BILL ANALYSIS Ó AB 2569 Page A Date of Hearing: April 19, 2016 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 2569 (Melendez) - As Introduced February 19, 2016 SUMMARY: Eliminates the authorization for an offender who commits a specified sexual offense against a victim who is the child, stepchild, sibling, or grandchild of the offender (the "interfamilial exemption") from being eligible for exclusion from the Megan's Law Website. Specifically, this bill: 1)Eliminates the opportunity for an offender who has been convicted of the commission or attempted commission of felony sexual battery, misdemeanor child molestation, or other specified sexual offenses, to apply to the Department of Justice (DOJ) for exclusion from the Megan's Law Website. 2)Prevents an offender who has been convicted of the commission or attempted commission of an offense for which the offender is on probation at the time of his or her application or has successfully completed probation, from applying for exclusion from the Megan's Law Website if he or she submits a certified copy of an official court document, as specified, that clearly demonstrates that the offender was the victim's parent, stepparent, sibling, or grandparent, and the crime did not AB 2569 Page B involve specified sexual offenses. EXISTING LAW: 1)Provides that an offender may apply for an interfamilial exclusion if they were convicted of specified offenses, submit proper paperwork, and clearly demonstrate that they are the victim's parent, stepparent, sibling, or grandparent, and the offense did not involve oral copulation or sexual penetration, as specified. Clarifies that if subsequent to the application for interfamilial exclusion, the offender commits a violation of probation resulting in his or her incarceration in county jail or state prison, his or her exclusion, or application for exclusion, from the Megan's Law Website shall be terminated. Additionally requires that for the application to be granted, the offender must have a State Authorized Risk Assessment Tool for Sex Offenders (SARATSO) showing a risk of re-offense of low to low-moderate. (Pen. Code § 290.46.) 2)Requires persons convicted of specified sex offenses to register for life, or reregister if the person has been previously registered, upon release from incarceration, placement, commitment, or release on probation. States that the registration shall consist of all of the following (Pen. Code, § 290.015, subd. (a).): a) A statement signed in writing by the person, giving information as shall be required by DOJ and giving the name and address of the person's employer, and the address of the person's place of employment, if different from the employer's main address; b) Fingerprints and a current photograph taken by the registering official; c) The license plate number of any vehicle owned by, AB 2569 Page C regularly driven by or registered in the name of the registrant; d) Notice to the person that he or she may have a duty to register in any other state where he or she may relocate; and, e) Copies of adequate proof of residence, such as a California driver's license or identification card, recent rent or utility receipt or any other information that the registering official believes is reliable. 3)States every person who is required to register, as specified, who is living as a transient shall be required to register for the rest of his or her life as follows: a) He or she shall register, or reregister if the person has previously registered, within five working days from release from incarceration, placement or commitment, or release on probation, pursuant to Penal Code Section 290(b), except that if the person previously registered as a transient less than 30 days from the date of his or her release from incarceration, he or she does not need to reregister as a transient until his or her next required 30-day update of registration. If a transient is not physically present in any one jurisdiction for five consecutive working days, he or she shall register in the jurisdiction in which he or she is physically present on the fifth working day following release, as specified. Beginning on or before the 30th day following initial registration upon release, a transient shall reregister no less than once every 30 days thereafter. A transient shall register with the chief of police of the city in which he or she is physically present within that 30-day period, or the sheriff of the county if he or she is physically present in an unincorporated area or city that has no police department, and additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or AB 2569 Page D she is physically present upon the campus or in any of its facilities. A transient shall reregister no less than once every 30 days regardless of the length of time he or she has been physically present in the particular jurisdiction in which he or she reregisters. If a transient fails to reregister within any 30-day period, he or she may be prosecuted in any jurisdiction in which he or she is physically present. b) A transient who moves to a residence shall have five working days within which to register at that address, in accordance with Penal Code Section 290(b). A person registered at a residence