BILL ANALYSIS
AB 2410
Page 1
Date of Hearing: April 15, 2008
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 2410 (Nava) - As Amended: February 21, 2008
SUBJECT : SEXUALLY VIOLENT PREDATORS: VICTIM AND WITNESS
INFORMATION
KEY ISSUE : SHOULD VICTIM AND WITNESS INFORMATION IN CIVIL
COMMITMENT PROCEEDINGS FOR SEXUALLY VIOLENT PREDATORS BE SUBJECT
TO THE SAME CONFIDENTIALITY RULES AS IN RELATED CRIMINAL
PROCEEDINGS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
In criminal proceedings regarding persons charged as sexually
violent predators, information regarding victims and witnesses
is restricted to those who need it to participate in the
process. Following completion of a criminal sentence, such
persons may be subject to civil commitment proceedings rather
than being released. This bill would provide the same
confidentiality for victim and witness information in these
civil commitment proceedings as in the related criminal
proceeding. It is supported by law enforcement and victims
groups. There is no known opposition.
SUMMARY : Creates victim and witness confidentiality
requirements in sexually violent predator (SVP) civil commitment
proceedings that are commensurate with the standards set forth
in criminal proceedings. Specifically, this bill :
1) Prohibits either party's attorney in a SVP civil
commitment proceeding from disclosing the name, address,
telephone number, or other identifying information of a victim
or witness, except to his or her staff, persons hired or
appointed to assist on the case, opposing counsel as needed to
prepare the case, or pursuant to a court order after a
hearing.
a) Specifies that willful violation of this prohibition
would be a misdemeanor.
AB 2410
Page 2
b) Provides if the defendant is acting as his or her own
counsel, requires that contact with the victim or witness
be through a private investigator or otherwise restricted
to protect the identity and personal information of the
victim or witness.
2) Prohibits disclosure of identifying information of a
person involved in an SVP civil commitment proceeding by an
agent of the California Department of Corrections and
Rehabilitation (CDCR), Board of Parole Hearings (BPH), or the
Department of Mental Health (DMH).
3) Permits courts to identify the victim in all records and
during all proceedings of a SVP civil commitment proceeding as
"Jane Doe" or "John Doe" as long as it is not prejudicial to
either side and the jury is instructed that the victim's
identity is being withheld to protect his or her privacy.
EXISTING LAW :
1) In criminal proceedings, provides that no attorney may
disclose or permit to be disclosed to a defendant, members of
the defendant's family, or any other person the address or
telephone number of a victim or witness unless specifically
permitted to do so by the court after a hearing and a showing
of good cause. (Penal Code Section 1054.2(a)(1).)
a) Excepts from disclosure prohibitions to persons
employed by the attorney or to persons appointed by the
court to assist in the preparation of a defendant's case if
that disclosure is required for that preparation. Persons
provided this information by an attorney shall be informed
by the attorney that further dissemination of the
information, except as provided by this section, is
prohibited. (Penal Code Section 1054.2(a)(2).)
b) States willful violation of this subdivision by an
attorney, persons employed by the attorney, or persons
appointed by the court is a misdemeanor. (Penal Code
Section 1054.2(a)(3).)
AB 2410
Page 3
2) Specifies if the defendant is acting as his or her own
attorney, the court shall endeavor to protect the address and
telephone number of a victim or witness by providing for
contact only through a private investigator licensed by the
Department of Consumer Affairs and appointed by the court or
by imposing other reasonable restrictions, absent a showing of
good cause as determined by the court. (Penal Code Section
1054.2(b).)
COMMENTS : According to the author, "AB 2410 grants similar
privacy protections to victims in SVP civil hearings which are
currently bestowed to victims in criminal proceedings. Under
current law, the Penal Code provides several protections to keep
the names and addresses of victims of a sex offense confidential
in a criminal proceeding. Penal Code 293 provides that law
enforcement agencies shall not disclose to any person the
address or name of a person who alleges to be the victim of a
sex offense, subject to some exceptions. Moreover, Penal Code
293.5 authorizes courts to protect the identity of victims by
ordering that the alleged victim be referred to as Jane Doe or
John Doe in all records and all proceedings. Finally, Penal
Code 1054.2 prohibits attorneys, including defense counsel and
their agents, from disclosing victim information to the
defendant or defendant's family members. The protections
discussed above do not apply in civil cases, including
commitment hearings for sexually violent predators."
The author states, "This bill would provide victims in SVP
proceedings with the parallel protections afforded to victims in
criminal trials. The bill would reinforce privacy for victims
without significantly sacrificing the SVP respondent's ability
to have access to witnesses. Defense attorneys and defense
investigators would retain access to victims in order to carry
out their pre-hearing work. This bill would therefore address
the concerns of victim confidentiality and safety without
compromising a respondent's ability to present his or her case
in a SVP proceeding."
