BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                     AB 832


                                                                     Page A


          Date of Hearing:  April 7, 2015
          Counsel:               Stella Choe



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                832 (Cristina Garcia) - As Introduced  February 26, 2015


                       As Proposed to be Amended in Committee


          SUMMARY:  Provides that "sexual assault" for purposes of  
          reporting incidents of abuse under the Child Abuse Neglect and  
          Reporting Act (CANRA) does not include voluntary acts of sodomy,  
          oral copulation, or sexual penetration, unless it involves a  
          person who is 21 years of age or older engaging in these acts  
          with a minor who is under 16 years of age. 

          EXISTING LAW:  

          1)Establishes CANRA for the purpose of protecting children from  
            abuse and neglect. (Pen. Code, § 11164.)

          2)Defines "child" under CANRA to mean a person under the age of  
            18 years.  (Penal Code Section 11165.)

          3)Enumerates categories of persons who are mandated reporters  
            under the Act.  (Pen. Code, § 11165.7, subd. (a).)












                                                                     AB 832


                                                                     Page B


          4)Requires, except as provided, 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 whom  
            the mandated reporter knows or reasonably suspects has been  
            the victim of child abuse or neglect.  The mandated reporter  
            shall make an initial report to the agency immediately or as  
            soon as is practicably possible by telephone and shall prepare  
            and send, fax, or electronically transmit a written follow up  
            report within 36 hours of receiving the information concerning  
            the incident.  The mandated reporter may include with the  
            report any nonprivileged documentary evidence the mandated  
            reporter possesses relating to the incident.  (Pen. Code, §  
            11166, subd. (a).)

          5)Defines "reasonable suspicion" to mean that it is objectively  
            reasonable for a person to entertain a suspicion, based upon  
            the facts that could cause a reasonable person in a like  
            position, drawing, when appropriate, on his or her training  
            and experience, to suspect child abuse or neglect.  (Pen.  
            Code, § 11166, subd. (a)(1).)

          6)Provides that any mandated reporter who fails to report an  
            incident of known or reasonably suspected child abuse or  
            neglect as required by this section is guilty of a misdemeanor  
            punishable by up to six months confinement in a county jail or  
            by a fine of $1,000 or by both that imprisonment and fine.  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 under this section, the failure to  
            report is a continuing offense until a specified agency  
            discovers the offense.  (Pen. Code, § 11166, subd. (c).)


          7)Defines "child abuse or neglect" under CANRA 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  











                                                                     AB 832


                                                                     Page C


            defined, and unlawful corporal punishment or injury as  
            defined.  (Pen. Code, § 11165.6.)

          8)States that "sexual abuse" means sexual assault or sexual  
            exploitation. (Pen. Code, § 11165.1.)

          9)Defines "sexual assault" as conduct in violation of one or  
            more of the following crimes: rape, statutory rape involving a  
            person who is 21 years of age or older with a minor who is  
            under 16 years of age, rape in concert, incest, sodomy with a  
            person who is under 18 years of age, lewd or lascivious acts  
            upon a child who is under 14, or who is 14 or 15 years of age  
            by a person who is at least 10 years older than the child,  
            oral copulation, sexual penetration, or child molestation, as  
            specified. (Pen. Code, § 11165.1, subd. (a).)

          10)Provides that unlawful sexual intercourse is an act of sexual  
            intercourse accomplished with a person who is not the spouse  
            of the perpetrator, if the person is a minor (statutory rape).  
             For the purposes of this section, a "minor" is a person under  
            the age of 18 years and an "adult" is a person who is at least  
            18 years of age. (Pen. Code, § 261.5, subd. (a).)

          11)States that it is a misdemeanor for any person who engages in  
            an act of unlawful sexual intercourse with a minor when there  
            is not more than a three year age difference.  (Pen. Code, §  
            261.5, subd. (b).)

