BILL ANALYSIS Ó
AB 1861
Page 1
Date of Hearing: April 17, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1861 (Olsen) - As Amended: April 10, 2012
SUMMARY : States that any teacher or employee of a public or
private elementary or secondary school who engages in a sexual
relationship or inappropriate communication with a pupil of any
age is guilty of a felony. Specifically, this bill :
1)Defines "inappropriate communication" as any communication by
a school teacher or employee to a pupil, regardless of who
initiated the communication, that is sexual, lewd or
lascivious in nature.
2)Mandates that any teacher or employee of a public elementary
or secondary school convicted of a violation of this section
forfeits his or her rights and benefits in any public
retirement system in which he or she is a member.
3)Specifies that any contributions that teacher or employee made
to the public retirement system must be returned to that
individual without interest.
4)Requires the school district that employs the individual
convicted under this section to notify the public retirement
system in which the person is a member of that person's
conviction.
EXISTING LAW :
1)Prohibits any person, with knowledge that a person is a minor,
or who fails to exercise reasonable care in ascertaining the
true age of a minor, from knowingly distributing, sending,
causing to be sent, exhibiting, or offering to distribute or
exhibit by any means, any harmful matter, as specified, to a
minor with the intent of arousing, appealing to, or gratifying
the lust or passions or sexual desires of that person or of a
minor, for the purpose of seducing a minor. Violation of this
section is either a misdemeanor or a felony, with subsequent
AB 1861
Page 2
offenses being felonies. (Penal Code Section 288.2)
2)States that any person who contacts or communicates with a
minor, or attempts to contact or communicate with a minor, who
knows or reasonably should know that the person is a minor,
with intent to commit specified sexual offenses involving the
minor, shall be punished by imprisonment in the state prison
for the term prescribed for an attempt to commit the intended
offense. ÝPenal Code Section 288.3(a).]
3)States that any person who engages in an act of unlawful
sexual intercourse with a minor who is not more than three
years older or three years younger than the perpetrator, is
guilty of a misdemeanor. ÝPenal Code Section 261.5(b).]
4)States that any person who engages in an act of unlawful
sexual intercourse with a minor who is more than three years
younger than the perpetrator is guilty of either a misdemeanor
or a felony. ÝPenal Code Section 261.5(c).]
5)States that any person 21 years of age or older who engages in
an act of unlawful sexual intercourse with a minor who is
under 16 years of age is guilty of either a misdemeanor or a
felony, and shall be punished by imprisonment in a county jail
not exceeding one year, or by imprisonment in either county
jail or state prison for two, three, or four years. ÝPenal
Code Section 261.5(d).]
6)States that in addition to any other penalty, any adult who
engages in an act of sexual intercourse with a minor in
violation of this section may be liable for civil penalties in
the following amounts ÝPenal Code Section 261.5(e)]:
a) An adult who engages in an act of unlawful sexual
intercourse with a minor less than two years younger than
the adult is liable for a civil penalty not to exceed
$2,000.
b) An adult who engages in an act of unlawful sexual
intercourse with a minor at least two years younger than
the adult is liable for a civil penalty not to exceed
$5,000.
c) An adult who engages in an act of unlawful sexual
intercourse with a minor at least three years younger than
AB 1861
Page 3
the adult is liable for a civil penalty not to exceed
$10,000.
d) An adult over the age of 21 years who engages in an act
of unlawful sexual intercourse with a minor under 16 years
of age is liable for a civil penalty not to exceed $25,000.
7)Prohibits any person from willfully and lewdly committing any
lewd or lascivious act upon a child under 14, with the intent
of arousing, appealing to, or gratifying the lust, passions,
or sexual desires of that person or the child and specifies
that violation of this prohibition is a felony punishable by
imprisonment in the state prison for three, six, or eight
years. ÝPenal Code Section 288(a).]
8)Prohibits and person from willfully and lewdly committing any
lewd or lascivious act upon a child under 14, with the intent
of arousing, appealing to, or gratifying the lust, passions,
or sexual desires of that person or the child, by the use of
force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person and
specifies that violation of this prohibition is a felony
punishable by imprisonment in the state prison for five,
eight, or ten years. ÝPenal Code Section 288(b)(1).]
