CHAPTER II

CURRENT LEGAL DEFINITIONS OF CHILD ABUSE: Child abuse laws have been enacted by the Federal government and all State Governments. (Bershorov 1977)

For the purpose of brevity, child abuse laws of the State of California will be reviewed since they encompass all of the points found in other States. The statutes in California can be grouped into Penal Codes which provide for criminal prosecution of the abuser and Civil Codes which provide for governmental protection of the abused child. The Penal and Civil Codes are divided into those which define, physical abuse, physical neglect, emotional abuse, emotional neglect, sexual abuse, sexual neglect and administrative procedures.

C PHYSICAL ABUSE

Penal Code Section 273a was first enacted in 1905. This section made it a misdemeanor to inflict unreasonable physical pain or mental suffering to a child or to place a child in a situation that might endanger life or limb. An important point to note is that child abuse was recognized by the California State Government more than 75 years ago. Yet, public demand for additional legislation lagged far behind.

S Penal Code Section 273d

Penal Code Section 273d was enacted in 1965. Section 273d defines the infliction of unjustifiable physical pain on a child as a felony. Neither Section 273d describe "unjustifiable or physical pain or metal suffering". Unfortunately, with the exception of extreme forms of Physical Abuse, the ambiguity of these two sections renders them of doubtful value and certainly open to cultural interpretation.

Penal Code Section 11165 enacted in 1980 is part of the child abuse reporting law (Section 11161.5). This section defined child abuse as evidenced by:

1. Physical injury which is inflicted by other than

accidental means on a child by another person.

2. Sexual assault on a child.

3. Willful cruelty or unjustifiable punishment (any act or

omission proscribed by Penal Code Section 273a).

4. Cruel or inhuman corporal punishment or injury.

5. Severe and general neglect of a child.

6. Abuse in out-of-home care, including "negligent" abuse.

Penal code 11165.1 was amended Jan. 1, 1988 with the

addition of the following:

Describes Sexual assault:

1. Penetration of the vagina or anal opening, however

slight, of one person by the penis of another.

2. Sexual contact between the genitals or anal opening of one person and the mouth or tongue of another.

3. Any intrusion into the genitals or anus of another, including the use of an object, except for valid medical procedures.

4. Intentional touching of genitals or intimate parts (including breasts, genital area, groin, inner thighs and buttocks) either directly or through clothing of a child, or of the perpetrator by a child for sexual purposes, except normal caretaker responsibilities, showing appropriate affection for child or for medical purposes.

(5) Masturbation in presence of child.

(6) Defines person responsible for a child's welfare

as parent, guardian, foster parent or employee of

public or private residential home, residential school

or other residential institution. (Conidaris et

al 1988; Masterson 1988)

In the Federal area, the Child Abuse Prevention and Treatment Act of 1974 (Public Law 93-247) defines child abuse as the "physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of eighteen by a person who is responsible for child's welfare under circumstances which indicate the child's health or welfare is harmed or threatened thereby."

PHYSICAL NEGLECT

Penal Code Section 270 states that if a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical assistance, or other remedial care for medically diagnosed nonorganic failure to thrive, he or she is guilty of a misdemeanor punishable by a fine not exceeding $1,000, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment.

Statute Public Law 93-247 only mentions "mental suffering or injury". Otherwise, there are no specific statutes on Emotional Abuse.

Emotional Neglect: There are no statutes concerning emotional neglect.

S Penal Code Section 262

Penal Code Section 262 rape is defined as an act of sexual intercourse with a victim who is not the spouse of the perpetrator if:

1. The victims was unable to legally consent due to the

influence of drugs, anesthetics or intoxicants.

2. The victim was unable to legally consent due to unconsciousness of the nature of the act either as a result of mental infirmity or as a result of misrepresentation by the perpetrator regarding the type of act engaged in.

3. The victim believed through decision that the perpetrator was the victim's spouse.

4. The resistance by the victim was overcome by force or threat of force or fear of immediate unlawful bodily injury on the victim or on the person of another.

5. No resistance was offered by the victim due to fear of immediate unlawful bodily injury on the victim or on the person of another.

Penal Code Section 264.1 rape in concert is defined as voluntarily acting in concert with another person, by force or violence and against the will of the victim, to commit an act of rape, either personally or by aiding and abetting such other person.

Penal Code Section 285 incest is defined as marriage or acts of intercourse between the following persons: parent and children; ancestors and descendants of every degree; brothers and sisters of half and whole blood; and uncles and nieces or aunt and nephews.

Penal Code Section 286 sodomy is defined as sexual contact between the penis of one person and the anus of another person where:

1. One of the participants is under 18 years of age.

2. The act is accomplished against a victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person.

3. Any person aids in the commission of such an act and the act is accomplished against the person's will as described above.

4. The victim is unconscious of the nature of the act and

this is know to the person committing the act.

5. Any person, who merely participates in such an act, while confined in state prison or a local detention center not devoted exclusively to the detention of minors, with any person of any age, regardless of whether the act is consensual or whether or not accomplished by force or fear as described above.

Penal Code Sections 288 was enacted in 1977. This section stipulated that anyone who willing and lewdly committed any lewd or lascivious acts with a child under the age of fourteen was guilty of a felony and should be imprisoned in the state prison for a term of three, four, or five years.

Penal Code Section 289 penetration of a genital or anal openings by foreign objects is defined as the slightest penetration of a genital or anal opening of another by foreign object, substance, instrument or device where such penetration is accomplished by force, duress, or threat of immediate and unlawful bodily injury on the victim or on the person of another. Parts of the body are not classified as foreign objects, substances, instrument or devices.

Penal Code Section 311.2 (pornography) prohibits the importation, sale, or distribution in this state, or the possession, preparation, publication, or printing with the intent to distribute or to exhibit to others, or the offer to distribute, or the distribution or exhibition to others, of absence matter.