SVP Civil Commitment Proceedings. California's SVP Act became
effective January 1, 1996. The Act created a new civil
commitment for SVPs. The Legislature disavowed any "punitive
purpose" and declared its intent to establish "civil commitment"
proceedings in order to provide "treatment" to mentally
disordered individuals who cannot control sexually violent
AB 2410
Page 4
criminal behavior. (See AB 888 (Rogan), Chapter 763, Statutes
of 1995, Section 1.) The Legislature also made clear that
despite their criminal records persons eligible for commitment
and treatment as SVPs are to be viewed "not as criminals, but as
sick persons." (WIC Section 6250.) Consistent with these
remarks, the SVP Act was placed in the Welfare and Institutions
Code, surrounded by other schemes concerned with the care and
treatment of various mentally ill and disabled groups. (See WIC
Section 5000 (Lanterman-Petris-Short Act) and WIC Section 6500
(Mentally Retarded Persons Law).)
The SVP law tries to ensure that sexual predators suffering from
mental disorders and deemed likely to re-offend are treated in a
secure facility through a civil commitment process. The CDCR
and the Board of Parole Hearings screen cases to determine if
they meet the criteria specified in the statute. If so, the
prisoner is referred to the DMH for clinical evaluation by two
clinical evaluators. If both clinical evaluators find that the
prisoner meets the criteria, the case is referred to the county
district attorney who may file a petition for civil commitment.
Once a petition has been filed, a judge holds a probable cause
hearing; if probable cause is found, the prisoner is scheduled
for a trial. If the jury finds beyond a reasonable doubt that
the offender meets the statutory criteria, the prisoner may then
be civilly committed to a DMH facility for treatment.
While at trial, SVPs fall between the rules of criminal
procedure and civil procedure. The standard at trial is the
standard for a criminal conviction, "beyond a reasonable doubt."
On the other hand, the respondent does not have the
constitutionally guaranteed rights of a criminal defendant. For
instance, he or she does not have the right to not testify at
the proceeding.
The SVP law was substantially amended by Proposition 83
("Jessica's Law") operative on November 7, 2006 and SB 1128
(Alquist), Chapter 337, Statutes of 2006. Existing law now
states a person committed as a sexually violent predator may be
held for an indeterminate term upon commitment. Annual review
of the offender's status shall be conducted on an annual basis,
but he or she may not be released until the DMH determines the
offender no longer meets the definition of a sexually violent
predator or less restrictive placement is appropriate. (WIC
Section 6605(b).)
AB 2410
Page 5
Parity with Criminal Proceedings. In civil SVP proceedings,
both parties are granted the ability to utilize discovery
methods that are available under the Civil Discovery Act, which
means that both parties in an SVP proceeding may request and
obtain the name and contact information of victims if they are
potential witnesses. Although the Penal Code provides several
protections against disclosure of this information in a criminal
proceeding, there are no equivalent protections provided for
victims or witnesses in civil SVP hearings. Affording parties
in SVP proceedings unrestricted ability to disclose victim
information may compromise victim privacy rights, could deter
some victims from testifying at the hearing, and could be used
to harass the victim or witness at a later time. Both existing
law and this bill allow either party to obtain contact
information regarding the victim in order to conduct a fair
proceeding. However, neither party may disclose that
information to the defendant. This bill brings parity between
the protections afforded victims and witnesses in criminal
matters with those of past victims and witnesses in SVP civil
commitment proceedings.
Witnesses and Victims in SVP Civil Commitment Proceedings as
Distinguished from Criminal Proceedings. The Committee is
informed that in SVP proceedings witness and victim
participation is usually less involved than in criminal
proceedings. The focus of the proceedings is almost exclusively
expert testimony based on the prior record of the respondent.
In most cases, the witnesses and victims provided prior
testimony at the original criminal proceeding. Since the SVP
petition is usually filed at the expiration of a criminal
defendant's prison term, many times the witnesses are
unavailable. It is most common for the petitioning attorney to
read the prior testimony of a witness or victim into the record
before the judge and/or jury at SVP proceedings. Rarely, if
ever, do victims or witnesses testify in SVP proceedings. The
issue is not whether the respondent committed the original acts
because the respondent has already been convicted of those
crimes. The issue is generally whether the respondent will
commit more acts if released to the community. The petitioner
generally uses expert testimony based on the prior history of
the respondent to meet the elements they must establish.
ARGUMENTS IN SUPPORT : According to the Ventura County Sheriff's
Department:
AB 2410
Page 6
The California Penal Code mandates the confidentiality of
sex crime victims from disclosure by law enforcement and
during court proceedings. However, the same protections do
not exist in civil cases. This includes commitment hearing
for sexually violent predators. Assembly Bill 2410 will
close this loophole and provide victims and witnesses in
SVP proceedings with the same protections afforded in
criminal trials. Not only do I believe this bill will make
the process more effective by enhancing victim and witness
protection, it will alleviate an illogical inconsistency in
the law."
Related Legislation : AB 2409 (Nava) authorizes CDCR, DMH, and
the district attorney to obtain records of sustained juvenile
petitions for specified sex offenses of a person 14 years or
older, in an action, investigation or proceeding based on SVP
law, as specified. AB 2409 is scheduled to be heard by this
Committee today.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles District Attorney's Office (sponsor)
California Coalition Against Sexual Assault
California Peace Officers Association
California Police Chiefs Association
Crime Victims Action Alliance
Crime Victims United
Peace Officers Research Association of California
Ventura County District Attorney
Ventura County Sheriff's Department
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334