BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1438 (Bradford) 8
As Amended March 8, 2012
Hearing date: June 19, 2012
Penal Code
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CHILD SEXUAL ABUSE:
REPORTING OF CRIMES
HISTORY
Source: Author
Prior Legislation: AB 1422 (Torlakson) - (Ch. 477, Stats. 2000)
SB 80 (Hayden) - 2009, amended into unrelated
measure (Vetoed)
Support: American Federation of State, County and Municipal
Employees, AFL-CIO; Los
Angeles County District Attorney's Office; Peace Officers
Research Association of
California; Crime Victims Action Alliance
Opposition:California District Attorneys Association; Legal
Services for Prisoners with Children
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
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SHOULD ANY PERSON, AS LIMITED, WHO REASONABLY BELIEVES HE OR SHE
HAS OBSERVED AN INCIDENT OF NON-FORCIBLE LEWD AND LASCIVIOUS
ACTS UPON A CHILD UNDER 14 YEARS OLD BE REQUIRED TO REPORT THAT
INCIDENT TO LAW ENFORCEMENT, AND BE SUBJECT TO CRIMINAL
PENALTIES FOR THE FAILURE TO DO SO, AS SPECIFIED?
PURPOSE
The purpose of this bill is to require any person, as limited,
who reasonably believes he or she has observed an incident of
non-forcible lewd and lascivious acts upon a child under the age
of 14 years to report that incident to law enforcement, and to
make the failure of making such a report subject to criminal
penalties, as specified.
Current law generally requires any person who reasonably
believes that he or she has observed the commission of a murder,
rape or forcible molestation against a child under the age of 14
years to notify a peace officer, as specified. These provisions
do not apply to a person who is related to either the victim or
the offender, including a husband, wife, parent, child, brother,
sister, grandparent, grandchild, or other person related by
consanguinity or affinity; a person who fails to report based on
a reasonable mistake of fact; or a person who fails to report
based on a reasonable fear for his or her own safety or for the
safety of his or her family. Violation of this provision is a
misdemeanor punishable by a fine of not more than $1,500, by
imprisonment in jail for not more than six months, or by both
that fine and imprisonment. (Penal Code � 152.3.)
This bill would expand this provision to include non-forcible
child molestation, as described in subdivision (a) of Penal Code
section 288, which generally provides that any person who
willfully and lewdly commits any lewd or lascivious act upon or
with the body, or any part or member thereof, of a child who is
under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
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desires of that person or the child, is guilty of a felony and
shall be punished by imprisonment in the state prison for three,
six, or eight years.<1>
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 section 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
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<1> If the offense is committed on or after September 9, 2010,
and the defendant personally inflicted bodily harm upon the
victim, the punishment is life in the state prison with the
possibility of parole. (Penal Code � 288(i).)
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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
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.
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This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Stated Need for This Bill
The author states:
Current law requires any person who reasonably
believes that he or she has observed the murder, rape
or forcible lewd and lascivious act where the victim
is a child under the age of 14 to notify a peace
officer. This bill would expand current law to include
the reporting of any lewd or lascivious act upon a
child under age 14, forced or non-forced. This
legislation is in response to the Penn State scandal
where Mike McQueary testified that he witnessed Jerry
Sandusky engage in a sex act with a young boy. If that
situation occurred in California, it is not clear that
Mike McQueary would have a legal responsibility to
notify law enforcement due to the "unforced" nature of
what was witnessed. This author does not believe that
a child under age 14 can consent to any sex act so the
law should be clear that a witness to any sex act with
a child, forced or non-forced, must be reported to law
enforcement.
2. What This Bill Would Do
As explained above, current law requires that any person who
reasonably believes that he or she has observed the commission
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of a murder, rape or forcible molestation against a child under
the age of 14 years to notify a peace officer, as specified.
This law - Penal Code section 152.3 -- excludes from its
application the following categories of persons:
(1) A person who is related to either the victim or the
offender, including a husband, wife, parent, child, brother,
sister, grandparent, grandchild, or other person related by
consanguinity or affinity.
(2) A person who fails to report based on a reasonable mistake
of fact.
(3) A person who fails to report based on a reasonable fear
for his or her own safety or for the safety of his or her
family.<2>
This bill would expand this provision to include so-called
"non-forcible" child molestation. California Criminal Jury
Instructions clearly define the elements of this crime:
The defendant is charged . . . with committing a lewd
or lascivious act on a child under the age of 14 years
�in violation of Penal Code section 288(a)].
