BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair S
2003-2004 Regular Session B
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SB 1803 (Battin) 3
As Introduced February 20, 2004
Hearing date: April 20, 2004
Penal Code
JM:mc
SEX OFFENSES AGAINST CHILDREN
ELIMINATING DEFERRED ENTRY OF JUDGMENT AND PROBATION
HISTORY
Source: National Association to Protect Children
Prior Legislation: SBX1 38 (Kopp) - Ch. 49, Stats. 1s Ex. Sess.
1994
Support: California State Sheriffs' Association; Mothers of Lost
Children
Opposition:California Public Defenders Association; California
Attorneys for Criminal Justice; ACLU
KEY ISSUES
UNDER EXISTING LAW (PEN. CODE 1203.066 AND 1203.067),
PROBATION IS PROHIBITED OR STRICTLY LIMITED FOR A DEFENDANT
CONVICTED OF LEWD CONDUCT WITH A CHILD UNDER THE AGE OF 14.
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(CONTINUED)
EXISTING LAW (PEN. CODE 1203.066, SUBD. (c)) INCLUDES AN EXCEPTION
TO THE LEWD CONDUCT PROBATION PROHIBITIONS WHEREBY A PERSON
CONVICTED OF NON-COERCED OR NON-FORCED INTRA-FAMILY LEWD CONDUCT
WITH A CHILD UNDER 14, WHERE THE CRIME INVOLVED "SUBSTANTIAL SEXUAL
CONDUCT" (SPECIFIC SEX ACTS OR MASTURBATION BY THE DEFENDANT OR
CHILD), MULTIPLE VICTIMS OR PORNOGRAPHY, MAY BE GRANTED PROBATION
ONLY UNDER STRICTLY LIMITED CONDITIONS, INCLUDING THAT PROBATION IS
IN THE BEST INTERESTS OF THE CHILD AND THE PERSON CAN BE
SUCCESSFULLY REHABILITATED.
SHOULD THIS LIMITED PROBATION ELIGIBILITY BE ELIMINATED?
UNDER EXISTING LAW, A PERSON WHO IS ELIGIBLE FOR PROBATION UNDER
SECTION 1203.066 FOR A NON-FORCED OR NON-COERCED INTRA-FAMILY MOLEST
IS NOT SUBJECT TO A ONE-STRIKE SENTENCE.
SHOULD THIS LIMITED ONE-STRIKE EXCEPTION BE ELIMINATED?
UNDER EXISTING LAW, THE PROSECUTOR MAY OFFER A DEFENDANT CHARGED
WITH NON-COERCED OR NON-FORCED LEWD CONDUCT WITH A CHILD UNDER THE
AGE OF 14 THE CHANCE TO ENTER A DEFERRED ENTRY OF JUDGMENT TREATMENT
PROGRAM - WITH STRICT LIMITS AND REQUIREMENTS - IN EXCHANGE FOR A
GUILTY PLEA TO ALL CHARGES. THE CHARGES CANNOT BE DISMISSED FOR AT
LEAST FIVE YEARS.
SHOULD THIS DEFERRED ENTRY OF JUDGMENT PROGRAM BE ELIMINATED?
SHOULD INCEST BE DEFINED AS FORNICATION OR ADULTERY BETWEEN ADULTS
WHO ARE WITHIN THE DEGREE OF BLOOD RELATIONS FOR WHOM MARRIAGE IS
PROHIBITED, RATHER THAN THE EXISTING DEFINITION WHICH DOES NOT REFER
TO THE AGE OF THE PARTICIPANTS?
PURPOSE
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The purposes of this bill are to: 1) eliminate the limited
probation eligibility for persons convicted of non-coerced,
non-forced intra-family lewd conduct involving substantial
sexual conduct (a defined sex act or masturbation), multiple
victims or pornography; 2) eliminate the existing exception to
one-strike sex crime (life term) sentencing for persons
convicted of non-forced, non-coerced intra-family lewd conduct
who are eligible for probation; 3) eliminate deferred entry of
judgment programs for persons convicted of non-forced,
non-coerced lewd conduct; 4) define incest as a crime between
adults, thus apparently eliminating the use of a guilty plea to
incest (for which probation may be granted and one-strike
sentences are not imposed) as an alternative to lewd conduct.
Lewd Conduct, Generally
Existing law provides that any person who commits a lewd and
lascivious act with a child under the age of 14 years shall be
imprisoned in state prison for 3, 6 or 8 years. (Pen. Code
288.) In most cases the court can or must impose fully
consecutive terms for each separate act. (Pen. Code 667.6,
subds. (c) and (d).)
Existing law defines a lewd act with a child as:
Any touching (through clothing or on the skin) of a child
(by the defendant or by the child at the instigation of
the defendant).
Done for sexual gratification (of the perpetrator or the
child). (People v. Martinez (1995) 11 Cal.4th 434,
452.)<1>
Defined sex crimes (rape, oral copulation, etc.) may also
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<1> While lewd conduct generally involves sexually motivated
touching of a child's breasts, buttocks or external sexual
organs, lewd conduct may involve sexually motivated touching of
any part of the body with sexual intent. (People v. Martinez,
supra, 11 Cal.4th at 444.)
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be charged as lewd conduct. (People v. Pearson (1986) 42
Cal.3d 351.)
Existing law defines two forms of lewd conduct: 1) Where the
crime is accomplished by force, fear, duress or menace. 2)
Where no force, fear, duress, etc., is used. The sentence for
the crime itself is the same whether or not force or duress
was used. However, numerous other consequences apply based on
whether or not the crime involved force or duress. (Pen. Code
288, subds. (a)-(b).)
Existing law , as interpreted by the courts, defines or describes
force, duress and menace thus:
Force : The majority of cases hold that the element of
"force" is shown by force that allowed the defendant to
accomplish the act without the child's consent. (People v.
Neel (1993) 19 Cal.App.4th 1784.)
Duress : Direct or implied threat of force, violence, danger,
hardship or retribution sufficient to allow commission of the
act. The jury shall consider all of the circumstances in
determining whether duress was proved, including the age of
the victim and his or her relationship to the defendant.
(People v. Pitmon (1985) 170 Cal.App.3d 38, 47-51.) (E.g., a
threat to send a child to bed without dinner would appear to
constitute duress.)
Existing law provides that lewd conduct with a child of 14 or 15
years of age (regardless of whether or not force or fear was
used), where the defendant was more than 10 years older than the
victim, is an alternate felony-misdemeanor punishable by
imprisonment in the county jail for up to 1 year or in state
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prison for "one, two or three years."<2> (Pen. Code 288,
subd. (c).)
Existing law provides that a caretaker of a dependent adult who
commits a lewd act with the dependent person by means of force
or duress is guilty of a felony punishable by 3, 6 or 8 years in
prison. (Pen. Code 288, subd. (b)(2).)
Existing law provides that a caretaker of a dependent adult who
commits a lewd act with the dependent person other than by
means of force or duress is guilty of an alternate
felony-misdemeanor punishable by imprisonment in the county
jail for up to 1 year or in state prison for "one, two or three
years." (Pen. Code 288, subd. (c)(2).)
Deferred Entry of Judgment in Cases of Lewd Conduct With a
Child; Counseling Programs in Child Abuse Matters not Involving
Lewd Conduct
Existing law provides that, except in sexual abuse cases, the
prosecutor may, in lieu of prosecution , refer a person suspected
of abusing or neglecting a child, to the county social services
or probation department for counseling or psychological
treatment and related necessary services. Prosecutors must
consult with the social service or probation department prior to
making such referral. (Pen. Code 1000.12, subd. (b).)
