BILL ANALYSIS                                                                                                                                                                                                    ”



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          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 








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            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.  ›Penal 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.  ›Penal 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.  ›Penal 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.  ›Penal 
            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 ›Penal 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 








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               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.  ›Penal 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.  ›Penal 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.  ›Government 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 








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            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.  








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            (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.  ›NAACP 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.  ›See 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.  ›381 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 








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            Texas law prohibiting homosexual behavior between consenting 
            adults.  ›Lawrence 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.  
            ›Coleman/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.  ›Brown v. Plata (2011) 131 S.Ct. 1910, 








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            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."  ›See 
            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 








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