BILL ANALYSIS Ó
AB 1775
Page 1
Date of Hearing: March 25, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1775 (Melendez) - As Amended: March 19, 2014
SUMMARY : Provides that knowingly downloading material,
including a video recording, in which a child is engaged in an
act of obscene sexual conduct, except as specified, is sexual
exploitation for the purpose of mandated reporting by specified
individuals under the Child Abuse and Neglect Reporting Act
(CANRA).
EXISTING LAW :
1)Requires a mandated reporter to make a report to a specified
agency whenever the mandated reporter, in his or her
professional capacity or within the scope of his or her
employment, has knowledge of or observes a child who the
mandated reporter knows or reasonably suspects has been the
victim of child abuse or neglect. Requires the mandated
reporter to make an initial report to the agency immediately
or as soon as is practicably possible by telephone and to
prepare and send, fax, or electronically transmit a written
follow-up report thereof within 36 hours of receiving the
information concerning the incident. Authorizes the mandated
reporter to include with the report any non-privileged
documentary evidence the mandated reporter possesses relating
to the incident. (Pen. Code, § 11166, subd. (a).)
2)Punishes as a misdemeanor any mandated reporter who fails to
report an incident of known or reasonably suspected child
abuse or neglect as required with up to six months confinement
in a county jail, a fine of $1,000, or by both that
imprisonment and fine. States that if a mandated reporter
intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe
neglect, as specified, the failure to report is a continuing
offense until a specified agency discovers the offense. (Pen.
Code, § 11166, subd. (c).)
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3)Defines "child" under CANRA as a person under the age of 18
years. (Pen. Code, § 11165.)
4)Defines, for purposes of CANRA, "child abuse or neglect" to
include physical injury or death inflicted by other than
accidental means upon a child by another person, sexual abuse
as defined, neglect as defined, the willful harming or
injuring of a child or the endangering of the person or health
of a child as defined, and unlawful corporal punishment or
injury as defined. States that "child abuse or neglect" does
not include a mutual affray between minors or an injury caused
by reasonable and necessary force used by a peace officer
acting within the course and scope of his or her employment as
a peace officer. (Pen. Code, § 11165.6.)
5)Defines "sexual abuse" to mean sexual assault or sexual
exploitation as these terms are defined. (Pen. Code, §
11165.1.)
6)States that "sexual exploitation" refers to any of the
following:
a) Conduct involving matter depicting a minor engaged in
obscene acts in violation of state law with respect to:
i) the preparing, selling, or distributing of obscene
matter; and
ii) the employment or use of a minor to perform
prohibited acts.
b) Any person who knowingly promotes, aids, or assists,
employs, uses, persuades, induces, or coerces a child, or
any person responsible for a child's welfare as specified,
who knowingly permits or encourages a child to engage in,
or assists others to engage in, prostitution or a live
performance involving obscene sexual conduct, or to either
pose or model alone or with others for purposes of
preparing a film, photograph, negative, slide, drawing,
painting, or other pictorial depiction, involving obscene
sexual conduct; and
c) Any person who depicts a child in, or who knowingly
develops, duplicates, prints, or exchanges, any film,
photograph, video tape, negative, or slide in which a child
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is engaged in an act of obscene sexual conduct, except for
those activities by law enforcement, prosecution agencies,
and other described persons. (Pen. Code, § 11165.1, subd.
(c).)