Existing law (Pen. Code 1000.12, subd. (c)(1)) provides that
in a case in which a minor is the victim of "an act of
molestation or sexual abuse" the prosecutor, in lieu of trial ,
may move the court to defer entry of judgment as to a defendant
who pleads guilty to all charges and enhancements. The court
can accept or reject the agreement between the defendant and the
prosecutor. Prosecutors are not required to offer deferred
entry to an eligible defendant. (People v. Andreotti (2001) 91
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<2> This is an unusual triad, as the standard low-term felony
sentence is 16 months.
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Cal.App.4th 1263.) (It appears that this program is seldom
used.)
In deferred entry for sexual abuse cases, the prosecutor
shall compose eligibility standards, including, at a
minimum:
Deferred entry is in the best interests of the
child.
Rehabilitation is feasible in a recognized program,
as defined by Pen. Code 1203.066, designed to the abuse
involved in the charges.
No threat of harm to the victim.
No charges under Pen. Code 208, subd. (b), (lewd
conduct by force or duress), 288a (oral cop.), 288.5
(continuous sexual abuse of a child) or sexual
penetration, or any crime involving force or duress.
Deferred entry must include these terms:
Defendant may not use/possess illegal drugs or
associate with drug users or sellers.
Defendant must submit to search and seizure.
Unification with family or unsupervised contact with
victim prohibited except on recommendation of treatment
program, motion of the prosecutor and order of the court.
Existing law (Pen. Code 1000.13) includes the following
additional requirements for deferred entry in a case of sexual
abuse of a child:
Defendant must make written agreement with the
prosecutor.
Defendant must be related to the victim.
No prior felony sex crime or sexual misdemeanors
involving children.
No prior violent felony convictions and prison free
during past 10 years.
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No prior unsuccessful diversion program, probation or
parole within past 10 years.
No prior referral under this program.
Prosecutors "may impose additional relevant criteria".
Existing law provides that upon 1) successful completion of the
deferred entry treatment program, 2) the positive recommendation
of the treatment provider, and 3) the motion of the prosecutor,
the court shall dismiss the charges against the defendant.
Dismissal can be ordered no sooner than 5-years after referral
for treatment. (Pen. Code 1000.12, subd. (c)(1).)
Existing law provides that upon failure of treatment, the court
shall enter judgment and impose sentence. (Pen. Code 1000.12,
subd. (c)(2).)
Under existing law , it is an open question as to whether a
person who successfully completes a deferred entry of judgment
program under Penal Code section 1000.12 and 1000.13 is required
to register as a sex offender, as the person's plea does not
ripen into a judgment. The Attorney General has concluded that
a person who successfully completes deferred entry of judgment
is required to register as a sex offender. It should be noted
that the deferred entry statutes for drug offenses specifically
provide (Pen. Code 1000.1, subd. (d)) that a guilty plea for a
person who successfully completes deferred entry is not
considered a "conviction" for any purpose. A similar provision
is not included in section 1000.12 for deferred entry in lewd
conduct cases.
Under existing decisional law - a recent decision of the
California Supreme Court (People v. Laino) - a guilty plea to
lewd conduct in a deferred entry program would appear to be a
prior conviction for purposes of the Three Strikes law. The
stay of "imposition of judgment" does not affect the nature of a
prior conviction for purposes of Three Strikes. (Pen. Code
1170.12, subd. (b)(1).) The decision in Laino may raise complex
issues about what constitutes a conviction, the court in that
case held: "[O]nce we are satisfied that a defendant's factual
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guilt was established in the foreign state, and once we are
satisfied that such conviction constitutes a strike under our
three-strikes law, that prior crime will count here." (People
v. Laino (2004) ___ Cal.4th ____, emphasis added.)
This bill would provide that deferred entry of judgment shall
not be available to any defendant charged with "sexual abuse or
molestation of a minor victim." The bill does not eliminate a
narrower prohibition in existing law prohibiting deferred entry
eligibility for a defendant charged with lewd or lascivious acts
upon a child, oral copulation with a minor, continuous sexual
abuse of a child, forcible acts of sexual penetration, or any
sexual abuse or molestation of a minor. Such specific crimes
appear to be included in the more general prohibition.
This bill appears to impose the deferred entry eligibility
requirements for sexual abuse in existing law to physical abuse
charges instead.
This bill may, by only allowing deferred entry in child physical
abuse cases, prohibit deferred entry of judgment for defendants
charged with allowing abuse of a child, where another person
committed sex crimes against the child and the defendant failed
a duty to prevent such conduct (e.g., the stepfather molested
the child and the mother is charged with failing to prevent
that).
This bill may eliminate the ability of prosecutors, in lieu of
prosecution , to refer a person suspected of abusing or
neglecting a child to the county social service agency or
probation department for counseling. This is because the
subdivision allowing counseling (Pen. Code 1000.12, subd. (b))
includes the limiting clause, "except as provided in subdivision
(c)." Subdivision (c) allows the prosecutor, in lieu of trial ,
to defer entry of judgment for any person charged with physical
abuse or neglect of a child. This bill thus may place
subdivision (b) of section 1000.12 in conflict with subdivision
(c).
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Probation Prohibitions and Limitations in Sex Offenses Against
Children Generally
Existing law provides that before a person convicted of lewd
conduct may have his sentence suspended, the court must obtain a
report from a "reputable psychiatrist, reputable psychologist
who meets the standards of Penal Code section 1027,<3> or from a
recognized treatment program pursuant to Penal Code section
1000.12 or 1203.066, as to the mental condition" of the
defendant. (Pen. Code 288.1.)
This bill eliminates the provision in section 288.1 concerning
"a recognized treatment program pursuant to Section 1000.12 or
1203.066." These sections refer to deferred entry of judgment
and probation in non-forced, non-coerced intra-family molests.
These programs are eliminated by this bill.
Existing law (Pen. Code 1203.066 and 1203.067) allow
probation for a person convicted of lewd conduct, including
non-forced or non-coerced offenses, only under certain
circumstances. Section 1203.067 states general requirements for
a person who is eligible for specified sex crimes, including
lewd conduct. Section 1203.066 sets out numerous, specific
circumstances under which probation is prohibited for lewd
conduct.
Existing law (Pen. Code 1203.066), with limited exceptions,
prohibits probation for any person convicted of lewd conduct
with a child under the age of 14 (Pen. Code 288) or continuous
sexual abuse of a child (Pen. Code 288.5). Further, the court
may not, under section 1385, strike any finding that would
prohibit probation under section 1203.066. In particular, a
person is not eligible for probation where one of the following
is shown:
Crime committed by force, duress, or fear of immediate injury
to victim or another person
The victim suffered bodily injury.
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<3> Doctoral degree and at least 5 years of experience.
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The defendant was a stranger to the child or befriended the
child in order to commit the crime, unless the defendant
reasonably believed the victim was under the age of 14.
The defendant has been previously convicted of one of
(numerous) specified sex crimes.
Crime was committed during a kidnapping.
More than one victim involved.
The crime involved substantial sexual conduct (masturbation of
victim or defendant, penetration of vagina or rectum, oral
copulation).
Obscene matter or matter depicting minors engaged in sexual
conduct (actual or simulated) used in the commission of the
offense.
Existing decisional law provides that "in enacting section
1203.066 it appears that the Legislature intended that state
prison be the sentencing norm in child molestation cases,
meeting the criteria in subdivision (a), and that the defendant
bear the burden of persuading the court to depart from that norm
by granting probation." (People v. McLaughlin (1988) 203
Cal.App.3d 1037, 1039.)
Existing law provides that a defendant convicted of lewd and
lascivious conduct that did not involve force or duress<4>,
but that did involve "substantial sexual contact," more than
one victim, or the use of pornography, is eligible for
probation only under the following, limited circumstances:
Defendant is the victim's parent, stepparent, relative or
member of the victim's household.
