BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1264 (Vargas) 4
As Introduced February 23, 2012
Hearing date: April 17, 2012
Penal and Welfare and Institutions Codes
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MANDATED CHILD ABUSE AND NEGLECT REPORTERS:
COLLEGE ATHLETIC COACHES
HISTORY
Source: Author
Prior Legislation: None
Support: The Child Abuse Prevention Center; Crime Victims United
of California; American Academy of Pediatrics,
California; California State Sheriffs' Association;
California Probation, Parole, and Correctional
Association
Opposition:Legal Services for Prisoners with Children
KEY ISSUES
SHOULD ANY "ATHLETIC COACH, INCLUDING, BUT NOT LIMITED TO, AN
ASSISTANT COACH OR A GRADUATE ASSISTANT INVOLVED IN COACHING, AT
PUBLIC OR PRIVATE POSTSECONDARY INSTITUTIONS," BE A MANDATED CHILD
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ABUSE AND NEGLECT REPORTER?
SHOULD PENALTIES RELATING TO FAILURE TO REPORT BE RAISED, INCLUDING
FINE INCREASES AND MAKING AN EXISTING MISDEMEANOR A FELONY
PUNISHABLE BY STATE PRISON?
PURPOSE
The purpose of this bill is to add any "athletic coach,
including, but not limited to, an assistant coach or a graduate
assistant involved in coaching, at public or private
postsecondary institutions," as a mandated child abuse and
neglect reporter, and to raise penalties relating to failure to
report, including fine increases and making an existing
misdemeanor a felony punishable by state prison.
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.)
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.)
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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
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
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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).)
This bill would make "(a)ny athletic coach, including, but not
limited to, an assistant coach or a graduate assistant involved
in coaching, at public or private postsecondary institutions," a
mandated child abuse and neglect reporter under these
provisions.
Current law provides that any mandated reporter who fails to
report an incident of known or reasonably suspected child abuse
or neglect as required by this section is guilty of a
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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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misdemeanor punishable by up to six months confinement in a
county jail or by a fine of $1000 or by both that imprisonment
and fine, as specified. (Penal Code � 11166 (c).)
This bill would increase this penalty by raising the county jail
time to up to 12 months, and by raising the fine from $1000 to
$5,000.
Current law provides that any mandated reporter who willfully
fails to report abuse or neglect, or any person who impedes or
inhibits a report of abuse or neglect where that abuse or
neglect results in death or great bodily injury, shall be
punished by not more than one year in a county jail, by a fine
of not more than $5000, or by both that fine and imprisonment.
(Penal Code � 11166.01 (b).)
This bill would increase this penalty by making it a felony of
one-to-five years in state prison, a fine of not more than
$25,000, or by both that fine and imprisonment.
This bill makes additional non-substantive technical amendments
to conform specified sections to the proposed changes described
above.
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
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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
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.
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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.
As proposed to be amended in Committee by the author (See
Comment 1), this bill will not aggravate the prison overcrowding
crisis described above under ROCA.
COMMENTS
1. Author's Amendments
The author's office has advised Committee staff that the author
will amend this bill in Committee to remove all of its penalty
provisions. Specifically, the author will delete sections 2 and
3 of the bill, and in section 4 of the bill the author will
delete the change proposed in subdivision (b) of the bill. The
intent of these amendments is to remove all penalty provisions
from the bill, and in that way not change current penalties
related to this issue.
2. Stated Need for This Bill
The author states:
Abuse and (neglect) inflicted upon children is
something that our state has many laws and provisions
against. According to the California Department of
Social Services, the first child abuse reporting law
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in California was enacted in 1963. The early laws
mandated only physicians to report physical abuse.
Over the years, numerous amendments have expanded the
definition of child abuse and the persons required to
report. Procedures for reporting categories of child
abuse have also been clarified through legislation
over the last fifty years. This bill proposes
necessary changes to the mandated reporter laws in
order to be sure that those who work in close
proximity with children are ultimately responsible for
the well-being of those children.
At the end of 2011, prosecutors filed criminal charges
against Jerry Sandusky, the assistant football coach
at Penn State for nearly fifteen years, for alleged
sexual abuse charges. In the case against Sandusky,
the Grand Jury found that there had been at least
eight victims of sexual assaults throughout his career
at Penn State. The head coach of the Penn State
football team, Joe Paterno, allegedly knew of
instances of sexual abuse but failed to report these
directly to Child Welfare Services. Instead, he
reported to a supervisor who also failed to report to
Child Welfare Services. According to the author,
"these men protected their football team rather than
the innocent boys? and �this] should never happen
again."
According to the American Academy of Pediatrics, "A
child is abused every 7 minutes in California.
Existing California law requires mandated reporters to
report when he/she has knowledge of, or has observed a
child whom, the mandated reporter know or reasonably
suspects has been the victim of child abuse or
neglect. Passing the bill would extend mandated
reporters of child abuse and neglect to include
postsecondary coaches and employees, at public or
private institutions, serving in a coaching capacity.
In (light) of recent events, it is imperative that the
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net of mandated reporters and the penalties for
failure to report be re-evaluated. This amendment to
the current Child Abuse and Neglect Reporting Act
(CANRA) serves as a means to hold institutions
accountable if there is any impedance to reporting or
any cover-up surrounding any abuse. The proposed
legislation would insure that athletic coaches of all
capacities be held responsible for reporting instances
of child sexual abuse or neglect, and would also
increase the penalties for failure to report.
