BILL ANALYSIS
AB 950
Page 1
Date of Hearing: April 1, 1997
Counsel: Michael A. Katz
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Robert M. Hertzberg, Chair
AB 950 (Davis) - As Proposed to Be Amended
SUMMARY : Makes a "peeping Tom" conviction, with a prior "peeping
Tom" conviction, an alternate misdemeanor/felony. Specifically,
this bill :
1) Provides that someone is guilty of an alternate
misdemeanor/felony (although current law punishes this offense as
a misdemeanor) if (s)he does all of the following:
a) Peeks in the door or window of any inhabited building or
structure located on another person's private property;
b) While loitering, prowling, or wandering upon that property;
c) Without visible or lawful business with the owner or
occupant; and
d) With a prior conviction for "disorderly conduct" for doing
Items (a) through (c).
2) Punishes the misdemeanor with up to one year in jail, and the
felony with 16 months, 2 or 3 years in prison and/or a fine of up
to $10,000.
EXISTING LAW punishes the act described in Items 1(a) through 1(c)
above as a misdemeanor ("disorderly conduct"), regardless of the
number of prior convictions for the same activity. (This subjects
the defendant to up to one year in jail, but requires no minimum
sentence.) (Penal Code Section 647(i).)
COMMENTS :
1) Author's Statement . According to the author, "Under current
law, the crime of peeping is a misdemeanor. The number of prior
convictions is irrelevant, as this cannot be a felony without some
enhancement. 'Peeping' has been shown to be a 'gateway' act that
often leads to more serious and/or violent acts. This bill will
put a 'peeper' on notice and give the court the discretion to
order counseling or remedy the behavior."
2) Are "Peeping Toms" Likely to Commit More Serious Offenses ?
According to Roger W. Wolfe, who specializes in the treatment of
sex offenders at Northwest Treatment Associates in Seattle, a
"peeping Tom", or voyeur, generally is manifesting a "chronic
problem" that cannot be addressed by a "slap on the wrist." Mr.
Wolfe points out that these offenders seek out victims because the
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offenders enjoy the "risk."
As Mr. Wolfe observes, the typical "peeping Tom" could engage
in less risky, less frightening, and completely legal activity,
such as viewing a
sexually explicit video tape. Rather, it is the enjoyment of
risk, and the interaction with the victim, Mr. Wolfe says, which
motivates "peeping Toms." These same factors cause many "peeping
Toms" to escalate their behavior, thus posing a greater threat to
victims.
Mr. Wolfe points to a study which supports his position, Abel,
et. al., Multiple Paraphilic Diagnosis Among Sex Offenders
(1988) Bulletin of the American Academy of Psychology and the
Law, Vol. 16, Number 2, Pages 153-168 (the Abel study). The
Abel study analyzed the behavior of 62 voyeurs, among other
sexual offenders, over a one-year period.
Among the Abel study's conclusions were the following:
a) 52% of the voyeurs admitted to having sexual contact with a
female pre-pubescent child outside of the home within
the last year.
b) 26% of the voyeurs admitted to having this contact with a
male pre-pubescent child during the last year.
c) 18% admitted to having sexual contact with a female
pre-pubescent child outside of the home within the
last year.
d) 10% admitted to having such contact with a male
pre-pubescent child outside of the home within the last
year.
e) 37% admitted to committing a rape within the last year.
f) 11% admitted to engaging in sadism within the last year.
g) 15% admitted to making obscene telephone calls within the
last year.
h) 8% admitted to masturbating publicly within the last year.
i) 10% admitted to engaging in acts of bestiality within the
last year.
However, Robert Prentke, the Director of Clinical and Forensic
Services at the Peters Institute in Philadelphia (which is
devoted exclusively to treating sexually deviant behavior),
argues that because the subjects in the Abel study were from a
"heterogeneous group" of people from varying backgrounds, it is
"difficult to say" whether any individual voyeur is likely to
commit more dangerous acts. Mr. Prentke pointed to several
relevant factors for predicting more dangerous behavior:
sexual drive, strong evidence of anger, history of assaultive
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behavior, and truancy.