A grant of probation is in the best interests of the child.
Rehabilitation is feasible and the defendant is amenable to
rehabilitation.
The defendant must immediately be placed in a recognized
treatment program for child molesters.
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<4> Existing law denies probation for any person convicted of
lewd conduct committed by force, violence, duress or menace.
(Pen. Code 1203.066, subd. (a)(1).)
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Defendant must be removed from home until court determines
best interests of the child allows defendant to return.
The treatment program must meet strict standards, including
demonstration of "expertise in the treatment of children who
are victims of child abuse, their families and offenders."
The program must provide "an integrated program or treatment
and assistance to victims and their families." (Pen. Code
1203.066, subds. (c) and (e).) The fact that a defendant is
statutorily eligible for probation does not mean that the
court must grant probation. The court makes such a
determination after weighing all applicable factors.
This bill eliminates the limited eligibility for probation set
out in section 1203.006, subdivisions (c) and (e), for
intra-family lewd conduct.
Existing law includes the following requirements for a grant of
probation in section 1203.067 (for a person who is not subject
to numerous probation prohibitions in other statutes):
Evaluation of defendant by a diagnostic facility of the
Department of Corrections (90 day maximum) or a similar
evaluation the probation department.
Court hearing to determine if the defendant would pose a
threat to the victim.
Psychiatric or psychological evaluation to consider threats to
the victim or the defendant's potential for positive response
to treatment.
Court must order defendant placed in a sex offender treatment
program, if available.
This bill does not appear to eliminate the very limited
possibility of probation (under Pen. Code 1203.067) where a
person who is not a stranger to the child is convicted of
non-forced, non-coerced lewd conduct, if other prohibiting
factors (substantial sexual conduct, multiple victims, etc.) do
not apply. It thus it appears that a family member (or other
non-stranger) who commits non-forced or non-coerced lewd conduct
could be granted probation in such a case if this bill is
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enacted. The probation requirements in 1203.067 are not as
strict or extensive as deferred entry of judgment (
1000.12-1000.13) or probation under section 1203.066.
Existing law allows a prosecutor to challenge a grant of
probation by means of a petition for writ of mandate or
prohibition. (Pen. Code 1238, subd. (d).) In a sentencing
scheme such as that in 1203.066 - where a prison term is
presumed to be the appropriate disposition - a grant of
probation would be improper unless the record establishes that
the defendant meets the requirements of any exception.
One Strike Sex Crime Law and Related Matters
Existing law includes the "one-strike" sex crime sentencing law
that provides sentences of 15 years or 25 years-to-life in
certain sex crimes if specified circumstances in aggravation are
found to be true. (Pen. Code 667.61.)
Existing law states that the qualifying sex crimes under the
"one-strike" sex law are forcible rape, forcible spousal rape,
rape by a foreign object, forcible sodomy, forcible oral
copulation, lewd and lascivious acts with a child under the age
of 14 accomplished by force or duress, and lewd and lascivious
acts with a child under the age of 14 accomplished by other than
force or duress where the defendant is not eligible for
probation. (Pen. Code 667.61, subd. (c).)
Existing law provides that if one of the enumerated aggravating
factors set out in Section 667.61, subdivision (d), is found to
be present, then the qualifying sex offense is punishable by a
term of 25 years-to-life. (Pen. Code 667.61, subd. (a).)
Single Factor - 25 years-to-life :
Defendant was previously convicted of one of the qualifying
sex offenses
Defendant kidnapped the victim substantially increasing the
risk of harm
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Defendant inflicted aggravated mayhem or torture
The crime involved residential burglary with the intent to
commit a sex offense
Existing law provides if one of the enumerated aggravating
factors in Section 667.61, subdivision (e) is found to be
present, the qualifying sex offense is punishable by a term
of 15 years-to-life. If the crime involves two or more of
these factors, the defendant shall receive a term of 25 years
to life. (Pen. Code 667.62, subds. (a)-(b).)
One Factor - 15 years-to-life; Two Factors - 25 years-to-life
Defendant committed the offense in the course of a
residential burglary
Defendant kidnapped the victim
Defendant personally used a dangerous or deadly weapon
Defendant inflicted great bodily injury
The victim was tied or bound
The crime involved more than one victim
The defendant administered a controlled substance by force,
violence or fear. (Pen. Code 667.61, subd. (e).)
Existing law includes an exception for one-strike eligibility
in cases where a defendant charged with non-forced, non-coerced
lewd conduct ( 288, subd. (a)) is eligible for probation under
the strictly limited circumstances set out in Penal Code
section 1203.066. (Pen. Code 667.61, subd. (c)(7).) As
noted above, these circumstances include: Intra-family molest;
probation for the defendant is in the best interests of the
child; rehabilitation is feasible; defendant is amenable to
rehabilitation; defendant must immediately be placed in a
recognized treatment program for child molesters; defendant
removed from the home; treatment program must meet strict
standards of expertise and quality. As noted above in the
paragraphs describing section 1203.066, the fact that a
defendant is statutorily eligible for probation does not mean
that the court must grant probation. The court makes such a
determination after weighing all applicable factors.
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This bill eliminates the exclusion from one-strike penalties for
persons who are charged with lewd conduct, but who are eligible
for probation under the limited circumstances set out in Penal
Code section 1203.066.
Incest Laws
Existing law provides that it is a felony for specified blood
relatives (those who could not legally marry) to commit
fornication or adultery with one another. This felony is
punishable by imprisonment in state prison for 16 months, 2
years or 3 years and a fine of up to $10,000. (Pen. Code
285.)
Existing law defines incestuous marriages thus: "Marriages
between parents and children, ancestors and descendants of every
degree [grand and great-grand relatives] and between brothers
and sisters of the half as well as the whole blood, and between
uncles and nieces or aunts and nephews, are incestuous, and void
from the beginning ?" (Fam. Code 2200.)
Existing law appears to include no special prohibitions or
limitations on probation for persons convicted of incest; a
person convicted of incest is not subject to a life term under
the one-strike law. Incest is not listed as serious or violent
felony subject to the Three Strikes law.
This bill would provide that it is a crime punishable by
imprisonment in the state prison for specified blood relatives
who are 18 years of age or older to commit fornication or
adultery with one another.
This bill appears intended to eliminate the possibility of a
guilty plea to incest as reasonably related to a charge of lewd
conduct in intra-family child molest cases.
COMMENTS
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1. Need for This Bill
According to the author:
In 1981, California lawmakers passed a law that, as
one legal newspaper later said, "belongs in the Legal
Hall of Shame." It made raping and molesting children
under 14 a minor offense, as long as the victim was a
child or family member of the very person who hurt
them. California law spells out specific sentences
for molesting children, from 3-16 years. But there is
an exception: if the perpetrator of the unthinkable
act is a family member, he or she is eligible to
receive probation while they attend therapy and they
may be permitted to remain in the home. Furthermore,
once the offender completes their mandated therapy,
the conviction against them is removed from their
record. Then they can be free to simply return to the
home in which the abuse occurred - this is a travesty.
There are numerous studies documenting the increase of
child molestation today and the numbers are
staggering. A 2001 study by Dr. Gene Abel and Nora
Harlow estimated that, within the U.S., there are
currently over 2,231,000 girls and 1,004,000 boys
under 13 who have been sexually abused. They also
estimated that 27,160,752 adult females and 12,222,388
adult males are survivors of childhood sexual abuse.
Even if these estimates are off by half, they are
still horrifying. We are failing miserably at
protecting our children!
That same study also pointed out: "The overwhelming
majority of molesters (68 percent) sexually abuse
children in their own families - either children whom
they parent, nieces and nephews, or grandchildren. As
teenagers they molest much younger siblings."
