BILL ANALYSIS �
AB 1438
Page 1
Date of Hearing: March 6, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1438 (Bradford) - As Amended: January 23, 2012
As Proposed to be Amended in Committee
SUMMARY : Requires any person who reasonably believes that he
or she has observed a lewd or lascivious act upon a child under
the age of 14 years, as specified, to report the incident to law
enforcement, as specified. Violation of this section is a
misdemeanor 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.
EXISTING LAW :
1)Requires any person who reasonably believes that he or she has
observed the following offenses where the victim is a child
under the age of 14 to notify a peace officer, as specified
�Penal Code Section 152.3(a).]:
a) Murder;
b) Rape; or,
c) A forcible lewd and lascivious act.
2)Specifies that any person who fails to report specified
offenses against a child under 14 is guilty of a misdemeanor
punishable by a fine of up to $1,500, imprisonment in a county
jail for up to six months, or by fine and imprisonment.
�Penal Code Section 152.3(d).]
3)Specifies that the duty to report to a peace officer of
specified offenses against a child under 14 is satisfied if
the notification or attempt provide notice is made by
telephone or any other means. �Penal Code Section 152.3(c).]
4)Specifies that the duty to report to a peace officer of
specified offenses against a child under 14 is not to be
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construed to affect privileged relationships as provided by
law. �Penal Code Section 152.3(b).]
5)Specifies that the duty to report to a peace officer of
specified offenses against a child under 14 does not apply if
the person is related either to the victim or the offender, as
specified. �Penal Code Section 152.3(e)(1).]
6)Specifies that the duty to report to a peace officer of
specified offenses against a child under 14 does not apply is
the person observing the offense fails to report based on a
reasonable mistake of fact or a reasonable fear for his or her
own safety or the safety of his or her family. �Penal Code
Section 152.3(e)(2) and (3).]
7)Prohibits and person from willfully and lewdly committing any
lewd or lascivious act upon a child under 14, with the intent
of arousing, appealing to, or gratifying the lust, passions,
or sexual desires of that person or the child and specifies
that violation of this prohibition if a felony punishable by
imprisonment in the state prison for three, six, or eight
years. �Penal Code Section 288(a).]
8)Prohibits and person from willfully and lewdly committing any
lewd or lascivious act upon a child under 14, with the intent
of arousing, appealing to, or gratifying the lust, passions,
or sexual desires of that person or the child, by the use of
force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person and
specifies that violation of this prohibition if a felony
punishable by imprisonment in the state prison for five,
eight, or ten years. �Penal Code Section 288(b)(1).]
9)Requires that any mandated reporter who has knowledge of, or
observes, a child in his or her professional capacity or
within the scope of his or her employment whom he or she
knows, or reasonably suspects, has been the victim of child
abuse shall report that incident immediately to a specified
child protection agency by telephone, and further requires a
written report be sent within 36 hours. �Penal Code Section
11166(a).]
10)Provides that any mandated reporter who fails to report an
incident of known or reasonably suspected child abuse or
neglect is guilty of a misdemeanor, punishable by up to six
AB 1438
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months confinement in a county jail, or by a fine of $1,000,
or by both imprisonment and fine. �Penal Code Section
11166(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The primary
intent of reporting law is to protect the child. This bill
seeks to ensure that further protection is in place by
improving child abuse reporting requirements. As we have seen
in the Penn State scandal, not every adult chooses to make the
right decision, leaving predators on the loose and placing
children at risk of further abuse. This bill will mandate all
adults, not only legally mandated reporters, to report a lewd
or lascivious act upon a child under 14 to law enforcement."
2)Mandating Reporting : Under existing law, any person who
reasonably believes that he or she observed the murder or rape
of a child under 14 or forcible lewd or lascivious act upon a
child under 14 to report the act to law enforcement. This law
would require any person to report any lewd or lascivious act
upon a child under the age of 14, whether forcible or not.
3)Related Legislation :
a) AB 1434 (Feuer) makes an employee of a public or private
institution of higher education a mandated reporter. AB
1434 will be heard by this Committee today.
b) AB 1435 (Dickinson) makes coaches, administrators, and
directors employed by or volunteering with a public or
private organization mandated reporters. AB 1435 will be
heard by this Committee today.
c) AB 1628 (Beall) makes technical, non-substantive changes
to the Child Abuse and Neglect Reporting Act (CANRA). AB
1628 is pending rereferral by the Assembly Rules Committee.
d) AB 1713 (Campos) expands the list of persons identified
as mandated reporters to include commercial-film and
photographic-print or image processors; and also expands
the list of media to which CANRA provisions apply to
include, among other things, any representation of
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information, data, or an image. AB 1713 has not been set
for hearing as yet by this Committee.
e) AB 1817 (Atkins) expands the list of persons identified
as mandated reporters to include commercial computer
technicians. AB 1817 has not been set for hearing as yet
by this Committee.
f) SB 1264 (Vargas) expands the list of persons identified
as mandated reporters to include athletic coaches at public
or private postsecondary institutions, and increases the
penalties for failure to report an incident. SB 1264 is
pending rereferral by the Senate Rules Committee.
4)Prior Legislation :
a) SB 646 (Watson), Chapter 1444, Statutes of 1987,
established CANRA, which requires specified persons who
have knowledge of or observe a child in their professional
capacity or within the scope of their employment, whom the
person knows or reasonably suspects has been the victim of
child abuse to report the known or suspected instance of
child abuse to a child protective agency, as defined.
b) AB 1241 (Pacheco), Chapter 916, Statutes of 2000,
expanded the list of mandated reporters and training
requirements under CANRA, and required that additional
information be included in a report of suspected child
abuse or neglect.
c) AB 525 (Chu), Chapter 701, Statutes of 2006, expanded
the definition of "child abuse and neglect" to include
instances in which a child suffers or is at substantial
risk of suffering serious emotional damage.
d) AB 673 (Hayashi), Chapter 393, Statutes of 2007, added
death by other than accidental means to the definition of
"child abuse and neglect," and clarified that a mandated
reporter not acting in his or her private capacity or in
the course and scope of his or her employment may report
instances of known or suspected child abuse.
e) AB 2380 (Lowenthal), Chapter 123, Statutes of 2010,
clarified that a "reasonable suspicion" that a child has
been a victim of child abuse or neglect does not require
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certainty that a child has been abused, and may be based on
credible information from other individuals.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal
Employees (AFSCME), AFL-CIO
Opposition
California Attorneys for Criminal Justice
California District Attorneys Association
California Public Defenders Association
Child and Family Protection Association
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744