BILL ANALYSIS Ó
AB 321
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Date of Hearing: April 13, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 321 (Hernandez) - As Amended: March 30, 2011
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill requires community service and counseling, and
authorizes new educational efforts for minors adjudicated for
"sexting." Specifically, this bill:
1)Requires a court to order community service and counseling -
at the expense of the minor's parents - in addition to any
other fine, sentence, or as a condition of probation, for any
minor adjudicated for possession or control of matter
depicting sexual conduct involving a minor.
Specifies the court must consider ability to pay, but that
inability to pay does not relieve a minor from the counseling
requirement.
2)Authorizes school districts to provide instruction regarding
the risks of creating and sharing sexually suggestive or
explicit materials through smart phones, social networking
sites, and other digital media.
FISCAL EFFECT
1)Unknown minor non-state-reimbursable local costs to probation
departments for offender assessments, likely less than
$20,000.
2)Unknown non-state-reimbursable local costs, likely less than
$50,000, to probation departments to cover costs of mandatory
counseling for families that cannot afford to pay.
3)Significant annual GF/Prop 98 cost pressures, potentially in
AB 321
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excess of $1 million, as a result of codifying a statewide
authorization for schools to provide instruction on the
dangers of sexting. For example, instructional costs, for a
30-minute unit on sexting for 10% of the 9-12 grade student
population would be about $500,000. Teacher training for 10%
of the teachers would be in the range of $2 million.
Instructional materials, at a rate of about $3 per student,
would be about $300,000.
COMMENTS
1)Rationale . The author contends teenage sexting is a
significant problem that warrants mandatory community service
and counseling, and permissive educational programming.
2)Current law :
a) Prohibits the possession or control of any matter or
image, the production of which involves the use of a person
under the age of 18, knowing that the matter depicts a
person under the age of 18 engaging in or simulating sexual
conduct, as defined. Violation is a felony, punishable by
up to one 1 year in county jail and/or a fine of up to
$2,500, or 16 months, 2, or 3 years in state prison. (Penal
Code Section 311.11)
b) Defines "sexual conduct" as a wide range of sexual
activities, as well as exhibition of the genitals or pubic
or rectal area for the purpose of sexual stimulation of the
viewer. (Penal Code Section 311.4(d)(1))
3)Sexting is defined by the bill as sending or receiving
sexually explicit pictures via a smart phone or other digital
device.
The author references a 2008 survey of 1,280 teenagers and
young adults of both sexes sponsored by The National Campaign
to Prevent Teen and Unplanned Pregnancy, which reported that
20% of teens and 33% of young adults had sent nude or
semi-nude photographs of themselves electronically.
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4)Fiscal Concerns . Given current state fiscal conditions, which
could result in multi-billion cuts to K-12 schools, and a
major realignment of criminal justice responsibilities that
will have county probation departments shouldering significant
new responsibilities for youth and adult supervision, is this
the appropriate time to encourage new K-12 instructional
efforts, which would replace existing educational content, and
to require community service and counseling for sexting,
rather than letting juvenile courts decide on a case-by-case
basis?
5)Judicial Concerns . This committee has generally attempted to
protect judicial discretion, which allows for the evaluation
of case-specific circumstances.
6)Opposition . The Youth Law Center opposes the mandatory
counseling provisions, stating, "First, this criminalizes
adolescent behavior by handling the situation through the
justice system, and worse, by linking "sexting" to a statute
directed at child pornography?. Second, we oppose the
imposition of mandatory community service and counseling.
Adults convicted of child pornography would not be subjected
to mandatory sanctions, and there is no justification for
imposing a different disposition standard for juveniles.
Further, under Welfare and Institutions Code section 220,
juvenile courts have the duty to order individualized care,
treatment and guidance for juveniles, and the court might, for
example, decide that community service would not be the best
fit in a particular case."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081