BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Milton Marks, Chair
S
1995-96 Regular Session
B
5
5
SB 558 (Campbell)
8
As introduced
Hearing date: March 21, 1995
Penal and Family Codes
ALA:ll
CHILD CUSTODY: FALSE ALLEGATIONS OF
CHILD ABUSE OR NEGLECT; FELONY
HISTORY
Source: Author
Prior Legislation: None
Support: Committee on Moral Concerns
Opposition: None known
KEY ISSUE
SHOULD A PARENT OF A CHILD WHO KNOWINGLY MAKES A FALSE ACCUSATION
OF CHILD ABUSE OR NEGLECT AGAINST THE OTHER PARENT, EITHER ORALLY
OR IN WRITING, DURING THE COURSE OF ANY CHILD CUSTODY PROCEEDING
BE GUILTY OF A FELONY?
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SB 558 (Campbell)
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PURPOSE
Under current law, if a court determines that an accusation
of child abuse or neglect made during a child custody
proceeding is false and the person making the accusation knew
it was false at the time they made it, the court may impose
against the person who made the false accusations reasonable
money sanctions not to exceed all costs incurred by the party
accused as a direct result of defending the accusation and
reasonable attorneyos fees incurred in recovering the
sanctions. (Family Code sec. 3027.)
Current law also provides that perjury is a felony punishable
by two, three or four years in state prison. (Penal Code
sec. 126.)
This bill would make a parent of a child who knowingly makes
a false accusation of child abuse or neglect against the
other parent, orally or in writing, during the course of any
child custody proceeding guilty of a felony.
This bill also would require the court to initiate
proceedings to reconsider a custody order in a case where a
parent has been found guilty of this felony.
The purpose of this bill is to strengthen the law against
false accusations of child abuse and neglect in custody
cases.
COMMENTS
1. Stated Need for This Bill.
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The author states:
Currently, during a divorce case, one parent
can falsely accuse or allege the other parent
of child/sexual abuse. . . . Increasing the
penalty for false allegations to a felony will
discourage false accusations.
2. Criminalizing Libel and Slander.
In the past, California has had criminal defamation statutes;
these were repealed in 1986 (libel -- a misdemeanor) and 1991
(slander -- a misdemeanor). ( See former Penal Code sections
248 and 258.) This bill, in effect, would make libel and
slander in the context of certain false child abuse
accusations felonies. As drafted, the bill reaches further
than statements made under oath or upon penalty of perjury;
the bill would reach any knowingly false accusation of child
abuse or neglect, either oral or written, during the course
of any child custody proceeding. Thus, if a parent in any
setting -- conversation, interview, or letter, for example --
knowingly made a false statement of child abuse or neglect
during the course of any child custody proceeding, that
parent would be guilty of a felony under this bill.
Garrison v. Louisiana (1964) 379 U.S. 64 found a criminal
defamation statute as applied against an individual
criticizing the official conduct of public officials
unconstitutional. ( Id. at 77.) While this bill proposes
nothing aimed at public officials, the Courtos discussion
nevertheless may be instructive with respect purely to the
policy of criminalizing civil wrongs. Citing the American
Law Instituteos proposed draft of its Model Penal Code, the
Court quotes:
It goes without saying that penal sanctions
cannot be justified merely by the fact that
defamation is evil or damaging to a person in
ways that entitle him to maintain a civil suit.
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Usually we reserve the criminal law for
harmful behavior which exceptionally disturbs
the communityos sense of security. . . . It
seems evident that personal calumny falls in
neither of these classes in the USA, that it is
therefore inappropriate for penal control, and
that this probably accounts for the paucity of
prosecutions and the near desuetude of private
criminal libel legislation in this country.
( Id. at 69 (citation omitted).
AS A MATTER OF POLICY, SHOULD THE LIBEL AND SLANDER SPECIFIED
IN THIS BILL BE CRIMINALIZED?
3. Penalties Under Current Law.
As noted above, perjury is a felony under current law. Thus,
any false allegation under oath or under penalty of perjury
in a court proceeding, including custody cases, is subject to
felony prosecution. Also noted above, additional penalties
are contained in current law for false allegations of abuse
or neglect in custody cases.
GIVEN CURRENT LAW, IS THIS BILL NECESSARY?
WOULD TREATING FALSE CHILD ABUSE ALLEGATIONS IN CUSTODY CASES
DIFFERENTLY FROM OTHER PERJURY CASES BY CREATING A DISCRETE
FELONY DISCOURAGE SUCH FALSE ALLEGATIONS, OR INCREASE
PROSECUTIONS OF SUCH FALSE ALLEGATIONS?
SHOULD FALSE ACCUSATIONS OF CHILD ABUSE BE CRIMINALIZED IN
INSTANCES NOT INVOLVING CUSTODY PROCEEDINGS? WHY SHOULD
CUSTODY CASES BE DISTINGUISHED FROM OTHER LIBEL OR SLANDER
CASES INVOLVING FALSE CHILD ABUSE CLAIMS? WOULD THIS BILL
INITIATE A oSLIPPERY SLOPEo FOR CRIMINALIZING OTHER
DEFAMATION CLAIMS?
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4. No Penalty Provision.
As drafted, this bill contains no penalty provision. Current
law states that where not provided elsewhere, the penalty for
a felony is oimprisonment in any of the state prisons for 16
months, or two or three years,o except as specified.
IS THE STATUTORY FELONY PENALTY APPROPRIATE FOR THIS PROPOSED
CRIME?
5. Strike Under 3-Strikes.
Under the three-strikes law, an individual convicted of one
prior serious or violent felony must be sentenced upon
conviction of any new felony to double the
previously-prescribed term. (Penal Code sec. 667(e)(1).)
Two prior serious or violent felonies would qualify the
proposed felony as a third strike, subject to an
indeterminate term of life imprisonment, as specified. ( See
Penal Code sec. 667(e)(2).) This bill proposes a new felony
not exempted from the three-strikes statute.
SHOULD THIS PROPOSED FELONY CONSTITUTE A oSTRIKEo?
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