BILL ANALYSIS
AB 2038
Page 1
Date of Hearing: April 1, 2008
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 2038 (Lieber) - As Amended: March 24, 2008
REVISED
SUMMARY : Replaces the phrase "dependant adult" with the
phrase "adult with disability" when referring to a person
described under existing law as a person between the ages of 18
and 64 who has a physical or mental limitation which restricts
or substantially restricts his or her ability to carry out
normal activities or to protect his or her rights, as specified.
Specifically, this bill :
1)Renumbers and recasts provisions of the Penal Code related to
elder abuse and makes appropriate conforming cross-references.
2)Changes the definition of "disability" within provisions of
the Penal Code related to hate crimes to mean a physical or
mental limitation which restricts an individual's ability to
carry out normal activities or to protect his or her rights,
including, but not limited to, a physical or developmental
disability or the diminishing of physical or mental abilities
doe to age.
3)Includes crimes committed against an individual with a
disability to cases where the court must issue a protective
order in cases where the defendant has been placed on
probation for a hate crime, as specified.
4)States where Judicial Council is required to develop
guidelines for courts in sentencing hate crimes, as specified,
Judicial Council shall include consultation from relevant
subject matter experts on crimes against victims with
disabilities, as specified, and experts on crime and violence
prevention and restorative justice.
AB 2038
Page 2
5)Authorizes law enforcement to make a warrantless arrest in an
assault or battery case involving a victim with a substantial
disability and the suspect is either a caregiver, as
specified, or has access to the person with the substantial
disability in the residence of that person or if that person
has no California residence, in the place where that person
sleeps at night.
6)States where a person or entity is required to report known or
suspected crimes against children, that person or entity must
also include the duty to report known or suspected crimes
against children with disabilities and where domestic violence
deaths are recorded, related homicides of persons with
disabilities shall also be recorded.
7)Requires that where mandated reporters, as specified, evaluate
an incident that occurred in jail, prison or other
correctional institution, the mandated reporter shall make the
report to the agency that operates the institution.
8)Requires that by January 1, 2010, and subject to the available
funds, the agency or agencies designated by the Department of
Finance or the Attorney General, as specified, shall revise
the forms and protocols to accurately reflect the changes in
this bill.
9)Requires that training for peace officers must include laws on
abuse and neglect of elders and adults with disabilities,
domestic violence involving elders and adults with
disabilities and sexual assaults of elders and adults with
disabilities.
10)States, in setting the target date of July 1, 2010,
legislative intent that, by that date, the Commission on Peace
Officer Standards and Training (POST), in cooperation with the
subject-matter experts, as specified, complete a comprehensive
evaluation and, as necessary, revision of standards and
training concerning crimes against individuals with
disabilities, including, but not limited to, those that
constitute domestic violence, hate crimes, crimes against
children, crimes against homeless persons, and sexual assault.
11)Declares legislative intent that the comprehensive evaluation
takes account of research and curricula, including, but not
limited to, "Crime Victims with Disabilities Specialists
AB 2038
Page 3
Program: A Report Prepared for the California Department of
Mental Health," University of California, Irvine (2003);
"Abuse and Neglect of Adults with Developmental Disabilities:
A Public Health Priority for California," Protection and
Advocacy Inc., State Council on Developmental Disabilities,
University of Southern California Affiliated Programs, and
Tarjan Center for Developmental Disabilities, University of
California, Los Angeles (2003); "Crimes Against Persons with
Disabilities" in "Protecting Californians from Hate Crimes: A
Progress Report," Senate Office of Research (2004); "Project
Guide: Communications Effectively with Victims/Witnesses with
Severe Disabilities", University of Southern
California/Children's Hospital; and "First Responders:
Responding to Abuse of Children with Disabilities", The Arc of
Riverside.
12)Requires POST, in consultation with the subject-matter
experts, as specified, prepare each of the following by the
target date of July 1, 2010:
a) A model policy on the prevention of, response to, and
investigation of crimes against victims with disabilities,
which shall include, but not be limited to, guidance on
each of the following program components:
i) Creation or designation of an investigation and
assistance unit, and advanced officer training for the
officers assigned to that unit and other units that
investigate categories of crime that include
significant numbers of crimes against victims with
disabilities, as specified.
ii) Initial response to calls concerning crimes
against individuals with disabilities, including
protecting victims and witnesses with disabilities from
crime and retaliation and meeting the medical, legal,
and communications needs of victims and witnesses with
the full range of disabilities.
iii) Multidisciplinary teamwork both in response to
crimes and before they occur, including coordination
within the law enforcement agency and with adult and
child protective services, prosecution agencies, and
local disability service and advocacy organizations.