Penal Code Section 311.4 (minors and pornography) provides for restrictions on the performance of sexual acts, and also prohibits employment of minors under 16 years of age in "obscene", "indecent" or "immoral" activities. This law prohibits involving or engaging any person under the age of 16 years in specified actual or simulated sexual conduct for commercial purposes. It also makes it a felony for any parent or guardian to permit a person under the age of 16 under his control to engage in such activity. Penal Code Section 647a is defined as any act motivated by unnatural or abnormal sexual interest in children, which act would reasonable be expected to disturb, irritate, trouble or offend the victim, or not the victim is so affected. No touching of the victim is necessary.

Statutory rape laws vary from state to ranging from 13 to 18 years of age. Outside the United States the Statutory rape laws vary from nonrecognition of statutory rape to 18 years of age.

Penal Code Section 11110 In 1965, the first legislative step was taken to identify and register child abuser on a statewide basis. As with all legislation concerned with issues which instigate basis moral, political, or ethical changes in the society, public acceptance is slow in coming.

Penal Code Section 11161.5 enacted in 1965 directed that a physician, surgeon, dentist, resident, intern, chiropractor, religious practitioner, or in the absence of the above-named, a registered nurse, superintendent or principal of a private or public school, and the director of the county welfare department should report child abuse cases by telephone and subsequently in writing to the local police authority and to the juvenile probation department. The above persons were immunized from any civil or criminal liability resulting from such a report. The Central Registry upon request was to furnish information pertaining to a cases to the above-named people. The Central Registry upon request also was to furnish the record to any probation department, juvenile probation department, and agency offering child protective services.

a) This article shall be known and may be cited as the Child Abuse and Neglect Reporting Act.

The intent and purpose of this article is to protect children from abuse. In any investigation of suspected child abuse, all persons participating in the investigation of the case shall consider the needs of the child victim and shall do whatever is necessary to prevent psychological harm to the child victim. (Added Stats. 1987, Ch. 1444)

Penal Code section 11165 - Definition – Child. As used in this article "child" means a person under the age of 18 years. (Repealed and Added Stats. 1987, Ch. 1459)

Penal Code Section 11165.1 as used in this article, "sexual abuse" means sexual assault or sexual exploitation as defined by the following:

"Sexual assault" means conduct in violation of one or more of the following sections: Section 261 (rape), 261.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b) of Section 288 (lewd or lascivious acts upon a child under 14 years of age), 288a (oral copulation), 289 (penetration of a genital or anal opening by a foreign object), or 647a (child molestation).

Conduct described as "sexual assault" includes, but is not limited tom all of the following:

Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.

Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.

Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.

The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.

The intentional masturbation of the perpetrator’s genitals in the presence of a child.

c). "Sexual exploitation" refers to any of the following:

Conduct involving matter depicting a minor engaged in obscene acts in violation of Section 311.2 (preparing, selling, or distributing obscene matter) or subdivision (a) of Section 311.4 (employment of minor to perform obscene acts).

Any person who knowingly promotes, aids or assists, employs, uses, persuades, induces, or coerces a child, or any person responsible for a child’s welfare, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct. For the purpose of this section, "person responsible for a child’s welfare" means a parent, guardian, foster parent, or a licensed administrator or employee of a public or private residential home, residential school, or other residential institution.

Any person who depicts a child in, or who knowingly develops, duplicates, prints, or exchanges, any film, photograph, video tape, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons described in subdivisions c) and (e) of Section 311.3. (Repealed and Added Stats. 1987, Ch. 1459)

Penal Code Section 11165.2 - Definition – neglect. As used in this article, "neglect" means the negligent treatment or the maltreatment of a child by a person responsible for the child’s welfare under circumstances indicating harm or threatened harm to the child’s health or welfare. The term includes both acts and omissions on the part of the responsible person.

"Severe neglect" means the negligent failure of a person having the care of custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive. "Severe neglect" also means those situations of neglect where any person having the care or custody of a child willfully causes or permits the person or health of the child to be placed in a situation such that his or her person or health is endangered, as proscribed by Section 11165.3, including the intentional failure to provide adequate food, clothing, shelter, or medical care.

"General neglect" means the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred.

For the purposes of this chapter, a child receiving treatment by spiritual means as provided in Section 16509.1 of the Welfare and Institutions Code or not receiving specified medical treatment for religious reasons, shall not for that reason alone be considered a neglected child. An informed and appropriate medical decision made by a parent or guardian after consultation with a physician or physicians who have examined the minor does not constitute neglect. (Repealed and Added Stats. 1987, Ch. 1459)

Penal Code Section 11165.3 - Definition – Willful cruelty, unjustifiable punishment. As used in this article, "unlawful corporal punishment or injury" means a situation where any person willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition. It does not include an amount of force that is reasonable and necessary for a person employed by or engaged in a public school to quell a disturbance threatening physical injury to person or damage to property, for purposes of self-defense, or to obtain possession of weapons or other dangerous objects within the control of the pupil, as authorized by Section 49001 of the Education Code. It also does not include the exercise of the degree of physical control authorized by Section 44807 of the Education Code. It also does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer. (Amend. Stats. 1993, Ch. 346)

Penal Code Section 11165.5 - Definition – Abuse in out-of-home care. As used in this article, "abuse in -out-of-home care" means a situation of physical injury on a child which is inflicted by other than accidental means, or of sexual abuse or neglect, or unlawful corporal punishment or injury, or the willful cruelty or unjustifiable punishment of a child, as defined in this article, where the person responsible for the child’s welfare is a licensee, administrator, or employee of any facility licensed to care for children, or an administrator or employee of a public or private school or other institution or agency. "Abuse in out-of-home care" does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer. (Amend. Stats. 1993, Ch. 346)