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As stated earlier, under current California law, if
someone molests a stranger they are considered
predatory and go to prison. But if they harm someone
close to them they can, and usually do, receive
therapy. It is inappropriate, and harmful to the
children involved, for society to pretend that one
offender can be cured while the other must be removed
for our protection. Besides the obvious physical
abuse, psychologists and counselors continually point
out the amount of emotional damage that is inflicted
upon children who are abused by a family member. This
is often a person who the child trusts, and when that
trust is destroyed, the emotional foundation of the
child is leveled. One can see a similar example of
this in the wake of the abuse scandals that rocked the
Catholic Church, where children were abused by someone
who was in a position of trust.
As if the original abuse isn't bad enough, we are
returning abusers to live with the victims again,
offering them a new opportunity to hurt the ones they
are supposed to be caring for. And case after case
after case demonstrates that they do strike again.
Their actions go beyond a pedophile who seeks out
victims elsewhere. These offenders have broken a
sacred trust with family members who they should be
dedicated to protecting. It is patently absurd and
unconscionable to put the child and their abuser back
together. It is time to step up and protect our
children.
2. Remaining Probation Eligibility Under Penal Code Section
1203.067 if This Bill is Enacted
This bill eliminates a limited exception from specified
probation prohibitions under section 1203.067, subdivisions
(a)(6)-(9), for intra-family child molests where the court finds
that the defendant can be successfully treated and the grant of
probation is in the best interests of the child. Section
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1203.066 includes numerous other probation prohibitions,
including forced or coerced lewd conduct, use of a weapon,
substantial sexual conduct (including masturbation through the
clothing) and commission of the offense by a "stranger." Where
those circumstances are not present, it appears that this bill
would still allow probation under Penal Code section 1203.067
for persons convicted of non-forced and non-coerced lewd
conduct.
The prohibition against probation for cases involving
substantial sexual conduct ( 1203.066, subd. (b)) would bar
probation in a very large proportion of cases. As noted above,
substantial sexual conduct is defined as any defined sex act
(intercourse, oral copulation, etc.) or masturbation. In most
cases, it would be very difficult to prove that a defendant's
touching of a child was sexually motivated, at least unless some
masturbatory touching (of the perpetrator or the victim) was
involved. (For example, prosecutors would likely have great
difficulty proving that the touching of a child's knee through
clothing was sexually motivated unless the defendant touched his
genitals or genital area or the defendant admitted his
motivation.)
Section 1203.067 requires expert evaluation of the prospective
probationer, a finding that probation would not endanger the
victim and that the probationer be placed in "an appropriate
treatment program" for child molesters. Nevertheless, the
requirements under section 1203.066 are much more strict than
1203.067.
If this bill is enacted, in cases where the prosecution may be
unable to obtain a conviction at trial, the prosecution would
likely be forced to offer a grant of probation under section
1203.067 rather than under the more rigorous program in
1203.066, even where the conduct involved substantial sexual
conduct or other aggravating factors. Section 1203.066 forbids
the court to strike an allegation rendering the defendant
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ineligible for probation. It appears that no similar limitation
applies to prosecutors. As lewd conduct is a serious felony (
1192.7, subd. (c)), a prosecutor would be required to establish
evidentiary problems to justify a plea bargain). Probation
under section 1203.067, as limited by 1203.066, is not be
limited to family members, but rather to non-strangers. A
teacher, a bus driver, a family friend is eligible for probation
for non-forced, non-coerced lewd conduct with no other
disqualifying factors.
3. Elimination of Prosecutor's Ability to Offer Deferred Entry of
Judgment or Probation - Concern in Cases That May be Difficult
to Prove
? General Concerns over Limiting Prosecutorial Discretion to
Resolve Lewd Conduct Charges
Cases involving claims of intra-family sexual molest may be
difficult to prove. The alleged victim may have limited
communication skills. The alleged victim may be susceptible to
pressure and influence of other family members who do not wish
to see the prosecution go forward. The initial interview of the
child may be subject to attack as leading and suggestive. The
family may be uncooperative and may perhaps hide the victim or
move from the jurisdiction. In such cases, particularly where
the child's statements cannot be admitted at trial, the
prosecutor may wish to offer a program of deferred entry of
judgment. The benefits to the defendants include avoidance of
conviction and the requirement of registration as a sex
offender. The benefits to the prosecution include the certainty
that the defendant must plead guilty. If the defendant fails
to successfully complete a treatment program, judgment will be
entered on the plea. The defendant will undergo treatment. The
court will generally prohibit the defendant from residing with,
or visiting without supervision, the victim. The charges cannot
be dismissed for 5 years.
Similar considerations flow from the availability of probation.
Many district attorneys may not have deferred entry programs in
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lewd conduct cases. Some judges may not approve deferred entry.
Further, defendants may be reluctant to plead guilty to all
charges filed, as is required under deferred entry.
? Concerns from Recent United States Supreme Court Substantially
Limiting Hearsay in Cases Where Defendant did not or cannot
Confront Victim
The United States Supreme Court, in Crawford v. Washington
(2004) ____ U.S. ____ 2004 U.S. Lexis, 1838) issued an important
decision limiting the ability of prosecutors to introduce
statements made by victims and witnesses to the police in cases
where the victim does not testify at trial. The court held that
the Confrontation clause of the United States Constitution
(Sixth Amendment) requires that a defendant have the opportunity
to cross-examine a witness before "testimonial" statements are
admitted against the defendant at trial. Testimonial statements
appear to include those made to the police during investigation
of a crime.
In particular, the court ruled (at pp. 50-51):
Where testimonial evidence is at issue, however, the
Sixth Amendment demands what the Confrontation Clause
demands what the common law required: unavailability
[of the witness at trial] and a prior opportunity for
cross-examination. ?Whatever else the term covers, it
applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations.
The court explained in footnote 4: "We use the term
"interrogation" in its colloquial, rather than any technical
legal sense. [Citation] Just as various definitions of
testimonial exist, one can imagine various definitions of
"interrogation," and we need not select among them in this case.
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Sylvia's recorded statement, knowingly given in response to
structured police questioning, qualifies under any conceivable
definition. (Italics added.) The court further explained in
footnote 7: "Involvement of government officers in the
production of testimony with an eye towards trial presents
unique potential for prosecutorial abuse - - a fact borne out
time and again through history ?"
In Crawford, the defendant (Michael Crawford) was convicted of
assault after he stabbed a man. Crawford claimed self-defense.
Crawford's wife Sylvia gave a recorded statement to the police
immediately after the incident. Sylvia did not testify at
trial, claiming the marital privilege. The court allowed the
prosecutor, over Crawford's hearsay and confrontation clause
objections, to play Sylvia's statement to the jury. The trial
court held that her statement was particularly reliable, noting
several factors, including that the statement was made to a
police officer. Sylvia's description of the fight cast doubts
on Crawford's self-defense claim. (Id, at 7-9.)
In child sexual abuse cases, prosecutors may have great
difficulty presenting clear and understandable testimony by the
victim. The child's therapist may opine that testimony would
cause irreparable harm to the child. The child may be afraid to
testify. The child, under pressure from family members, may
recant. In many such cases, trial courts have found the child
unavailable and allowed use of hearsay statements to the police
and others to be admitted into evidence at trial, despite the
fact that the defendant was unable to confront this testimony.
The decision in Crawford could greatly limit the ability of
prosecutor's to admit hearsay statements by the victim.
Statements made to the police during the investigation of the
case appear to be squarely within the rule of Crawford. Where
multi-disciplinary teams are involved in child sexual abuse
investigations, statements made to social workers and the like,
when such statements are taken to obtain evidence for trial, may
well fall within the rule. Such statements may be found to be
equivalent to police investigations.