AB 2038
Page 4
iv) Outreach to persons with disabilities, their
families, and their caregivers to teach risk reduction
techniques, encourage victims and witnesses to
recognize and report crimes to law enforcement, and
seek feedback to sensitize officers to the problem of
crimes against victims with disabilities and to
determine and help meet the special needs of potential
and actual crime victims with disabilities.
v) Finding and utilizing trained advocates for
victims and witnesses with disabilities.
vi) Skills and attitudes needed to interview victims
and witnesses with the full range of disabilities,
including gaining their cooperation by avoiding
negative stereotypes such the bias that witnesses with
disabilities lack credibility, and recognizing and
overcoming the effects on the victims and witnesses of
any past negative interactions with law enforcement.
vii) Establishing probable cause in these cases,
including crediting statements by victims and witnesses
with disabilities.
viii) Recognizing and reporting disability-bias hate
crimes, including those motivated by biases such as
hostility to persons who arouse guilt, a perception
that persons with disabilities are inferior or
deserving of victimization, fear of persons whose
visible traits are disturbing to others, and resentment
of those who need and increasingly demand alternative
physical and social accommodations.
ix) A requirement that officers who took the course
required by this bill before POST updated that course
to comply with the requirements of this bill, and
officers who never took that course view the updated
telecourse required within six months of the time the
law enforcement agency adopts the model policy.
x) A requirement that the local law enforcement
agency act as the primary investigatory agency for
crimes against persons with disabilities in treatment
or care facilities within the agency's jurisdiction,
including, but not limited to, facilities within
AB 2038
Page 5
Department of Developmental Services (DDS).
b) By six months after the date on which POST adopts the
model policy, each state law enforcement agency, including
the Medi-Cal Fraud Bureau of the Department of Justice
(DOJ) and the Office of Protective Services of DDS shall
adopt a policy consistent with the model policy. Local law
enforcement agencies may adopt policies consistent with the
model policy, and the Legislature strongly encourages each
local law enforcement agency to do so.
13)Requires an update of the telecourse "Crime Victims with
Disabilities." The updated telecourse shall reflect changes
in law and in other POST standards and training made since
POST produced the telecourse in 2002, and stress the
importance and urgency that the law now places on preventing
and responding to these crimes.
14)Provides it is not legislative intent to delay any work,
including, but not limited to, implementation of any
requirement of this act, that POST is able to accomplish
before it completes the comprehensive evaluation.
15)Mandates POST to develop training in consultation with
specified subject-matter experts related to the special
problems of protecting elders as well as all individuals with
disabilities and apprehending and prosecuting those who commit
crimes against them.
16)State the training shall include the materials required by
the model policy, as specified. This training shall be
included in the course described in existing law for all peace
officers employed with state law enforcement agencies. States
legislative intent in enacting this bill is to strongly
encourage all local law enforcement agencies to include this
additional training with the training required under existing
law.
17)Provides that the course of training leading to the basic
certificate issued by POST shall, on and after the target
date, as specified include adequate instruction in the
procedures described in existing law.
18)Requires POST update the course materials, as specified, to
incorporate any successful elements in the Crisis Intervention
AB 2038
Page 6
Training program identified in the POST 2004 report, "A Report
to the Legislature: The Status if Peace Officer Training on
Mental Illness and Developmental Disabilities". In updating
the course, POST shall consult with a subject matter expert
listed in the Welfare and Institutions Code (WIC).
19)Requires POST include in various guidelines and training
materials procedures on investigating crime involving children
or persons with disabilities. The Legislature strongly
encourages all local law enforcement agencies to require
officers assigned to investigation duties which include the
handling of cases with victims who are persons with
disabilities to successfully complete the training within six
months of the date of the assignment.
20)Requires by July 1, 2009, POST develop a model policy on
crimes against homeless persons and on how to deal effectively
and humanely with homeless persons, including homeless persons
with disabilities, incorporating the recommendation of DOJ's
''Special Report to the Legislature on Senate Resolution 18:
Crimes Committed Against Homeless Persons'' and POST's
telecourse "Law Enforcement Response to Homelessness Update"
developed under existing law.
21)Provides that in developing the model policy, POST shall
consult subject-matter experts, including, but not limited to,
homeless and formerly homeless persons in California; service
providers and advocates for homeless persons in California;
experts on the disabilities that homeless persons commonly
suffer; and subject-matter experts, including law enforcement
agencies consulted in developing the telecourse, the
California Council of Churches, the National Coalition for the
Homeless, DOJ, Housing California, the Los Angeles Coalition
to End Hunger and Homelessness, and the Sacramento Housing
Alliance.
22)Requires established victim-assistance training programs to
address the special problems of assisting victims and
witnesses with disabilities.
23)Mandates that when a developmentally disabled person is the
victim of a crime in custody, the DDS shall do either perform
the following:
a) Report the case immediately to the local police
AB 2038
Page 7
department or sheriff's office that has jurisdiction; or,
b) Ascertain the facts. If DDS ascertains that the person
is the victim of a crime, DDS shall report the case
immediately to the local police department or sheriff's
office that has jurisdiction.
24)States various requirements for reports to include
information regarding crimes against persons with
disabilities.
25)Requires that all activities of the Family Violence
Prevention Program and of the local centers funded by the
executive director of the program shall include information on
family violence against victims with disabilities.
26)Includes sexual assault of victims with disabilities to
various requirements regarding the examination and treatment
of victims of sexual assault.
