BILL ANALYSIS
AB 755
Page 1
Date of Hearing: April 17, 2007
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 755 (Lieber) - As Introduced: February 22, 2007
SUMMARY : Creates a rebuttable presumption that any person who
willfully inflicts on a child physical pain or mental suffering
resulting from specified manners is unjustifiable.
Specifically, this bill :
1)Finds and declares that "child abuse is a major social problem
and that children in the age group of birth to three years
suffer the highest rate of victimization. Child fatalities
are the most tragic consequences of maltreatment, and the vast
majority of children killed are younger than four years old.
Fatal abuse is too often the result of hitting or shaking by
caregivers under the guise of discipline. Infants and
toddlers are the most vulnerable because of their tender age
and inability to defend themselves or ask for help. It is
therefore wholly reasonable that the integrity and sanctity of
their bodies should be afforded the greatest protection under
the law."
2)Provides that if the infliction of physical pain or mental
suffering occurred as a result of any of the following, there
is a rebuttable presumption that the physical pain or mental
suffering is unjustifiable:
a) The use of an implementation, including, but not limited
to, a stick, a rod, a switch, an electrical cord, a belt, a
broom, or a shoe;
b) Throwing, kicking, burning, or cutting a child;
c) Striking a child with a closed fist;
d) Striking a child under the age of three on the face or
head;
e) Vigorous shaking of a child under the age of three;
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f) Interference with a child's breathing; or,
g) Threatening a child with a deadly weapon.
3)Requires the successful completion of either a non-violent
parental education class approved by the probation department
or no less than one year of a child abuser's treatment
counseling program approved by the probation department. The
court shall determine whether the parenting class or the
treatment counseling program is the most appropriate under the
circumstances of each particular case and order the defendant
to complete the one which is most appropriate.
EXISTING LAW :
1)States any person who, under circumstances or conditions
likely to produce great bodily harm or death, willfully causes
or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the
care or custody of any child, willfully causes or permits the
person or health of that child to be injured, or willfully
causes or permits that child to be placed in a situation where
his or her person or health is endangered, shall be punished
by imprisonment in a county jail not exceeding one year, or in
the state prison for two, four, or six years. [Penal Code
Section 273a(a).]
2)Provides that any person who, under circumstances or
conditions other than those likely to produce great bodily
harm or death, willfully causes or permits any child to
suffer, or inflicts thereon unjustifiable physical pain or
mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of that child
to be injured, or willfully causes or permits that child to be
placed in a situation where his or her person or health may be
endangered, is guilty of a misdemeanor. [Penal Code Section
273a(b).]
3)Requires persons convicted of causing willful harm or injury
to a child, or endangering the person or health of a child and
probation is granted, the court shall set the following as
minimum standards of probation:
a) A mandatory minimum period of probation of 48 months;
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b) A criminal court protective order protecting the victim
from further acts of violence or threats, and, if
appropriate, residence exclusion or stay-away conditions;
c) Successful completion of no less than one year of a
child abuser's treatment counseling program approved by the
probation department. The defendant shall be ordered to
begin participation in the program immediately upon the
grant of probation. The counseling program shall meet
specified criteria as outlined under existing law. The
defendant shall produce documentation of program enrollment
to the court within 30 days of enrollment, along with
quarterly progress reports;
d) The terms of probation for offenders shall not be lifted
until all reasonable fees due to the counseling program
have been paid in full, but in no case shall probation be
extended beyond the term provided under existing law. If
the court finds that the defendant does not have the
ability to pay the fees based on the defendant's changed
circumstances, the court may reduce or waive the fees;
e) If the offense was committed while the defendant was
under the influence of drugs or alcohol, the defendant
shall abstain from the use of drugs or alcohol during the
period of probation and shall be subject to random drug
testing by his or her probation officer; and,
f) The court may waive any of the above minimum conditions
of probation upon a finding that the condition would not be
in the best interests of justice. The court shall state on
the record its reasons for any waiver. [Penal Code Section
273a(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Corporal
punishment of children as a discipline technique has long been
a source of debate. What starts as discipline, though, too
often becomes abuse.