7)Defines "mandated reporter" under CANRA as any of the
following: a teacher; an instructional aide; a teacher's aide
or teacher's assistant employed by a public or private school;
a classified employee of a public school; an administrative
officer or supervisor of child welfare and attendance, or a
certificated pupil personnel employee of a public or private
school; an administrator of a public or private day camp; an
administrator or employee of a public or private youth center,
youth recreation program, or youth organization; an
administrator or employee of a public or private organization
whose duties require direct contact and supervision of
children; an employee of a county office of education or the
State Department of Education whose duties bring the employee
into contact with children on a regular basis; a licensee, an
administrator, or an employee of a licensed community care or
child day care facility; a Head Start program teacher; a
licensing worker or licensing evaluator employed by a
licensing agency as defined; a public assistance worker; an
employee of a child care institution, including, but not
limited to, foster parents, group home personnel, and
personnel of residential care facilities; a social worker,
probation officer, or parole officer; an employee of a school
district police or security department; a person who is an
administrator or presenter of, or a counselor in, a child
abuse prevention program in a public or private school; a
district attorney investigator, inspector, or local child
support agency caseworker unless the investigator, inspector,
or caseworker is working with an attorney appointed to
represent a minor; a peace officer, as defined, who is not
otherwise described in this section; a firefighter, except for
volunteer firefighters; a physician and surgeon, psychiatrist,
psychologist, dentist, resident, intern, podiatrist,
chiropractor, licensed nurse, dental hygienist, optometrist,
marriage and family therapist, clinical social worker,
professional clinical counselor, or any other person who is
currently licensed as a health care professional as specified;
any emergency medical technician I or II, paramedic, or other
person certified to provide emergency medical services; a
registered psychological assistant; a marriage and family
therapist trainee, as defined; a registered unlicensed
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marriage and family therapist intern; a state or county public
health employee who treats a minor for venereal disease or any
other condition; a coroner; a medical examiner or other person
who performs autopsies; a commercial film and photographic
print processor, as defined;
a child visitation monitor, as defined; an animal control
officer or humane society officer, as defined; a clergy
member, as defined; any custodian of records of a clergy
member, as specified; any employee of any police department,
county sheriff's department, county probation department, or
county welfare department; an employee or volunteer of a Court
Appointed Special Advocate program, as defined; any custodial
officer, as defined; any person providing services to a minor
child, as specified; an alcohol and drug counselor, as
defined; a clinical counselor trainee, as defined; a
registered clinical counselor intern; an employee or
administrator of a public or private postsecondary
institution, whose duties bring the administrator or employee
into contact with children on a regular basis, or who
supervises those whose duties bring the administrator or
employee into contact with children on a regular basis, as to
child abuse or neglect occurring on that institution's
premises or at an official activity of, or program conducted
by, the institution; an athletic coach, athletic
administrator, or athletic director employed by any public or
private school that provides any combination of instruction
for kindergarten, or grades 1 to 12, inclusive; a commercial
computer technician, as specified, and his or her employer;
and any athletic coach, including, but not limited to, an
assistant coach or a graduate assistant involved in coaching,
at public or private postsecondary institutions. (Pen. Code,
§ 11165.7, subd. (a).)
8)Provides that volunteers of public or private organizations,
except a volunteer of a Court Appointed Special Advocate
program, whose duties require direct contact with and
supervision of children are not mandated reporters but are
encouraged to obtain training in the identification and
reporting of child abuse and neglect and are further
encouraged to report known or suspected instances of child
abuse or neglect to a specified agency. (Pen. Code, §
11165.7, subd. (b).)
9)Strongly encourages employers to provide their employees who
are mandated reporters with training in the duties imposed by
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CANRA. States that this training shall include training in
child abuse and neglect identification and training in child
abuse and neglect reporting and that whether or not employers
provide their employees with training in child abuse and
neglect identification and reporting, the employers are
required to provide their employees who are mandated reporters
with a statement that informs the employee that he or she is a
mandated reporter and informs the employee of his or her
reporting obligations and of his or her confidentiality
rights. (Pen. Code, § 11165.7, subd. (c).)
10)Encourages public and private organizations to provide their
volunteers whose duties require direct contact with and
supervision of children with training in the identification
and reporting of child abuse and neglect. (Pen. Code, §
11165.7, subd. (f).)
11)Provides that neither the physician-patient privilege nor the
psychotherapist-patient privilege applies to information
reported pursuant to CANRA in any court proceeding or
administrative hearing. (Pen. Code, § 11171.2, subd. (b).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1775 will
further ensure the protection of children from the
proliferation of sexual exploitation through internet child
pornography. The State Legislature has a duty to ensure it
does everything within its power to make certain the most
vulnerable of our society, our children, are protected."