address in accordance with that provision who becomes transient shall have five working days within which to reregister as a transient in accordance with existing law. c) Beginning on his or her first birthday following registration, a transient shall register annually, within five working days of his or her birthday, to update his or her registration with the entities described in existing law. A transient shall register in whichever jurisdiction he or she is physically present on that date. At the 30-day updates and the annual update, a transient shall provide current information as required on the DOJ annual update form, including the information. d) A transient shall, upon registration and re-registration, provide current information as required on the DOJ registration forms, and shall also list the places where he or she sleeps, eats, works, frequents, and engages in leisure activities. If a transient changes or adds to the places listed on the form during the 30-day period, he or she does not need to report the new place or places until the next required re-registration. (Pen. Code, § 290.011, subds. (a) to (d).) 4)Provides that willful violation of any part of the registration requirements constitutes a misdemeanor if the AB 2569 Page E offense requiring registration was a misdemeanor, and constitutes a felony of the offense requiring registration was a felony or if the person has a prior conviction of failing to register. (Pen. Code, § 290.018, subds. (a)&(b).) 5)Provides that within three days thereafter, the registering law enforcement agency or agencies shall forward the statement, fingerprints, photograph, and vehicle license plate number, if any, to the DOJ. (Pen. Code § 290.015, subd. (b).) 6)States that a misdemeanor failure to register shall be punishable by imprisonment in a county jail not exceeding one year, and a felony failure to register shall be punishable in the state prison for 16 months, two or three years. (Pen. Code, § 290.018, subds. (a)&(b).) 7)Provides that the DOJ shall make available information concerning persons who are required to register as a sex offender to the public via an internet website. The DOJ shall update the website on an ongoing basis. Victim information shall be excluded from the website. (Pen. Code § 290.46.) The information provided on the website is dependent upon what offenses the person has been convicted of, but generally includes identifying information and a photograph of the registrant. 8)Generally prevents the use of the information on the Web Site from being used in relation to the following areas: (Pen. Code, § 290.46, subd. (l)(2).) a) Health insurance; b) Insurance; c) Loans; d) Credit; e) Employment; AB 2569 Page F f) Education, scholarships, or fellowships; g) Housing or accommodations; and h) Benefits, privileges, or services provided by any business establishment. FISCAL EFFECT: Unknown. COMMENTS: 1)Author's Statement: According to the author, "As statistics show, the most common sex crimes committed against children are committed by a family member, someone the child knows and trusts. Since 2011, over 1000 sex offenders have been excluded from the Megan's Law website with nearly half of those exclusions being from the family member exemption. The intent of Megan's Law is to provide the public with the information on the whereabouts of sex offenders so communities may protect themselves and their children. If the intent of Megan's Law is to protect the public against sex offenders, yet we are allowing the exclusion of people who are committing sex crimes against their own kin; then the intent of Megan's Law is not being met under the current law. We cannot continue to keep sexual predators and pedophiles hidden from the public. It heavily contradicts the main purpose of Megan's Law: to keep families safe." 2)Sex Offender Registration and the Megan's Law Website: According to a 2014 report by the California Sex Offender AB 2569 Page G Management Board<1>, the intent of registration was to assist law enforcement in tracking and monitoring sex offenders since they were viewed as the group most likely to commit another sex offense. It was thought that having their names and addresses known to law enforcement and with the expansion of community notification also available to the public would dissuade them from committing a new offense, enable members of the public to exercise caution around them, enable law enforcement to monitor them and, if necessary, solve new sex offense cases more readily. Although research suggests that use of a registry may help law enforcement solve sex crimes against children involving strangers more quickly, United States DOJ statistics tell us that most crimes against children (about 93%) are committed not by a stranger but by a person known to the child and his or her family, usually an acquaintance or family member. Since 1947, earlier by far than any other state, California has required "universal lifetime" registration for persons convicted of most sex crimes. (Pen. Code, § 290.) Though every other state has instituted some form of registration since then, California is among only four states which require lifetime registration for every convicted sex offender, no matter the nature