Yet Michael Prodan, a Special Agent Supervisor and a Criminal
Investigative "Profiler" for the California Department of
Justice, puts great weight on the Abel study. Mr. Prodan also
points to a Federal Bureau of Investigation (FBI) study which
shows that of 41 incarcerated serial rapists (who committed a
minimum of 10 rapes each and committed a total of 837 rapes),
68% of them (or 27 rapists) engaged in peeping.
(R. Hazelwood and A. Burgess, An Introduction to the Serial
Rapist: Research By the FBI, FBI Law Enforcement Bulletin,
Vol. 58, No. 9, Sept. 1987, Pp. 16-24.)
Mr. Prodan also cites another study which concluded that of 259
"power reassurance" rapists, 70% (or 181 of them) used peeping
and prowling as a means of selecting their victims. (J.
Warren, R. Reboussin, and R. Hazelwood, The Geographic and
Temporal Sequencing of Serial Rape, The
National Institute of Justice, Submitted July 15, 1995.)
3) Prior Legislation . AB 2051 (Alpert), Statutes of 1996,
Chapter 1020, Section 2, and ABx1 116 (Alpert), Statutes of 1995,
Chapter 91, concern disorderly conduct in other contexts.
4) Arguments in Support . Sergeant Meryl Bernstein of the San
Diego Police Department provides the example of a man in his
community who was convicted of "peeping" in 1989 and 1993. This
defendant was also arrested in Montana in 1985 for attempted rape,
but the charges were dismissed for an unknown reason.
Sergeant Bernstein argues that the current law is "ludicrous,"
because it punishes "peeping" as a misdemeanor, regardless of
the prior convictions. The Sergeant points out that indecent
exposure is a felony, and that petty theft with a prior theft
conviction is an alternate misdemeanor/felony. (Penal Code
Sections 314 and 666.)
Sergeant Bernstein states, "The law has 'no teeth.' Recidivism
rates are extraordinarily high for those predators who obtain
sexual gratification by staring into the windows of their
unknowing victims. In addition, this 'gateway' behavior has
been shown to escalate into violent acts of rape and other
sexually-related offenses. Sex crimes detectives state that a
great majority of serial rapists were once 'peeping Toms'."
Casey Gwinn, the San Diego City Attorney, states "Arrests for
peeping comprise only a small percentage of times that an
offender invades the privacy and safety of victims....
Defendants typically suffer from one or more forms of mental
illness.... Convicts require significant custody and extensive
rehabilitation to safeguard society form future violations....
Peeping often is the precursor to more predatory behavior....
Victims of this crime suffer the same pain, indignity and sense
of violation as other victims of serious violent crimes."
The City Attorney cited the example of one defendant who pled
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guilty to peeping into the bathrooms, bedrooms and dining rooms
of five of his neighbors. The court ordered the defendant to
obtain extensive counseling, and take medication as prescribed
by a doctor. The court also sentenced him to six months in
jail.
Sharon Wilson, Executive Director of San Diegans United For
Safe Neighborhoods, states that "the history of this type of
crime indicates that it is a precursor to sexual assault, child
abuse and rape, as well as theft, burglary, and other acts of
violence." Ms. Wilson asks, "The crime of petty
theft...becomes a felony upon the second conviction. Why not
peeping?"
Ms. Wilson states that "Peeping is not a victimless crime. It
invades privacy and destroys innocence. Someone who has been
the victim of peeping suffers mental anguish and fear that can
be debilitating. They can become apprehensive and unsure of
themselves. It erodes their confidence and sense of personal
safety."
Ms. Wilson urges that "This type of criminal behavior should
not be viewed as a misdemeanor. A repeat offender should
experience consequences that will significantly impact his
opportunity to repeat his crime."
6) Arguments in Opposition . The American Civil Liberties Union
states that a
second "peeping Tom" conviction "does not warrant the severity of
a felony classification and state prison time. Existing law
provides for adequate penalties to address this offense. At a
time of unprecedented prison overcrowding, incarceration in state
prison for this offense is clearly inappropriate and excessive."
REGISTERED SUPPORT/OPPOSITION :
Support
Sergeant Meryl Bernstein, San Diego Police Department
Sharon Wilson, Executive Director, San Diegans For Safe
Neighborhoods
Opposition
American Civil Liberties Union
Analysis prepared by : Michael A. Katz / apubs / (916) 445-3268