          12)Provides that it is an alternate felony/misdemeanor for any  
            person who engages in an act of unlawful sexual intercourse  
            with a minor when there is more than a three year age  
            difference, punishable by imprisonment in a county jail not  
            exceeding one year, or by imprisonment in county jail for 16  
            months, two, or three years.  (Pen. Code, § 261.5, subd. (c).)

          13)States that any person 21 years of age or older who engages  
            in unlawful sexual intercourse with a minor who is under 16  
            years of age is guilty of an alternate felony/misdemeanor  
            punishable by imprisonment in a county jail not exceeding one  











                                                                     AB 832


                                                                     Page D


            year, or by imprisonment in county jail for two, three, or  
            four years.  (Pen. Code, § 261.5, subd. (d).)

          14)States, except as provided in provisions of law related to  
            lewd and lascivious conduct with minors under the age of 14,  
            any person who participates in an act of sodomy with another  
            person who is under 18 years of age shall be punished by  
            imprisonment in the state prison, or in a county jail for not  
            more than one year.  (Pen. Code, § 286, subd. (b)(1).)

          15)Makes any person over 21 years of age who participates in an  
            act of sodomy with another person who is under 16 years of age  
            guilty of a felony, except as provided in provisions of law  
            related to lewd and lascivious conduct with minors under the  
            age of 14. (Pen. Code, § 286, subd. (b)(2).)

          16)States, except as provided in provisions of law related to  
            lewd and lascivious conduct with minors under the age of 14,  
            any person who participates in an act of oral copulation with  
            another person who is under 18 years of age shall be punished  
            by imprisonment in the state prison, or in a county jail for  
            not more than one year.  (Pen. Code, § 288a, subd. (b)(1).)

          17)Provides that any person over 21 years of age who  
            participates in an act of oral copulation with another person  
            who is under 16 years of age is guilty of a felony, except as  
            provided in provisions of law related to lewd and lascivious  
            conduct with minors under the age of 14. (Pen. Code, § 288a,  
            subd. (b)(2).)

          18)States, except as provided in provisions of law related to  
            lewd and lascivious conduct with minors under the age of 14,  
            any person who participates in an act of sexual penetration  
            with another person who is under 18 years of age shall be  
            punished by imprisonment in the state prison or in a county  
            jail for a period of not more than one year. (Pen. Code, §  
            289, subd. (h).)

          19)States, except as provided in provisions of law related to  











                                                                     AB 832


                                                                     Page E


            lewd and lascivious conduct with minors under the age of 14,  
            any person over 21 years of age who participates in an act of  
            sexual penetration with another person who is under 16 years  
            of age shall be guilty of a felony. (Pen. Code, § 289, subd.  
            (i).)

          20)Defines "sexual penetration" as the act of causing the  
            penetration, however slight, of the genital or anal opening of  
            any person or causing another person to so penetrate the  
            defendant's or another person's genital or anal opening for  
            the purpose of sexual arousal, gratification, or abuse by a  
            foreign object, substance, instrument, or device, or by any  
            unknown object.  (Pen. Code, § 289, subd. (k)(1).)

          21)States that any person who willfully and lewdly commits any  
            lewd or lascivious act, including any of the acts constituting  
            other crimes as provided, upon or with the body, or any part  
            or member thereof, of a child who is under the age of 14  
            years, with the intent of arousing, appealing to, or  
            gratifying the lust, passions, or sexual desires of that  
            person or the child, is guilty of a felony and shall be  
            punished by imprisonment in the state prison for three, six,  
            or eight years.  (Pen. Code, § 288, subd. (a).)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "AB 832 creates  
            a clear, uniform, and non-discriminatory standard for mandated  
            reporters to follow when reporting instances of consensual  
            sexual expressions amongst minors. Clear and consistent  
            reporting requirements would ensure that reporters are more  
            confident and knowledgeable about what needs to be reported  
            and result in increased safety for our youth.  