of the crime or the level of risk for reoffending. Almost all other states use some version of a "tiering" or "level" system which: 1. recognizes that not all sex offenders are the same, 2. provides meaningful distinctions between different types of offenders and 3. requires registration at varying levels and for various periods of time. There are nearly 100,000 registrants today in California, a number accumulated over the past 66 years since the Registry was created in 1947. In 2004 California began to provide pictures and other identifying information on the Megan's Law website for about 80% of registrants. ( www.meganslaw.ca.gov ) -------------------------- <1> http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Backgroun d%20Paper%20FINAL%20FINAL%204-2-14.pdf AB 2569 Page H There are about 98,000 registered sex offenders on California's registry. About 76,000 live in California communities and the other 22,000 are currently in custody. Of these offenders, 80% are posted on the state's Megan's Law web site with their full address or ZIP Code and other information, depending upon the offense they committed. About 20% are not posted or are excluded from posting on the web site by law, again depending on the conviction offense. Posting on the web site does not take into account years in the community without reoffending, the offender's risk level for committing a new sexual or violent crime, or successful completion of treatment. About one-third of registered offenders are considered "moderate to high risk" while the remaining two-thirds are "moderate to low risk" or "low risk." Local police departments and sheriff's offices are charged with managing the registration process. Registered sex offenders must re-register annually on their birthdays as well as every time they have a change of address. Transient sex offenders re-register every 30 days and sexually violent predators every 90 days. Registration information collected by law enforcement is sent to the California Department of Justice (DOJ) and stored in the California Sex and Arson Registry. If an offender's information is posted online and he fails to register or re-register on time, he will be shown as "in violation" on the Megan's Law web site. When proof is provided by local law enforcement to DOJ of a registrant's death, he or she is removed from the registry. Every ten years since the Registry was first established has been marked by a dramatic increase in the number of registrants. As noted above, the original goal of registration was to assist law enforcement in tracking and monitoring sex offenders. Over time, registration was expanded to include community notification and also began to encompass a wider variety of crimes and behaviors. Due to these changes, research has focused on exploring the changes in sex 4 CASOMB "Tiering Background Paper" offender registration laws and this has resulted in a constantly growing body of research that has AB 2569 Page I altered the perspective on sex offender registration. This research has made it clear that: The sexual recidivism rate of identified sex offenders is lower than the recidivism rate of individuals who have committed any other type of crime except for murder. Not all sex offenders are at equal risk to reoffend. Low risk offenders reoffend at low rates, high risk offenders at much higher rates. It is possible to use well-researched actuarial risk assessment instruments to assign offenders to groups according to risk level. (i.e. Low, Medium, High.) Risk of a new sex offense drops each year the offender remains offense-free in the community. Eventually, for many offenders, the risk becomes so low as to be meaningless and the identification of these individuals through a registry becomes unhelpful due to the sheer numbers on the registry. Research has identified differing time frames of decreased risk for the various categories of offenders (i.e. low, medium, high). Research on both general and sexual offenders has consistently indicated that focusing on higher risk offenders delivers the greatest return on efforts to reduce reoffending. Completing a properly designed and delivered specialized sex offender treatment program delivered within the context of effective supervision reduces recidivism risk even further. In California, all registered sex offenders on parole or probation are now required by state law to enter and complete such a program. 1)The Current Sex Offender Registration System and Megan's Law AB 2569 Page J Website has Become too Unwieldy to be Effective for Law Enforcement: Again, according to California's Sex Offender Management Board, there are a number of problems with the current system as a result of adding too many low-risk sex offenders. California's system of lifetime registration for all convicted sex offenders has created a registry that is very large and that includes many individuals who do not necessarily pose a risk to the community. The consequences of these realities are that the registry has, in some ways, become counterproductive to improving public safety. When everyone is viewed as posing a significant risk, the ability for law enforcement and the community to differentiate between who is truly high risk and more