Penal Code Section 11165.6 - Definition – Child Abuse. As used in this article, "child abuse" means a physical injury which is inflicted by other than accidental means on a child by another person. "Child abuse" also means the sexual abuse of a child or any act or omission proscribed by Section 273a (willful cruelty or unjustifiable punishment of a child) or 273d (unlawful corporal punishment or injury). "Child abuse" also means the neglect of a child or abuse in out-of-home care, as defined in this article. "child abuse" does not mean a mutual affray between minors. "Child abuse" does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer. (Amend. Stats. 1993, Ch. 346)

As used in this article, "child care custodian" means a teacher; an instructional aide, a teacher’s aide, or a teacher’s assistant employed by any public or private school, who has been trained in the duties imposed by this article, if the school district has so warranted to the State Department of Education; a classified employee of any public school who has been trained in the duties imposed by this article, if the school has so warranted to the State Department of Education; an administrative officer, supervisor of child welfare and attendance, or certificate pupil personnel employee of any public or private school; an administrator of a public or private school; an administrator of a public or private day camp; an administrator of a public or private day camp; an administrator or employee of a public or private youth center, youth recreation program, or youth organization; an administrator or employee of a public or private organization whose duties required direct contact and supervision of children; a licensee, an administrator, or an employee of a licensed community care or child day care facility; headstart teacher; a licensing worker or licensing evaluator; public assistance worker; an employee of a child care institution including, but not limited to, foster parents, group home personnel and personnel of residential care facilities; a social worker or a probation officer, or parole officer; an employee of a school district police or security department; or any person who is an administrator or presenter of, or a counselor in, a child abuse prevention program in any public or private school; a district attorney investigator, inspector, or family support officer unless the investigators, inspector, or officer is working with an attorney appointed pursuant to Section 317 of the Welfare and Institutions Code to represent a minor; or a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of this code, who is not otherwise described in this section.

Training in the duties imposed by this article shall include training in child abuse identification and training in child abuse reporting. As part of that training, school districts shall provide to all employees being trained a written copy of the reporting requirements and a written disclosure of the employees’ confidentiality rights.

School districts which do not train the employees specified in subdivision (a) in the duties of child care custodians under the child abuse reporting laws shall report to the State Department of Education the reasons why this training is not provided.

Volunteers of public or private organizations whose duties require direct contact and supervision of children are encouraged to obtain training in the identification and reporting of child abuse. (Amend. Stats. 1992, Ch. 459)

Penal Code Section 11165.8 - Definition – Health practitioner. As used in this article, "health practitioner" means a physician and surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist chiropractor, licensed nurse, dental hygienist, optometrist, or any other person who is currently licensed under Division 2 (commencing with Section 500) of the Business and Professions Code; a marriage, family and child counselor; any emergency medical technician I or II, paramedic, or other person certified pursuant to Division 2.5 (commencing with Section 1797) of the Health and Safety Code; a psychological assistant registered pursuant to Section 2913 of the Business and Professions Code; a marriage, family and child counselor trainee, as defined in subdivision c) of Section 4980.03 of the Business and Professions code; an unlicensed marriage, family and child counselor intern registered under Section 4980.44 of the Business an Professions Code; a state or county public health employee who treats a minor for venereal disease or any other condition; a coroner; a medical examiner, or any other person who performs autopsies; or a religious practitioner who diagnoses, examines, or treats children. (Amend. Stats. 1988, Ch. 1580)

Penal Code Section 11165.9 - Definition – Child protective agency. As used in this article, "child protective agency" means a police or sheriff’s department, a country probation department, or a county welfare department. It does not include a school district police or security department. (Added Stats. 1987, Ch. 1459)

Penal Code Section 11165.10- Definition – Commercial film and photographic print processor. As used in this article, "commercial film and photographic print processor" means any person who develops exposed photographic film into negatives, slides, or prints, or who makes prints from negatives or slides, for compensation. The term includes any employee of such a person; it does not include a person who develops film or makes prints for a public agency. (Added Stats. 1987, Ch. 1459)

Penal Code Section 11165.11 - Definition – Licensing agency. As used in this article, "licensing agency" means the State Department of Social Services office responsible for the licensing and enforcement of the California Community Care Facilities Act (Chapter 3 (commencing with Section 1500) of Division 2 of the Health and Safety Code), the California Child Day Care Act (Chapter 3.4 (commencing with Section 1596.90) of Division 2 of the Health and Safety Code), or the county licensing agency which has contracted with the state for performance of those duties. (Added Stats. 1987, CH. 1459)

"Unfounded report" means a report which is determined by a child protective agency investigator to be false, to be inherently improbably, to involve an accidental injury, or not to constitute child abuse, as defined in Section 11165.6.

"Substantiated report" means a report which is determined by a child protective agency investigator, based upon some credible evidence, to constitute child abuse or neglect, as defined in Section 11165.6.

"Unsubstantiated report" means a report which is determined by a child protective agency investigator not be unfounded, but in which the findings are inconclusive and their is insufficient evidence to determine whether child abuse or neglect, as defined in Section 11165.6, has occurred. (Amend. Stats. 1990, Ch. 1330)

Penal Code Section 11165.15 - Child visitation monitor. As used in this article, "child visitation monitor" means any person who, or financial compensation, acts as monitor of a visit between a child and any other person when the monitoring of that visit has been ordered by a court of law. (Add. Stats. 1992, Ch. 1159)

Except as provide in subdivision (b), any child care custodian, health practitioner, or employee of a child protective agency, child visitation monitor, firefighter, animal control officer, or humane society officer who has knowledge of or observes a child, or his or her professional capacity or within the scope of his or her employment, whom he or she knows or reasonably suspects has been the victim of child abuse, shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone and shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident. A child protective agency shall be notified and a report shall by prepared and sent even if the child has expired, regardless of whether or not the possible abuse was a factor contributing to the death, and even if suspected child abuse was discovered during an autopsy. For the purposes of this article, "reasonable suspicion" means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing when appropriate on his or her training and experience, to suspect child abuse. For the purpose of this article, the pregnancy of a minor does not, in and of itself, constitute a basis of reasonable suspicion of sexual abuse.

