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AB-1495 Civil liability: sexual abuse: children.(2017-2018)

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Date Published: 07/18/2017 09:00 PM
AB1495:v95#DOCUMENT

Amended  IN  Senate  July 18, 2017
Amended  IN  Assembly  May 26, 2017
Amended  IN  Assembly  April 20, 2017
Amended  IN  Assembly  April 06, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1495


Introduced by Assembly Member Maienschein
(Coauthors: Assembly Members Gloria and Steinorth)
(Coauthors: Senators Anderson and Jackson)

February 17, 2017


An act to add Section 1708.5.6 to the Civil Code, and to amend Section 6380 of the Family Code, relating to sexual abuse.


LEGISLATIVE COUNSEL'S DIGEST


AB 1495, as amended, Maienschein. Civil liability: sexual abuse: children.
Existing civil law requires every person to abstain from injuring another and makes a person who commits a sexual battery, as defined, upon another liable to that person for specified damages.
This bill would impose civil liability and specific penalties upon a person over the age of majority who, in exchange for property or money, commits an act that would violate certain criminal provisions pertaining to sexual acts upon a child, solicitation of a child, or aiding or abetting in one of these acts. The bill would authorize a victim of the unlawful act, his or her parent or guardian, or guardian ad litem to bring an action for civil penalties, damages, injunctive relief, equitable remedies, and for the cost of the suit and reasonable attorney’s fees, as specified. The bill would require, if the victim is under 21 18 years of age, and the action results in a monetary award, for that award to be held in trust for the victim, and used exclusively for the victim’s benefit in accordance with certain procedures. The bill also would require the court, if the parties seek to settle the action, to either affirm, modify, or reject the settlement, subject to first providing notice of the proposed settlement to the Attorney General within a certain timeframe. The bill would require the victim, victim’s parent, guardian, or guardian ad litem, if the action is dismissed or subject to final judgment, to submit to the Attorney General a report that includes the results of the action or its final disposition.

The bill would authorize a public prosecutor, as defined, to bring an action on behalf of a victim or victims if the victim or his or her parent, guardian, or guardian ad litem has not brought an action, and if specified consent provisions and other criteria are satisfied.

The bill would require, in an action brought by a public prosecutor that results in a monetary award, that the award be provided to the victim, except that the public prosecutor shall receive reasonable attorney’s fees.

The bill would also specify procedures by which the court may issue temporary restraining or protective orders in an action brought pursuant to these provisions.
Existing law requires counties to transmit specific data concerning protective and domestic violence orders electronically through the California Law Enforcement Telecommunications System to the Department of Justice. Under existing law, upon issuance of a protective order, issuance of a temporary restraining order or injunction relating to harassment, unlawful violence, or the threat of violence under specified provisions, the Department of Justice is required to be immediately notified of the contents of the order, including certain information, including the name, race, date of birth, and other personal descriptive information of the respondent and the names of the protected persons.
This bill also would require notification of the issuance of a restraining order pertaining to sexual abuse of a child, as specified.
By imposing new duties on local government agencies and expanding the scope of a crime, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1708.5.6 is added to the Civil Code, to read:

1708.5.6.
 (a) It is unlawful for any person over the age of majority, in exchange for property or money, to commit any of the following acts:
(1) Violate Section 261.5, 265, or 266 of the Penal Code, pertaining to sexual acts upon a child, including, but not limited to, rape, abduction, carnal abuse, or lewd behavior pursuant to Section 288 of the Penal Code.
(2) Solicit a child for a purpose in violation of paragraph (1), or pursuant to Section 647 of the Penal Code.
(3) Aid or abet in the commission of acts that would violate paragraph (1) or (2).
(b) (1) A victim of any unlawful act provided in subdivision (a), or his or her parent, guardian, or guardian ad litem, may bring a civil action for civil penalties, damages, injunctive relief, equitable remedies, and for the cost of suit and reasonable attorney’s fees, as specified in this subdivision as follows:
(A) Civil penalties awarded by the court not exceeding fifty thousand dollars ($50,000) though not less than ten thousand dollars ($10,000) for each unlawful act.
(B) Damages, including, but not limited to, medical and counseling expenses, lost current and future wages, and reasonable relocation costs to permit the plaintiff to locate a safe environment.
(C) Injunctive relief.
(D) Equitable relief, including, but not limited to, restitution, disgorgement of revenue obtained through the acts in violation of this section.
(E) Reasonable attorney’s fees and costs.
(2) (A) If the victim is under 21 18 years of age, and the action results in a monetary award, the award shall be held in trust for the victim and used exclusively for the benefit and well-being of the victim.
(B) The court shall, with the advice of the victim, appoint a trustee and retain jurisdiction over the trust until the victim reaches 21 18 years of age or is emancipated in order to monitor compliance with these provisions. The trustee shall not be compensated from the trust.
(C) When the victim reaches 21 18 years of age or is emancipated, the trust shall expire and any unspent remainder shall be the sole property of the victim.
(3) (A) If the parties seek to settle the action, the court shall either affirm, modify, or reject the settlement. The court shall not affirm the settlement unless the Attorney General has been given notice of the proposed settlement at least 30 days before the court affirms, modifies, or rejects the settlement. The Attorney General may object to the proposed settlement on grounds that the settlement is collusive, and may request that the settlement be modified upon a court hearing.
(B) If the action is dismissed, or is subject to a final judgment, the victim, parent, guardian, or guardian ad litem shall submit to the Attorney General a report in the form prescribed by the Attorney General that includes the results of the action or the final disposition of the case.

