BILL ANALYSIS �
AB 1505
Page 1
Date of Hearing: April 29, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1505 (Garcia) - As Amended: April 24, 2014
SUMMARY : Excludes from the definition of reportable "sexual
assault" under the Child Abuse Neglect Reporting Act (CANRA)
acts of sodomy or oral copulation, unless the act involves
either a person over 21 years of age or a minor under 16 years
of age.
EXISTING LAW :
1)Establishes CANRA for the purpose of protecting children from
abuse and neglect. (Pen. Code, � 11164.)
2)Enumerates categories of persons who are mandated reporters
under the Act. (Pen. Code, � 11165.7, subd. (a).)
3)Requires, except as provided, a mandated reporter to make a
report to a specified agency 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. The mandated reporter
shall make an initial report to the agency immediately or as
soon as is practicably possible by telephone and shall prepare
and send, fax, or electronically transmit a written followup
report within 36 hours of receiving the information concerning
the incident. The mandated reporter may include with the
report any nonprivileged documentary evidence the mandated
reporter possesses relating to the incident. (Pen. Code, �
11166, subd. (a).)
4)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 misdemeanor punishable by up to
six months confinement in a county jail or by a fine of $1,000
or by both that imprisonment and fine. If a mandated reporter
intentionally conceals his or her failure to report an
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incident known by the mandated reporter to be abuse or severe
neglect under this section, the failure to report is a
continuing offense until a specified agency discovers the
offense. (Pen. Code, � 11166, subd. (c).)
5)Defines "child" under CANRA to mean a person under the age of
18 years. (Penal Code Section 11165.)
6)Defines "child abuse or neglect" under CANRA to include
physical injury or death 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. (Pen. Code, �
11165.6.)
7)States that "sexual abuse" means sexual assault or sexual
exploitation. (Pen. Code, � 11165.1.)
8)Defines "sexual assault" as conduct in violation of one or
more of the following crimes: rape, statutory rape involving a
person who is 21 years of age or older with a minor who is
under 16 years of age, rape in concert, incest, sodomy with a
person who is under 18 years of age, lewd or lascivious acts
upon a child who is 14 or 15 years of age by a person who is
at least 10 years older than the child, oral copulation,
sexual penetration, or child molestation, as specified. (Pen.
Code, � 11165.1.)
9)Provides that unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse
of the perpetrator, if the person is a minor (statutory rape).
For the purposes of this section, a "minor" is a person under
the age of 18 years and an "adult" is a person who is at least
18 years of age. (Pen. Code, � 261.5, subd. (a).)
10)States that it is a misdemeanor for any person who engages in
an act of unlawful sexual intercourse with a minor when there
is not more than a three year age difference. (Pen. Code, �
261.5, subd. (b).)
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11)Provides that it is an alternate felony/misdemeanor for any
person who engages in an act of unlawful sexual intercourse
with a minor when there is more than a three year age
difference, punishable by imprisonment in a county jail not
exceeding one year, or by imprisonment in county jail for 16
months, 2 or 3 years pursuant to realignment. (Pen. Code, �
261.5, subd. (c).)
12)States that any person 21 years of age or older who engages
in unlawful sexual intercourse with a minor who is under 16
years of age is guilty of an alternate felony/misdemeanor
punishable by imprisonment in a county jail not exceeding one
year, or by imprisonment in county jail for two, three, or
four years pursuant to realignment. (Pen. Code, � 261.5,
subd. (d).)
13)States, except as provided in provisions of law related to
lewd and lascivious conduct with minors under the age of 14,
any person who participates in an act of sodomy with another
person who is under 18 years of age shall be punished by
imprisonment in the state prison, or in a county jail for not
more than one year. (Pen. Code, � 286, subd. (b)(1).)
14)Makes any person over 21 years of age who participates in an
act of sodomy with another person who is under 16 years of age
guilty of a felony, except as provided in provisions of law
related to lewd and lascivious conduct with minors under the
age of 14. (Pen. Code, � 286, subd. (b)(2).)
15)States, except as provided in provisions of law related to
lewd and lascivious conduct with minors under the age of 14,
any person who participates in an act of oral copulation with
another person who is under 18 years of age shall be punished
by imprisonment in the state prison, or in a county jail for
not more than one year. (Pen. Code, � 288a, subd. (b)(1).)
16)Provides that any person over 21 years of age who
participates in an act of oral copulation with another person
who is under 16 years of age is guilty of a felony, except as
provided in provisions of law related to lewd and lascivious
conduct with minors under the age of 14. (Pen. Code, � 288a,
subd. (b)(2).)
17)States that any person who willfully and lewdly commits any
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lewd or lascivious act, including any of the acts constituting
other crimes as provided, 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 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. (Pen. Code, � 288, subd. (a).)
18)Provides if the act described above is committed by use of
force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is
guilty of a felony and shall be punished by imprisonment in
the state prison for 5, 8, or 10 years. (Pen. Code, � 288,
subd. (b)(1).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1505 creates
a uniform standard for mandated reporters to follow when
reporting instances of consensual sexual acts amongst minors.