likely to reoffend becomes impossible. There needs to be a way for all persons to distinguish between sex offenders who require increased monitoring, attention and resources and those who are unlikely to reoffend. There are many unintended consequences and indirect costs associated with sex offender registration. Innocent families and children of offenders (including victims of intra-familial sexual abuse) also bear the consequences of lifetime registration since they can often be identified by the public. Adverse consequences also arise for employers, landlords, neighbors and others. There has been a proliferation of residence restrictions and exclusion zones for registered sex offenders in many jurisdictions in California. Violation of these can lead to criminal charges. The obstacles posed by registration status prevent many individuals from obtaining housing or employment and becoming functioning, contributing, tax-paying members of society. There is reason to believe that registration AB 2569 Page K policies, especially lifetime registration, keep some victims, particularly family members of the offender, from disclosing the abuse because they wish to avoid the stigma that will impact their family and their own lives for a very long time. The presence nearby of one or more registered sex offenders can drive down property values in a neighborhood and make houses difficult to sell. If the current registration system was effective in the ways intended, these might be considered part of the price to pay for the greater good. But, since the current registry does not attain its intended purposes, many of these unintended consequences are without justification. 1)AB 1323 (Vargas) Created the Interfamilial Exemption from the Megan's Law Website to Protect Victims of Sex Offenses from Public Disclosure: AB 1323 (Vargas), Chapter 722 of the Statutes of 2005 was a cleanup bill which was passed the year after Megan's Law which was instituted in California as AB 488 (Para), Chapter 745 of the Statutes of 2004. According to background information supplied by the author of AB 1323 (Vargas), as well as information provided by the California Department of Justice at the time, the interfamilial exemption was provided to protect the identity of minor victims of interfamilial molestation. The publishing of the perpetrator's name, offense, address, and photograph on the Megan's Law website would also provide information to the community that a reasonable person would piece together and disclose the fact that a minor was in fact a victim of molestation. At the time, the bill was supported by the California State Sheriff's Association, the California Probation Parole and Correctional Association, California District Attorneys Association, and the San Bernardino County Sheriff. AB 2569 Page L The bill proponents argue that offenders can relocate and reside with another family and might perpetrate the same crime on an unknowing victim. Additionally, they argue that parents of a friend of the minor victim are unable to check the Megan's Law website to determine if their children are at risk when they go and spend time at the house of a potential offender. Opponents state that while some family members may want to see the abuser posted online, many do not. Most family members who offend against another family member maintain some type of relationship with the victim and family and may even reunify. Posting the name of the offender online can disclose the victim's identity and/or cause continuing embarrassment to the victim and whole family-not just the abuser. The law was already amended as a part of Chelsea's law, by the Department of Justice, to provide that DOJ can only exclude offenders who are low and low-moderate risk, but must post moderate-high risk and high risk offenders. Interfamilial exempted offenders are registered as sex offenders, however their identities are not posted on the Megan's Law website. As a result, law enforcement has the mandated requirements for monitoring the offenders without the public disclosure of their identity. As stated previously, the reason for the non-disclosure of the offender's identity is to protect the identity of the victim. 2)Only Low to Low-Moderate Risk Offenders may be Granted an Interfamilial Exemption: California passed Chelsea's Law in 2010 in the form of AB 1844 (Fletcher), Chapter 219, Statutes of 2010. As a part of Chelsea's law the state adopted the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO). SARATSO utilizes evidence-based practices to measure the risk of re-offense of a particular offender. Chelsea's Law imposed the following additional requirement on persons applying for an interfamilial exclusion from the Megan's Law website: AB 2569 Page M "No person shall be excluded pursuant to this subdivision unless the offender has submitted to the department documentation sufficient for the department to determine that he or she has a SARATSO risk level of low or moderate-low." (Pen. Code § 290.46, subd. (e)(4).) The term SARATSO refers to evidence-based, state authorized risk assessment tools used for evaluating sex offenders. State law established the SARATSO (State Authorized Risk Assessment Tool for Sex Offenders) Review Committee, to