27)States the Office of Emergency Services shall designate a
lead agency for implementation of this chapter and for
providing leadership and coordination to state agencies with
responsibilities to protect elders and people with
disabilities from crime, abuse and neglect and to assist them
when they become crime victims. Subject to the availability of
adequate funding, the lead agency shall maintain contact with
the appropriate federal, state, and local agencies and with
the subject-matter experts, as specified, to assist the lead
agency in carrying out its responsibilities.
28)States the Office of Emergency Services is the successor to
the former Crime Victims with Disabilities Initiative of the
State Department of Mental Health and the former "It's a
Crime" public information program of the Department of
Justice. The State Department of Mental Health and the
Department of Justice shall transfer to the Office of
Emergency Services any records and other materials produced by
those former programs that the Office of Emergency Services
requests.
29)State the agency in which the program is located shall select
participants in the program, including, but not limited to,
participants selected from the list of subject-matter experts,
as specified.
AB 2038
Page 8
30)Provides that upon federal funding, and in consultation with
the subject-matter experts, the program shall study, make
recommendations to the agency in which the program is located
and other public agencies concerning, and raise public
awareness of the problems of abuse and other crimes against
people with disabilities.
31)Defines the following:
a) "Crimes against elders and individuals with
disabilities", include, but are not limited to, violations
of various elder abuse statutes.
b) "Subject-matter experts" include, but are not limited
to, the Arc of California; Associated Programs, University
of Southern California; California Coalition Against Sexual
Assault; California Consortium of Child Abuse Councils;
California District Attorneys, Police Chiefs, and Sheriffs
Associations; California Partnership to End Domestic
Violence; Center for Independent Living in Fresno;
Community Access Center in Riverside; Crime Victims with
Disabilities Think Tank; Departments of Aging,
Developmental Services, Justice, Mental Health, and
Corrections and Rehabilitation; Easter Seal Superior
California in Sacramento; Educational Psychology Department
of the University of Alberta, Canada; Los Angeles City
Department on Disability; National Alliance for the
Mentally Ill; Project REACH; Senate Office of Research;
Sociology Departments of the University of California at
Berkeley, Davis, and Irvine and the University of Toledo,
Ohio; State Council on Developmental Disabilities; State
Office of Child Abuse Prevention; Tarjan Center of the
University of California at Los Angeles; Ventura and Tulare
County District Attorneys' Offices; University Centers for
Excellence in Developmental Disabilities at the University
of California at Davis and Los Angeles and the University
of Southern California; and the protection and advocacy
agency that the Governor designates under existing law.
32)States the following findings and declarations:
a) Crimes against victims with disabilities occur in the
jurisdiction of every law enforcement agency.
AB 2038
Page 9
b) Every law enforcement officer encounters persons with
disabilities who may be particularly vulnerable to crime
and who have disproportionately high likelihood of becoming
victims.
c) Persons with disabilities in population groups,
including, but not limited to, the following often become
victims of serious crime including domestic violence and
sexual assault:
i) Children.
ii) Elders.
iii) Homeless persons.
iv) Inmates of prisons, jails, and other incarceration
facilities.
v) Residents of public and private treatment and care
facilities of all kinds.
d) Many crimes against victims with disabilities are
motivated in whole or in part by pre-existing negative
attitudes toward the victims' disabilities, including
hostility to persons who arouse guilt, fear of persons
whose visible traits are disturbing to others, a perception
that persons with disabilities are inferior or deserving of
victimization, belief that persons with particular
disabilities are weak and therefore east targets, and
resentment of those who need and increasingly demand
alternative physical and social accommodations. Law
enforcement agencies must investigate these crimes as hate
crimes and report them to DOJ as required by existing law.
e) Preventing, recognizing, and responding to crimes
against victims with disabilities often require law
enforcement skills beyond those needed for other crimes.
Investigating and successfully prosecuting crimes against
victims with disabilities often require officers
specializing in investigating these crimes.
33)States legislative intent to strongly encourage each law
enforcement agency, including those with jurisdictions
covering incarceration or treatment facilities, establish or
AB 2038
Page 10
designate a unit to perform each of the following:
a) Investigate crimes against victims with disabilities,
except to the extent that those duties may be assigned to
other specialized units that investigate crimes against
children, elders, or homeless persons, domestic violence,
hate crimes, sexual assault, or other categories of crime
that include significant numbers of crimes against victims
with disabilities.
b) Assist or consult other officers in cases involving
victims, suspects, or witnesses with disabilities.
c) Provide advanced officer training concerning crimes
against victims with disabilities to each officer in the
unit created or designated under provisions of this bill
and each officer in any other specialized investigation, as
specified.
d) Provide POST's telecourse "Crime Victims with
Disabilities" to, at a minimum, every officer in the law
enforcement agency who has not recently taken the course
required by existing law.
34)Mandates by February 1, 2009, POST shall inform law
enforcement agencies of the importance and urgency that the
law now attaches to dealing with crimes against victims with
disabilities, and shall inform them of the various provisions
of this bill. By August 1, 2009, POST shall inquire with law
enforcement agencies as to its compliance with the various
provisions of this legislation.