"Conservative estimates indicate that almost 2,000 infants and
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young children die from abuse or neglect by parents or
caretakers each year or five children every day. More must be
done to protect the smallest citizens of the State.
"Corporal punishment in California schools has been illegal
since 1986 (Education Code Section 49000). It is also
expressly prohibited in day care centers, group homes, and
foster care.
"Existing law, Penal Code Section 273a, makes it a crime for any
person, under specified circumstances, to willfully cause or
permit a child to suffer or inflict on a child unjustifiable
physical pain or mental suffering.
"The vagueness of the 'unjustifiable' standard leads to
inconsistent results. Cases of discipline serious enough to
injure a child and warrant prosecution may go unpunished if
the defendant raises the affirmative defense of 'reasonable
corporal punishment'. Nor does current law explicitly ban
baby-shaking, which can result in grave injury to infants.
"This legislation amends California Penal Code Section 273a.
"This bill creates a rebuttable presumption that certain
specified types of discipline are to be considered
unjustifiable per se. These provisions allow prosecutors to
charge baby-shaking as either a felony or a misdemeanor. This
bill also expands the sentencing discretion of courts by
adding non-violent parenting education classes as an option
for those convicted under the statute."
2)Background : According to information provided by the author,
"A battery is 'any willful and unlawful use of force or
violence upon the person of another'." (Penal Code Section
242.)
"Existing law explicitly exempts from criminal battery
prosecution adults who use physical violence on minors in the
form of corporal punishment. The degree of battery permitted
is defined negatively: the level of force used cannot be
'unjustifiable'.
"The imprecision of this language has permitted a broad range
of batteries on children to be excused by the courts or go
unprosecuted.
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"The international law community has reached agreement
generally that corporal punishment is a human rights
violation. Several countries, most recently New Zealand, have
officially banned corporal punishment, including spanking. No
American state currently does so."
3)Historical Backdrop behind Corporal Punishment : Corporal
punishment is the infliction of physical force by a parent or
guardian upon a child with the intent of correcting a child's
behavior. Adults have used corporal punishment to discipline
children for centuries; however, it does have its limits.
Historically, common law held that a parent was "not permitted
to resort to punishment which would exceed that properly
required for disciplining purposes or which would extend
beyond the bounds of moderation. Excessive or cruel conduct
was universally prohibited." [ Bowers v. State (Md. 1978) 389
A.2d 341, 348.]
All 50 states permit corporal punishment, either explicitly in
state statutes or through court decisions. [Annotation,
Criminal Liability for Excessive or Improper Punishment
Inflicted on Child by Parent, Teacher, or One in Loco
Parentis , 89 A.L.R.2d 396 (1995).] By official estimates,
over 90% of American parents use corporal punishment to
discipline their children. [Rodney Stark & James McEvoy III,
Middle Class Violence , Psychol. Today, Nov. 1970, at 54.]
The Bible sanctions corporal punishment and religious and other
moral teachings have approved of the threat and use of force
as a proper method of disciplining children. Biblical support
came from Proverbs 23:13-14: "Withhold not correction from
the child; for if thou beatest him with the rod, he shall not
die. Though halt beat him with the rod, and shalt deliver his
soul from hell." [Cited in People v. Mummert (Nassau County
Ct. 1944) 40 N.Y.S.2d 699, 703-04.] Martin Luther believed
that parents could use extreme measures, even death, when
children were disobedient. [ What Luther Says: An Anthology
145 (E. Plass ed., 1959).] Based upon these religious
authorities, many people believed that beating a child was
acceptable.
