BILL ANALYSIS �
AB 2545
Page 1
Date of Hearing: April 8, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2545 (Lowenthal) - As Introduced: February 21, 2014
SUMMARY : Prohibits the denial of an application for
compensation with respect to a claim based on sexual assault, as
defined, committed by military personnel against military
personnel, solely because the sexual assault was not reported to
a superior officer or law enforcement at the time of the crime.
Specifically, this bill :
1)Provides factors that the Victims Compensation and Government
Claims Board (VCGCB) shall consider for purposes of
determining if a claim qualifies for compensation include, but
are not limited to, the evidence of the following:
a) Restricted or unrestricted reports to a military victim
advocate, sexual assault response coordinator, chaplain,
attorney, or other military personnel;
b) Medical or physical evidence consistent with sexual
assault;
c) A written or oral report from military law enforcement
or a civilian law enforcement agency concluding that a
sexual assault crime was committed against the victim;
d) A notarized report from a sexual assault counselor, as
defined in Section 1035.2 of the Evidence Code, licensed
therapist, or mental health counselor, stating that the
victim is seeking services related to the allegation of
sexual assault;
e) A credible witness to whom the victim disclosed the
details that a sexual assault crime occurred;
f) A restraining order from a military or civilian court
against the perpetrator of the sexual assault; and,
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g) Other behavior by the victim consistent with sexual
assault.
2)Requires, for purposes of this subdivision, the sexual assault
at issue to have occurred during military service, including
deployment.
3)States, for purposes of this subdivision, the sexual assault
may have been committed offbase.
4)Defines "perpetrator" as an individual who is any of the
following at the time of the sexual assault:
a) An active duty military personnel from the United States
Army, Navy, Marine Corps, Air Force, or Coast Guard;
b) A civilian employee of any military branch specified
above, military base, or military deployment;
c) A contractor or agent of a private military or private
security company; or,
d) A member of the California National Guard.
5)Defines "sexual assault" to include rape, spousal rape,
penetration by a foreign object, sodomy, oral copulation, or
forcible acts of penetration, as specified.
EXISTING LAW :
1)States that all persons who suffer losses as a result of
criminal activity shall have the right to restitution from the
perpetrators. (Cal. Const., art. I, � 28(b)(13).)
2)Requires the court, to order a criminal defendant to pay both
a restitution fine and restitution to the victim or victims,
if any, in addition to any other penalty provided or imposed
under the law. (Pen. Code, � 1202.4, subd. (a)(3).)
3)Establishes VCGCB to operate the California Victim
Compensation Program (CalVCP). (Gov. Code, � 13950 et. seq.)
4)Provides than an application for compensation shall be filed
with VCGCB in the manner determined by the board. (Gov. Code,
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� 13952, subd.(a).)
5)States that except as provided by specified sections of the
Government Code, a person shall be eligible for compensation
when all of the following requirements are met (Gov. Code, �
13955):
a) The person form whom compensation is being sought any of
the following:
i) A victim;
ii) A derivative victim; or
iii) A person who is entitled to reimbursement for
funeral, burial or crime scene clean-up expenses pursuant
to specified sections of the Government Code.
b) Either of the following conditions is met:
i) The crime occurred within California, whether or not
the victim is a resident of California. This only
applies when the VCGCB determines that there are federal
funds available to the state for the compensation of
crime victims; or
ii) Whether or not the crime occurred within the State
of California, the victim was any of the following:
(1) A California resident.
(2) A member of the military stationed in
California.
(3) A family member living with a member of the
military stationed in California.
c) If compensation is being sought for derivative victim,
the derivative victim is a resident of California, or the
resident of another state who is any of the following:
i) At the time of the crimes was the parent,
grandparent, sibling, spouse, child or grandchild of the
victim;
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ii) At the time of the crime was living in the household
of the victim;
iii) At the time of the crime was a person who had
previously lived in the house of the victim for a person
of not less than two years in a relationship
substantially similar to a previously listed
relationship;
iv) Another family member of the victim including, but
not limited to, the victim's fianc� or fianc�e, and who
witnessed the crime; or
v) Is the primary caretaker of a minor victim, but was
not the primary caretaker at the time of the crime.
d) And other specified requirements.
6)Authorizes VCGCB to reimburse for pecuniary loss for the
following types of losses (Gov. Code, � 13957, subd. (a)):
a) The amount of medical or medical-related expenses
incurred by the victim, subject to specified limitations;
b) The amount of out-patient psychiatric, psychological or
other mental health counseling-related expenses incurred by
the victim, as specified, including peer counseling
services provided by a rape crisis center;
c) The expenses of non-medical remedial care and treatment
rendered in accordance with a religious method of healing
recognized by state law;
d) Compensation equal to the loss of income or loss of
support, or both, that a victim or derivative victim incurs
as a direct result of the victim's injury or the victim's
death, subject to specified limitations;
e) Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services;
f) The expense of installing or increasing residential
security, not to exceed $1,000, with respect to a crime
that occurred in the victim's residence, upon verification
by law enforcement to be necessary for the personal safety
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of the victim or by a mental health treatment provider to
be necessary for the emotional well-being of the victim;
g) The expense of renovating or retrofitting a victim's
residence or a vehicle to make them accessible or
operational, if it is medically necessary; and
h) Expenses incurred in relocating, as specified, if the
expenses are determined by law enforcement to be necessary
for the personal safety or by a mental health treatment
provider to be necessary for the emotional well-being of
the victim.