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IN AN INTRA-FAMILY MOLEST PROSECUTION IN WHICH THE VICTIM'S
FAMILY WILL NOT COOPERATE, OR IN WHICH THE VICTIM'S FAMILY MAY
LEAVE THE JURISDICTION, AND WHERE PRIOR STATEMENTS OF THE VICTIM
CANNOT BE ADMITTED AT TRIAL, SHOULD PROSECUTOR'S BE ABLE TO
OFFER A PROGRAM OF DEFERRED ENTRY OF JUDGMENT UPON A GUILTY
PLEA, PARTICULARLY WHERE THE COURT FINDS THAT THE DEFENDANT IS
AMENABLE TO TREATMENT AND TREATMENT IS IN THE CHILD'S INTERESTS?
SIMILARLY, AS IS DISCUSSED IN COMMENT # 3, SHOULD PROBATION BE
AVAILABLE IN SUCH CASES?
IF THIS BILL IS ENACTED, WHERE A VICTIM IS RELUCTANT TO
COOPERATE OR IF OTHER PROOF PROBLEMS ARISE, WILL PROSECUTORS BE
FORCED TO OFFER PLEAS TO CRIMES THAT DO NOT INCLUDE THE STRICT
PROBATION OR DEFERRED ENTRY LIMITS AND REQUIREMENTS FOR LEWD
CONDUCT IN EXISTING LAW?
4. Intra Family Molest Probation Eligibility (as an Exception to
the Prohibition of Probation for Lewd Conduct with a Child)
? Original Hearings on Probation for Intra-Family Molests
The court in People v. Groomes (1993) 14 Cal.App.4th 84, quoted
and paraphrased the court in People v. Jeffers (1987) 43 Cal.3d
984, as to policy debate about the possibility of probation for
defendants convicted of intra-family lewd conduct:
Section 1203.066 was enacted in 1981 upon passage of
the Roberti-Imbrecht-Rains-Goggin Child Sexual Abuse
Prevention Act (Stats. 1981, ch. 1064, 1-6, pp.
4093-4096). In People v. Jeffers (1987) 43 Cal.3d
984, the Supreme Court examined and extensively
discussed the act's legislative history. The court
referred to testimony before the Joint Committee for
Revision of the Penal Code (1979-1980 Reg. Sess.)
(hereafter Joint Committee) on the subject of child
sexual abuse. The court noted that several witnesses
distinguished pedophile offenders from those
characterized as intrafamilial regressive offenders.
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(See People v. Jeffers, supra, at pp. 993-996.) The
Joint Committee was told that attempts at
rehabilitating pedophile offenders had not been
successful, and mandatory prison terms were needed.
On the other hand, attempts at rehabilitating
regressive offenders, incestuous or intrafamily
offenders, had been successful. In addition to
successful rehabilitation programs, there were other
reasons why mandatory prison terms for regressive
offenders are not desirable. Witnesses and victims
were less likely to testify against close family
members or household members and risk destruction of
the family unit .
As the court in Jeffers recognized: " If an
intrafamily molester is imprisoned there could be a
loss of financial support for the family, the victim
could be blamed by other family members, and the
victim's mother might abandon the victim in favor of
the molester . If a prison sentence is mandatory, there
could also be a reluctance of prosecuting authorities
to file charges, knowing the consequences for the
family. The authorities might prefer to treat the
problem as a juvenile or family law matter rather than
as a criminal matter, even though criminal
prosecution, without a mandatory prison term, would be
preferable. ([Hgs. on Child Molestation Legislation]
Hg. of Apr. 24, 1981, pp. 56-57.) Effective
rehabilitation is more difficult in prison because the
other family members cannot participate. (at pp.
60-61.)" (People v. Jeffers, supra, 43 Cal.3d at p.
995, fn. omitted, underlining added.)
? Specific Criticisms by Proponents of Existing Programs -
Evaluation and Treatment Standards Issues
Proponents have argued that in numerous cases offenders
cultivated relationships with women in order to have access to
children for sexual abuse. Further, proponents have argued that
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children are often pressured into agreeing with or supporting a
grant of probation. They argue that where an intra-family child
molester is returned to the family, often years after the
incidence, and the person molests the original victim or another
child, the victim would be very reluctant to report the second
incident of abuse. Proponents explain low reported recidivism
rates for lewd conduct through the asserted phenomenon of
reluctance to report later, repeated abuse.
These criticisms raise issues about whether standards for
granting probation should be tightened and greater scrutiny made
in probation applications in cases where the offender is not the
natural parent. Perhaps the court should be directed to
consider independent, expert evaluations of the child; perhaps
independent counsel should be appointed to represent the child.
SHOULD STANDARDS BE TIGHTENED FOR TREATMENT PROGRAMS?
SHOULD PROBATION DEPARTMENTS AND THE COURT BE DIRECTED TO
CONSIDER WHETHER OR NOT THE DEFENDANT CULTIVATED THE
RELATIONSHIP WITH THE VICTIM'S PARENT IN ORDER TO GAIN ACCESS TO
THE VICTIM?
SHOULD AN INDEPENDENT EXPERT EVALUATION OF THE CHILD VICTIM
BE REQUIRED IN LEWD CONDUCT CASES WHERE THE DEFENDANT IS
ELIGIBLE FOR DEFERRED ENTRY OR PROBATION?
SHOULD COURTS HAVE DISCRETION TO APPOINT COUNSEL FOR THE CHILD?
GIVEN THE INHERENT PRESSURE ON CHILDREN TO RECANT OR REFUSE TO
COOPERATE IN INTRA-FAMILY MOLEST CASES, WILL ELIMINATION OF
PROBATION AND DEFERRED ENTRY OF JUDGMENT MAKE SUCH PRESSURE
PARTICULARLY INTENSE (AS THE OFFENDER MAY FACE A LIFE TERM) AND
ALLOW MORE OFFENDERS TO GO UNPUNISHED AND UNTREATED, THEREBY
INCREASING THE INCIDENCE OF CHILD MOLESTS?
? Prosecutor's Ability to Challenge Improper Grant of Probation
under Section 1203.066
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It should be noted that under existing law, a prosecutor has
specific statutory authority to challenge an improper grant of
probation by a writ of prohibition or mandate. (Pen. Code
1238.) While a reviewing court would review the challenge under
an abuse of discretion standard, the court's discretion must be
exercised within the framework of the existing law. Under
section 1203.066, a prison sentence is presumed to be the
correct sentence. Thus, a grant of probation must be consistent
with that assumption. For these reasons it appears that a
defendant would have more difficulty challenging denial of
probation under section 1203.066 than would a prosecutor in
challenging a grant of probation.
A 1993 case held: "[T]he Legislature has declared that
imprisonment is the normal sentence if a defendant has engaged
in substantial sexual conduct with a child under the age of 11
years ? Only when a defendant can establish he or she meets all
the criteria of ? of section 1203.066 can probation be ordered.
This court has previously held that a defendant has the burden
to present evidence showing that he is entitled to consideration
for probation under subdivision (c) of section 1203.066.
(People v. Groomes (1993) 14 Cal. App. 4th 84, 89, citations
omitted.)
DOES EXISTING LAW GIVE PROSECUTOR'S REASONABLE ABILITY TO
CHALLENGE AN IMPROPER GRANT OF PROBATION IN A LEWD CONDUCT CASE
UNDER SECTION 1203.066?
5. General Issues Concerning the Increase in Power of Prosecutors
(Relative to Judges) in This Bill and Previous Initiatives and
Bills
? Prosecutors' Charging Discretion and Plea Bargaining Power
This bill eliminates specified probation and deferred entry of
judgment programs in intra-family molest cases and expands the
application of the one-strike (life term) sex crime sentencing
law to such cases. Existing law prohibits probation in
virtually all other felony sex crimes. The bill thus continues
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an approximately 20-year trend in California criminal law.