To prove that the defendant is guilty of this crime,
the People must prove that:
. . . The defendant willfully touched any part of a
child's body either on the bare skin or through the
clothing;
�OR]
. . .
The defendant willfully caused a child to touch
(his/her) own body, the defendant's body, or the body
of someone else, either on the bare skin or through
the clothing;
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<2> Penal Code � 152.3(e).
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2. The defendant committed the act with the intent of
arousing, appealing to, or gratifying the lust,
passions, or sexual desires of (himself/herself) or
the child;
AND
3. The child was under the age of 14 years at the time
of the act.
The touching need not be done in a lewd or sexual
manner.
Someone commits an act willfully when he or she does
it willingly or on purpose. It is not required that he
or she intend to break the law, hurt someone else, or
gain any advantage.
�Actually arousing, appealing to, or gratifying the
lust, passions, or sexual desires of the perpetrator
or the child is not required.]
�It is not a defense that the child may have consented
to the act.]
�Under the law, a person becomes one year older as
soon as the first minute of his or her birthday has
begun.]<3>
This crime is not limited to "pedophiles, sexual deviates and
callous opportunists."<4> Consensual sexual contact between
minors, where one is over 14 and one is under 14, is within the
purview of section 288, subdivision (a).<5> Members may wish to
consider the practical implications of this bill. For example,
it would appear this bill could make non-forcible sexual contact
between a 15 year-old and a 13 year-old subject to mandatory
reporting. Would an adult -- for example, a neighbor or
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<3> 1-1000 CALCRIM 1110.
<4> In re John L. (1989) 209 Cal. App. 3d 1137, 1139.
<5> Id.
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neighborhood shopkeeper -- who sees young teenagers or pre-teens
engaged in some level of sexual contact (kissing?) be required
to report the kids to law enforcement or face criminal
liability? The author and members of the Committee may wish to
discuss whether this bill could be crafted to apply more
narrowly - for example, include a violation of subdivision (a)
of Section 288 of the Penal Code where the witness reasonably
believes the person is 21 years of age or older and at least 10
years older than the child.
HOW WOULD THIS BILL BE APPLIED IN LESS-THAN-CLEAR CIRCUMSTANCES,
SUCH AS WHEN THE SEXUAL CONTACT IS BETWEEN MINORS?
SHOULD THIS BILL BE NARROWED?
3. Unintended Consequences; Opposition
As explained above, current law provides that any person who
reasonably believes that he or she has observed the commission
of a murder, rape or forcible molestation against a child under
the age of 14 years to notify a peace officer, as specified.
Excluded from this provision are relatives, and persons who fail
to report based on a reasonable mistake of fact or fear for the
safety of himself or his or her family. (Penal Code � 152.3.)
These exceptions were developed in an attempt to address
concerns about the unintentional consequence of discouraging
witnesses from coming forward in these cases, or being effective
witnesses in subsequent prosecutions, because they themselves
commit a crime if they fail to come forward in a timely manner.
As explained in the Senate Committee on Public Safety analysis
of AB 1422 in 2000:
The Fifth Amendment to the United States Constitution
includes a privilege against self-incrimination.
Under the Miranda rules, law enforcement officers
must inform an in custody criminal "suspect" of his or
her right to remain silent and to have an attorney. (
Miranda v. Arizona (1966) 384 U.S. 436.) A
"suspect" is a person upon whom investigating officers
have focused their attention as the likely perpetrator
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of a crime. ( People v. Stansbury (1993) 4 Cal.4th
1017, 1050-1054.) "Custody" generally means
detention by the police such that the person is not
free to leave. (Id. at 1053-1054; ( People v.
Esqueda (1993) 17 Cal.App.4th 1450.)
A person who is talking to a peace officer to report a
crime under this statute becomes a "suspect"-- a
likely perpetrator of a crime. Thus, once a person
becomes a suspect he or she cannot disclose what it
was he or she witnessed and when without incriminating
his or herself.<6>
The Committee analysis asked the following questions pertaining
to AB 1422 in 2000 which are equally relevant to the bill before
the Committee today:
BY MAKING POTENTIAL WITNESSES WHO DID NOT REPORT
SUBJECT TO A CRIMINAL PENALTY WON'T THIS BILL HAMPER
POLICE INVESTIGATIONS?