4)Corporal Punishment versus Constitutional Right to Discipline :
Some people believe that corporal punishment is an inherent
parental right. The United States Supreme court has provided
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support for the idea that parents have a constitutional right
to use corporal punishment. The interests of parents in the
care, custody, and control of their children is a fundamental
right protected by the Constitution. [ Troxel v. Granville
(2000) 530 U.S. 57, 66 ("In light of . . . extensive
precedent, it cannot now be doubted that the Due Process
Clause of the Fourteenth Amendment protects the fundamental
right of parents to make decisions concerning the care,
custody, and control of their children." (citing Meyer v.
Nebraska (1923) 262 U.S. 390; Pierce v. Soc'y of Sisters
(1925) 268 U.S. 510; Prince v. Massachusetts (1944) 321 U.S.
158; Stanley v. Illinois (1972) 405 U.S. 645; Wisconsin v.
Yoder (1972) 406 U.S. 205; Quilloin v. Walcott (1978) 434
U.S. 246 ; Parham v. J.R .(1979) 442 U.S. 584; Santosky v.
Kramer (1982) 455 U.S. 745; Washington v. Glucksberg ( 1997)
521 U.S. 702.]
There are, however, limits to this right. A parent who
willfully inflicts unjustifiable punishment is not immune from
criminal prosecution. [ People v. Stewart (1961) 188
Cal.App.2d 88, 91; People v. Curtiss (1931) 116 Cal.App. Supp.
771, 777.] As explained in Curtiss , corporal punishment is
unjustifiable when it is not warranted by the circumstances,
i.e., not necessary, or when such punishment, although
warranted, was excessive. (116 Cal.App. at p. Supp. 780.)
"[B]oth the reasonableness of, and the necessity for, the
punishment is to be determined by a jury, under the
circumstances of each case." [ Id ., at p. Supp. 777.]
The Attorney General (AG) issued an opinion on July 21, 1997
concerning the lawfulness of corporal punishment administered
by a parent. The AG concluded that such punishment may be so
administered as long as it is necessary and not excessive in
relation to the individual circumstances. The AG stated, "The
use of an object other than the open hand when a parent
administers a spanking to his or her child is not in itself
unlawful. However, the particular object used may affect the
reasonableness of the punishment, which is at the center of
the legal right to discipline one's own child. In People v.
Whitehurst (1992) 9 Cal.App.4th 1045, 1050, the court recently
explained:
'A parent has a right to reasonably discipline by punishing a
child and may administer reasonable punishment without being
liable for a battery. [ Emery v. Emery (1955) 45 Cal.2d 421,
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429; People v. Stewart 188 Cal.App.2d at p. 91.] This
includes the right to inflict reasonable corporal punishment.
[ People v. Curtiss 116 Cal.App.Supp. at p. 775.]
'However, a parent who willfully inflicts unjustifiable
punishment is not immune from either civil liability or
criminal prosecution. [ People v. Stewart, supra, 188
Cal.App.2d 88, 91; People v. Curtiss, supra , 116 Cal.App.Supp.
771, 777.] As explained in Curtiss , corporal punishment is
unjustifiable when it is not warranted by the circumstances,
i.e., not necessary, or when such punishment, although
warranted, was excessive. [116 Cal.App. at p. Supp. 780.]
"Both the reasonableness of, and the necessity for, the
punishment is to be determined by a jury, under the
circumstances of each case." [ Id ., at p. Supp. 777.]
'Thus as these cases make clear, whether the corporal punishment
falls within the parameters of a parent's right to discipline
involves consideration of not only the necessity for the
punishment but also whether the amount of punishment was
reasonable or excessive. Reasonableness and necessity
therefore are not two separate defenses but rather two aspects
of the single issue of parental right to discipline by
physical punishment . . . . '
Hence, it is not unlawful for a parent to spank a child for
disciplinary purposes with an object other than the hand;
however, the punishment must be necessary and not excessive.
Whether such punishment is necessary and not excessive is for
the tier of fact to decide, not the Legislature as this bill
projects.
5)Rebuttable Presumptions Violate Constitutional Principles : A
rebuttable presumption is an inference drawn from certain
facts that establish a prima facie case, which may be overcome
by the introduction of contrary evidence.
