BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1434 (Feuer) 4
As Amended March 14, 2012
Hearing date: June 19, 2012
Penal Code
AA:mc
MANDATORY CHILD ABUSE AND NEGLECT REPORTING:
EMPLOYEES OF HIGHER EDUCATION INSTITUTIONS
HISTORY
Source: Children's Advocacy Institute
Prior Legislation: None
Support: Crime Victims Action Alliance; Crime Victims United of
California; Child
Abuse Prevention Center; California Narcotic
Officers' Association; California Police Chiefs
Association; Peace Officers of California; California
State Sheriffs' Association; California Protective
Parents Association; California Probation, Parole and
Correctional Association; University of California (if
amended)
Opposition:California Public Defenders Association (unless
amended; See Comment 6); American Association for Marriage and
Family Therapy
Assembly Floor Vote: Ayes 73 - Noes 0
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KEY ISSUE
SHOULD EMPLOYEES "OF A PUBLIC OR PRIVATE INSTITUTION OF HIGHER
EDUCATION, AS TO CHILD ABUSE OR NEGLECT OCCURRING ON THAT
INSTITUTION'S PREMISES OR AT AN OFFICIAL ACTIVITY OF, OR PROGRAM
CONDUCTED BY, THE INSTITUTION," BE ADDED AS MANDATED CHILD ABUSE AND
NEGLECT REPORTERS?
PURPOSE
The purpose of this bill is to add employees "of a public or
private institution of higher education, as to child abuse or
neglect occurring on that institution's premises or at an
official activity of, or program conducted by, the institution"
as mandated child abuse and neglect reporters.
Current law establishes the Child Abuse and Neglect Reporting
Act ("CANRA"), which generally is intended to protect children
from abuse and neglect. (Penal Code � 11164.)
Current law requires "mandated reporters" to make reports of
suspected child abuse or neglect, as specified. (Penal Code �
11165.9.)
Under current law the term "child abuse or neglect" for purposes
of CANRA "includes physical injury inflicted by other than
accidental means upon a child by another person, sexual abuse as
defined . . . , neglect as defined . . . , the willful harming
or injuring of a child or the endangering of the person or
health of a child, as defined . . . , and unlawful corporal
punishment or injury as defined . . . . 'Child abuse or
neglect' does not include a mutual affray between minors.
'Child abuse or neglect' does not include an injury caused by
reasonable and necessary force used by a peace officer acting
within the course and scope of his or her employment as a peace
officer." (Penal Code � 11165.6.)
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Current law provides that, except as specified, "a mandated
reporter shall make a report . . . whenever the mandated
reporter, in his or her professional capacity or within the
scope of his or her employment, has knowledge of or observes a
child whom the mandated reporter knows or reasonably suspects
has been the victim of child abuse or neglect." (Penal Code �
11166(a).)
Current law enumerates 40 categories of persons who are mandated
child abuse and neglect reporters. <1> (Penal Code � 11165.7
(a).) Except as specified, current law provides that
"volunteers of public or private organizations whose duties
require direct contact with and supervision of children are not
mandated reporters . . . ." (Penal Code � 11165.7(b).)
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<1> Mandatory child abuse and neglect reporters under Penal
Code Section 11165.7: (1) A teacher. (2) An instructional
aide. (3) A teacher's aide or teacher's assistant employed by
any public or private school. (4) A classified employee of any
public school. (5) An administrative officer or supervisor of
child welfare and attendance, or a certificated pupil personnel
employee of any public or private school. (6) An administrator
of a public or private day camp. (7) An administrator or
employee of a public or private youth center, youth recreation
program, or youth organization. (8) An administrator or
employee of a public or private organization whose duties
require direct contact and supervision of children. (9) Any
employee of a county office of education or the California
Department of Education, whose duties bring the employee into
contact with children on a regular basis. (10) A licensee, an
administrator, or an employee of a licensed community care or
child day care facility. (11) A Head Start program teacher.
(12) A licensing worker or licensing evaluator employed by a
licensing agency as specified. (13) A public assistance worker.
(14) An employee of a child care institution, including, but
not limited to, foster parents, group home personnel, and
personnel of residential care facilities. (15) A social worker,
probation officer, or parole officer. (16) An employee of a
school district police or security department. (17) Any person
who is an administrator or presenter of, or a counselor in, a
child abuse prevention program in any public or private school.