7)Limits the total award to or on behalf of each victim to
$35,000, except that this amount may be increased to $70,000
if federal funds for that increase are available. (Gov. Code,
� 13957, subd. (b).)
8)States that an application shall be denied if VCGCB finds that
the victim or derivative victim failed to cooperate reasonably
with a law enforcement agency in the apprehension and
conviction of a criminal committing the crime. However, in
determining whether cooperation has been reasonable, VCGCB
shall consider the victim's or derivative victim's age,
physical condition, and psychological state, cultural or
linguistic barriers, any compelling health and safety
concerns, including, but not limited to, a reasonable fear of
retaliation or harm that would jeopardize the well-being of
the victim or the victim's family or the derivative victim or
the derivative victim's family, and giving due consideration
to the degree of cooperation of which the victim or derivative
victim is capable in light of the presence of any of these
factors. (Gov. Code, � 13956, subd. (b)(1).)
9)Provides that an application for a claim based on domestic
violence may not be denied solely because no police report was
made by the victim. VCGCB shall adopt guidelines that allow
the board to consider and approve applications for assistance
based on domestic violence relying upon evidence other than a
police report to establish that a domestic violence crime has
occurred. Factors evidencing that a domestic violence crime
has occurred may include, but are not limited to, medical
records documenting injuries consistent with allegations of
domestic violence, mental health records, or the fact that the
victim has obtained a temporary or permanent restraining
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order, or all of these. (Gov. Code, � 13956, subd. (b)(2).)
10)States that an application for a claim based on human
trafficking, as defined, of the Penal Code may not be denied
solely because no police report was made by the victim. VCGCB
shall adopt guidelines that allow the board to consider and
approve applications for assistance based on human trafficking
relying upon evidence other than a police report to establish
that a human trafficking crime, as defined, has occurred. That
evidence may include any reliable corroborating information
approved by the board, including, but not limited to, the
following (Gov. Code, � 13956, subd. (b)(3).):
a) A Law Enforcement Agency Endorsement was issued, as
specified;
b) A human trafficking caseworker has attested by affidavit
that the individual was a victim of human trafficking.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "While existing
law requires the California Victim Compensation Program Board
to deny an application if they find that the victim failed to
cooperate reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing the
crime, it also specifies that an application for compensation
cannot be denied solely on the basis of specified behavior by
the victim, such as failure to make a police report. These
provisions exist for victims of domestic violence and victims
of human trafficking.
"AB 2545 seeks to allow military sexual assault survivors
similar considerations to those provided to victims of
domestic violence and human trafficking when they apply for
restitution with the California Victim Compensation Program.
Under this bill, a notarized report from a sexual assault
counselor or licensed therapist, could be considered as part
of the evidence used to support a claim for restitution."
2)Background : VCGCB provides compensation for victims of
violent crime. It reimburses eligible victims for many
crime-related expenses. Funding for the board comes from
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restitution fines and penalty assessments paid by criminal
offenders, as well as federal matching funds. (See VCGCB Web
site .)
3)Eligibility Requirements : To be eligible for compensation, a
person must be a victim of a qualifying crime involving
physical injury, threat of physical injury or death. For
certain crimes, emotional injury alone is all that needs to be
shown. Certain family members or other loved ones who suffer
an economic loss resulting from an injury to, or death of, a
victim of a crime may also be eligible for compensation.
"Applicants must meet the following eligibility requirements.
The victim must:
a) Have been a California resident when the crime occurred,
or the crime must have occurred in California.
b) Cooperate reasonably with police and court officials to
arrest and prosecute the offender.
c) Cooperate with CalVCP staff to verify the application.
d) Not have been involved in events leading to the crime or
have participated in the crime.
e) File the application within three years of the crime,
three years after the direct victim turns 18 years of age,
or three years from when the crime could have been
discovered, whichever is later. Also, if the application is
based on specified crimes involving sex with a minor, a
victim may file at any time prior to the victim's 28th
birthday." (See VCGCB Web site
.)
This bill affects the requirement that the victim must
cooperate reasonably with police and court officials to arrest
and prosecute the offender. Similar to victims of domestic
violence and victims of human trafficking, this bill prohibits
the denial of an application made by military personnel based
solely because the sexual assault was not reported to a
superior officer or law enforcement at the time of the crime.
Due to concerns about retaliation, a military personnel who is
a victim of sexual assault may fear reporting the incident to
a higher ranking officer. This bill will still require the
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victim to cooperate reasonably with law enforcement, but
allows the victim to use other evidence to prove the assault
occurred as well as cooperation with law enforcement.