Any child care custodian, health practitioner, employee of a child protective agency, child visitation monitor, firefighter, animal control officer, or humane society officer who has knowledge of or who reasonable suspects that mental suffering has been inflicted upon a child or that his or her emotional well-being is endangered in any other way, may report the known or suspected instance of child abuse to a child protective agency.

Any commercial film and photographic print processor who has knowledge of or observes, within the scope of his or her professional capacity or employment, any film, photograph, video tape, negative or slide depicting a child under the age of 14 years engaged in an act of sexual conduct, shall report such instance of suspected child abuse to the law enforcement agency having jurisdiction over the case immediately or as soon as practically possible by telephone and shall prepare and send a written report of it with a copy of the film, photograph, video tape, negative or slide attached within 36 hours of receiving the information concerning the incident. As used in this subdivision, "sexual conduct" means any of the following:

1. Sexual intercourse, including genital-genital, oral genital, anal-genital, or oral-anal, whether between persons of the same or opposite six or between humans and animals.

2. Penetration of the vagina or rectum by any object.

3. Masturbation, for the purpose of sexual stimulation of the viewer.

Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.

Exhibition of the genitals, pubic or rectal areas of any person for the purpose of sexual stimulation of the viewer.

Any other person who has knowledge of or observes a child whom he or she knows or reasonably suspects has been a victim of child abuse may report the known or suspected instance of child abuse to a child protective agency.

When two or more persons who are required to report are present and jointly have knowledge of a known or suspected instance of child abuse, and when their is agreement among them, the telephone report may be made by a member of the team selected by mutual agreement and a single report may be made and signed by such selected member of the reporting team. Any member who has knowledge that the member designated to report has failed to do so, shall thereafter make the report.

The reporting duties under this section are individual, and no supervisor or administrator may impede or inhibit the reporting duties and no person making such a report shall be subject to any sanction for making the report. However, internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established provided that they are not inconsistent with the provisions of this article.

The internal procedures shall not require any employee required to make reports by

this article to disclose his or her identity to the employer.

A county probation or welfare department shall immediately or as soon as practically possible report by telephone to the law enforcement agency having jurisdiction over the case, to the agency given the responsibility for investigation of cases under Section 300 of the Welfare and Institutions code, and to the district attorneys’ office every known or suspected instance of child abuse as defined in Section 11165.6, except acts or omissions coming within subdivision (b) of Section 11165.2, or reports made pursuant to Section 11165.13 based on risk to a child which related solely to the inability of the parent to provide the child with regular care due to the parent’s substance abuse, which shall only be reported to the county welfare department. A county probation or welfare department shall also send a written report thereof within 36 hours of receiving the information concerning the incident to any agency to which it is required to make a telephone report under this subdivision.

A law enforcement agency shall immediately or as soon as practically possible report by telephone to the agency given responsibility for investigation of cases under Section 300 of the Welfare and Institutions Code, and to the district attorneys’ office every known or suspected instance of child abuse reported to it, except acts or omissions coming within subdivision (b) of section 11165.2, which shall only be reported to the county welfare department. A law enforcement agency shall report to the county welfare department every known or suspected instance of child abuse reported to it which is alleged to have occurred as a result of the action of a person responsible for the child’s welfare, or as the result of the failure of a person responsible for the child’s welfare to adequately protect the minor from abuse when the person responsible for the child’s welfare know or reasonably should have known that the minor was in danger of abuse. A law enforcement agency shall also sent a written report thereof within 36 hours of receiving the information concerning the incident to any agency to which it is required to make a telephone report under this subdivision. (Amend. Stats. 1993, Ch. 510)

Penal Code Section 11166.1 - Child abuse occurring in state department of social service facilities. When a child protective agency receives either of the following, it shall, within 24 hours, notify the licensing office with jurisdiction over the facility:

A report of abuse alleged to have occurred in facilities licensed to care for children by the State Department of Social Services.

A report of the death of a child who was, at the time of death, living at, enrolled in, or regularly attending a facility licensed to care for children by the State Department of Social Services, unless the circumstances of child’s death are clearly unrelated to the child’s care at the facility.

The child protective agency shall send the licensing agency a copy of its investigation and any other pertinent materials. (Amend. Stats. 1992, Ch. 844)

Penal Code Section 11166.2 - Child abuse report – agency. In addition to the reports required under Section 11166, a child protective agency shall immediately or as soon as practically possible report by telephone to the appropriate licensing agency every known or suspected instance of child abuse when the instance of abuse occurs while the child is being cared for in a child day care facility, involves a child day care licensed staff person, or occurs while the child is under the supervision of a community care facility or involves a community care facility licensee or staff person. A child protective agency shall also send a written report thereof within 36 hours of receiving the information concerning the incident to any agency to which it is required to make a telephone report under this subdivision. A child protective agency shall send the licensing agency a copy of its investigation report and any other pertinent materials. (Added Stats. 1990, Ch. 650)

The Legislature intends that is each county the law enforcement agencies and the county welfare of social services department shall develop and implement cooperative arrangements in order to coordinate existing duties in connection with the investigation of suspected child abuse cases. The local law enforcement agency having jurisdiction over a case reported under Section 11166 shall report to the county welfare department that it is investigating the case within 36 hours after starting its investigation. The county welfare department or social services department shall, in cases where a minor is a victim of actions specified in Section 288 of this code and a petition has been filed pursuant to Section 300 of the Welfare and Institutions Code with regard to the minor, in accordance with the requirements of subdivision c) of Section 288, evaluate what action or actions would be in the best interest of the child victim. Notwithstanding any other provision of law, the county welfare department or social services department shall submit in writing its findings and the reasons therefor to the district attorney on or before the completion of the investigation. The written findings and the reasons therefore shall be delivered or made accessible to the defendant or his or her counsel in the manner specified in Section 859 and 1430. The child protective agency shall send a copy of its investigative report and any other pertinent materials to the licensing agency upon the request of the licensing agency.