(18) A district attorney investigator, inspector, or local child
support agency caseworker unless the investigator, inspector, or
caseworker is working with an attorney appointed pursuant to
Section 317 of the Welfare and Institutions Code to represent a
minor. (19) A peace officer, as specified. (20) A firefighter,
except for volunteer firefighters. (21) A physician, surgeon,
psychiatrist, psychologist, dentist, resident, intern,
podiatrist, chiropractor, licensed nurse, dental hygienist,
optometrist, marriage, family and child counselor, clinical
social worker, or any other person who is currently licensed
under Division 2 of the Business and Professions Code. (22) Any
emergency medical technician I or II, paramedic, or other person
certified pursuant to Division 2.5 of the Health and Safety
Code. (23) A psychological assistant, as specified. (24) A
marriage, family, and child therapist trainee, as specified.
(25) An unlicensed marriage, family, and child therapist intern,
as specified. (26) A state or county public health employee who
treats a minor for venereal disease or any other condition.
(27) A coroner. (28) A medical examiner, or any other person
who performs autopsies. (29) A commercial film and photographic
print processor, as specified. As used in this article,
"commercial film and photographic print processor" means any
person who develops exposed photographic film into negatives,
slides, or prints, or who makes prints from negatives or slides,
for compensation. The term includes any employee of such a
person; it does not include a person who develops film or makes
prints for a public agency. (30) A child visitation monitor, as
specified. (31) An animal control officer or humane society
officer, as specified. (32) A clergy member, as specified.
(33) Any custodian of records of a clergy member, as specified.
(34) Any employee of any police department, county sheriff's
department, county probation department, or county welfare
department. (35) An employee or volunteer of a Court Appointed
Special Advocate program, as specified. (36) A custodial
officer, as specified. (37) Any person providing services to a
minor child under Section 12300 or 12300.1 of the Welfare and
Institutions Code. (38) An alcohol and drug counselor, as
specified. (39) A clinical counselor trainee, as specified.
(40) A clinical counselor intern, as specified.
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This bill would make an "employee of a public or private
institution of higher education, as to child abuse or neglect
occurring on that institution's premises or at an official
activity of, or program conducted by, the institution" a
mandated child abuse and neglect reporter under these
provisions.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code � 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
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District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
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COMMENTS
1. Stated Need for This Bill
The author states in part:
This bill closes the gap in current law where college
employees who are not otherwise mandated reporters are
not required to report to law enforcement suspicions
of child abuse on college campuses or college campus
sponsored events.
California Community Colleges: AB 1434 would expand
mandated reporter requirements to all California
Community College employees. CCCs have many minor
students who would be protected by the provisions
of this bill.
. . . Further, this bill helps protect children
who participate in programs that use community
college facilities.
The CCC's Chancellor's office has put forth the
legal opinion that some California community
college employees are implicitly subject to
mandated reporter requirements. That opinion
states that employees of community colleges who
would regularly and continuously come into contact
with children in a way that would make apparent
evidence child abuse or neglect (Legal Opinion L
02-03, attached). . . .
Four-year Public and Private Postsecondary
Institutions: AB 1434 would expand mandated
reporter requirements to all 4-year public and
private postsecondary institution employees. This
bill would help protect students under 18, as well
as children participating in activities on 4-year
college campuses. Some employees of the California
State University, University of California, and
private postsecondary institutions are already
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subject to mandated reporter requirements for other
reasons (for instance, child care providers at a
day care for students' children, or health care
providers at a college health clinic).
2. What This Bill Would Do
This bill would add employees "of a public or private
institution of higher education, as to child abuse or neglect
occurring on that institution's premises or at an official
activity of, or program conducted by, the institution" as
mandated child abuse and neglect reporters under these
provisions. Under current law there are 40 categories of
mandated reporters, including teachers, instructional aides and
others which already may include the employees covered by this
bill; however, current statute does not categorically specify
higher education employees.
3. Operation of the Statute; This Bill; Concerns
As noted above, there are 40 enumerated categories of mandated
reporters under current law. The law requires that these
mandated reporters make a report "whenever the mandated
reporter, in his or her professional capacity or within the
scope of his or her employment, has knowledge of or observes a
child whom the mandated reporter knows or reasonably suspects
has been the victim of child abuse or neglect." (Penal Code �
11166(a).)