            "AB 832 would treat all consensual sexual activity the same  
            way that sexual intercourse is treated for the purposes of  
            child abuse reporting. All activity that is exploitive or  











                                                                     AB 832


                                                                     Page F


            coercive in nature would remain a mandated report."

          2)CANRA and Reportable Incidents of Sexual Assault: CANRA was  
            established in 1981 for the purpose of protecting children  
            from abuse and neglect.  The law imposes a mandatory reporting  
            requirement on individuals whose professions bring them into  
            contact with children.  These professionals are called  
            mandated reporters for purposes of CANRA.  Whenever a mandated  
            reporter, in his or her professional capacity or within the  
            scope of his or her employment, has knowledge of or observes a  
            child whom the mandated reporter knows or reasonably suspects  
            has been the victim of child abuse or neglect.  

          A mandated reporter must report an incident of child abuse by  
            telephone to a police or sheriff's department or a county  
            probation or welfare department immediately or as soon as  
            practically possible, and then prepare and submit a written  
            follow up report within 36 hours of receiving the information  
            concerning the incident.  A mandated reporter who fails to  
            report an incident of known or reasonably suspected child  
            abuse or neglect is guilty of a misdemeanor.

          Under CANRA, child abuse includes sexual abuse. Not all sexual  
            conduct involving a minor constitutes sexual abuse requiring a  
            mandated reporter to report the incident.  (Planned Parenthood  
            Affiliates v. Van de Kamp (1986) 181 Cal. App. 3d 245.)  In  
            Planned Parenthood Affiliates, the petitioners sought to  
            enjoin implementation of CANRA following an opinion of the  
            Attorney General which held that the statute imposed on  
            professionals and others a duty to report any sexual activity  
            of minors under the age of 14 years as child abuse.   
            Petitioners claimed the law violated the constitutional right  
            to privacy of such minors and placed professionals in  
            circumstances in which they would be forced to choose between  
            compliance with the law and fidelity to their ethical duties  
            to preserve patients' confidential medical histories.  (Id. at  
            pg. 257.)

          In order to explore legislative intent behind CANRA, the court  











                                                                     AB 832


                                                                     Page G


            reviewed the Act in light of other statutes that relate to  
            sexual conduct by minors. Various statutes give minors the  
            right to consent to the prevention or treatment of pregnancy  
            (Fam. Code, § 6925, formerly Civ. Code, § 34.5); the right to  
            consent to treatment of sexually transmitted diseases (Fam.  
            Code, § 6926, formerly Civ. Code, § 34.8); and the right to  
            consent to treatment for rape or sexual assault (Fam. Code, §§  
            6927 and 6928, formerly Civ. Code, §§ 34.9 and 34.10).   
            Existing statutes also provide minors a privilege of medical  
            record confidentiality. (Civ. Code, §§ 56 et seq.) (Planned  
            Parenthood Affiliates, supra, 181 Cal. App. 3d at p. 269.)   
            The court found that an interpretation of the law that  
            requires mandated reporters, which include physicians and  
            counselors, to report all instances of sexual conduct by  
            minors, regardless of suspected child abuse, would  
            unjustifiably interfere with a minor's right to confidential  
            reproductive health care. (Id. at pp. 270-271.)

          A part of the court's analysis also involved discussion of a  
            prior challenge to CANRA's inclusion of statutory rape as the  
            statute was written at the time.  At the time, Penal Code  
            Section 261.5 prohibited any act of intercourse with an  
            unmarried woman under 18, regardless of whether the act is  
            voluntary.  The California Supreme Court ordered the case  
            transferred to the First District Court of Appeal with  
            directions to issue the alternative writ of mandate, staying  
            operation and enforcement of the reporting law insofar as it  
            applied to conduct in violation of section 261.5.  Shortly  
            thereafter, the Legislature deleted section 261.5 from the  
            CANRA statutes and concluded that "'[the] existing provisions  
            of law are causing the overreporting of various acts unrelated  
            to child abuse . . . creating a detrimental impact upon the  
            efforts of the Legislature to deal with the problem of child  
            abuse.'" (Planned Parenthood Affiliates, supra, 181 Cal. App.  
            3d at p. 272, citing the analysis by the Assembly Committee on  