2)Child Abuse and Neglect Reporting Act & Child Abuse Central
Index : California maintains a database of "reports of
suspected child abuse and severe neglect" known as the Child
Abuse Central Index (CACI). (Pen. Code, §11170, subd.
(a)(2).) California has collected such information since
1965; since 1988, the maintenance of CACI has been governed by
the CANRA. (See Pen. Code, § 11164 et seq.)
There are many different ways a person can find himself or
herself listed in CACI. CANRA mandates that various
statutorily-enumerated individuals report instances of known
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or suspected child abuse or neglect either to a law
enforcement agency or a child welfare agency. (Pen. Code, §
11165.9.) These agencies, in turn, are required to accept the
report and investigate the allegation or immediately refer the
case to a proper agency if the accepting agency lacks subject
matter or geographical jurisdiction. (Pen. Code, §§ 11165.9
and 11169, subd. (a).)
CANRA requires the investigating agency to send DOJ a report of
every case it investigates of known or suspected child abuse
or severe neglect when it is determined not to be unfounded,
but the "agency shall not forward a report unless it has
conducted an active investigation and determined that the
report is not unfounded. (Pen. Code, § 11169, subd. (a).)
CANRA defines a report as "unfounded" if it is "determined by
the investigator who conducted the investigation to be false,
to be inherently improbable, to involve an accidental injury,
or not to constitute child abuse or neglect." (Pen. Code, §
11165.12, subd. (a).) Reports also may be classified as
"substantiated" or "inconclusive." A "substantiated report"
is one that the investigator determines "constitute[s] child
abuse or neglect . . . based upon evidence that makes it more
likely than not that child abuse or neglect, as defined,
occurred." (Pen. Code, § 11165.12, subd. (b).) An
"inconclusive report" is one where the investigator found the
report "not to be unfounded, but the findings are inconclusive
and there is insufficient evidence to determine whether child
abuse or neglect ? has occurred." (Pen. Code, § 11165.12,
subd. (c).) Both inconclusive and substantiated reports are
submitted to DOJ for inclusion in CACI. (See Pen. Code, §§
11169, subds. (a) & (c) and 11170, subd. (a)(3).)
3)Argument in Support : According to the California State
Sheriffs' Association , "While current law includes within the
definition of sexual exploitation the acts of developing,
duplicating, printing, and exchanging media in which a child
is engaged in an act of obscene sexual conduct, it does not
specifically reference the act of downloading such media.
"To ensure that our statutes are updated to reflect current
technology and sufficiently protect our most vulnerable
population, it is necessary to amend the law as AB 1775 does."
4)Argument in Opposition : Taxpayers for Improving Public Safety
writes, "The difficulty with this proposed legislation is that
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the definition of 'knowingly downloads ? a child is engaged in
an act of obscene sexual conduct' is amorphous. For better or
worse, some pornographic websites assert that underage
children are over the age of 18, thus blurring the line of
'knowingly'. Further, the definition of 'an act of obscene
sexual conduct' is constantly changing in that when the
creation 'stag films' was considered to be an underground
activity to today where every cable provider and hotel offers
'adult entertainment'. Despite TiPS distain for any
individual which aides or abets in child pornography, this
legislation is not sufficiently specific to allow an accused
to identify what is and what is not prohibited conduct."
5)Prior Legislation :
a) AB 673 (Hayashi), Chapter 393, Statutes of 2007, added
death by other than accidental means to the definition of
"child abuse and neglect," and clarified that a mandated
reporter not acting in his or her private capacity or in
the course and scope of his or her employment may report
instances of known or suspected child abuse.
b) AB 525 (Chu), Chapter 701, Statutes of 2006, expanded
the definition of "child abuse and neglect" to include
instances in which a child suffers or is at substantial
risk of suffering serious emotional damage.
c) SB 646 (Watson), Chapter 1444, Statutes of 1987,
established CANRA, which requires specified persons who
have knowledge of or observe a child in their professional
capacity or within the scope of their employment, who the
person knows or reasonably suspects has been the victim of
child abuse to report the known or suspected instance of
child abuse to a child protective agency, as defined.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California State Sheriffs' Association
Opposition
Taxpayers for Improving Public Safety
AB 1775
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Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744