In criminal cases, a mandatory presumption offends
constitutional principles of due process of law because it
relieves the prosecutor from having to prove each element of
the offense beyond a reasonable doubt. [ People v. Williams
(2005) 130 Cal.App.4th 1440, 1444-1445.] "The prosecution
'may not rest its case entirely on a [mandatory rebuttable]
presumption unless the fact proved is sufficient to support
the inference of guilt beyond a reasonable doubt'." [ People
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v. McCall (2004) 32 Cal.4th 175, 183.]
An example of an impermissible mandatory presumption is
contained in Carella v. California (1989) 491 U.S. 263.
Carella was convicted of grand theft for failure to return a
rented car. At the time of his conviction, Penal Code Section
10855 provided "[w]henever any person who has leased or rented
a vehicle willfully and intentionally fails to return the
vehicle to its owner within five days after the lease or
rental agreement has expired, that person shall be presumed to
have embezzled the vehicle." Penal Code Section 484(b)
provided in part that "intent to commit theft by fraud is
presumed if one who has leased or rented the personal property
of another pursuant to a written contract fails to return the
personal property to its owner within 20 days after the owner
has made written demand . . . ."
The jury was instructed that if the conditions of Penal Code
Section 10855 were met, the person "shall be presumed to have
embezzled the vehicle." [ Carella v. California, supra , 491
U.S. at p. 264.] The jury was also instructed that if the
conditions of Penal Code Section 484(b) were met "intent to
commit theft by fraud is presumed . . . . " [ Carella , supra,
at p. 264.]
The United States Supreme Court found these instructions
violated the Fourteenth Amendment. "These mandatory
directions directly foreclosed independent jury consideration
of whether the facts proved established certain elements of
the offense with which Carella was charged. The instructions
also relieved the State of its burden of proof articulated in
Winship [ In re Winship (1970) 397 U.S. 358], namely proving by
evidence every essential element of Carella's crime beyond a
reasonable doubt." [ Carella v. California , supra, 491 U.S. at
p. 266.]
Expressions in many opinions of the Supreme Court indicate that
it has long been assumed that proof of a criminal charge
beyond a reasonable doubt is constitutionally required. [See,
for example, Miles v. United States (1881) 103 U.S. 304, 312;
Davis v. United States (1895)160 U.S. 469, 488; Holt v. United
States (1910) 218 U.S. 245, 253; Wilson v. United States
(1914) 232 U.S. 563, 569-570; Brinegar v. United States (1949)
338 U.S. 160, 174 (1949); Leland v. Oregon (1952) 343 U.S.
790, 795; Holland v. United States (1954) 348 U.S. 121, 138;
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Speiser v. Randall (1958) 357 U.S. 513, 525-526. Cf. Coffin v.
United States (1895) 156 U.S. 432.] Mr. Justice Frankfurter
stated "it is the duty of the Government to establish . . .
guilt beyond a reasonable doubt. This notion -- basic in our
law and rightly one of the boasts of a free society -- is a
requirement and a safeguard of due process of law in the
historic, procedural content of 'due process'." [ Leland v.
Oregon, supra , at 802-803 (dissenting opinion)].
In a similar vein, the Court said in Brinegar v. United States,
supra , at 174, that "guilt in a criminal case must be proved
beyond a reasonable doubt and by evidence confined to that
which long experience in the common-law tradition, to some
extent embodied in the Constitution, has crystallized into
rules of evidence consistent with that standard. These rules
are historically grounded rights of our system, developed to
safeguard men from dubious and unjust convictions, with
resulting forfeitures of life, liberty and property." Davis
v. United States, supra , at 488, stated that the requirement
is implicit in "constitutions . . . [which] recognize the
fundamental principles that are deemed essential for the
protection of life and liberty." The Supreme Court demands
that, "No man should be deprived of his life under the forms
of law unless the jurors who try him are able, upon their
consciences, to say that the evidence before them . . . is
sufficient to show beyond a reasonable doubt the existence of
every fact necessary to constitute the crime charged." ( Id. ,
at 484, 493.)