The local law enforcement agency having jurisdiction over a case reported under Section 11166 shall report to the district office of the State Department of Social Services any case reported under this section if the case involves a facility specified in paragraph (5) or (6) of Section 1502 or in Section 1596.76 of the Health and Safety Code and the licensing of the facility has not been delegated to a county agency. The law enforcement agency shall send a copy of its investigation report and any other pertinent materials to the licensing agency upon the request of the licensing agency. (Amend. Stats. 1988, Ch. 898)

On and after January 1, 1985, as a child care custodian, health practitioner, firefighter, animal control officer, or humane society officer, or with a child protective agency, prior to commencing his or her employment, and as a prerequisite to that employment, shall sign a statement on a form provided to him or her by his or her employer to the effect that he or she has know ledge of the provisions of Section 11166 and will comply with its provisions.

On and after January 1, 1993, any person who acts as a child visitation monitor, as defined in Section 11165.15, prior to engaging in monitoring the first visit in a case, shall sign a statement on a form provided to him or her by the court which ordered the presence of that third person during the visit, to the effect that he or she has knowledge of the provisions of Section 11166 and will comply with those provisions.

The statement shall include the following provisions:

Section 11166 of the Penal Code requires any child care custodian, health practitioner, firefighter, animal control officer, or humane society officer, employee of a child protective agency, or child visitation monitor who has knowledge of, or observes, a child in his or her professional capacity or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of a child abuse to report the known or suspected instance of child abuse to a child protective agency immediately, or as soon as practically possibly, by telephone and to prepare and send a written report thereof within 36 hours of receiving the information concerning the incident.

"Child care custodian" includes teachers; an instructional aide, a teacher’s aide, or a teacher’s assistant employed by any public or private school, who has been trained in the duties imposed by this article, if the school district has so warranted to the State Department of Education; a classified employee of any public school who has been trained in the duties imposed by this article, if the school has so warranted to the State Department of Education; administrative officers, supervisors of child welfare and attendance, or certified pupil personnel employees of any public or private school; administrators of a public or private day camp; administrators and employees of public or private youth centers, youth recreation programs, or youth organizations; administrators and employees of public or private organizations whose duties require direct contact and supervision of children and who have been trained in the duties imposed by this article; licensees, administrators, and employees of community care facilities or child day care facilities licensed to care for children; headstart teachers; licensing workers of licensing evaluators; public assistance workers; employees of a child care institution including, but not limited to, foster parents, group home personnel, and personnel of residential care facilities; and social workers, probation officers; or parole officers; employees of a school district police or security department; or any person who is an administrator or presenter of, inspector, or family support officer unless the investigator, inspector, or officer is working with an attorney appointed pursuant to Section 317 of the Welfare and Institutions Code to represent a minor; or a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of part 2 of this code, who is not otherwise describe in this section.

"Health practitioner" includes physicians and surgeons, psychiatrists, psychologists, dentists, residents, interns, podiatrists, chiropractors, licensed nurses, dental hygienists, optometrists, or any other person who is licensed under Division 2 (commencing with Section 500) of the Business and Professions Code; marriage, family and child counselors; emergency medical technicians I or II, paramedics, or other persons certified pursuant to Division 2.5 (commencing with Section 1797) of the Health and Safety Code; psychological assistants registered pursuant to subdivision c) of Section 4980.03 of the Business and Professions Code; unlicensed marriage, family and child counselor interns registered under Section 4980.44 of the Business and Professions Code; state or county public health employees who treat minors for venereal disease or any other condition; coroners; paramedics; and religious practitioners who diagnose, examine, or treat children.

"Child visitation monitor" means any person as defined in Section 11165.15.

The signed statements shall be retained by the employer or the court, as the case may be. The cost of printing, distribution, and filing of these statements shall be borne by the employer or the court.

This subdivision is not applicable to persons employed by child protective agencies, public or private youth centers, youth recreation programs, and youth organizations as members of the support staff or maintenance staff and who do not work with, observe, or have knowledge of children as part of their official duties.

b) On and after January 1, 1986, when a person is issued a state license or certificate to engage in a profession or occupation the members of which are required to make a report pursuant to Section 11166, the state agency issuing the license or certificate shall send a statement substantially similar to the one contained in subdivision (a) to the person at the same time as it transmits the document indicating licensure or certification to the person. In addition to the requirements contained in subdivision (a), the statement shall also indicate the failure to comply with the requirements of Section 11166 is a misdemeanor, punishable by up to six months in a county jail, by a fine of one thousand dollars ($1,000) or by both that imprisonment and fine.

c) As an alternative to the procedure required by subdivision (b), a state agency may cause the required statement to be printed on all application forms for a license or certificate printed on or after January 1, 1986.

d) On and after January 1, 1993, any child visitation monitor, as defined in Section 11165.15, who desires to act in that capacity shall have received training in the duties imposed by this article, including training in child abuse identification and child abuse reporting. The person, prior to engaging in monitoring the first visit in a case, shall sign a statement on a form provided to him or her by the court which ordered the presence of that third person during the visit, to the effect that he or she has received this training. This statement may be included in the statement required by subdivision (a) or it may be a separate statement. This statement shall be filed, along with the statement required by subdivision (a), in the court file of the case for which the visitation monitoring is being provided. (Amend. Stats. 1993, Ch. 510)