35)Finds and declares the following:
a) A large body of research indicates that people with
mental and physical disabilities in California and
throughout the United States are victimized by violent
crime and major property crime at much higher rates than
the general population.
b) At least 13,500 American adults with disabilities are
victims of criminal violence every day - 562 every hour.
At least 410 children with disabilities are victimized
every day - 17 every hour.
AB 2038
Page 11
c) People with disabilities who are abused experience both
more prolonged and more severe abuse on the average than
other crime victims. Evidence suggests that the harmful
effects may be more serious and chronic for victims with
disabilities.
36)States California and national research has found
particularly disturbing indications, including:
a) Californians with developmental disabilities are
victimized 4 to 10 times more frequently than the general
population, and they are at a higher risk of
re-victimization.
b) The rate of victimization of Californians with severe
and persistent mental illness is 1,970% that of the general
population. The rate of victimization for those diagnosed
with both mental illness and substance abuse is 6,300% of
that of the general population.
c) Of Californians with development disabilities, about 8
in 10 women and 4 in 10 men have been sexually abused.
About 4 in 10 women and 2 in 10 men have been sexually
abused at least 10 times.
d) Mentally ill prison and jail inmates are a significantly
higher risk of violence, particularly sexual abuse, than
other inmates.
e) People often become homeless because of disabilities,
and those who were able when they were housed typically
become disabled due to their homelessness. Homeless
Californians are much more likely than the housed
population to become crime victims - more than 6 out of 10
are victimized every year, 2 out of 10 at least five times
in the year. Their disabilities increase the likelihood of
victimization still further. The lifetime risk of
victimization for seriously mentally ill, episodically
homeless women, is 97%.
f) People with disabilities, both those who live at home
and those who live in institutions, are often victims of
domestic and family violence and other crimes by
caregivers.
AB 2038
Page 12
g) Elders and children with disabilities are particularly
at risk of becoming victims of abuse, neglect, and other
major crimes.
37)States research indicates that criminals select people with
disabilities as their victims because of two major categories
of motivations, as follows:
a) Hostility toward those who arouse guilt, fear of those
whose visible traits are perceived as disturbing to others;
a perception that people with disabilities are inferior
and, therefore, "deserving victims"; and resentment of
those who require and increasingly demand alternative
physical and social accommodations.
b) Belief that people with disabilities are especially
vulnerable, a belief that is often well founded.
c) California has made serious and continuing efforts to
protect people with disabilities from crime and to punish
those who commit these crimes.
38)Declares the Legislature has required training of peace
officers concerning various types of disability, and the
Legislature has made other, related training optional and:
a) POST and DOJ have carried out legislative mandates to
develop the training materials and have gone beyond the
mandates to offer law enforcement agencies additional
training opportunities and the California District
Attorneys Association and DOJ have produced training
materials for prosecutors.
b) The Legislature has made disability a protected
characteristic under the hate crime laws.
c) The Legislature created the Crime Victims with
Disabilities Initiative specifically to address the problem
of unequal protection and services for these victims. The
initiative funded specialists in six counties, trained law
enforcement and social services staff throughout
California, and conducted a public education campaign.
d) DOJ conducted the "It's a Crime" advertising campaign
focusing on abuse and neglect of elders and people with
AB 2038
Page 13
disabilities.
e) The Legislature and DDS have focused efforts on crimes
against residents of DDS's facilities that serve
Californians with the most acute developmental
disabilities.
f) The State Council on Development Disabilities funded a
statewide conference and created the Abuse Victims with
Disabilities Think Tank.
g) The Legislature has taken steps to make the court system
more accessible to victims with disabilities.
h) Regional centers and private groups have worked
diligently to protect people with disabilities from crimes.
i) Reports of crimes should be investigated by peace
officers with training appropriate to that crime.
39)Provides that despite these efforts, California has fallen
shamefully short of meeting its responsibility to provide
Californians with disabilities with equal protection from
crime and its effects.
40)States research indicates that the current system is
generally unsuccessful in prosecuting perpetrators or even
reporting most crimes against victims with disabilities.
Evaluations have identified failings, including:
a) The criminal justice system often fails to pursue cases
because its personnel think the victims' disabilities make
them non-credible.
b) The system fails to investigate cases because of
jurisdictional issues.
c) The system drops cases because of mistakes during the
investigation process.
d) There are often limited supports for victims with
disabilities.
e) The law does not require agencies providing Supportive
Living Services in clients' homes to conduct even minimal
AB 2038
Page 14
background checks on caregivers or other employees.
f) Law enforcement agencies almost universally fail to
recognize and report disability-bias hate crimes.
g) Use of inaccurate and disempowering terms such as
"dependent adults" and "dependent persons" is partly
responsible for these failings.
h) The result of the many failings is an unintentional but
systematic denial of basic human rights to Californians
with disabilities.
i) It is legislative intent to systemically refocus every
part of the criminal justice and human services systems to
clarify and enforce existing laws and make California the
national leader in humane treatment of people with
disabilities.
41)States that the Legislature request of the California
District Attorneys Association perform each of the following:
a) Assist POST in developing the model policy and training
materials for law enforcement agencies and officers that
this act requires.
b) Develop a model policy that district attorneys may adopt
on crimes against victims with disabilities, and any other
training materials for the prosecutors, consistent with the
model policy and training materials for law enforcement
agencies and officers that POST adopts.
