BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1775 (Melendez) 5
As Amended May 13, 2014
Hearing date: June 10, 2014
Penal Code
AA:mc
CHILD ABUSE:
MANDATORY REPORTING
HISTORY
Source: California Association of Marriage and Family
Therapists
Prior Legislation: None
Support: California District Attorneys Association; California
State Sheriffs' Association; Child Abuse Prevention
Center; Board of Behavioral Sciences; California
Psychological Association; Los Angeles District
Attorney's Office
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD CERTAIN DEFINITIONS IN THE MANDATORY CHILD ABUSE REPORTING
LAWS BE UPDATED TO REFLECT MODERN TECHNOLOGY?
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PURPOSE
The purpose of this bill is to update the definition of "sexual
exploitation" in the mandated child abuse reporting law with
respect to visual depictions of children in obscene sexual
conduct to reflect modern technology, 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 generally requires mandated child abuse and neglect
reporters 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." (Penal Code �
11166 (a).)
Current law defines "sexual abuse" to mean sexual assault or
sexual exploitation, as specified. (Penal Code � 11165.1.)
Included in the definition of "sexual exploitation is the
following:
Any person who depicts a child in, or who knowingly
develops, duplicates, prints, or exchanges, any film,
photograph, video tape, negative, or slide in which a
child is engaged in an act of obscene sexual conduct,
except for those activities by law enforcement and
prosecution agencies and other persons described in
subdivisions (c) and (e) of Section 311.3. (Penal
Code � 11165.1(c)(3).)
This bill would revise this definition to add the following
characterizations:
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A person who depicts a child in, or who knowingly
develops, duplicates, prints, downloads, streams,
accesses through any electronic or digital media, or
exchanges, a film, photograph, videotape, video
recording , negative, or slide in which a child is
engaged in an act of obscene sexual conduct, except
for those activities by law enforcement and
prosecution agencies and other persons described in
subdivisions (c) and (e) of Section 311.3. (emphasis
added.)
This bill would make additional, purely technical revisions to
this section.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
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In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
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following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Stated Need for This Bill
The author states in part:
This bill will amend the Child Abuse and Neglect
Reporting Act to include "downloading" and "streaming"
as part of its definition of "sexual exploitation" to
ensure the reporting requirements related to internet
child pornography are defined to reflect modern
technology. This bill will further ensure the
protection of children from the proliferation of
sexual exploitation through internet child pornography
as well as possibly other forms of sexual abuse.
Currently, many mandated reporters, psychotherapists
included, are confused on whether they should report
the downloading or streaming of child pornography, as
they are required to with the printing or copying of
such materials.
. . . In the absence of specific language allowing
mandatory reports to be made for the "downloading" or
"streaming" of child pornography, the Child Abuse and
Neglect Reporting Act, as it reads, may be inadequate
to protect against sexual exploitation of children. .
. .
2. What This Bill Would Do
This bill would update the definition of "sexual exploitation"
in the mandated child abuse reporting law with respect to visual
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depictions of a child in obscene sexual conduct to reflect
modern technology.
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