Penal Code Section 11167

a) A telephone report of a known or suspected instance of child abuse shall include the name of the person making the report, the name of the child, the present location of the child, the nature and extent of the injury, and any other information, including information that led that person to suspect child abuse, requested by the child protective agency.

b) Information relevant to the incident of child abuse may also e given to an investigator from a child protective agency who is investigating the known or suspected case of child abuse.

c) Information relevant to the incident of child abuse may be given to the licensing agency when it is investigating a known or suspected case of child abuse, including the investigation report, and other pertinent materials.

d) The identity of all person who report under this article shall be confidential and disclosed only between child protective agencies, or to counsel representing a child protective agency, or to the district attorney in a criminal prosecution or in an action initiated under Section 602 of the Welfare and Institutions Code arising from alleged child abuse, or to counsel appointed pursuant to subdivision c) of Section 317 of the Welfare and Institutions Code, or to the county counsel or district attorney in a proceeding under Part 4 (commencing with Section 7800) of Division 12 of the Family Code or Section 300 of the Welfare and Institutions Code, or to a licensing agency when abuse in out-of-home care is reasonably suspected, or when those persons waive confidentiality, or by court order.

No agency or person listed in this subdivision shall disclose the identity of any person who reports under this article to that person’s employer, except with the employee’s consent or by court order.

e) Persons who may report pursuant to subdivision (d) of Section 11166 are not required to include their names. (Amend. Stats. 1993, Ch. 219)

a) The reports required by Section 11166 and 11166.2 shall be confidential and may be disclosed only as provided in subdivision (b). Any violation of the confidentiality provided by this article shall be a misdemeanor punish able by up to six months in jail or by a fine of five hundred dollars ($500) or by both.

b) Reports of suspected child abuse and information contained therein may be disclosed only to the following:

1.Persons or agencies to whom disclosure of the identity of the reporting party is permitted under Section 11167.

2. Persons or agencies to whom disclosure of information is permitted under subdivision (b) of Section 11170.

3. Persons or agencies with whom investigations of child abuse are coordinated under the regulations promulgated under Section 11174.

4. Multi-disciplinary personnel teams as defined in subdivision (d) of Section 18951 of the Welfare and Institutions Code.

5. Persons or agencies responsible for the licensing or facilities which care for children, as specified in Section 11165.7

6. The State Department of Social Services or any county licensing agency which has contracted with the state, as specified in paragraph (3) of subdivision (b) of Section 11170, when an individual has applied for a community care license or child day care license, or for employment in an out-of-home care facility, or when a complaint alleges child abuse by an operator or employee of an out-of-home care facility.

7. Hospital scan teams. As used in this paragraph, "hospital scan team" means a team of three or more persons established by a hospital, or two or more hospitals in the same county, consisting of health care professionals and representatives of law enforcement and child protective services, the members of which are engaged in the identification of child abuse. The disclosure authorized by this section includes disclosure among hospital scan teams located in the same county.

8. Coroners and medical examiners when conducting a postmortern examination of a child.

9. The Board of Prison Terms may subpoena reports that (A) are not unfounded, pursuant to Section 11165.12, and (B) concern only the current incidents upon which parole revocation proceedings are pending against a parolee charged with child abuse. The reports and information shall be confidential pursuant to subdivision (d) of Section 11176.

c) Authorized person within county health departments shall be permitted to receive copies of any reports made by health practitioners, as defined in Section 11165.8, pursuant to Section 11165.13, and copies of assessments completed pursuant to Sections 10900 and 10901 of the Health and Safety Code, to the extent permitted by federal law. Any information received pursuant to this subdivision is protected by subdivision (e).

d) Nothing in this section shall be interpreted to require the Department of Justice to disclose information contained in records maintained under Section 11169 or under the regulations promulgated pursuant to Section 11174, except as otherwise provided in this article.

e) This section shall not be interpreted to allow disclosure of any reports or records relevant to the reports of child abuse if the disclosure would be prohibited by any other provisions of state or federal law applicable to the reports or records relevant to the reports of child abuse. (Amend. Stats. 1995, Ch. 391)

W. I. C. 830 - Confidential, multidisciplinary personnel team. Notwithstanding any other provision of law, members of a multidisciplinary personnel team engaged in the prevention, identification, and treatment of child abuse may disclose information and writing to one another relating to any incidents of child abuse that may also be a part of a juvenile court record or otherwise designated as confidential under state law if the member of the team having that information or writing reasonably believes it is generally relevant to the prevention, identification, or treatment of child abuse. All discussions relative to the disclosure or exchange of any such information or writings during team meetings are confidential and, notwithstanding any other provision of law, testimony concerning any such discussion is not admissible in any criminal, civil, or juvenile court proceeding.

As used in this sections, "child abuse" has the same meaning as defined in Section 18951.

As used in this section, "multidisciplinary personnel team" means any team of three of more persons, as specified in Section 18951, the members of which are trained in the prevention, identification, and treatment of child abuse and are qualified to provide a broad range of services related to child abuse. (Amend. Stats. 1989, Ch. 86)

Penal Code Section 11168 - Written reports. The written reports required by Section 11166 shall be submitted on forms adopted by the Department of Justice after consultation with representatives of the various professional medical associations and hospital associations and county probation or welfare departments. Such forms shall be distributed by the child protective agencies. (Added Stats. 1980, Ch. 1071)

Penal Code Section 11169 - Reports. A child protective agency shall forward to the Department of Justice a report in writing of every case it investigates of known or suspected child abuse which is determined not to be unfounded, other than cases coming within the subdivision (b) of Section 11165.2. A child protective agency shall not forward a report to the Department of justice unless it has conducted an active investigation and determined that the report is not unfounded, as defined in Section 11165.12. If a report has previously been filed which subsequently proves to be unfounded, the Department of Justice shall be notified in writing of that fact and shall not retain the report. The report required by this section shall be in a form approved by the Department of Justice. A child protective agency receiving a written report from another child protective agency shall not send such report to the Department of Justice.