42)States legislative intent to include in requiring the filing
of fingerprints to in-home care providers vendorized by
regional centers.
EXISTING LAW :
1)States any person who knows, or reasonably should know, that a
person is an elder or dependent adult and who, under
circumstances or conditions likely to produce great bodily
harm or death, willfully causes or permits any elder or
dependent adult to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or
custody of any elder or dependent adult, willfully causes or
AB 2038
Page 15
permits the person or health of the elder or dependent adult
to be injured, or willfully causes or permits the elder or
dependent adult to be placed in a situation in which his or
her person or health is endangered, is punishable by
imprisonment in a county jail not exceeding one year; by a
fine not to exceed $6,000; by both that fine and imprisonment;
or by imprisonment in the state prison for two, three, or four
years. (Penal Code section 368(b)(1).)
2)Provides, if in the commission of an offense described in
existing law, the victim suffers great bodily injury, the
defendant shall receive an additional term in the state prison
as follows:
a) Three years if the victim is under 70 years of age.
b) Five years if the victim is 70 years of age or older.
c) If in the commission of an offense described, the
defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state
prison as follows: five years if the victim is under 70
years of age or seven years if the victim is 70 years of
age or older. (Penal Code section 368(a)(1) to (3).)
3)States any person who knows, or reasonably should know, that a
person is an elder or dependent adult and who, under
circumstances or conditions other than those likely to produce
great bodily harm or death, willfully causes or permits any
elder or dependent adult to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the
care or custody of any elder or dependent adult, willfully
causes or permits the person or health of the elder or
dependent adult to be injured or willfully causes or permits
the elder or dependent adult to be placed in a situation in
which his or her person or health may be endangered, is guilty
of a misdemeanor. A second or subsequent violation of this
subdivision is punishable by a fine not to exceed $2,000; by
imprisonment in a county jail not to exceed one year; or by
both that fine and imprisonment.
4)Provides that any person who is not a caretaker and who
violates any provision of law proscribing theft, embezzlement,
forgery, or fraud, or who violates existing law proscribing
identity theft, with respect to the property or personal
AB 2038
Page 16
identifying information of an elder or a dependent adult, and
who knows, or reasonably should know, that the victim is an
elder or a dependent adult, is punishable by imprisonment in a
county jail not exceeding one year or in the state prison for
two, three, or four years when the moneys, labor, goods,
services, or real or personal property taken or obtained is of
a value exceeding $400; and by a fine not exceeding $1,000; by
imprisonment in a county jail not exceeding one year; or by
both that fine and imprisonment when the moneys, labor, goods,
services, or real or personal property taken or obtained is of
a value not exceeding $400. (Penal Code section 368(d).)
5)Defines "disability" as a developmental disability, as defined
in federal law, a mental illness, as defined in federal law, a
disability within the meaning of the Americans with
Disabilities Act of 1990, as specified, or a disability within
the meaning of the California Fair Employment and Housing Act.
(WIC Section 4900(d).)
6)Requires that by July 1, 2006, POST shall establish and keep
updated a continuing education classroom training course
relating to law enforcement interaction with mentally disabled
persons. The training course shall be developed by POST in
consultation with appropriate community, local, and state
organizations and agencies that have expertise in the area of
mental illness and developmental disability, and with
appropriate consumer and family advocate groups. In
developing the course, POST shall also examine existing
courses certified by POST that relate to mentally disabled
persons. POST shall make the course available to law
enforcement agencies in California. (Penal Code Section
13515.25(a).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Crime against
victims with disabilities has been called an 'invisible
epidemic', comparable with domestic violence before society
awakened to the horror and widespread extent of that terrible
problem. Children and elders with disabilities, homeless
people with disabilities, and people with disabilities in
care, treatment, and incarceration facilities are among those
most vulnerable and most often victimized. Despite great
AB 2038
Page 17
efforts, California -- like the rest of the country --
continues to fall shamefully short of meeting its
responsibility to provide equal protection from crime to
Californians with disabilities. Research shows that the
current system is generally unsuccessful in preventing crimes,
prosecuting perpetrators, or even reporting most crimes
against victims with disabilities. It is unlikely that
society would tolerate this level of violent crime against
most other classes of victims without demanding much more
effective action.
"The Crime Victims with Disabilities Act takes a comprehensive
approach, upgrading law enforcement training, giving police
and judges new tools to protect victims, assuring that
relevant state agencies focus on the problem, and changing
terminology to make it clear to all that the law protects all
Californians with disabilities. Because of the state budget
crisis, it is impossible to create any new General Fund costs.
But even with that major restriction, there is much that can
be done in 2008.
2)Current Law Definition of "Dependant Adult" and "Disability" :
Under several existing state statutes, "dependent adult" is
defined as any person residing California between the ages of
18 and 64 years and who has physical or mental limitations
that restrict his or her ability to carry out normal
activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental
disabilities or whose physical or mental abilities have
diminished because of age. (WIC section 15610.23(a).)