Simpler reporting requirements would ensure that reporters are
more confident and knowledgeable about what needs to be
reported, and result in increased safety for our youth. AB
1505 would categorize consensual Anal and Oral sex the same as
consensual Penile and Vaginal sex amongst people 16 to 21."
2)CANRA and Reportable Incidents of Sexual Assault : CANRA was
established in 1981 for the purpose of protecting children
from abuse and neglect. The law imposes a mandatory reporting
requirement on individuals whose professions bring them into
contact with children. These professionals are called mandated
reporters for purposes of CANRA. The mandated reporter must
report the incident by telephone to a police or sheriff's
department or a county probation or welfare department
immediately or as soon as practically possible, and then
prepare and submit a written follow up report within 36 hours
of receiving the information concerning the incident. A
mandated reporter who fails to report an incident of known or
reasonably suspected child abuse or neglect is guilty of a
misdemeanor.
Under CANRA, child abuse includes sexual abuse. Not all sexual
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conduct involving a minor constitutes sexual abuse requiring a
practitioner to report the incident. (Planned Parenthood
Affiliates v. Van de Kamp (1988) 181 Cal. App. 3d 245.) In
Planned Parenthood Affiliates, the petitioners sought to
enjoin implementation of CANRA following an opinion of the
Attorney General which held that the statute imposed on
professionals and others a duty to report any sexual activity
of minors under the age of 14 years as child abuse.
Petitioners claimed the law violated the constitutional right
to privacy of such minors and placed professionals in
circumstances in which they would be forced to choose between
compliance with the law and fidelity to their ethical duties
to preserve patients' confidential medical histories. (Id. at
pg. 257.)
In determining legislative intent, the court looked at a prior
challenge to CANRA's inclusion of statutory rape as the
statute was written at the time (Pen. Code, � 261.5.) [Note:
CANRA currently includes statutory rape involving a person who
is 21 years of age or older with a minor who is under 16 years
of age (Pen. Code, � 261.5, subd. (d).] At the time, Penal
Code Section 261.5 prohibited any act of intercourse with an
unmarried woman under 18, regardless of whether the act is
voluntary. The California Supreme Court ordered the cause
transferred to the First District Court of Appeal with
directions to issue the alternative writ of mandate, staying
operation and enforcement of the reporting law insofar as it
applied to conduct in violation of section 261.5. Shortly
thereafter, the Legislature deleted section 261.5 from the
CANRA statutes and concluded that "'[the] existing provisions
of law are causing the overreporting of various acts unrelated
to child abuse . . . creating a detrimental impact upon the
efforts of the Legislature to deal with the problem of child
abuse.'" (Planned Parenthood Affiliates v. Van de Kamp, supra,
181 Cal. App. 3d at p. 272, citing the analysis by the
Assembly Committee on Criminal Justice (May 9, 1981).)
The court held that the legislative intent of CANRA was "to
allow the trained professional to determine an abusive from a
nonabusive situation. Instead of a blanket reporting
requirement of all activity of those under a certain age, the
professional can make a judgment whether a minor is having
voluntary relations or is being sexually abused." (Id. at p.
272.) The court found that, although Penal Code Section 288
(lewd and lascivious conduct with a minor under the age of 14)
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is included in CANRA, the inclusion of this section did not
render all sexual conduct of such minors child abuse per se,
and that mature minors under 14 enjoyed the same presumptive
constitutional right to sexual privacy as adults. It reasoned
that the CANRA "provisions contemplate criminal acts of child
abuse causing trauma to the victim; they do not contemplate
the voluntary sexual associations between young children under
the age of 14 who are not victims of a child abuser and are
not the subjects of sexual victimizations." (Id. at p. 267.)
Therefore, the court concluded that "[t]he de facto voluntary
sexual conduct among minors under the age of 14 may be ill
advised, but it is not encompassed by section 288. The
inclusion of that statute in the reporting law does not
mandate reporting of such activity. (Id. at p. 276.)
In 2013, the Department of Consumer Affairs (DCA) evaluated
the issue of whether CANRA requires practitioners to report
all conduct by minors that fall under the definition of sodomy
and oral copulation. Relying on case law, including Planned
Parenthood Affiliates v. Van de Kamp, and the legislative
intent behind CANRA, DCA concluded that mandated reporters are
not required to report consensual sex between minors of like
age for any of the conduct listed as sexual assault unless the
practitioner reasonably suspects that the conduct resulted
from force, undue influence, coercion, or other indicators of
child abuse. Because sexual conduct of minors that meet the
definition of sodomy and oral copulation must be treated the
same as all other conduct listed in the section (i.e. Penal
Code Section 288), only instances involving acts that are
nonconsensual, abusive or involves minors of disparate ages,
conduct between minors and adults, and situations where there
are indicators of abuse. Accordingly, DCA stated that it was
not necessary to amend the statute or remove sodomy or oral
copulation from CANRA. (See DCA, Memorandum on the Evaluation
of CANRA Reform Proposal Related to Reporting Consensual Sex
Between Minors (Apr. 11, 2013).)