Thus, this bill would require any employee of a public or
private college or university to make a report of child abuse or
neglect as follows:
When, in his or her professional capacity the employee
has knowledge of or observes a child; or
Within the scope of his or her employment the employee
has knowledge of or observes a child; and
the person knows or reasonably suspects a child has been
the victim of abuse or neglect; and
the abuse or neglect is occurring on the premises or at
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an official activity of, or program conducted by, the
institution by which they are employed.
This bill would appear to impose a reporting mandate on any
college or university employee who knows, observes or reasonably
suspects abuse or neglect is occurring on a campus, at a school
activity, or in a program conducted by their employing
institution. Many categorical reporters are provided with
information about identifying child abuse and neglect either
through professional training or through their employers.<2> In
addition, many are engaged in professions where protocols have
been developed and implemented to ensure compliance with the
law.<3> Members may wish to discuss whether all employees of a
college or university - presumably including such diverse campus
colleagues as professors, groundskeepers, food services
personnel, etcetera -- should be mandated child abuse and
neglect reporters as proposed by this bill.
Stanford University, which would be affected by this bill,
proposes that this bill be narrowed to employees who are "the
direct supervisor of any employee of that institution who is a
mandated reporter . . . ."
. . . (This bill) would make all university employees
mandated reporters. Stanford has thousands of
employees who never encounter children as part of
their work. These employees include researchers,
administrative staff, and most professors. Rather
than cover all university employees in this overbroad
way, our proposed amendment . . . would expand the
current list of mandated reporters to include
supervisors of mandated reporters, since they may
learn of child abuse, but not include the employees
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<2> See, for example, California School Employees website page,
"Child Abuse Reporting," (http://www.csea.com).
<3> See, e.g., Physical Therapy Board of California, Mandatory
Reporting Obligations (http://www.ptbc.ca.gov/
laws_regs/report_injuries.html.)
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who never encounter (or supervise those who encounter)
children as part of their work.
The University of California similarly states:
Extending the definition to include all employees of
public or private higher education institutions erodes
the potency of the law. Further, despite the fact
that the law only "strongly" encourages training of
all mandated reporters, for liability purposes AB 1434
would force institutions like UC to train and educate
all employees on the duties of a mandated reporter
regardless of whether they would
ever likely be in a position to encounter child abuse.
Designing and implementing, on an ongoing basis,
training for a workforce of the size of UC's would be
extremely costly both in terms of time and actual
expenditures.
Current law provides that these reporting duties "are
individual, and no supervisor or administrator may impede or
inhibit the reporting duties, and no person making a report
shall be subject to any sanction for making the report.
However, internal procedures to facilitate reporting and apprise
supervisors and administrators of reports may be established
provided that they are not inconsistent with this article. . .
. The internal procedures shall not require any employee
required to make reports pursuant to this article to disclose
his or her identity to the employer. . . . Reporting the
information regarding a case of possible child abuse or neglect
to an employer, supervisor, school principal, school counselor,
coworker, or other person shall not be a substitute for making a
mandated report . . . (Penal Code � 11166(i).) Moreover,
current law provides that any supervisor or administrator who
impedes, prohibits or sanctions an employee for making a
mandated report shall be punished by not more than six months in
a county jail, by a fine of not more than $1,000, or by both
that fine and imprisonment. (Penal Code � 11166.01.)
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The American Association for Marriage and Family Therapy, which
opposes this bill unless amended, submits that "the bill is
over-inclusive.
The addition of any employee of an institution of
higher education as a mandated reporter could prove to
be extraordinarily problematic given the range of
employee positions that are possible (e.g., student
volunteers, maintenance personnel, groundskeepers,
etc.). Furthermore, all of these employees would need
to be trained and supervised in this specialized
function. . . .
SHOULD ANY EMPLOYEE OF A PUBLIC OR PRIVATE COLLEGE OR
UNIVERSITY, AS SPECIFIED, BE A MANDATED CHILD ABUSE REPORTER
WITH RESPECT TO ABUSE OR NEGLECT OCCURRING ON THE PREMISES OR AT
AN OFFICIAL ACTIVITY OF, OR PROGRAM CONDUCTED BY, THE
INSTITUTION BY WHICH THEY ARE EMPLOYED?