4)State Audit of the Victim Compensation Program : In December
2008, the Bureau of State Audits (Bureau) released its report
concerning the Victim Compensation Program. In its report,
the Bureau highlighted the following findings:
a) From fiscal years 2001-02 through 2004-05, program
compensation payments decreased from $123.9 million to
$61.6 million-a 50% decline.
b) Despite the significant decline in payments, the costs
to support the program have increased. These costs make up
a significant portion of the Restitution Fund
disbursements-ranging from 26% to 42% annually.
c) The program did not always process applications and
bills as promptly or efficiently as it could have. Staff
took longer than 180 days to process applications in two
instances out of 49, and longer than 90 days to pay bills
for 23 of 77 paid bills the Bureau examined.
d) The program's numerous problems with the transition to a
new application and bill processing system led to a
reported increase in complaints regarding delays in
processing applications and bills.
e) Some payments in the Compensation and Restitution System
(CaRES) appeared to be erroneous. Although board staff
provided explanations for the payments when the Bureau
brought the matter to their attention, the fact that they
were unaware of these items indicates an absence of
controls that would prevent erroneous payments.
f) The Board lacks the necessary system documentation for
CaRES.
g) There are no benchmarks, performance measures, or formal
written procedures for workload management.
Despite the Board's efforts to increase awareness of the
program, several victim witness assistance centers do not
think the public is generally aware of program services.
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Further, the Board has not established a comprehensive
outreach plan. (Bureau of State Audits, Victim Compensation
and Government Claims Board Report 2008-113 (December 2008)
Summary, pp. 1-2.)
5)Argument in Support : According to California Coalition
Against Sexual Assault , the sponsor of this bill, "According
to a 2012 report by the Department of Defense Sexual Assault
Prevention and Response Office (SAPRO), sexual assaults in
the military have increased 34 percent. This increase in
prevalence is complicated by a decrease in reporting due to
perceived professional, social, or administrative retaliation
or reprisal from official authorities. In the absence of a
police report, survivors are unable to access Veterans
benefits or other necessary resources for counseling and
medical services.
"AB 2545 prohibits the denial of an application for Victim's
Compensation with respect to a claim based on sexual assault
committed by military personnel, solely because the sexual
assault was not reported to a superior officer or law
enforcement at the time of the crime. Under this bill, CalVCP
Board is required to consider other types of corroborating
evidence in order to determine if a claim qualifies for
compensation, including, but not limited to, a notarized
report from a sexual assault counselor or licensed therapist."
6)Current Legislation :
a) AB 1629 (Bonta) authorizes VCGCB to reimburse a crime
victim or a derivative victim for outpatient
violence-peer-counseling expenses incurred. AB 1629 is
pending hearing by the Committee on Appropriations.
b) AB 1911 (Patterson) shortens the time period in which
VCGCB must approve or deny an application to within 30
calendar days of the date of acceptance, and also shortens
the time period in which the board must make disbursements
of funds for emergency awards. AB 1911 is pending hearing
by this Committee.
c) AB 2489 (Lowenthal) decreases fees for attorneys
representing victims before VCGCB. AB 2489 is pending
hearing by this Committee.
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d) AB 2685 (Cooley) allows a representative of the VCGCB to
provide the probation department, district attorney, and
court with information relevant to the board's losses prior
to the imposition of a sentence. AB 2685 is pending
hearing by this Committee.
7)Prior Legislation :
a) SB 618 (Leno), Chapter 800, Statutes of 2013,
streamlines the process for compensating persons who have
been exonerated after being wrongfully convicted and
imprisoned.
b) AB 1270 (Torrico), of the 2009-10 Legislative Session,
would have required VCGCB to adopt written procedures and
timeframes for the timely processing of claims. AB 1270
was vetoed.
c) AB 2809 (Leno), Chapter 587, Statutes of 2008, allowed a
minor who suffers emotional injury as a direct result of
witnessing a violent crime to be eligible for reimbursement
for the costs of outpatient mental health counseling if the
minor was in close proximity to the victim when he or she
witnessed the crime
d) AB 2869 (Leno), Chapter 582, Statutes of 2006, specified
that the provisions authorizing reimbursement for funeral
and burial expenses under existing law apply without
respect to any felon status of the victim.
e) AB 2729 (Wesson), of the 2001-2002 Legislative Session,
would have expanded mental health services to include
reimbursement for domestic violence peer counselors. AB
2729 was vetoed.
f) AB 606 (Jackson) Chapter 584, Statutes of 1999,
authorized reimbursement of services provided by child life
specialists under specified circumstances, and added
benefits for relocation, residential security, home and
vehicle modification.
g) SB 1735 (Karnette), Chapter 629, Statutes of 2002,
prohibited an application for a claim based on domestic
violence from being denied solely because no police report
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was made by the victim. AB 1735 required the board to
adopt guidelines that allow the board to consider and
approve applications for assistance based on domestic
violence relying upon evidence other than a police report
to establish that domestic violence crime has occurred.
REGISTERED SUPPORT / OPPOSITION :
Support
California Coalition Against Sexual Assault (Sponsor)
American Legion, Department of California
AMVETS, Department of California
Military Officers Association of America, California Council of
Chapters
Veterans Caucus of the California Democratic Party
Veterans of Foreign Wars, Department of California
Vietnam Veterans of America, California State Council
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744