consider the selection of the risk assessment tools for California. Research shows that the most accurate way of predicting whether a sex offender will reoffend is by utilizing a validated risk assessment instrument. A collaborative approach to sex offender management, known as the Containment Model, is used in California. Communication and collaboration among the supervising officer, treatment provider, and polygraph examiner are the heart of this model, which relies on ongoing communication about risk. In September 2013 the SARATSO Committee selected a new dynamic risk tool, the Stable-2007/Acute-2007. Certified treatment providers must continue to use the previous dynamic instrument, the SRA-FVL, until being trained by a SARATSO-approved trainer in 2013-2014 on the Stable-2007/Acute-2007. 3)Suggested Amendment: The committee has suggested an amendment that would balance a potential middle-ground between the public's right to know and a victim's right to not be "outed" as a victim of molestation. The committee has suggested that rather than eliminating the interfamilial exemption AB 2569 Page N completely, that: Pen. Code § 290.46 require that the Department of Justice Office of Victim Assistance must speak to the victim prior to the granting of an exemption to determine if the granting of the exemption is in the best interest of the victim. 4)Contrary to the Thinking of the California Sex Offender Management Board: On September 20, 2006, Governor Arnold Schwarzenegger signed Assembly Bill 1015, which created the California Sex Offender Management Board. AB 1015 had been introduced by Assembly Members Judy Chu and Todd Spitzer and passed the California Legislature with nearly unanimous bipartisan support. Because California is the most populated state in the Union and has had lifetime registration for its convicted sex offenders since 1947, California has more registered sex offenders than any other state with about 88,000 identified sex offenders (per DOJ, August 2007). Currently, the California Department of Corrections and Rehabilitation (CDCR) supervises about 10,000 of those 88,000 sex offenders, of which about 3,200 have been designated as "high-risk sex offenders". (CDCR Housing Summit, March 2007). Additionally, there are about 22,500 adult sex offenders serving time in one of 32 state prisons operated by CDCR (California Sex Offender Management Task Force Report, July 2007). According to the Sex Offender Management Board, "Innocent families and children of offenders (including victims of intra-familial sexual abuse) also bear the consequences of AB 2569 Page O lifetime registration since they can often be identified by the public. Adverse consequences also arise for employers, landlords, neighbors and others." California Sex Offender Management Board (2014). A Better Path to Community Safety. Available at: ( http://www.casomb.org/docs/Tiering%20Background%20Paper%20FINA L%20FINAL%204-2-14.pdf). 5)Argument in Support: According to United Advocates for Children and Families, "AB 2569 is aimed at addressing a critical component missing in Megan's Law. Our statewide Parent Partner Coalition supports AB 2569. Some of our members have first-hand experience with a relative sexually abusing our children. It compounds the hurt and trauma when that person is excluded from registering as a sex offender and may go on to hurt other family members. Many family members are to shamed or afraid to let other family members know what happened. According to the 'National Center for Victims of Crime' (http://www.victimsofcrime.org) , "People who sexually abuse children usually know the victims before making sexual contact; Abusers can be anyone, even someone the victim used to look up to, like, or trust, such as a neighbor, babysitter, friend, or member of the family or household. "About 90% of children who are victims of abuse know their abuser. Only 10% of sexually abused children are abused by a stranger. Approximately 30% of children who are sexually abused are abused by family members. ( http://www.d2l.org/ ). "Familial abuse effects the whole family for a longer time because the abuser is often still around the family and victim and becomes the 'secret' in the family. This causes discord and suspicion within the family and extended family and the victim is traumatized over and over again. We will continue to support AB 2569." 6)Argument in Opposition: According to American Civil Liberties AB 2569 Page P Union, "AB 2569, is a bill that seeks to eliminate the authority for the Department of Justice to exclude a person on the sex offender registry from disclosure of their information on the internet if the person is a parent, stepparent, sibling or grandparent of the victim, and specific criteria have been met. While it may seem counter-intuitive, the purpose of this provision is to protect the privacy and welfare of victims, particularly minor victims, and it should not be eliminated. "Under current law, a person who is required to register as a sex offender may petition the Department of Justice to exclude their personal information from posting on the internet if all of the following conditions are met: 1) The person is the parent, stepparent, sibling or grandparent of the victim; 2) The person has completed probation or is on probation, meaning that he or she was not sentenced to state prison; 3) The offense did not involve oral copulation or penetration of the genitals; and 4) The person has submitted "documentation sufficient for the department to determine that he or she has a SARATSO risk level of low or moderate-low."