BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1713 (Campos) 3
As Introduced February 16, 2012
Hearing date: June 19, 2012
Penal Code
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MANDATORY CHILD ABUSE AND NEGLECT REPORTING:
IMAGE PROCESSORS
HISTORY
Source: Author
Prior Legislation: None
Support: American Federation of State, County and Municipal
Employees, AFL-CIO;
BizParentz Foundation; California Police Chiefs Association;
California Retailers
Association; National Association of Social Workers - California
Chapter; Child
Abuse Prevention Center; Crime Victims United of California
Opposition:None Known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUE
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AB 1713 (Campos)
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SHOULD THE DEFINITION OF COMMERCIAL FILM AND PHOTOGRAPHIC PRINT
PROCESSOR BE EXPANDED TO INCLUDE "IMAGE" PROCESSORS FOR PURPOSES
OF THE MANDATED CHILD ABUSE AND REPORTING LAWS, AS SPECIFIED?
PURPOSE
The purpose of this bill is to expand the definition of
commercial film and photographic print processor to
include "image" processors for purposes of defining mandated
reporters under the Child Abuse and Neglect Reporting Act, as
specified.
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.)
Current law provides that, except as specified, "a mandated
reporter shall make a report . . . whenever the mandated
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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).)
Current law , as noted in footnote (1), makes the following
persons mandated reporters:
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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 2of 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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A commercial film and photographic print processor, as
specified in subdivision (e) of Section 11166.<2> 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.
This bill would broaden this provision to include an "image"
processor, and expressly include any person "who prepares,
publishes, produces, develops, duplicates, or prints any
representation of information, data, or an image, including, but
not limited to, any film, filmstrip, photograph, negative,
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<2> Subdivision (e) of Penal Code section 11166 states: "Any
commercial film and photographic print processor who has
knowledge of or observes, within the scope of his or her
professional capacity or employment, any film, photograph,
videotape, negative, or slide depicting a child under the age of
16 years engaged in an act of sexual conduct, shall report the
instance of suspected child abuse to the law enforcement agency
having jurisdiction over the case immediately, or as soon as
practicably possible, by telephone and shall prepare and send,
fax, or electronically transmit a written report of it with a
copy of the film, photograph, videotape, negative, or slide
attached within 36 hours of receiving the information concerning
the incident. As used in this subdivision,
"sexual conduct" means any of the following: (1) Sexual
intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same
or opposite sex or between humans and animals. (2) Penetration
of the vagina or rectum by any object. (3) Masturbation for the
purpose of sexual stimulation of the
viewer. (4) Sadomasochistic abuse for the purpose of sexual
stimulation of the viewer. (5) Exhibition of the genitals,
pubic, or rectal areas of any person for the purpose of sexual
stimulation of the viewer."
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slide, photocopy, videotape, video laser disk, computer
hardware, computer software, computer floppy disk, data storage
medium, CD-ROM, computer-generated equipment, or
computer-generated image."
Current law provides that any "commercial film and photographic
print processor who has knowledge of or observes, within the
scope of his or her professional capacity or employment, any
film, photograph, videotape, negative, or slide depicting a
child under the age of 16 years engaged in an act of sexual
conduct, shall report the instance of suspected child abuse to
the law enforcement agency having jurisdiction over the case
immediately, or as soon as practicably possible, by telephone
and shall prepare and send, fax, or electronically transmit a
written report
of it with a copy of the film, photograph, videotape, negative,
or slide attached within 36 hours of receiving the information
concerning the incident," as specified. (Penal Code �
11166(e).)
This bill would revise this provision to include "image"
processors, and any "slide, or any representation of
information, data, or an image, including, but not limited to, a
film, filmstrip, photograph, negative, slide, photocopy,
videotape, video laser disk, computer hardware, computer
software, computer floppy disk, data storage medium, CD-ROM,
computer-generated equipment, or computer-generated image, . . .
."
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
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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
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
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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.
COMMENTS
1. Stated Need for This Bill
The author states:
California law requires certain individuals, who by
virtue of their position or profession have a unique
position of responsibility toward children, to report
child abuse. These individuals are known as Mandated
Reporters, and include "commercial film and
photographic print processors" - Penal Code (PC)
Section 11165.7 (29).
Currently, "commercial film and photographic print
processor" means any person who develops exposed
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photographic film into negatives, slides, or prints,
or who makes prints from negatives or slides, for
compensation. This definition is out of date in the
modern era of computers, digital cameras and smart
phones.
A 2005 Department of Justice study of child
pornography possessors arrested in Internet-related
crimes revealed that 96% had images on hard drives or
removable media, and ONLY 18% possessed images in
photographs, books or magazines.
The same DOJ study also found that 55% were "dual
offenders" meaning they also were convicted of hands
on sexual abuse of a child. Modernization of the
terminology in the Penal Code is needed to reflect
advances in image reproduction technology and bring
our mandated reporter law into the digital age.
Under current law, "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. Which makes me ask - When was the last
time you developed a roll of film?
. . .
An updated definition of digital image is already
included in the Penal Code definition of child
exploitation, which covers, film, filmstrip,
photograph, negative, slide, photocopy, videotape,
video laser disc, computer hardware, computer
software, computer floppy disc, data storage media,
CD-ROM, or computer-generated equipment or any other
computer-generated images.
It is a gap in the law that the mandated reporters
most likely to come across these images - commercial
film and photographic print processors- are not
expressly required to report suspected child abuse or
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neglect to authorities when they appear in digital and
not photo-negative form. AB 1713 would close that gap.
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2. What This Bill Would Do
As explained above, this bill would expand the definition of
commercial film and photographic print processor to include
"image" processors, for purposes of the mandated child abuse and
neglect reporting laws. The bill would define an "image
processor" as any person who "prepares, publishes, produces,
develops, duplicates, or prints any representation of
information, data, or an image, including, but not limited to,
any film, filmstrip, photograph, negative, slide, photocopy,
videotape, video laser disk, computer hardware, computer
software, computer floppy disk, data storage medium, CD-ROM,
computer-generated equipment, or computer-generated image" for
compensation.
3. 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 1713 (Campos) |Expands existing definition |Before this |
| |of commercial film and |Committee (this |
| |photographic print |bill) |
| |processers who are mandated | |
| |reporters to include | |
| |several enumerated types of | |
| |computer-related data and | |
| |imagery. | |
|------------------+----------------------------+---------------------|
|AB 1434 (Feuer) | Makes an "employee of a |Before this |
| |public or private |Committee |
| |institution of higher | |
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| |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 1438 |Expands the existing crime |Before this |
|(Bradford) |for failing to notify a |Committee |
| |peace officer of a | |
| |specified violent crime | |
| |against a child under 14 to | |
| |include non-forcible child | |
| |molestation (PC 152.3) | |
|------------------+----------------------------+---------------------|
|AB 1817 (Atkins) |Makes "commercial computer |Before this |
| |technicians," as specified, |Committee |
| |mandated reporters. | |
|------------------+----------------------------+---------------------|
|SB 1264 (Vargas) |Makes any "athletic coach, |Passed this |
| |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. | |
AB 1713 (Campos)
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|------------------+----------------------------+---------------------|
|SB 1551 (Vargas) |Requires a "competent adult |Pulled by author |
| |who becomes aware of |after hearing in |
| |information or evidence |this Committee |
| |that would cause a |4/17/12 (ROCA bill) |
| |reasonable suspicion of | |
| |child sexual | |
| |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. | |
|------------------+----------------------------+---------------------|
|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. | |
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