The intent of the bill is to clarify the reporting
requirements under CANRA so that consensual acts of sodomy and
oral copulation between minors do not have to be reported.
However, the language of the bill goes beyond consensual acts
between minors of like age. AB 1505 only requires a mandated
reporter to report acts of sodomy or oral copulation involving
a person who is over 21 or a minor under 16. Therefore, an
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act of sodomy or oral copulation involving a person who is 21
years old with a person who is 16 years or 17 years old would
not have to be reported. While some instances may be
consensual, the disparate ages between the persons involved
may be an indicator of exploitation, undue influence or sexual
abuse. By only requiring that instances involving persons
over 21 or minors under 16 years of age be reported, this bill
creates a rule that goes against the purpose of CANRA.
3)Argument in Support : The California Psychological Association
writes, "This bill would . . . make instances of sodomy or
oral copulation reportable as sexual abuse only if any person
over 21 years of age participates in an act of sodomy or oral
copulation with a person who is under 16 years of age. For
years, professionals in the filed have felt that the current
statute discriminated against LGBT youths, and could put
practitioners at risk of professional and legal discipline for
not reporting what they did not deem to be child abuse, but
that a strict interpretation of the statute deemed to be child
abuse. The Department of Consumer Affairs issued a recent
legal opinion which clarifies that consensual or anal
copulation between two minors does not need to be reported if
the professional deems it is not abuse; much like how
non-abusive consensual intercourse is not reported as child
abuse. In its legal interpretation, they stated that 'a
mandated reporter is required to report only those situations
where the reporter has reason to know or suspects abuse from
sexual conduct between the minor and an older adolescent or an
adult and those contacts which resulted from undue influence,
coercion, use of force or other indicators of abuse.' However,
the statute remains intact, and could be interpreted by
practitioners, attorneys, and future department heads in a
different manner."
4)Current Legislation :
a) AB 1432 (Gatto) requires the State Department of
Education, in consultation with the Office of Child Abuse
Prevention in the State Department of Social Services, to
develop and disseminate information to all school
districts, county offices of education, and charter
schools, and their school personnel in California,
regarding the detection and reporting of child abuse, to
provide statewide guidelines on the reporting requirements
for child abuse and the responsibilities of mandated
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reporters, and to develop appropriate means of instructing
school personnel in the detection of child abuse and
neglect and the proper action that school personnel should
take in suspected cases of child abuse and neglect. AB
1432 will be heard by this Committee today.
b) AB 1775 (Melendez) provides that knowingly downloading
material, including a video recording, in which a child is
engaged in an act of obscene sexual conduct, except as
specified, is sexual exploitation for the purpose of
mandated reporting by specified individuals under CANRA.
AB 1775 is pending a vote on the Assembly Floor.
5)Prior Legislation :
a) AB 1338 (Buchanan), of the 2013-14 Legislative Session,
would have required the governing body of each school
district, charter school, and county office of education to
adopt a policy on the reporting of child abuse and the
responsibilities of mandated reporters in accordance with
the requirements of CANRA. AB 1338 was held on the
Committee on Appropriations' Suspense File.
b) AB 652 (Ammiano), Chapter 486, Statutes of 2013,
provides that the fact that a child is homeless or is
classified as an unaccompanied minor is not, in and of
itself, a sufficient basis for reporting child abuse or
neglect.
c) AB 2380 (Lowenthal), Chapter 123, Statutes of 2010,
clarified that a "reasonable suspicion" that a child has
been a victim of child abuse or neglect does not require
certainty that a child has been abused, and may be based on
credible information from other individuals.
d) AB 1241 (Rod Pacheco), Chapter 916, Statutes of 2000,
expanded the list of mandated reporters and training
requirements under CANRA, and required that specified
additional information be included in a report of suspected
abuse or neglect.
e) AB 327 (Havice), Chapter 83, Statutes of 1997, added
unlawful sexual intercourse with a child under the age of
16 years when the perpetrator is over the age of 21 years
and lewd and lascivious acts with a child of 14 or 15 years
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of age when the perpetrator is more than 10 years older
than the victim to the offenses included in the definition
of sexual assault for purposes of CANRA.
f) SB 646 (Watson), Chapter 1444, Statutes of 1987,
established CANRA, which requires specified persons who
have knowledge of or observe a child in their professional
capacity or within the scope of their employment, who the
person knows or reasonably suspects has been the victim of
child abuse to report the known or suspected instance of
child abuse to a child protective agency, as defined.
REGISTERED SUPPORT / OPPOSITION :
Support
American Association for Marriage and Family Therapy, California
Division
American Civil Liberties Union (ACLU)
California Psychological Association
National Center for Youth Law
24 Private Individuals
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744