4. Related Measures
Several bills have been introduced this session which propose to
expand the obligation to report suspected child abuse or
neglect. Members may wish to consider how these bills relate to
one another and how they could be reconciled to the extent they
may be redundant or inconsistent.
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| Bill | What the Bill Does | Status |
| | | |
|---------------+------------------------------+------------------|
|AB 1434 | Makes an "employee of a |Before this |
|(Feuer) |public or private institution |Committee |
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| |of higher education, as to | (this bill) |
| |child abuse or neglect | |
| |occurring on that | |
| |institution's premises or at | |
| |an official activity of, or | |
| |program conducted by, the | |
| |institution," a mandated | |
| |reporter. | |
|---------------+------------------------------+------------------|
|AB 1435 |Makes an "athletic coach, |Before this |
|(Dickinson) |athletic administrator, or |Committee |
| |athletic director employed by | |
| |a public or private | |
| |organization, including, but | |
| |not limited to, schools that | |
| |provide kindergarten or any | |
| |of grades 1 to 12, | |
| |inclusive," a mandated | |
| |reporter. | |
|---------------+------------------------------+------------------|
|AB 1438 |Expands the existing crime |Before this |
|(Bradford) |for failing to notify a peace |Committee |
| |officer of a specified | |
| |violent crime against a child | |
| |under 14 to include | |
| |non-forcible child | |
| |molestation (PC 152.3) | |
|---------------+------------------------------+------------------|
|AB 1564 (Lara) |Makes "volunteers of public |Assembly Public |
| |or private organizations, |Safety |
| |including nonprofit | |
| |organizations, whose duties | |
| |require direct contact with | |
| |and supervision of children," | |
| |mandated reporters. | |
|---------------+------------------------------+------------------|
|AB 1713 |Expands existing definition |Before this |
|(Campos) |of commercial film and |Committee |
| |photographic print processers | |
| |who are mandated reporters to | |
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| |include several enumerated | |
| |types of computer-related | |
| |data and imagery. | |
|---------------+------------------------------+------------------|
|AB 1817 |Makes "commercial computer |Before this |
|(Atkins) |technicians," as specified, |Committee |
| |mandated reporters. | |
|---------------+------------------------------+------------------|
|SB 1264 |Makes any "athletic coach, |Passed this |
|(Vargas) |including, but not limited |Committee 4/17/12 |
| |to, an assistant coach or a |(7-0); pending in |
| |graduate assistant involved |the Assembly |
| |in coaching, at public or | |
| |private postsecondary | |
| |institutions," a mandated | |
| |reporter. | |
|---------------+------------------------------+------------------|
|SB 1551 |Requires a "competent adult |Pulled by author |
|(Vargas) |who becomes aware of |after hearing in |
| |information or evidence that |this Committee |
| |would cause a reasonable |4/17/12 (ROCA |
| |suspicion of child sexual |bill) |
| |abuse is required to report | |
| |that information to state or | |
| |local law enforcement or to | |
| |county child protective | |
| |services within 72 hours," | |
| |with specified criminal | |
| |penalties. | |
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As noted above, earlier this year this Committee passed SB 1264
(Vargas). The Vargas bill would make any athletic coach,
including, but not limited to, an assistant coach or a graduate
assistant involved in coaching, at public or private
postsecondary institutions, a mandated reporter. This bill is
broader than the Vargas bill in that it would make any "employee
of a public or private institution of higher education, as to
child abuse or neglect occurring on that institution's premises
or at an official activity of, or program conducted by, the
institution" a mandated reporter.
5. Technical Language
This bill refers to a "public or private institution of higher
education." The Vargas bill refers to "public or private
postsecondary institutions." These terms appear to be
interchangeable, but staff is advised that the latter term is
more typically used in education. The author may wish to
consider amending his bill to make this purely technical change.
6. Author's Amendment
Committee staff has been informed that the author intends to
offer the following amendment (underlined) in Committee to
address concerns raised by the California Public Defenders
Association:
(41) An employee of a public or private institution of
higher education, as to child abuse or neglect
occurring on that institution's premises or at an
official activity of, or program conducted by, the
institution. Nothing in this section shall be
construed as altering the lawyer-client communication
privilege as set forth in Article 3, Chapter 4,
Division 8 of the Evidence Code.
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