BILL ANALYSIS �
AB 1438
Page 1
ASSEMBLY THIRD READING
AB 1438 (Bradford)
As Amended March 8, 2012
Majority vote
PUBLIC SAFETY 6-0 APPROPRIATIONS 15-0
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|Ayes:|Ammiano, Knight, Cedillo, |Ayes:|Fuentes, Harkey, |
| |Hagman, Mitchell, Skinner | |Blumenfield, Bradford, |
| | | |Charles Calderon, Campos, |
| | | |Davis, Donnelly, Gatto, |
| | | |Hill, Lara, Mitchell, |
| | | |Nielsen, Solorio, Wagner |
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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:
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.
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 to provide notice is made by
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telephone or any other means.
4)Specifies that the duty to report to a peace officer of
specified offenses against a child under 14 is not to be
construed to affect privileged relationships as provided by
law.
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.
6)Specifies that the duty to report to a peace officer of
specified offenses against a child under 14 does not apply if
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.
7)Prohibits any 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 is a felony punishable by
imprisonment in the state prison for three, six, or eight
years.
8)Prohibits any 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 is a felony
punishable by imprisonment in the state prison for five,
eight, or ten years.
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.
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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
months confinement in a county jail, or by a fine of $1,000,
or by both imprisonment and fine.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Potentially minor annual General Fund (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
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 : 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
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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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744
FN: 0003203