                                                                     AB 832


                                                                     Page H


            Criminal Justice (May 9, 1981).)  <1>

          The court held that the legislative intent of CANRA was "to  
            allow the trained professional to determine an abusive from a  
            nonabusive situation.  Instead of a blanket reporting  
            requirement of all activity of those under a certain age, the  
            professional can make a judgment whether a minor is having  
            voluntary relations or is being sexually abused."  (Id. at p.  
            272.) The court found that, although Penal Code Section 288  
            (lewd and lascivious conduct with a minor under the age of 14)  
            is included in CANRA, the inclusion of this section did not  
            render all sexual conduct of such minors child abuse per se,  
            and that mature minors under 14 enjoyed the same presumptive  
            constitutional right to sexual privacy as adults.  The court  
            reasoned that the CANRA "provisions contemplate criminal acts  
            of child abuse causing trauma to the victim; they do not  
            contemplate the voluntary sexual associations between young  
            children under the age of 14 who are not victims of a child  
            abuser and are not the subjects of sexual victimizations."  
            (Id. at p. 267.)  

          Therefore, the court concluded that "[t]he de facto voluntary  
            sexual conduct among minors under the age of 14 may be ill  
            advised, but it is not encompassed by section 288.  The  
            inclusion of that statute in the reporting law does not  
            mandate reporting of such activity. (Id. at p. 276.)

            Likewise, in 2013, the Department of Consumer Affairs (DCA)  
            evaluated the issue of whether CANRA requires practitioners to  
            report all conduct by minors that fall under the definition of  
            sodomy and oral copulation.  Relying on case law, including  
            Planned Parenthood Affiliates v. Van de Kamp, supra, and the  
            legislative intent behind CANRA, DCA concluded that mandated  
            --------------------------


          <1> CANRA's definition of "sexual assault" currently includes  
          statutory rape involving a person who is 21 years of age or  
          older with a minor who is under 16 years of age.  (Pen. Code, §  
          11165.1, subd. (a); Pen. Code, § 261.5, subd. (d).) This was  
          added to the section by AB 327 (Havice), Chapter 83, Statutes of  
          1997.








                                                                     AB 832


                                                                     Page I


            reporters are not required to report consensual sex between  
            minors of like age for any of the conduct listed as sexual  
            assault unless the practitioner reasonably suspects that the  
            conduct resulted from force, undue influence, coercion, or  
            other indicators of child abuse.  Because sexual conduct of  
            minors that meet the definition of sodomy and oral copulation  
            must be treated the same as all other conduct listed in the  
            section (i.e. Penal Code Section 288), only instances  
            involving acts that are nonconsensual, abusive or involves  
            minors of disparate ages, conduct between minors and adults,  
            and situations where there are indicators of abuse.   
            Accordingly, DCA stated that it was not necessary to amend the  
            statute or remove sodomy or oral copulation from CANRA.  (See  
            DCA, Memorandum on the Evaluation of CANRA Reform Proposal  
            Related to Reporting Consensual Sex Between Minors (Apr. 11,  
            2013).)



