BILL ANALYSIS �
AB 1438
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Date of Hearing: March 28, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 1438 (Bradford) - As Amended: March 8, 2012
Policy Committee: Public
SafetyVote: 6-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill adds non-forcible lewd and lascivious acts upon a
child under the age of 14 to the list of offenses (murder, rape,
forcible sex offenses against a child under the age of 14) that
must be reported to law enforcement by anyone who believes he or
she has observed such an offense. Failure to so report is a
misdemeanor, punishable by up to six months in county jail
and/or a fine of up to $1,500.
FISCAL EFFECT
1)Potentially minor annual GF costs, likely less than $150,000,
for increased state prison commitments to the extent expanded
reporting requirements result in additional state prison
commitments.
2)Unknown minor state GF trial court costs for expanding an
existing misdemeanor. Costs would depend on the number of
defendants, and the length of proceedings. For example, if two
persons per year were charged for the offense created by this
bill, resulting in a total of one day of court time and costs,
annual state GF trial costs would be in the range of $5,000.
3)Unknown, likely minor non-reimbursable local incarceration
and/or probation costs to the extent anyone is convicted for
failure to report under this section.
Under correctional realignment instituted in 2011, the
creation of new misdemeanors must be viewed in a new light.
Counties are taking on significant new responsibilities for
housing and supervising felons. New misdemeanors place
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additional pressure on counties to identify additional
programs, including incarceration and probation for additional
misdemeanants, at a time when jail and program space - and
attendant staffing - will be at a premium in many counties.
While the fiscal and programmatic consequences of most new
misdemeanors are likely to be relatively minor, any additional
cumulative pressure on realignment efforts merits review.
COMMENTS
1)Rationale . The author, referencing the Penn State scandal,
contends this bill would create additional protections for
children.
"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)Opposition.
The District Attorneys Association contends this section -
expanded, or as is - is ineffective and creates issues
regarding witness credibility.
"Our specific concern lies with the fact that, if a prosecutor
needs or wants to use a witness who has failed to report the
crime at issue, the prosecutor will likely have to grant the
witness immunity from the offense of failing to notify a peace
officer. Conferring immunity can damage the People's case
because the immunity agreement will be disclosed to the
defense and could be used as the basis for impeachment despite
the fact that the jury might not know the nature of the
offense for which the witness has been granted immunity.
"Additionally, the statute's lack of a timeframe within which
a witness must report an offense, and the broad exemption from
reporting for a witness who is related to the victim or the
offender or who fears for his or her safety or that of his or
her family render this law, as currently written and as
proposed to be amended, essentially toothless. We fear that
this measure will not effectively encourage the reporting of
crimes, but could indeed discourage reporting and will very
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likely hinder prosecution of horrific offenses."
3)Current law already makes failure to report observance of a
forcible sexual offense involving a person under 14 a
misdemeanor . In the case of the Penn State scandal, it appears
this type of situation could have been charged under Penal
Code 152.3 in California, as many courts and juries would not
likely find that a sexual act between an adult male and a
10-year-old boy was non-forcible or consensual.
4)Related Pending Legislation .
a) AB 1434 (Feuer) adds college employees to the list of
mandated reporters. AB 1434 is before this committee today.
b) AB 1435 (Dickinson) adds coaches and athletic
administrators employed by a public or private youth
center, youth recreation program, or youth organization to
the list of mandated reporters, and requires training, as
specified. AB 1435 is before this committee today.
c) AB 1564 (Lara) makes volunteers of public and private
organizations mandated reporters, and revokes tax exempt
status if an employee or volunteer fails to report known or
suspected child abuse. AB 1564 is pending in Assembly
Public Safety.
d) AB 1713 (Campos) expands mandated reporters to include
commercial-film and photographic-print or image processors.
AB 1713 is pending before this committee today.
e) AB 1817 (Atkins) expands the list of mandated reporters
to include commercial computer technicians. AB 1817 is
pending in Assembly Public Safety.
f) SB 1264 (Vargas) expands the list of 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 referral
in the Senate.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081