"Physical disability" is defined as including, but not limited
to, all of the following: having a physiological disease,
disorder, condition, cosmetic disfigurement, or anatomical
loss that does both of the following: affects any of several
specified anatomical or cosmetic disorders and limits a major
life activity. (Government Code section 12926(k).) "Major
life activities" is defined broadly and includes physical,
mental, social activities and working. (Government Code
section 12926(k)(1)(B)(iii).) Existing law does not allow
employers, landlords or government agencies to discriminate
against persons with disabilities and provides various
remedies for relief. This bill retains the definition of
"dependent adult" but instead changes the phrase "dependent
adult" to "persons with a disability". This bill does not
amend the definition of "disability" under the California Fair
AB 2038
Page 18
Housing Act or the Jesse Unruh Civil Rights Act. Although
California has more stringent protections of disabled persons,
the Federal Americans with Disabilities Act of 1990 also
provides a lengthy definition of "disability" that is similar
but not as broad as the California law. (See 42 U.S.C.
section 12101 et. seq.) Because these terms have very
specific meaning in the Americans with Disabilities Act, the
Jesse Unruh Civil Rights Act and the California Fair Housing
Act, close attention should be paid to any re-phrasing so as
not to conflict with existing law on civil rights.
3)Elder and Dependent Adult Abuse : This bill seeks to recast
various provisions of law related to elder abuse. Existing
law provides specific punishment for those who commit crimes
against persons over a certain age and persons who are
characterized as dependent. (See Penal Code section 368 et.
seq.) The California Supreme Court states:
"[Penal Code section 368] is one component of a multifaceted
legislative response to the problem of elder abuse. The
statute imposes felony criminal liability on "[a]ny person
who, under circumstances or conditions likely to produce great
bodily harm or death, willfully causes or permits any elder or
dependent adult, with knowledge that he or she is an elder or
dependent adult, to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or
custody of any elder or dependent adult, willfully causes or
permits the person or health of the elder or dependent adult
to be injured, or willfully causes or permits the elder or
dependent adult to be placed in a situation such that his or
her person or health is endangered . . . . " (People v.
Heitzman (hereinafter Heitzman) (1994) 9 Cal. 4th 189, 193.)
The Court in Heitzman ruled on the constitutionality of Penal
Code section 368 holding:
"We conclude that the statute may properly be upheld by
interpreting its imposition of criminal liability upon "[a]ny
person who ? permits ? any elder or dependent adult ? to
suffer ? unjustifiable pain or mental suffering" to apply only
to a person who, under existing tort principles, has a duty to
control the conduct of the individual who is directly causing
or inflicting abuse on the elder or dependent adult. Because
the evidence in this case does not indicate that defendant had
the kind of "special relationship" with the individuals
AB 2038
Page 19
alleged to have directly abused the elder victim that would
give rise to a duty on her part to control their conduct, she
was improperly charged with a violation of Penal Code Section
368(a)." (Heitzman at 194.)
4)Training Required by POST : This bill requires POST to update
training programs and policies for law enforcement use in
dealing with disabled persons. POST completed a report to the
Legislature on the status of peace officer training on mental
illness and developmental disabilities. POST stated in the
Report Forward, "In 2000, Penal Code 13515.25 was enacted,
requiring POST to develop a law enforcement training course on
mental and developmental disabilities, as well as a report to
the Legislature on the status of peace officer training on
mental illness and developmental disabilities. Section
12515.25 was amended in September 2003, extending the date of
the report to the Legislature to October 1, 2004, and
requiring an analysis of the Crisis Prevention Training (CIT)
Program used by the San Francisco and San Jose Police
Departments. Additionally, POST was asked to assess the
training used in these programs and compare it with existing
courses offered by POST, in order to evaluate the adequacy of
mental illness and developmental disability training available
to law enforcement officers. The mission of POST is to
continually enhance the professionalism of California law
enforcement in serving its communities. The POST Report to
the Legislature: The Status of Peace Officer Training on
Mental and Developmental Disabilities is intended to assist
the Legislature in determining the adequacy of continuing
education for law enforcement on these topics. Research for
this report was drawn from the expertise of law enforcement,
community members, and mental health services staff statewide.
In conjunction with this report, POST has developed an
eight-hour training course entitled Police Response to People
with Mental Illness or Developmental Disability, along with a
supporting field resource booklet." (POST Training, A Report
to the Legislature: the Status of Peace Officer Training on
Mental illness and Developmental Disabilities (hereinafter The
Report) (September 2004).)
This bill also expands the list of "subject-matter experts" who
consult in developing new policies and procedures. According
to The Report, POST consulted with several subject-matter
experts in developing its eight-hour training course on
disability response. The Report states, "Subject matter
AB 2038
Page 20
experts from all parts of California representing local, state
and community organizations were invited to participate in
curriculum development, including person recognized for their
expertise in law enforcement or disability related issues,
community leaders and advocates for developmental disability
or mental illness, and representatives from state and local
agencies responsible for coordinating or providing services
for the mentally or developmentally disabled. Twenty five
subject matter experts convened in a series of meeting to
develop the course outline, prioritize topics, develop
interactive activities, identify information that could be
provided through a student handout, and ensure that curriculum
content met legislative mandates. Committee member discussion
notes were developed into a student handout, which later
became a booklet entitled Police Response to People with
Mental Illness or Developmental Disability; a Field Guide.