The immunity provisions of Section 11172 shall not apply to the submission of a report by a child protective agency pursuant to this section. However, nothing in this section shall be construed to alter or diminish any other immunity provisions of state or federal law. (Amend. Stats. 1988, Ch. 1497)

a) Notwithstanding any other provision of law, any county may establish a computerized data base system within that county to allow provider agencies, as defined in subdivision (h), to share identifying information, as specified in subdivision c), regarding families at risk for child abuse or neglect, for the purpose of forming multidisciplinary personnel teams, as defined in subdivision (d) of Section 18951, for the prevention, identification, management, or treatment of child abuse.

b) Each county shall develop its own standards for defining "at risk" before joining this system. Only information about children or the families of children at risk for child abuse or neglect may be entered into a computerized data base system established pursuant to this section.

c) With regard to a case in which a child or family has been identified as at risk for child abuse or neglect under this section, only the following information shall be entered into the system:

1. The name, address, telephone number, and date and place of birth of family members.

2. The number assigned to the case by each provider agency.

3. The name and telephone number of each employee assigned to the case from each provider agency.

4. The date or dates of contact between each provider agency and a family member or family members.

d) The information may only be entered into the system by, or disclosed to, provider agency employees designated by the director of each participating provider agency. Members of the multidisciplinary personnel teams shall be drawn from these designated employees, or other persons, as specified in Section 18961. The heads of provider agencies shall establish a system by which unauthorized personnel cannot access the data contained in the system.

e) The information obtained pursuant to this section shall be kept confidential and shall be used solely for the prevention, identification, management, or treatment of child abuse, child neglect, or both.

f) This section shall not supplant any duties required by the Child Abuse and Neglect reporting Act (article 2.5(commencing with Section 11164) of Chapter 2 of Title 1 of Part 3 of the Penal Code).

g) No employee of a provider agency which serves children and their families shall be civilly or criminally liable for furnishing or sharing information as authorized by this section.

h) For the purposes of this section, "provider agency" means any governmental or other agency which has as one of its purposes the prevention, identification, management, or treatment of child abuse or neglect. The provider agencies serving children and their families which may share information under this section shall include, but not be limited to, the following entities or service agencies:

1. Social services.

2. Children’s services.

3. Health services.

4. Mental health services.

5. Probation.

6. Law enforcement.

7. Schools.

(Add. Stats. 1992, Ch. 316)

a) The Department of Justice shall maintain an index of all reports of child abuse submitted pursuant to Section 11169. The index shall be continually updated by the department and shall not contain any reports that are determined to be unfounded. The department may adopt rules governing record keeping and reporting pursuant to this article.

b) 1. The Department of Justice shall immediately notify a child protective agency which submits a report pursuant to Section 11169, or a district attorney who requests notification, of any information maintained pursuant to subdivision (a) which is relevant to the known or suspected instance of child abuse reported by the agency. A child protective agency shall make that information available to the reporting medical practitioner, child custodian, guardian ad litem appointed under Section 326, or counsel appointed under Section 317 or 318 of the Welfare and Institutions Code, or the appropriate licensing agency, if he or she is treating or investigating a case of known or suspected child abuse.

2. When a report is made pursuant to subdivision (a) of Section 11166, the investigating agency shall, upon completion of the investigation or after there has been a final disposition in the matter, inform the person required to report of the results of the investigation and of any action the agency is taking with regard to the child or family.

3. The department shall make available to the State Department of Social Services or to any county licensing agency which has contracted with the state for the performance of licensing duties any information received subsequent to January 1, 1981, pursuant to this section concerning any person who is an applicant for licensure or any adult who resides or is employed in the home of an applicant for licensure or who is an applicant for employment in a position having supervisorial or disciplinary power over a child or children, or who will provide 24-hour care for a child or children in a residential home or facility, pursuant to Section 1522.1 or 1596.877 of the Health and Safety Code, or Section 8714, 8802, 8912, or 9000 of the Family Code. If the department has information that has been received subsequent to January 1, 1981, concerning such a person, it shall also make available to the State Department of Social Services or the county licensing agency any other information maintained pursuant to subdivision (a).

4. Persons or agencies, as specified in subdivision (b), if investigating a case of known or suspected child abuse, or the State Department of Social Services or any county licensing agency pursuant to paragraph (3), to whom disclosure of any information maintained pursuant to subdivision (a) is authorized, are responsible for obtaining the original investigative report from the reporting agency, and for drawing independent conclusions regarding the quality of the evidence disclosed, and its sufficiency for making decisions regarding investigation, prosecution, or licensing.

5. Effective January 1, 1993, whenever information contained in the Department of Justice files is furnished as a result of an application for employment or licensing pursuant to paragraph (3), the Department of Justice may charge the person or entity making the request a fee. the fee shall not exceed the reasonable costs to the department of providing the information. The only increase shall be at a rate not to exceed the legislatively approved cost-of-living adjustment for the department. In no case shall the fee exceed fifteen dollars ($15).