Increased sentences generally shift power to prosecutors.
The steady increase in crimes and penalties over the past
decades has greatly enhanced prosecutors' leverage in plea
bargaining. Policy analysts, academic writers and the media
often focus on the surface of a new sentencing law - assuming
that expanded sentences will be uniformly imposed. This ignores
that prosecutors have very wide charging and plea bargaining
discretion. "The prosecutorial power is, indeed, mighty."
(People v. Andreotti (2001) 91 Cal.App.4th 1263, 1273 -
prosecutor has sole discretion to refuse to offer deferred entry
of judgment to an eligible defendant charged with lewd conduct.)
Prosecutors can initially seek maximum penalties and then accept
a plea to a lesser charge. A defendant facing a life-term
sentence under the one-strike law is much more likely to plead
guilty to a lesser offense than the one originally charged, or
that could be charged, in return for a guarantee that he or she
will avoid a life-term. In this way, prosecutors may be able to
avoid trials in cases where they have difficulty proving the
charges beyond a reasonable doubt. (Comment # 6 considers plea
bargaining in one-strike cases, which has apparently greatly
limited the number of defendants sentenced under one-strike as
compared with policy analysts' expectations at the time the law
was enacted.)
Attempts to limit plea bargaining have had very limited success
in practice. In a case in which a serious felony is charged,
Penal Code section 1192.7 only allows plea bargaining where the
charges may be difficult to prove or the plea will not result in
a substantial change in sentence. However, in virtually every
case, only the prosecutor can make a judgment as to whether or
not a case may be difficult to prove. While judges must accept
or reject plea bargains - essentially because a plea bargain
affects the traditional discretion of the court to impose
sentence - the prosecutor has very wide discretion in charging
plea bargaining.
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? Probation Limitations - Transfer or Power and Discretion From
Judges to Prosecutors
This bill eliminates the limited availability of probation for
persons convicted of lewd conduct in non-forced, non-coerced
intra-family molest cases. Arguably, this takes power from
judges and gives it to prosecutors. Similar transfers of power
occurred with "Proposition 21" in juvenile law, particularly as
to determinations whether minors should be tried as adults.
Limiting the discretion of courts to grant probation arguably
means that any amelioration of a sentence or disposition must
generally be at the beginning of a case - in the plea bargaining
stage. Elimination of probation, including limited probation
within the context of a treatment program, gives the court less
power and discretion than it would otherwise have. It can be
argued that amelioration a disposition is best left for the
sentencing phase of a case, as at this point the parties and the
court will know much more about the defendant and the facts of
the case. Practicing attorneys and judges know that cases often
do not turn out as might have been expected in the investigation
phase.
? Incest Law Changes - Affect on Probation and Life Term
Sentencing Eligibility for Persons Originally Charged With
Lewd Conduct
Under existing law, incest is defined without reference to the
age of the participants. This bill changes the incest law to
define the crime as occurring between adults. It appears that
no special probation limitations apply to incest convictions.
Further, incest is not classified as a one-strike eligible
crime, unlike most forms of lewd conduct. Further, incest is
not defined as a serious felony, and thus does not constitute a
prior qualifying "strike" under the Three Strikes law.
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It is likely that the changes in this bill are designed to
eliminate or limit the ability of prosecutors and defense
counsel to agree to a plea to incest as a compromise where the
defendant has been charged with intra-family lewd conduct with a
child. That is, in an intra-family lewd conduct case where the
prosecutor may have difficulty obtaining a conviction, the
prosecutor and the defendant could construct a plea bargain
involving a plea to a charge of incest in exchange for a
dismissal of the lewd conduct charge. The convicted defendant
would be eligible for probation under general rules and would
not be subject to a life term under the Three-Strike law.
However, as incest is a straight felony, a person who is
convicted of incest in the current case, and who has been
previously convicted of serious or violent felonies (as defined
in law), would be subject to a sentence under the Three Strikes
law.
WOULD DEFINING INCEST AS A CRIME OCCURRING BETWEEN ADULTS
ELIMINATE GUILTY PLEAS TO INCEST IN A CASE WHERE A DEFENDANT WAS
ORIGINALLY CHARGED WITH INTRA-FAMILY LEWD CONDUCT WITH A CHILD
UNDER THE AGE OF 14?
6. One Strike Law Sentences are Substantially Less Numerous Than
Anticipated - Arguably as a Result of Plea Bargaining
This bill eliminates the exception to the one-strike (life
sentence) sex crime sentencing law applicable in cases of
intra-family lewd conduct. The one-strike law was enacted
shortly after enactment of the Three Strikes law in 1994. The
Sexually Violent Predators Act (SVP) -- which allows civil
commitment of sex offenders deemed too dangerous to be allowed
into society upon release from prison -- was enacted in 1995.
Many legislators, analysts and prosecutors believed that the
one-strike law would greatly limit the necessity for the SVP
law, as particularly dangerous offenders would be committed to
prison for life under one-strike, not imprisoned for determinate
terms and then evaluated for commitment as SVPs. In practice,
the one-strike law may often be used as effective leverage in
obtaining guilty pleas.
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According to a February, 2004 analysis by Department of Mental
Health: "602 sex offenders were admitted as one strike inmates
during the last seven years of the [Sexually Violent Predators
Act] implementation. This number represents a fraction of the
20,750 Penal Code section 290 registrants in prison at any one
time. This [indicates] offenders are not being [convicted
under] the one-strike provision? [T]here is no significant
upward trend to indicate that the one-strike law is going to
cause referrals to DMH under the SVP Act to disappear. []
District Attorneys have informed DMH that the one-strike
component must be in the charging document. ? As a result, the
one-strike 25-years-to-life- sentence can, and often does,
become part of a plea bargain . For instance, the [prosecutor]
drops the one-strike in exchange for a guilty plea." (Emphasis
added.)
7. Child Molestation Study Cited by Author (Abel and Harlow)
Recommends Early Diagnosis and Treatment
The author has cited a study of child abuse by noted researchers
and therapists, Dr. Gene Abel, M.D. and Nora Harlow. The study
has been published in book entitled The Stop Child Molestation
Book. An outline of the book, with excerpts, has been published
by the Child Molestation Research and Prevention Institute
(CMRP), of Atlanta Georgia. Dr. Abel is affiliated with the
medical schools at Emory and Morehouse in Atlanta. Harlow, a
therapist and business manager of Abel's assessment
organization, is associated with CMRP.
? Dr. Abel's General Statement of Problem and Solution -
Pedophilia as Cause, Early Diagnosis and Treatment
Recommended
Child molestation, because of its large numbers of
victims and because of the extent of damage to the
health of its victims, is a national public health
problem. To combat this public health problem we must
focus on the cause. People with pedophilia molest 88
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percent of child sexual abuse victims. Early
diagnosis of this disorder, followed by effective
medicines and therapies, has the potential to save
children from being molested. ? The disorder can be
diagnosed. Treatment with medicines and therapies is
effective.
? Pedophilia Defined - Related Findings
The authors of the study referred to the criteria developed by
the American Psychiatric Association as to a diagnosis of
pedophilia. The symptoms were noted:
Pedophile must be at least 16 years old.
Sexual fantasies about or interest in children aged 13 or
younger.
Sexual fantasies and urges must have lasted for at least six
months.
Pedophilia typically develops early.
Child molesters who were sexually abused as children are the
most active in abusing children.
Pedophiles commit 95% of the incidents of child sexual abuse.