Agency feedback was obtained through two pilot presentations
presented in Burbank and Sacramento. After subsequent
restructuring of the course, an instructor guideline was
developed."
SB 1234 (Kuehl), Chapter 700, Statutes of 2004 also expanded the
duties of POST to revise and update training and instructional
materials for use by law enforcement in dealing with mentally
or developmentally disabled persons. Although POST reported
on its progress as required by legislation enacted in 2000 and
2003, it is unclear if POST had an opportunity to comply with
the requirements of SB 1234. Due caution should be paid to
further expansion of training requirements in a manner that
undermines the efforts of previous legislation.
According to information provided to the Committee by POST:
"Since 1976, the Commission on POST and the law enforcement
community has recognized the need for required training on the
topic of persons with disabilities. As laws regulating
confinement of persons with disabilities changed in the
eighties, and municipalities faced growing populations of
homeless and mentally disabled persons on their streets, this
topic has evolved into today's training curriculum which is
mandated in Basic Academy Training and is supplemented with a
136-page student workbook.
"In addition to topics taught in Basic Academy Training, other
courses delivered including Field Training, Advanced Officer
AB 2038
Page 21
Training, several non-traditional methods provided by POST
including the POST eight-hour course on mental and
developmental disabilities, several training videos, and an
interactive DVD on communication skills that can assist
officers who encounter persons with disabilities.
"Law enforcement agencies' having pronounced community needs
involving mental illness and persons with disabilities have,
in our estimation, responded responsibly. For example, in
2002 the Los Angeles Police Department trained 6,406 officers
in a four-hour block of instruction on mental illness and
developmental disabilities for a total of 25,624 personnel
hours devoted to this topic. Other communities have followed
suit including, but not limited to San Jose and San Francisco.
"California's law enforcement professionals, in collaboration
with the Commission on POST and community representatives,
make stringent efforts to develop comprehensive training
programs covering a broad array of topics which must be
balanced against law enforcement training priorities and
fiscal responsibility. Training needs must be responsibly
triaged.
"For example, developing training programs to meet one of
today's most pressing challenges - response to 'active
shooters' in malls, universities, high schools, or other
public venues - must be balanced against terrorism training,
including response to weapons of mass destruction,
bioterrorism, cultural diversity, racial profiling, pursuit
guidelines, use of force, crowd control, domestic violence,
and other local community needs. Any of these events can
involve persons with disabilities.
"This can be challenging. Generally, peace officers are not
trained to accurately diagnose disorders, but to recognize,
effectively assess, and develop a response to observable
behavioral indicators that may involve a single factor or an
amalgam of conditions. These conditions include, but are not
limited to: bipolar disorder, autism, clinical depression,
schizophrenia, Alzheimer's' disease, traumatic brain injury,
the elderly, children and adolescents, suicidal intent, the
influence of medications (including prescribed or controlled
substances), post-partum psychosis, insulin shock and many
other conditions. Persons with these conditions may be
involved as a suspect, a victim, or a witness. Conditions may
AB 2038
Page 22
be peaceful or violent, with or without the benefit of a
common language or culture, and may not allow the luxury of
time to consider the situation but, instead may require
split-second decision-making.
5)Protection & Advocacy Report : In 2003, Protection & Advocacy
issued a report, "Abuse and Neglect of Adults with
Developmental Disabilities & the System's Failure to Provide
Equal Protection: A Public Health Priority for the State of
California." The report made several recommendations
regarding the most effective ways to confront the problem of
abuse and neglect of disabled people.
"Similar findings have been documented from studies of
Californians with disabilities. Hard (1986) found that, of 95
adult Californians with developmental disabilities surveyed,
83% of the women and 32% of the men had been sexually
assaulted. A later study of San Francisco Bay area residents
with mild mental retardation found that nearly 80% of the
women and 54% of the men had been sexually abused at least
once (Stromsness, 1993).
"While many feel that living in the community carries inherent
risks, it is notable that some studies have found that crime
rates are higher for victims with disabilities in
institutions, group homes and other segregated facilities
(Sobsey & Mansell, 1990; Roeher Inst., 1994). Adding to these
alarming incidence rates, studies show that people with
disabilities are more likely to experience more severe abuse,
experience abuse for a longer duration, be victims of multiple
episodes, and be victims of a larger number of perpetrators
(Schaller & Fieberg, 1998; Sobsey & Doe, 1991; Young et al.,
1997).
"The authors are aware that some of the above data must be
interpreted cautiously. Accurate estimates regarding the
incidence of abuse or neglect of persons with developmental
disabilities specifically are difficult to obtain.
Consequently, some research referenced in this report comes
from studies of individuals with a broad range of
disabilities. Much of the research on victimization of people
with disabilities does not delineate specific sub-populations.
Public records of violence against individuals usually do not
indicate whether or not the victim has a disability, let alone
a developmental disability (Curry et al., 2001).