9)Specifies that if an elected public officer is convicted
during or after holding office of any felony involving
accepting or giving, or offering to give, any bribe, the
embezzlement of public money, extortion or theft of public
money, perjury, or conspiracy to commit any of those crimes
arising directly out of his or her official duties as an
elected public officer, he or she shall forfeit all rights and
benefits under, and membership in, any public retirement
system in which he or she is a member, effective on the date
of final conviction. ÝGovernment Code Section 1243(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The overwhelming
majority of teachers would never engage in inappropriate
conduct with a student; however, the few who would should face
penalties for abusing their authority and tarnishing the
reputation of the profession. There is a growing problem
AB 1861
Page 4
where teachers, administrators, or other school employees have
been engaging in sexual acts, relations or inappropriate
communications like lewd text messages or sexting with their
students.
"AB 1861 will make it a felony for a teacher or school employee
to engage in an inappropriate relationship with a student at
the same school regardless of the student's age. This bill
applies to elementary, middle, and secondary schools. If a
teacher or school employee violates the above provision, as
determined by being convicted of a felony, then said employee
shall be terminated and lose his/her public pension &
benefits. AB 1861 will be a strong deterrent against a teacher
or school employee from violating the trust of parents and
abusing their influence over students. Parents should be
confident that they are sending their students to a safe and
positive learning environment when they go to school."
2)Existing Legal Protections for Minors : Under existing law,
there are a number of legal protections for minors against
those who might make inappropriate sexual contact with him or
her. For example, Penal Code 288.2 prohibits the distribution
of any means of harmful matter to a minor for the purposes of
gratifying the lust or passions or sexual desires of the
sender or the minor, or for the purpose of seducing a minor.
Penal Code 288.3 prohibits contacting a minor with the intent
to commit specified sexual offenses involving the minor.
There are also prohibitions against unlawful intercourse with
a minor (Penal Code 261.5), and lewd and lascivious act
against a minor under the age of 14 (Penal Code Section 288).
It is unclear why these provisions are not sufficient to
protect a minor pupil from inappropriate sexual behavior from
a teacher or employee of an elementary or secondary school.
3)Freedom of Association : This bill prohibits inappropriate
communications between any pupil of a public or private
elementary or secondary school and any teacher or employee of
that school, regardless of the age of the pupil. As discussed
in the previous section, there are existing legal protections
for minors against inappropriate contact with an adult. If
the pupil is not a minor, however, this bill would restrict
communication between two adults.
The First Amendment of the United States Constitution protects
the right of free speech and the right to freely assemble.
AB 1861
Page 5
(U.S. Const., Amend. 1.) The Supreme Court has expressly held
that the freedom of association, stemming from these
provisions of the Constitution, is a fundamental right.
"Freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of 'liberty'
assured" by the Constitution. ÝNAACP v. Alabama ex rel
Patterson, 357 U.S. 449, 460 (1958).]
Although some limitations on the fundamental right to freely
associate are permitted, such as Penal Code Section 288.2, any
restriction by the state is subject to strict scrutiny. Under
strict scrutiny, a restriction on a fundamental right will be
upheld only if it is necessary to achieve a compelling state
interest. ÝSee e.g., Adarand Constructors v. Pena, 515 U.S.
200 (1995), Sugarman v. Dougall, 413 U.S. 634 (1973), Sherbert
v. Verner, 374 U.S. 398 (1963).] While protecting children
from inappropriate communications may meet strict scrutiny, it
is very unlikely that restricting communication between two
consenting adults would be a permissible restriction of the
Constitutional right to freely associate.
4)Right to Privacy : This bill prohibits sexual relationships
between any pupil of a public or private elementary or
secondary school and any teacher or employee of that school,
regardless of the age of the pupil. As discussed above, there
are existing legal protections for minors entering into a
sexual relationship with an adult. If the pupil is not a
minor, however, this bill would restrict sexual relations
between two consenting adults, a right protected under the
United States Constitution.