? Recommendation of the Study - Effective Testing, Medication
and Therapy Treatment
The author's concluded: "If we are to have a significant impact
on reducing the number of children who suffer this public health
problem [of child sexual abuse] we have to test, medicate and
provide effective treatment for people with the disorder
pedophilia - especially teenagers who are developing the
disorder."
IN LIGHT OF RECENTLY PUBLISHED RESEARCH, WILL LIMITING TREATMENT
AND INCREASING INCARCERATION EXACERBATE THE PROBLEM OF SEXUAL
ABUSE OF CHILDREN?
8. Widely Accepted Diagnostic Tools for Predicting
Recidivism - STATIC 99 - Factors Concerning Intra-Family
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Molests - Less Likely Recidivism Than Other Cases
According to the Department of Mental Health (DMH), the "STATIC
99" is a widely accepted diagnostic tool for predicting
recidivism by persons convicted of sex crimes. The tool was
developed in Canada and is used throughout North America. The
STATIC 99 is an important component of the DMH review of persons
who face possible commitment as sexually violent predators.
The identified risk factors for recidivism identified in the
STATIC 99 are, as follows:
Young offender (18-25).
Lack of intimate partners (intimate partnerships of 2 years or
more lessen recidivism).
Non-sexual violence.
Prior convictions for non-sexual violence.
Prior sex offenses (very important predictor of future
criminal behavior).
Prior criminal sentencing - 4 or more separate sentencings.
Convictions for "non-contact" sex offense (exhibitionism,
obscene telephone calls, obscene material.
Unrelated victims - perpetrators who were not related to their
victims are more likely to re-offend.
Stranger victims - perpetrators who preyed on strangers are
more likely to reoffend.
Male victims - perpetrators who committed crimes against male
victims are more likely to re-offend.
While it may be of little comfort to a victim who has been
abused by a parent or relative in multiple cases, it thus
appears that offenders eligible for probation under section
1203.066 appear to be at substantially lower risk than are other
sexual offenders for re-offense as measured by the STATIC 99.
This is especially true for those eligible for probation under
section 1203.066 as opposed to young offenders without strong
family ties who targeted strangers and had a significant
criminal record. Such persons have relatively stable, long-term
intimate relationships, such as an intact marriage. They may be
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well past the prime ages for re-offending. Many such persons
have little or no criminal history and no history of violence
against others. By definition, their crimes were not committed
against strangers.
9. Canadian Government Public Safety Agency Meta-Analysis of
Sexual Recidivism Studies
In February 2004, the Department of Public Safety and Emergency
Preparedness Canada (comparable to U.S. Dept. of Justice and
Homeland Security) published an analysis of 95 separate sexual
offender recidivism studies "involving more than 31,000 sexual
offenders and close to 2000 recidivism predictions." The study
concluded: "most sexual offenders are never reconvicted for
another sexual offence. [Sic]" The study noted a number of
factors strongly associated with recidivism and recommended that
resources be applied accordingly.
A summary of the research stated:
Question: Which sexual offenders are most likely to
re-offend?
Background: New offences [sic] by known sexual
offenders invoke considerable public concern. Most
sexual offenders are never reconvicted for another
sexual offence, but some are much more likely to
recidivate than others. Previous research has
identified a number of static, historical factors
associated with recidivism risk (e.g., prior offences,
age). Much less is known about dynamic (potentially
changeable) factors - the factors needed for effective
treatment and community supervision. As well, experts
have disagreed about how to combine risk factors into
an overall evaluation. Some experts recommend the
actuarial approach in which a mechanical method of
combining the risk factors is specified in advance;
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other evaluators prefer to use their experience and
skill to produce unique judgments for each case.
Method: The results of 95 different recidivism
studies were summarized. These studies, produced
between 1943 and 2003, included more than 31,000
sexual offenders and close to 2,000 recidivism
predictions. Two independent raters coded each study.
Results were considered valid if consistent findings
were observed in at least three different studies.
Answer: The sexual offenders most likely to sexually
reoffend had deviant sexual interests and antisocial
orientations (history of rule violation, lifestyle
instability, and antisocial personality). Some of the
variables identified in the study have the potential
of being useful targets for intervention, such as
sexual preoccupations, conflicts in intimate
relationships, hostility, and emotional identification
with children . For the prediction of violent
non-sexual recidivism and general (any) recidivism,
the most important factor was antisocial orientation.
General psychological problems (e.g., anxiety,
depression) and clinical presentation (e.g., denial,
motivation for treatment) had little or no
relationship with sexual or general recidivism.
Actuarial risk instruments were consistently more
accurate than unguided professional opinion for
predicting sexual, violent non-sexual and general
recidivism.
Policy Implications:
1. Not all sexual offenders should be treated the
same. Given the identifiable differences in sexual
offenders' recidivism risk, policies applied equally
to all sexual offenders will waste resources on low
risk offenders while not directing enough attention
to high-risk offenders.
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2. Structured, actuarial instruments should be
routinely used. Although additional information
will be required in many assessment contexts,
actuarial instruments have sufficient accuracy that
they should be an expected part of sexual offender
assessments.
3. Current risk assessment practises [sic] should
be reviewed to determine if they are addressing
appropriate factors. Evaluators are most likely to
make accurate predictions when they focus on risk
factors that have been supported by research.
Source: Hanson, R.K., & Morton-Bourgon, K. (2004).
Predictors of sexual recidivism: An updated
meta-analysis. (User Report 2004-02). Ottawa: Public
Safety and Emergency Preparedness Canada. (Emphasis
added.)
10. Recidivism Studies Comparing Persons Convicted of Sex
Crimes and Other Offenders
In recent years, many bill authors and supporters have asserted,
with ostensible certainty and authority, that recidivism rates
for sex offenders is incredibly high or shocking. Such
assertions assume there are few distinctions or differences
among persons who have been convicted of sex crimes. However,
as noted by the above quoted Canadian government meta-analysis,
current research and practice distinguishes carefully among
persons convicted of sex crimes. The widely used "STATIC-99,"
in measuring or predicting risk of re-offense, indicates that
the risk of re-offense varies widely among sex offenders. Thus,
even assuming high rates of recidivism among sex offenders with
certain characteristics, such rates cannot be applied to all
persons convicted of a sex crime.
? LAO 1999-2000 Budget Analysis - Falling Arrest Rates for Lewd
Conduct, 1990-1997:
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[T]he number of reported sex crimes and arrests ? have
declined in recent years. Then number of reported
rapes, for example, dropped from 12,700 in 1990 to
about 10,200 in 1997 - a decrease of almost 20%. The
number of adults arrested for felony child
molestations was about 3,900 in 1990, but in 1997 was
3,200 - a decrease of about 17 percent. Significant
declines in adult arrests have also been documented
during the 1990's for such misdemeanor sex crimes as
indecent exposure, annoying children, possession of
obscene matter, and lewd conduct .
? California Attorney General Crime Statistics - Steady
Arrest Rates (Avg. 4,300) From 1993-2000:
The Attorney General (Criminal Justice Statistics Center)
has reported arrests for lewd and lascivious conduct --
child molest -- from 1993 through 2002. Arrests have
ranged risen and fallen from between a high of 4,776 in
1993 and a low of 4,050 in 1998. Arrests in 2002 were
4,504, approximately 200 less than in 1993. The arrest
numbers are:
Lewd Conduct Arrests, 1993-2002
---------------------------------------------------------------------
|1993 |1994 |1995 |1996 |1997 |1998 |1999 |2000 |2001 |2002 |
|------+------+------+------+------+------+------+------+------+------|
|4,776 |4,537 |4,110 |4,197 |4,402 |4,050 |4,180 |4,220 |4,474 |4,504 |
---------------------------------------------------------------------
Total Sex Crime Arrests, 1993-2002 - Dropped then Rose from
1993-2000
---------------------------------------------------------------------
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|1993 |1994 |1995 |1996 |1997 |1998 |1999 |2000 |2001 |2002 |
|------+------+------+------+------+------+------+------+------+------|
|7,935 |7,390 |7,210 |7,756 |8, |9,041 |9,441 |9,356 |9,368 |9,730 |
| | | | |874 | | | | | |
---------------------------------------------------------------------
Arrests for all sex crimes, however, dropped and then rose
quickly from 1993 to 2002. Thus, the proportion of lewd
conduct arrests has dropped within the class of all sex
offenses from 1993 to 2002.