WHEN THE POLICE REALIZE A PERSON MAY BE SUBJECT TO A
CRIMINAL PENALTY, THEY WILL NEED TO INFORM THE PERSON
OF HIS OR HER FIFTH AMENDMENT RIGHTS - WILL THIS CAUSE
CONCERN IN OTHERWISE WILLING WITNESSES?<7>
The California District Attorneys Association, which opposes
this bill, expresses similar concerns with respect to this bill:
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
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<6> Analysis of AB 1422 (Torlakson), June 13, 2000, Senate
Committee on Public Safety.
<7> Id.
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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 likely hinder prosecution of horrific
offenses.
Members may wish to discuss the potential unintended impacts of
this bill on prosecuting the child abuse cases it seeks to bring
to light.
WOULD THIS BILL DISCOURAGE THE REPORTING OF CHILD ABUSE CASES?
WOULD THIS BILL MAKE IT MORE DIFFICULT TO PROSECUTE CHILD ABUSE
CASES?
4. Background: No Common Law Duty To Aid Others
Historically, in common law there is no general legal duty to
aid others. This Committee's 2000 analysis of AB 1422,
discussed above, provides background with respect to the duty to
aid others:
Citing LaFave and Scott, a Dayton Law Journal article
notes that generally speaking:
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One has no legal duty to aid another person
in peril, even when that aid can be rendered
without danger or inconvenience to himself.
He need not shout a warning to a blind man
headed for a precipice or to an
absent-minded one walking into a gunpowder
room with a lighted candle in hand. He need
not pull a neighbor's baby out of a pool of
water . . . though the baby is drowning . .
. A moral duty to take affirmative actions
is not enough to impose a legal duty to do
so. (fn.)
However, the law review article goes on to say that
while LaFave and Scott are technically correct
"�c]riminal law is filled with obligations ascribing
legal duties to all of us based upon the consensus of
our elected officials as to what they believe is
morally appropriate." (fn.) Seven major areas where a
duty to aid are discussed. They are: A duty to act
based upon a relationship of the parties; a duty to
act based upon contract; a duty based upon a voluntary
assumption of care; a duty may arise from the fact
that the person created the risk from which the need
for protection arose.; a duty can arise from a special
relationship that makes a non-acting partner
criminally responsible for the actor's criminal
action; a duty can arise from the fact that one owns
the real property upon which the victim is injured;
and the duty to act and the resulting criminal
liability for failing to act, based upon statute.
(fn.)<8>
The Sherrice Iverson Act (AB 1422) was described by its author
as "needed to help avoid future scenarios such as the 1997
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<8> Id, (footnotes omitted).
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tragedy where the young girl . . . was assaulted and killed by a
young man whose companion did not feel the responsibility to
report the crime." Current California law requires any person
(except as specified) who reasonably believes that he or she has
observed the commission of a murder, rape or forcible
molestation against a child under the age of 14 years to notify
a peace officer.
SHOULD EXISTING LAW BE EXPANDED, AS PROPOSED BY THIS BILL?
5. Related Measures
Several bills have been introduced this session which propose to
expand the obligation to report suspected child abuse or
neglect:
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| Bill | What the Bill Does | Status |
|---------------+-------------------------------+-----------------|
|AB 1438 |Expands the existing crime for |Before this |
|(Bradford) |failing to notify a peace |Committee (this |
| |officer of a specified violent |bill) |
| |crime against a child under 14 | |
| |to include non-forcible child | |
| |molestation (PC 152.3) | |
|---------------+-------------------------------+-----------------|
|AB 1713 |Expands existing definition of |Before this |
|(Campos) |commercial film and |Committee |
| |photographic print processers | |
| |who are mandated reporters to | |
| |include several enumerated | |
| |types of computer-related data | |
| |and imagery. | |
|---------------+-------------------------------+-----------------|
|AB 1434 | Makes an "employee of a |Before this |
AB 1438 (Bradford)
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|(Feuer) |public or private institution |Committee |
| |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. | |
|---------------+-------------------------------+-----------------|
|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 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 to, |Committee |
| |an assistant coach or a |4/17/12 (7-0); |
| |graduate assistant involved in |pending in the |
| |coaching, at public or private |Assembly |
| |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 | |
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| |county child protective | |
| |services within 72 hours," | |
| |with specified criminal | |
| |penalties. | |
|---------------+-------------------------------+-----------------|
|AB 1564 |Makes "volunteers of public or |Assembly Public |
|(Lara) |private organizations, |Safety |
| |including nonprofit | |
| |organizations, whose duties | |
| |require direct contact with | |
| |and supervision of children," | |
| |mandated reporters. | |
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