(c)(1)If a victim or his or her parent, guardian, or guardian ad litem has not brought an action described in subdivision (b), a public prosecutor may bring the action on behalf of a victim or victims if all of the following applies:

(A)The public prosecutor obtains written consent from the victim, or his or her parent, guardian, or guardian ad litem for the public prosecutor to file the action on the victim’s behalf.

(B)The action brought by the public prosecutor does not seek to obtain relief already being sought or obtained in the action brought by the victim or his or her parent, guardian, or guardian ad litem pursuant to subdivision (b).

(C)Another public prosecutor has not already brought the action.

(D)The victim is not compelled to testify in the case, unless the victim chooses to testify.

(2)In any action brought by a public prosecutor under this subdivision that results in a monetary award, the award shall be provided to the victim pursuant to subdivision (b), except that the public prosecutor shall receive reasonable attorney’s fees.

(d)

(c) In a civil action brought under subdivision (b) or (c), (b), knowledge of the victim’s status as a minor shall be presumed but may be rebutted by a preponderance of the evidence. If the age of the victim was under 14 years of age, that presumption must be rebutted by clear and convincing evidence.

(e)

(d) If testimony of the child victim is required in a civil action brought under subdivision (b) or (c), (b), the child victim shall be permitted to have a support person, pursuant to Section 6303 of the Family Code, and shall be eligible for child victim services relevant to his or her testimony provided by Section 264.2 of the Penal Code. In addition or in the alternative, those witnesses may be subject to the care and protection of Section 1347.1 of the Penal Code in the delivery of their testimony in proceedings pursuant to this section.

(f)

(e) (1) (A) If a victim of any unlawful act provided in subdivision (a) is the subject of a petition filed pursuant to Section 300, 601, or 602 of the Welfare and Institutions Code, the juvenile court that retains jurisdiction may, on its own motion, or upon the motion of a public prosecutor, after a good cause showing, issue a temporary restraining order or protective order for the victim pursuant to Section 213.5 of the Welfare and Institutions Code.
(B) Notwithstanding Section 213.5 of the Welfare and Institutions Code, if a victim of any unlawful act provided in subdivision (a) is not the subject of a petition filed pursuant to Section 300, 601, or 602 of the Welfare and Institutions Code, the court may, on its own motion, or upon the motion of a public prosecutor, after a good cause showing, issue a temporary restraining order or protective order for the victim pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code.
(C) If the juvenile court does not issue a temporary restraining order, the court may enter a temporary restraining order or protective order for the alleged victim pursuant to subparagraph (B).
(2) A temporary restraining order or protective order issued pursuant to paragraph (1) does not require a showing of a qualifying relationship.
(3) The alleged victim shall be permitted to have a support person, pursuant to Section 6303 of the Family Code, present at any hearing for the issuance of a restraining order.

(g)

(f) This section does not alter or affect Section 261.5 of the Penal Code.

(h)

(g) For purposes of this section, “public prosecutor” means the Attorney General, a district attorney, or a city attorney of a city with a population of 750,000 or more.

SEC. 2.

 Section 6380 of the Family Code is amended to read:

6380.
 (a) Each county, with the approval of the Department of Justice, shall, by July 1, 1996, develop a procedure, using existing systems, for the electronic transmission of data, as described in subdivision (b), to the Department of Justice. The data shall be electronically transmitted through the California Law Enforcement Telecommunications System (CLETS) of the Department of Justice by law enforcement personnel, or with the approval of the Department of Justice, court personnel, or another appropriate agency capable of maintaining and preserving the integrity of both the CLETS and the Domestic Violence Restraining Order System, as described in subdivision (e). Data entry is required to be entered only once under the requirements of this section, unless the order is served at a later time. A portion of all fees payable to the Department of Justice under subdivision (a) of Section 1203.097 of the Penal Code for the entry of the information required under this section, based upon the proportion of the costs incurred by the local agency and those incurred by the Department of Justice, shall be transferred to the local agency actually providing the data. All data with respect to criminal court protective orders issued, modified, extended, or terminated under subdivision (g) of Section 136.2 of the Penal Code, and all data filed with the court on the required Judicial Council forms with respect to protective orders, including their issuance, modification, extension, or termination, to which this division applies pursuant to Section 6221, shall be transmitted by the court or its designee within one business day to law enforcement personnel by either one of the following methods:
(1) Transmitting a physical copy of the order to a local law enforcement agency authorized by the Department of Justice to enter orders into CLETS.
(2) With the approval of the Department of Justice, entering the order into CLETS directly.
(b) Upon the issuance of a protective order to which this division applies pursuant to Section 6221, or the issuance of a temporary restraining order or injunction relating to harassment, unlawful violence, or the threat of violence pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or the issuance of a restraining order pursuant to Section 1708.5.6 of the Civil Code, or the issuance of a criminal court protective order under subdivision (g) of Section 136.2 of the Penal Code, or the issuance of a juvenile court restraining order related to domestic violence pursuant to Section 213.5, 304, or 362.4 of the Welfare and Institutions Code, or the issuance of a protective order pursuant to Section 15657.03 of the Welfare and Institutions Code, or upon registration with the court clerk of a domestic violence protective or restraining order issued by the tribunal of another state, as defined in Section 6401, and including any of the foregoing orders issued in connection with an order for modification of a custody or visitation order issued pursuant to a dissolution, legal separation, nullity, or paternity proceeding the Department of Justice shall be immediately notified of the contents of the order and the following information:
(1) The name, race, date of birth, and other personal descriptive information of the respondent as required by a form prescribed by the Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including stay-away, no-contact, residency exclusion, custody, and visitation provisions of the order.
(6) The department or division number and the address of the court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership or possession of firearms.
All available information shall be included; however, the inability to provide all categories of information shall not delay the entry of the information available.
(c) The information conveyed to the Department of Justice shall also indicate whether the respondent was present in court to be informed of the contents of the court order. The respondent’s presence in court shall provide proof of service of notice of the terms of the protective order. The respondent’s failure to appear shall also be included in the information provided to the Department of Justice.
(d) (1) Within one business day of service, any law enforcement officer who served a protective order shall submit the proof of service directly into the Department of Justice Domestic Violence Restraining Order System, including his or her name and law enforcement agency, and shall transmit the original proof of service form to the issuing court.
(2) Within one business day of receipt of proof of service by a person other than a law enforcement officer, the clerk of the court shall submit the proof of service of a protective order directly into the Department of Justice Domestic Violation Restraining Order System, including the name of the person who served the order. If the court is unable to provide this notification to the Department of Justice by electronic transmission, the court shall, within one business day of receipt, transmit a copy of the proof of service to a local law enforcement agency. The local law enforcement agency shall submit the proof of service directly into the Department of Justice Domestic Violence Restraining Order System within one business day of receipt from the court.
(e) The Department of Justice shall maintain a Domestic Violence Restraining Order System and shall make available to court clerks and law enforcement personnel, through computer access, all information regarding the protective and restraining orders and injunctions described in subdivision (b), whether or not served upon the respondent.
(f) If a court issues a modification, extension, or termination of a protective order, it shall be on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice, and the transmitting agency for the county shall immediately notify the Department of Justice, by electronic transmission, of the terms of the modification, extension, or termination.
(g) The Judicial Council shall assist local courts charged with the responsibility for issuing protective orders by developing informational packets describing the general procedures for obtaining a domestic violence restraining order and indicating the appropriate Judicial Council forms. The informational packets shall include a design, that local courts shall complete, that describes local court procedures and maps to enable applicants to locate filing windows and appropriate courts, and shall also include information on how to return proofs of service, including mailing addresses and fax numbers. The court clerk shall provide a fee waiver form to all applicants for domestic violence protective orders. The court clerk shall provide all Judicial Council forms required by this chapter to applicants free of charge. The informational packet shall also contain a statement that the protective order is enforceable in any state, as defined in Section 6401, and general information about agencies in other jurisdictions that may be contacted regarding enforcement of an order issued by a court of this state.
(h) For the purposes of this part, “electronic transmission” shall include computer access through the California Law Enforcement Telecommunications System (CLETS).
(i) Only protective and restraining orders issued on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice shall be transmitted to the Department of Justice. However, this provision shall not apply to a valid protective or restraining order related to domestic or family violence issued by a tribunal of another state, as defined in Section 6401. Those orders shall, upon request, be registered pursuant to Section 6404.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.