In Griswold v. Connecticut, the Supreme Court held that the
right to privacy was a fundamental right protected under the
Constitution. Ý381 U.S. 479, 481-82 (1965).] This right is
an implicit right in the Bill of Rights, emanating from the
First, Third, Fourth and Fifth Amendments. (Id. at 484.)
While the law at issue in that case related to the use of
contraceptives, the Court focused need to protect the privacy
of the bedroom from intrusion of the police. "Would we allow
the police to search the sacred precincts of marital bedrooms
for telltale signs of the use of contraceptives? The very idea
is repulsive to the notions of privacy surrounding the
marriage relationship." (Id. at 485-86.)
The Court relied on Griswold in 2003, when it struck down a
AB 1861
Page 6
Texas law prohibiting homosexual behavior between consenting
adults. ÝLawrence v. Texas, 539 U.S. 186 (2003).] In that
case, two men were discovered engaging in homosexual activity
by a police officer and were fined $400, the penalty for a
class C misdemeanor in Texas. The Court reversed their
conviction and struck down the statue as violating the
defendant's Constitutional right to privacy. This case
recognized that sexual activity is a fundamental aspect of
personhood and that it is entitled to constitutional
protection. "It suffices for us to acknowledge that adults
may choose to enter upon this relationship in the confines of
their homes and their own private lives and still retain their
dignity as free persons. When sexuality finds overt expression
in intimate conduct with another person, the conduct can be
but one element in a personal bond that is more enduring. The
liberty protected by the Constitution allows homosexual
persons the right to make this choice." (Id. at 567.)
Because this bill would create a felony punishing sexual
behavior between consenting adults, it would very likely found
to be unconstitutional.
5)On-going Concerns for Prison Overcrowding : In November 2006,
plaintiffs in two ongoing class action lawsuits-Plata v. Brown
(involving inmate medical care) and Coleman v. Brown
(involving inmate mental health care)-filed motions for the
courts to convene a three-judge panel pursuant to the U.S.
Prison Litigation Reform Act. The plaintiffs argue that
persistent overcrowding in the state's prison system was
preventing the California Department of Corrections and
Rehabilitation (CDCR) from delivering constitutionally
adequate health care to inmates. The three-judge panel
declared that overcrowding in the state's prison system was
the primary reason that CDCR was unable to provide inmates
with constitutionally adequate health care. In January 2010,
the three-judge panel issued its final ruling ordering the
State of California to reduce its prison population by
approximately 50,000 inmates in the next two years.
ÝColeman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK
JFM P/NO. C01-1351 THE.]
The United State Supreme Court upheld the decision of the
three-judge panel, declaring that "without a reduction in
overcrowding, there will be no efficacious remedy for the
unconstitutional care of the sick and mentally ill" inmates in
California's prisons. ÝBrown v. Plata (2011) 131 S.Ct. 1910,
AB 1861
Page 7
1939; 179 L.Ed.2d 969, 999.]
According to a recent report by the Legislative Analyst's
Office, "Based on CDCR's current population projections, it
appears that it will eventually reach the court-imposed
population limit, though not by the June 2013 deadline." ÝSee
Refocusing CDCR After the 2011 Realignment, Feb. 23, 2012,
pp.3
.
] "In particular, the projections show the state missing the
final population limit of no more than 110,000 inmates housed
in state prisons by June 2013. Specifically, the projections
show the state exceeding this limit by about 6,000 inmates.
However, the projections indicate that the state will meet the
court-imposed limit by the end of 2014." (Id. at p. 9.)
"While the state has undergone various changes to reduce
overcrowding prior to the passage of the realignment
legislation-including transferring inmates to out-of-state
contract facilities, construction of new facilities, and
various statutory changes to reduce the prison population-the
realignment of adult offenders is the most significant change
undertaken to reduce overcrowding." (Id. at p. 8.) Although
the provisions of this bill state that a person convicted of
this felony is eligible to serve his or her sentence in the
county jail, if that person had a previous serious or violent
felony, or had a previous conviction for a specified sex
offense, he or she must serve the sentence in state prison.
This bill may aggravate existing prison overcrowding.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriff's Association
The Innocent Justice Foundation
Three private individuals
Opposition
California Federation of Teachers
California Public Defenders Association
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744
AB 1861
Page 8