AB 2038
Page 23
"Reliable studies focusing specifically on Californians with
developmental disabilities who have been victims of physical
or sexual abuse are small in number. Furthermore, there is no
coordinated system to collect data on and track outcomes of
victims with disabilities from the initial allegation, to the
initial report, to prosecution and finally to conviction.
However, most experts agree that research findings involving
other groups of people with disabilities should be viewed as
under-estimates for persons with developmental disabilities.
"Regardless of the type of disability or whether the abuse is
emotional, physical, or sexual, people who provide care and
support to individuals with disabilities are often the same
people who victimize them - people the victims know and trust
(Petersilia et al., 2001; Nosek et al, 1997; Marchetti &
McCartney, 1990). It is estimated that risk of abuse
increases by 78% due to the vulnerability of people with
developmental disabilities and their need for personal
assistance services (c.f., Sobsey and Doe, 1991; Young et al.,
1997; Curry & Powers, 1999). In a survey of individuals with
disabilities who had been abused, 96% of the cases involved
perpetrators who were known to their victim (Sobsey and Doe,
1991). The largest group of offenders (44%) were individuals
who had a relationship with the victim specifically because of
their disability (27.7% disability service providers, 5.4%
specialized transportation, 4.3% specialized foster parents
and 6.5% other disabled individuals). Mansell et al. (1992)
similarly found that 26% of perpetrators were paid care givers
providing services related to the victim's disability and 11%
were other service providers.
"Homes and other residences are the most common setting for
abuse (Sobsey, 1994; Furey, 1994; Turk & Brown, 1992). One
study found that 58% of the offenses took place in the homes
of either the victim (48%) or the perpetrator (10%) (Turk and
Brown, 1992). As individuals with developmental disabilities
have access to a wider array of living arrangements, states
must ensure that systems are in place to prevent abuse not
only in congregate facilities, but also in the community.
"Law enforcement must be required to periodically and regularly
complete the California Commission on Peace Officers Standards
and Training (POST) eight-hour advanced officer training
course, entitled, Police Response to People with Mental
AB 2038
Page 24
Illness or Developmental Disabilities. Similarly, there must
be periodic training provided to local prosecutors and
judicial personnel specifically regarding crimes against
persons with disabilities, including requesting and providing
necessary accommodations. APS and licensing agencies (for
facilities and licensed care providers) should develop and
implement a similar training component regarding conducting
investigations involving victims with developmental
disabilities.
6)Arguments in Support : According to Protection and Advocacy
(PAI), "In August 2003, PAI, along with our federal partners
under the PADD Act, authored a white paper titled 'Abuse and
Neglect of Adults with Developmental Disabilities: A Public
Health Priority for the State of California'. The report
discussed the abuse and neglect of adults with developmental
disabilities and the failure of the abuse response and
criminal justice systems to provide equal protection to crime
victims with disabilities.
"AB 2038, the 'Crime Victims with Disabilities Act', addresses
many of the issues and recommendations highlighted in this
report. AB 2038 will:
a) "Direct the Governor to designate a lead agency to
coordinate state agencies with responsibility for
protecting elders and people with disabilities from crime
and to assist them when they become victims;
b) "Include crime against individuals with disabilities
within the sentencing provisions for hate crimes, and
require perpetrators to pay damages;
c) "Expand warrantless arrest provisions to assault or
batter cases involving a victim with a substantial
disability;
d) "Expand mandated reporting requirements for adults and
children with disabilities, including residents of
developmental centers;
e) "Require the Commission on Peace Officer Standards and
Training to develop advanced training courses regarding
investigating, preventing, and responding to crimes against
people with disabilities; and,
AB 2038
Page 25
f) "Include victims with disabilities among crime victims
eligible for victim/witness assistance and require training
in assisting victims and witnesses with disabilities.
"People with disabilities are the victims of crime, abuse, and
neglect at much higher rates than people without disabilities.
Yet, crimes against them are not as rigorously investigated,
nor are they prosecuted at nearly the same rates. AB 2038
will help draw attention to the issue of crimes against people
with disabilities. The bill will strengthen the requirements
to report instances of crime, abuse and neglect. Moreover, AB
2038 will give law enforcement more tools to discover,
investigate, and prosecute crimes against people with
disabilities."
7)Related Legislation :
a) AB 1900 (Nava) creates a 10% penalty assessment in
addition to fines already imposed for specified convictions
of abuse upon an elder or dependent adult and authorizes
local officials to increase fees for certified copies of
death records. AB 1900 is pending hearing by the Assembly
Committee on Appropriations.
b) AB 2172 (Cook) requires DOJ to develop an Internet Web
site, to be updated regularly, which would make available
to the public certain information about persons who have
been convicted of violating at least one crime against an
elder or dependant adult, as specified. AB 2171 failed
passage in this Committee and was granted reconsideration.
REGISTERED SUPPORT / OPPOSITION :
Support
California Peace Officers Association
California Police Chiefs Association
Protection & Advocacy, Inc.
One private citizen
Opposition
California Resource Family Impact
AB 2038
Page 26
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744