3. What This Bill Would Do; Current Mandated Reporter Law
This bill would add any "athletic coach, including, but not
limited to, an assistant coach or a graduate assistant involved
in coaching, at public or private postsecondary institutions,"
as mandated child abuse and neglect reporters. Under current
law, there are 40 enumerated categories of mandated reporters,
including teachers, instructional aides and others, which
already may include the athletic coaching staff covered by this
bill; however, current statute does not clearly specify higher
education personnel or volunteers.
4. Existing California Law - Penal Code Section 152.3
Historically, in common law there is no general legal duty to
aid others. In 2000, the Legislature passed the "Sherrice
Iverson Child Victim Protection Act." Reflected in Penal Code
section 152.3, this law imposes criminal liability for failing
to report the kind of crimes against children described by the
author. This Committee's analysis of AB 1422, which enacted
that law, provides background with respect to the duty to aid
others:
Citing LaFave and Scott, a Dayton Law Journal article
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notes that generally speaking:
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.)<2>
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<2> Analysis of AB 1422 (Torlakson), June 13, 2000, Senate
Committee on Public Safety (footnotes omitted).
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The Sherrice Iverson Act (AB 1422) was described by its author
as "needed to help avoid future scenarios such as the 1997
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. Arguably, had this been the law in
Pennsylvania at the time the alleged Sandusky assaults were
witnessed, it may have applied to those witnesses.
DOES CALIFORNIA LAW ALREADY COVER THE KIND OF CIRCUMSTANCES
DESCRIBED BY THE AUTHOR?
IF SO, IS THIS BILL NECESSARY?
5. Scope of This Bill
This bill would apply to college and university athletic
coaches, assistant coaches, and graduate assistant coaches
involved in coaching. Members and the author may wish to
discuss whether students or volunteers - who may be
participating as coaching assistants or graduate assistants -
should be included as mandated reporters. Many categorical
reporters are provided with information about identifying child
abuse and neglect either through professional training or
through their employers.<3> In addition, many are engaged in
professions where protocols have been developed and implemented
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<3> See, for example, California School Employees website page,
"Child Abuse Reporting," (http://www.csea.com).
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to ensure compliance with the law.<4> Members may wish to
discuss whether students, or volunteers to the extent they may
be within the scope of this bill, should be mandated child abuse
and neglect reporters. Members also may wish to discuss whether
narrowing this bill to coaching employees of public or private
postsecondary institutions would make sense.
SHOULD COLLEGE STUDENT COACHES BE MANDATED CHILD ABUSE AND
NEGLECT REPORTERS?
SHOULD VOLUNTEER COLLEGE COACHES BE MANDATED CHILD ABUSE AND
NEGLECT REPORTERS?
SHOULD THIS BILL BE NARROWED TO COACHING EMPLOYEES?
6. Several Bills in This Area
Several bills have been introduced this session which propose to
expand the obligation to report suspected child abuse or
neglect. Members may wish to consider how these bills relate to
one another and how they could be reconciled to the extent they
may be redundant or inconsistent.
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| Bill | What the Bill Does | Status |
|---------------------+---------------------+---------------------|
|SB 1264 (Vargas) |Makes any "athletic |Before this |
|(this bill) |coach, including, |Committee |
| |but not limited to, | |
| |an assistant coach | |
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<4> See, e.g., Physical Therapy Board of California, Mandatory
Reporting Obligations ( http://www.ptbc.ca.gov/
laws_regs /report_injuries.html.)
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| |or a graduate | |
| |assistant involved | |
| |in coaching, at | |
| |public or private | |
| |postsecondary | |
| |institutions," a | |
| |mandated reporter, | |
| |and increases | |
| |specified related | |
| |penalties. | |
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| Bill | What the Bill Does | Status |
|---------------------+---------------------+---------------------|
|AB 1434 (Feuer) |Makes an "employee |Assembly Floor |
| |of a public or | |
| |private institution | |
| |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 (Dickinson) |Makes an "athletic |Assembly |
| |coach, athletic |Appropriations |
| |administrator, or |(suspense) |
| |athletic director | |
| |employed by a public | |
| |or private | |
| |organization, | |
| |including, but not | |
| |limited to, schools | |
| |and institutions of | |
| |higher education," a | |
| |mandated reporter; | |
| |and requires | |
| |training, as | |
| |specified. | |
|---------------------+---------------------+---------------------|
|AB 1438 (Bradford) |Expands the existing |Assembly Floor |
| |crime for failing to | |
| |notify a peace | |
| |officer of a | |
| |specified violent | |
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| |crime against a | |
| |child under 14 to | |
| |include non-forcible | |
| |child molestation | |
| |(PC 152.3) | |
|---------------------+---------------------+---------------------|
|AB 1564 (Lara) |Makes "volunteers of |Assembly Public |
| |public or private |Safety |
| |organizations, | |
| |including nonprofit | |
| |organizations, whose | |
| |duties require | |
| |direct contact with | |
| |and supervision of | |
| |children," mandated | |
| |reporters. | |
|---------------------+---------------------+---------------------|
|AB 1713 (Campos) |Expands existing |Assembly |
| |definition of |Appropriations |
| |commercial film and | |
| |photographic print | |
| |processers who are | |
| |mandated reporters | |
| |to include several | |
| |enumerated types of | |
| |computer-related | |
| |data and imagery. | |
|---------------------+---------------------+---------------------|
|AB 1817 (Atkins) |Makes "commercial |Assembly Public |
| |computer |Safety |
| |technicians," as | |
| |specified, mandated | |
| |reporters | |
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