The reasonable-doubt standard plays a vital role in the American
scheme of criminal procedure and is a prime instrument for
reducing the risk of convictions resting on factual error.
The standard provides concrete substance for the presumption
of innocence -- that bedrock "axiomatic and elementary"
principle whose "enforcement lies at the foundation of the
administration of our criminal law." ( Coffin v. United
States, supra, at 453.)
The requirement of proof beyond a reasonable doubt has a vital
role in criminal procedure for cogent reasons. The accused
during a criminal prosecution has at stake interests of
immense importance, both because of the possibility that he or
she may lose his or her liberty upon conviction and because of
the certainty that he or she would be stigmatized by the
conviction. Accordingly, a society that values the good name
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and freedom of every individual should not condemn a man for
commission of a crime when there is reasonable doubt about his
or her guilt. The Supreme Court said in Speiser v. Randall ,
supra, at 525-526: "There is always in litigation a margin of
error, representing error in factfinding, which both parties
must take into account. Where one party has at stake an
interest of transcending value -- as a criminal defendant his
liberty -- this margin of error is reduced as to him by the
process of placing on the other party the burden of . . .
persuading the factfinder at the conclusion of the trial of
his guilt beyond a reasonable doubt. Due process commands
that no man shall lose his liberty unless the Government has
borne the burden of . . . convincing the factfinder of his
guilt." To this end, the reasonable-doubt standard is
indispensable, for it "impresses on the trier of fact the
necessity of reaching a subjective state of certitude of the
facts in issue." [ Dorsen & Rezneck, In Re Gault and the
Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1,
26 (1967).]
The reasonable doubt standard is further codified by Penal Code
Section 1096 which states, "A defendant in a criminal action
is presumed to be innocent until the contrary is proved, and
in case of a reasonable doubt whether his or her guilt is
satisfactorily shown, he or she is entitled to an acquittal,
but the effect of this presumption is only to place upon the
state the burden of proving him or her guilty beyond a
reasonable doubt. Reasonable doubt is defined as follows: 'It
is not a mere possible doubt; because everything relating to
human affairs is open to some possible or imaginary doubt. It
is that state of the case, which, after the entire comparison
and consideration of all the evidence, leaves the minds of
jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.'"
Hence, use of the reasonable-doubt standard is indispensable to
command the respect and confidence of the community in
applications of the criminal law. It is critical that the
moral force of the criminal law not be diluted by a standard
of proof that leaves people in doubt whether innocent men are
being condemned. It is also important in free society that
every individual going about his or her ordinary affairs has
confidence that his or her government cannot adjudge him
guilty of a criminal offense without convincing a proper fact
finder of his guilt with utmost certainty.
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Thus, a "rebuttable presumption 'tells the trier of fact that he
or they must find the elemental fact upon proof of the basic
fact, at least until the defendant has come forward with some
evidence to rebut the presumed connection between the two
facts . . . .' " [ McCall 32 Cal.4th at p. 183.] Thus, "it is
a 'troublesome' evidentiary device in a criminal case since
the prosecution bears the burden of establishing guilt beyond
a reasonable doubt." [ Ibid , citing Ulster County Court v.
Allen (1979) 442 U.S. 140, 157.] Under federal due process
principles, "The prosecution 'may not rest its case entirely
on a [rebuttable] presumption unless the fact proved is
sufficient to support the inference of guilt beyond a
reasonable doubt'." [ McCall , at p. 183, citing Ulster , at p.
167.] Therefore, a mandatory rebuttable presumption that
reduces the prosecution's burden of proving every element of
an offense beyond a reasonable doubt violates a defendant's
right to due process. [ Sandstrom v. Montana (1979) 442 U.S.
510, 523-524; People v. Roder (1983) 33 Cal.3d 491, 504.]