(Pen. Code sec. 290.46(e)(2)(D) and Pen. Code sec. 290.46(e)(4).) "AB 2569 seeks to eliminate these provisions, thereby forcing the public posting on the internet of offenders who meet these criteria. "The purpose of this exemption is to protect the privacy and welfare of the victim, particularly minor victims, in these cases. When the offender is a close family member - specifically a parent, stepparent, sibling or grandparent - public disclosure of information about the offender may result in the disclosure of the identity of the victim. It is important to note the very narrow set of offenders to whom this exemption applies: those who have been granted probation, and AB 2569 Page Q thus not sentenced to state prison; who have committed offenses involving only touching, not oral copulation or penetration; and who have a low or moderate-low risk level. Together, these criteria limit this posting exemption to the most low-level of offenses between very close family members. In these circumstances, it is highly likely that the offender and victim continue to have a relationship. They may in fact live in the same home, or the victim may regularly visit the home of the offender. "In these situations, exempting the offender's information from public posting on the internet is necessary to protect the privacy and welfare of the victim. If people know that your sibling, parent or grandparent has been convicted of a sex offense, you will likely face uncomfortable questions from friends, acquaintances and even strangers.<2> Worse yet, you could become the target of harassment for having a close family member on the sex offender list and/or may be impacted by harassment aimed at your family member, particularly if you live in the same home. These problems already exist even with the current exemption. A recent report of the California Sex Offender Management Board states: "Innocent families and children of offenders (including victims of intra-familial sexual abuse) also bear the consequences of lifetime registration since they can often be identified by the public. Adverse consequences also arise for employers, landlords, neighbors and others. . . . "There is reason to believe that registration policies, especially lifetime registration, keep some victims, particularly family members of the offender, from disclosing the abuse because they wish to avoid the stigma that will impact their family and their own lives for a very long --------------------------- --------------------------- <2> Levenson, J. S., & Tewksbury, R. (2009). Collateral damage: Family members of registered sex offenders. American Journal of Criminal Justice. Available at: http://ilvoices.com/media/ea99d28960ec776bffff84beffffe415.pdf AB 2569 Page R AB 2569 Page S time.<3> "Eliminating the existing exemption will make these problems worse. "The current exemption is narrowly tailored to a very limited class of offenders who have committed the lowest level of offense, who are at low risk of reoffending, and who have been deemed appropriate for a grant of probation. If a person does not meet all of these criteria, then their information will be disclosed. The current exemption thus appropriately balances the need for public safety with the need to protect the privacy and welfare of the victim. For these reasons, we must oppose AB 2569." 1)Prior Legislation: a) AB 1844 (Fletcher), Chapter 219, Statutes of 2010, known as Chelsea's Law, specified that the only people eligible for an interfamilial exemption are those who can provide evidence that they are low risk or low-moderate risk on a SARATSO risk assessment. b) AB 1323 (Vargas), Chapter 722 of the Statutes of 2005 was a cleanup bill which was passed the year after Megan's Law which created the interfamilial exemption for the protection of public disclosure of victims who suffered molestation by immediately family members. c) AB 488 (Para), Chapter 745 of the Statutes of 2004, created the Megan's Law website. -------------------------- <3>California Sex Offender Management Board (2014). A Better Path to Community Safety. Available at: http://www.casomb.org/docs/Tiering%20Background%20Paper%20FINAL%2 0FINAL%204-2-14.pdf AB 2569 Page T REGISTERED SUPPORT / OPPOSITION: Support California Alliance of Child and Family Services California Protective Parents Association City of Hemet City of Murrieta Crime Victims United of California AB 2569 Page U Incest Survivors Speakers Bureau of California National Organization for Women of California Stand! For Families Free of Violence United Advocates for Children and Families Opposition American Civil Liberties Union California Attorneys for Criminal Justice California Civil Liberties Advocacy California Public Defenders Association California Reform Sex Offender Laws Legal Services for Prisoners with Children Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 AB 2569 Page V