            As stated in relevant case law and the DCA memo, mandated  
            reporters are not required to report all sexual conduct by  
            minors listed in the CANRA statutes under the definition of  
            "sexual assault."  Rather, mandated reporters must use their  
            judgment in determining which situations may involve child  
            abuse.  However, several mandated reporters have expressed  
            that the statute is confusing as written and may lead to  
            discrimination against minors who participate in sexual  
            conduct that is not covered by the statutory rape statute.   
            Thus, the intent of this bill is to specify in statute that  
            the reporting requirements under CANRA do not require mandated  
            reporters to report voluntary acts of sodomy, oral copulation  
            and sexual penetration between persons who are 16 years or  
            older and a person who is under 21 years of age, which mirrors  
            how the statute treats statutory rape between persons who are  
            16 years or older and a person who is under 21 years of age.  
          3)Argument in Support:  According to Equality California,  
            "Mandated reporting law currently requires mandated reporters  
            to make a child abuse report anytime they reasonably believe  
            that a youth has been the victim of sexual assault or coerced  











                                                                     AB 832


                                                                     Page J


            into sexual activity in any way. AB 832 will not change that.  
            AB 832 simply proposes to amend the definition of sexual abuse  
            so that all sexual activity among young people is treated the  
            same under California's definition of child abuse and  
            reporting law.
            
            "We support AB 832 because it will increase access to critical  
            preventive health and mental health care services for young  
            people; will allow reporters and child welfare to focus on  
            youth who truly are abused or at risk of abuse; and will  
            eliminate a law that has a discriminatory impact and is rooted  
            in discriminatory and outdated beliefs."

          4)Argument in Opposition:  According to the California District  
            Attorneys Association, "This bill would remove from the  
            definition of 'sexual assault' in the in the Child Abuse and  
            Neglect Reporting Act any consensual sodomy, oral copulation,  
            or sexual penetration between those 16 years or older and  
            under 21 years of age.  In other words, mandated reporters  
            would not have to report suspected 'child abuse or neglect' as  
            provided in Penal Code section 11165.1 under the definition of  
            sexual assault unless that conduct is between a person who is  
            21 years of age or older and a minor who is under 16 years of  
            age.

          "Consensual sexual conduct between a 16 year old and a 20 year  
            old is still a misdemeanor.  We believe that removing that  
            category from the mandated reporter statute is bad policy.   
            The purpose of the Child Abuse and Neglect Reporting Act is to  
            protect children from abuse and neglect and to 'do whatever is  
            necessary to prevent psychological harm to the child victim.'   
            Removing this category from the Act goes against its very  
            purpose."

          5)Related Legislation: 

             a)   AB 1001 (Maienschein), would make it a misdemeanor to  
               impede or interfere with the making of a report of  
               suspected child abuse or neglect by a mandated reporter. AB  











                                                                     AB 832


                                                                     Page K


               1001 is being heard by the Committee today.

             b)   AB 1207 (Lopez), would require the Department of Social  
               Services to develop and disseminate information to  
               specified employees of child day care centers and home  
               licensees that care for children regarding the duties of  
               mandated reporters under CANRA.

             c)   SB 332 (Block) would authorize a mandated reporter to  
               make a report to a school district police department. SB  
               332 is pending hearing by the Senate Committee on Public  
               Safety. 

             d)   SB 478 (Huff), would authorize, until January 1, 2021,  
               certain county welfare agencies to develop a pilot program  
               for Internet-based reporting of child abuse and neglect, as  
               specified. SB 478 is pending hearing by the Senate  
               Committee on Public Safety.

          6)Prior Legislation:  AB 1505 (Garcia), of the 2013-2014  
            Legislative Session, would have excluded from the definition  
            of reportable "sexual assault" under CANRA acts of sodomy or  
            oral copulation, unless the act involves either a person over  
            21 years of age or a minor under 16 years of age.  AB 1505  
            failed passage in the Committee on Appropriations.

          REGISTERED SUPPORT / OPPOSITION:

          Support


          American Association for Marriage and Family Therapy, California  
          Division
          American Civil Liberties Union of California
          California Public Defenders Association
          Equality California
          Gerry Grossman Seminars
          National Center for Youth Law












                                                                     AB 832
                                         

                                                                     Page L


          144 private individuals


          Opposition


          California District Attorneys Association


          Analysis Prepared  
          by:              Stella Choe / PUB. S. / (916) 319-3744