The amendments to Penal Code Section 273a as proposed by this
bill violate a defendant's right to due process. This bill
creates a mandatory rebuttable presumption that "physical pain
or mental suffering is unjustifiable" when obtained under
specified circumstances. Criminal liability under Penal Code
273a should not be contingent on the type of object used.
Rather, the issue is whether the parent has inflicted
"unjustifiable physical pain or mental suffering" when
considered under individual objective circumstances. "Section
273a holds every person to an objective standard of
reasonableness regarding the causing of physical pain, mental
suffering or injury to a child or the endangering of a child's
person or health." [ People v. Deskin (1992) 10 Cal.App.4th
1397, 1403.] As the case law indicates, a mandatory
presumption is unconstitutional and it goes against the
foundation of our criminal justice system. Due process
demands that no man shall lose his liberty unless the
Government has bared the burden of proving each and every
element beyond a reasonable doubt.
6)Argument in Support : None submitted.
7)Arguments in Opposition :
a) According to David E.C. Gettis, Esq. , " . . . by
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creating a rebuttable presumption that the use of an object
causing pain (i.e., spanking) is child abuse, she is doing
indirectly what she realizes she can't do directly. It is
clear that the author hopes that if her bill passes,
parents will stop spanking their children with an object.
This bill would have that effect because parents who use an
object to administer reasonable corporal discipline will
face almost certain prosecution, the possible loss of their
children, and be faced with the awesome and expensive task
of proving themselves innocent in court.
"This bill is not necessary because current law safeguards
the state's interest in protecting children from abuse,
while at the same time recognizing a parent's
constitutional right to direct the upbringing of their
children. Nor is the current law vague. The law provides
that corporal discipline is justified only when necessary
and not excessive. [ People v. Whitehurst , 9 Cal.App.4th,
1045, 1056 (1992).]
* * *
" . . . Case decisions in California have rules that in a
criminal case, a mandatory presumption violates due process
because it relieves the prosecutor of having to prove each
element of the crime beyond a reasonable doubt unless the
fact needed to be proved (the use of an object to spank) is
sufficient on its own to support the inference of guilty
beyond a reasonable doubt. The predicate fact (use of an
object) is no sufficient to support the inference of guilt
beyond a reasonable doubt. Attorney General Opinion No.
97-416, July 21, 1997, addressed this very issue. The
opinion concluded that the use of an object in spanking was
not per se a violation of California law and that the
'reasonableness of discipline is a question of fact to be
determined objectively in light of the individual
circumstances presented.' . . . "
b) According to the California Public Defenders
Association, "Existing law makes it a crime for any person,
under specified circumstances, to willfully cause or permit
a child to suffer, or inflicts on a child unjustifiable
physical pain or mental suffering. This bill would create
a rebuttable presumption that if the physical pain or
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mental suffering results from the use of an implementation,
throwing, kicking, burning, or cutting a child; striking a
child with a closed fist; striking a child under three on
the face or head, vigorous shaking of a child under three;
interference with a child's breathing; or threatening a
child with a deadly weapon, then it is unjustifiable. This
bill would also authorize the court to order a person
convicted of this offense into a non-violent parental
education class as a condition of probation, if
appropriate.
"Our concern with this bill is with the evidentiary burden of
proof. Under existing law, as mandated by the
Constitution, the prosecution has the burden of proving
beyond a reasonable doubt the facts that support the
finding that the elements of the crimes are present. By
creating a rebuttable presumption that the conduct was
unjustifiable, this bill turns that constitutional
requirement on its head by in essence requiring the accused
to prove the nonexistence of an element of the crime. As
such, this approach should be rejected."
REGISTERED SUPPORT/OPPOSITION :
Support
None
Opposition
California Attorneys for Criminal Justice
California Family Council
California Public Defenders Association
Campaign for Children and Families
Capitol Resource Institute
Child and Family Protection Association
Concerned Women for America
6 Private Citizens
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744