Prison Population of Lewd Conduct Inmates - Rising Numbers,
1997-2001
----------------------------------------------------------------
|1997 |1998 |1999 |2000 |2001 |
|------------+------------+------------+------------+------------|
|5,790 |5,935 |6,302 |6,561 |7,142 |
| | | | | |
----------------------------------------------------------------
Second and Third Strike Inmates - Lewd Conduct - Approx.
950
-----------------------------------------------------------------
|Second Strikers |Third Strikers |Total |
| |(life term) | |
|With parole | | |
|returns | | |
|---------------------+---------------------+---------------------|
|707 |244 |951 |
| | | |
-----------------------------------------------------------------
Lewd conduct constitutes a prior strike conviction. Third
strike inmates must serve a life term with a minimum of 25
years before parole. Second strike inmates serve a doubled
term. A defendant normally subject to term of 16 years
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would receive a term of 32 years with a two-strike
sentence. Under Three Strikes, lewd conduct inmates
typically serve relatively long terms and thus can be
expected to grow as a proportion of total inmates in state
prison.
DO PROSECUTORS OR THE AUTHOR HAVE DATA AS TO THE PERCENTAGE
OF LEWD CONDUCT CASES IN WHICH DEFENDANT'S RECEIVE
PROBATION OR DEFERRED ENTRY OF JUDGMENT?
DOES THE AUTHOR HAVE DATA AS TO THE FAILURE RATE IN
PROBATION AND SPECIFIC RECIDIVISM RATES OF PERSONS IN
PROGRAMS THAT WOULD BE ELIMINATED BY THIS BILL?
IF THE INCIDENCE OF LEWD CONDUCT CRIMES IS DRIVEN BY
RECIDIVISM, WOULD THE ARREST RATE FOR LEWD CONDUCT BE
EXPECTED TO DROP (IT HAS REMAINED RELATIVELY STEADY) AS
MORE LEWD CONDUCT INMATES ARE HELD IN PRISON FOR LONGER
PERIODS OF TIME?
11. Federal Recidivism Study (Released Inmates Followed for
Three Years) - Sex Offenders Have Lower Rates of Recidivism
A study published in 2003 by the U.S. Bureau of Justice
Statistics has been widely cited as authority for assertions
that sex offenders have incredible or shocking rates of
recidivism. However, the study does not make such claims. In
fact, as measured by the study, sex offenders have lower rates
of recidivism than do other offenders. The study did make the
finding that (former prison inmate) sex offenders were more
likely to commit a future sex crime than were other former
inmates, although the non-sex crime inmates were significantly
more likely to commit new crimes overall. This is consistent
with one of the basic principles underlying the STATIC-99 that
past behavior is an important predictor of future behavior.
? Overall Arrest Rates of Sex Offenders - 20% Lower Than Other
Offenders:
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Compared to non-sex offenders released from state prison, sex
offenders had a lower overall arrest rate. When arrests for any
type of crime (not just sex crimes) were counted, the study
found that 43% (4,163 of 9,691) of the 9,691 released sex
offenders were rearrested. The overall arrest rate for the
262,420 released non-sex offenders was higher, 68% (179,391 of
262,420).
? Felony Arrest Rate of Non-sex Offenders was 10% Higher for
Non-sex Offenders
Re-arrest offense was a felony for about 75% of the ? sex
offenders. By comparison, 84% of ? non-sex offenders were
charged with a felony.
? Sex Offenders were more Likely to Commit a New Sex Crime Than
Other Offenders.
The only higher rate of re-offense for sex offenders was as to
sex offenses. That is, although sex offenders have a lower rate
of recidivism than other offenders, a recidivist sex offender is
more likely to commit another sex crime than is a non-sex
offender.
? Reconviction Rates - 24% higher for non-sex offenders
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Sex offenders - 3.5% were reconvicted for a new sex offense.
Sex offenders - 24% were reconvicted of a new offense (of any
type, including sex offenses).
Non-sex offenders - 47.8% were reconvicted of a new crime.
? Re-arrest Rates for New Sex Crime - Released Sex Offenders as
Compared to Non-Sex Offenders
Sex offenders - 5.3% arrested for any kind of sex crime
Non-sex offender - 1.3% arrested for any kind of sex crime
Child molest sex offenders - 3.3% arrested for new child molest
Child molest offender - 5.1% arrest for any sex crime,
Statutory rape offender - 5.0% arrest for any sex crime
All sex offenders - 2.2% arrested for new child molest
Non-sex offenders - (approx.) .05% arrested for new child molest
Rapists - 5% arrested for sex crime, 2.5 for rape
Sexual assaulters - 5.5% arrested for new sex crime
? Prior Criminal History of Prison Inmates, Non-sex Offenders
Have Twice the Number of Arrests and Prison Records
Sex offenders - 4.5 prior arrests (on average)
Non-sex offenders - 8.9 prior arrests
Sex-offenders - 23.7% prior prison terms
Non-sex offenders - 44.3% prior prison terms
? Federal Recidivism Study - Summary
As noted above, the only higher recidivism rate for sex
offenders as compared to other offenders is for the commission
(generally as measured by arrests) of a new sex crime. In sum,
sex offenders who commit new crimes are more likely to commit a
new sex crime than non-sex offenders who commit new crimes,
although non-sex offenders are significantly more likely to
commit new crimes, per se. Further, sex offender inmates are
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more likely to commit a new non-sex crime (24%) than a new sex
crime (3.5%). The study also noted other factors included in
STATIC-99, including that a history of child molesting (by
persons imprisoned for molest or rape, etc.) had a greater
likelihood of committing later child molests.
12. Sex Offender Treatment and Control in the Community -
Promising Studies and Analyses
The LAO 1999-2000 Budget Analysis include the following analysis
of treatment and control programs:
Correctional professionals and experts on deviant
sexual criminal behavior are in general agreement that
no treatment program can "cure" a person with criminal
sexual tendencies. However, there is a growing body
of academic evidence suggesting that some therapies,
often referred to as "cognitive-behavioral treatment"
or "relapse prevention," can enable some high-risk sex
offenders in prison or on parole to learn how to curb
their impulses to commit further criminal acts.
Experts on this subject indicate that, to be
effective, such programs must (1) be tailored
especially for sex offenders, (2) be structured to
progress through multiple phases, (3) address
individual problems such as addiction to drugs or
alcohol that may be related to their pattern of
criminal behavior, (4) be of sufficient duration and
intensity to be effective, and (5) have a strong
"aftercare" component to ensure there is not a return
to criminality after their release to the community.
Medication treatments that can reduce the intensity of
an offender's sexual impulses are used in conjunction
with relapse-prevention therapy for particular cases.
(Informed consent and medical protocols have been used
in these instances.)
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Even as California has been scaling back its sex
offender treatment programs, such as SOTEP, a number
of other states have been expanding such programs for
their prison inmates and parolees. Relapse prevention
programs have proven successful in reducing the rate
of sexual reoffending of sex offenders in the States
of Alaska, Washington, Arizona, and Oregon, as well as
in Canada.
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