowledge."
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7)Argument in Opposition : According to the California Public
Defenders Association , "To require a misdemeanant who takes an
inappropriate and unwanted photo to register for life as a sex
offender, with all the attendant consequences, is grossly
disproportionate to the offense and cannot be said to serve a
public interest.
"California presently has the largest number of registered sex
offenders of any state in the United States. There are about
90,000 registered sex offenders, 68,000 of whom are in the
community. Registration is required for the entire life of
the individual; it limits employment opportunities,
residential options, and leads to misguided vigilante justice.
"The California Sex Offender Management Board has recently
recommended that the registration system be revised to become
a risk-based system, so as to reduce the number of persons on
the registry, and focus the limited public resources on the
moderate to high risk sex offenders who in fact pose a risk to
the community.
"Rather than increasing the number of sex offenses that require
registration, we need to dedicate our resources to registering
and monitoring offenders who are violent, target children and
recidivate.
"Presently, because of the large number of offenses that require
mandatory, lifetime sex offender registration, the demands
that are placed upon the staff of various public entities
(police & DOJ) who are required to handle the registration
process, document changes in individual information, maintain
the information, enforce the statutory provisions and monitor
offenders, are stretched to their limit.
"The purpose that registration serves is to assist law
enforcement with the investigation of new sex crimes.
Registration of a misdemeanant, who inappropriately takes a
photo, does not warrant the public resources required for
registration.
"The legislation will additionally serve to increase the
technical violations of the statute, sending 290 registrants
back to overcrowded jails and prisons, wasting public
resources without showing that the expenditure of resources is
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constructive."
8)Prior Legislation : AB 182 (Ackerman), Chapter 231, Statutes
of 1999, made it a misdemeanor to surreptitiously use a
concealed device to videotape, photograph, or otherwise
electronically record under or through the clothing the
intimate body parts or clothing of another for sexual
gratification.
REGISTERED SUPPORT / OPPOSITION :
Support
Kings County District Attorney, Ronald L. Calhoun
Orange County District Attorney, Tony Rackauckas
Opposition
California Public Defenders Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744