All moneys received by the department pursuant to this paragraph shall be deposited in a special account in the General Fund which is hereby created and named the Department of Justice Sexual Habitual Offender Fund. The funds shall be available, upon appropriation by the Legislature, for expenditure by the department to offset the costs incurred pursuant to Chapter 9.5 (commencing with Section 13885) and chapter 10 (commencing with Section 13890) of title 6 of Part 4, and Section 290.2, and for maintenance and improvements to the statewide Sexual Habitual Offender program and the DNA offender identification file (CAL-DNA) authorized by Chapter 9.5 (commencing with Section 13885) of Title 6 of Part 4 and Section 290.2. (Amend. Stats. 1993, Ch. 219).

a) Notwithstanding paragraph (3) of subdivision (b) of Section 11170, the Department of Justice shall make available to a licensed adoption agency, as defined in Section 8530 of the Family Code, any information maintained in the child abuse index, pursuant to subdivision (a) of Section 11170, concerning any person who has submitted to the agency an application for adoption.

b) Whenever information contained in the Department of Justice files is furnished as the result of an application for adoption pursuant to subdivision (a), the Department of Justice may charge the agency making the request a fee. The fee shall not exceed the reasonable costs to the department of providing the information. The only increase shall be at a rate not to exceed the legislatively approved cost-of-living adjustment for the department. In no case shall the fee exceed fifteen dollars ($15).

All moneys received by the department pursuant to this subdivision shall be deposited in the Department of Justice Sexual Habitual Offender Fund pursuant to paragraph (5) of subdivision (b) of Section 11170. (Add. Stats. 1993, Ch. 491)

a) A physician and surgeon or dentist or their agents and by their direction may take skeleton X-rays of the child without the consent of the child’s parent or guardian, but only for purposes of diagnosing the case as one of possible child abuse and determining the extent of such child abuse.

b) Nether the physician-patient privilege nor the psychotherapist-patient privilege applies to information reported pursuant to this article in any court proceeding or administrative hearing. (Added Stats. 1980, Ch. 1071.)

a) If a peace officer, in the course of an investigation of child abuse, has reasonable cause to believe that the child has been the victim of physical abuse, the officer may apply to a magistrate for an order directing that the victim be X-rayed without parental consent.

Any X-ray taken pursuant to this subdivision shall be administered by a physician and surgeon or dentist or their agents.

b) With respect to the cost of an X-ray taken by the county coroner or at the request of the county coroner in suspected child abuse cases, the county may charge the parent or legal guardian of the child-victim the costs incurred by the county for the X-ray.

c) NO person who administers an X-ray pursuant to this section shall be entitled to reimbursement from the county for an administrative cost that exceed 5 percent of the cost of the x-ray. (Added Stats. 1985, Ch. 317.)

a) NO child care custodian, health practitioner, firefighter, animal control officer, humane society officer, employee of a child protective agency, child visitation monitor, or commercial film and photographic print processor who reports a known or suspected instance of child abuse shall be civilly or criminally liable for any report required or authorized by this article. Any other person reporting a known or suspected instance of child abuse shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any such person who makes a report of child abuse known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused. NO person required to make a report pursuant to this article, nor any person taking photographs at his or her direction, shall incur any civil or criminal liability for taking photographs of a suspected victim of child abuse, or causing photographs to be taken of a suspected victim of child abuse, without parental consent, or for disseminating the photographs with the reports required by this article. However, this section shall not be construed to grant immunity from this liability with respect to any other use of the photographs.

b) Any child care custodian, health practitioner, firefighter, animal control officer, humane society officer, employee of a child protective agency, or child visitation monitor who, pursuant to a request from a child protective agency, provides the requesting agency with access to the victim of a known or suspected instance of child abuse shall not incur civil or criminal liability as a result of providing that access.

c) The Legislature finds that even though it has provided immunity from liability to persons required to report child abuse, that immunity does not eliminate the possibility that actions may be brought against those persons based upon required reports of child abuse. In order to further limit the financial hardship that those persons may incur as a result of fulfilling their legal responsibilities, it is necessary that they not be unfairly burdened by legal fees incurred in defending those actions. Therefore, a child care custodian, health practitioner, firefighter, animal control officer, humane society officer, employee of a child protective agency, child visitation monitor, or commercial film and photographic print processor may present a claim to the State Board of Control for reasonable attorneys’ fees incurred in any action against that person on the basis of making a report required or authorized by this article if the court has dismissed the action upon a demurrer or motion for summary judgment made by that person, or if he or she prevails in the action. The State Board of Control shall allow that claim if the requirements of this subdivisions are met, and the claim shall be paid from an appropriation to be made for that purpose. Attorneys’ fees awarded pursuant to this section shall not exceed an hourly rate greater than the rate charged by the Attorney General of the State of California at the time the award is made and shall not exceed an aggregate amount of fifty thousand dollars ($50,000).

This subdivision shall not apply if a public entity has provided for the defense of the action pursuant to Section 995 of the Government code.

d) A court may award attorney’s fees to a commercial film and photographic print processor when a suit is brought against the processor because of a disclosure mandated by this article and the court finds this suit to be frivolous.

e) Any person who fails to report an instance of child abuse which he or she knows to exist, or reasonably should know to exits, as required by this article, is guilty of a misdemeanor, punishable by confinement in the county jail for a term not to exceed six months, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and find. (Amend. Stats. 1993, Ch. 510)

a) Whenever a representatives of a child protective agency deems it necessary, a suspected victim of child abuse may be interviewed during school hours, on school premises, concerning a report of suspected child abuse that occurred within the child’s home. the child shall be afforded the option of being interviewed in private or selecting any adult who is a member of the staff of the school, including any certificated or classified employed or volunteer aide, to be present at the interview. A representative of the child protective agency shall inform the child of that right prior to the interview. The purpose of the staff person’s presence at the interview is to lend support to the child and enable him or her to be as comfortable as possible; however, the member of the staff so elected shall not participate in the interview. The member of the staff so present shall not discuss the facts or circumstances of the case with the child. The member of the staff so present, including, but not limited to, a volunteer aide, is subject to the confidentiality requirements of this article, a violation of which is punishable as specified in Section 11167.5. A representative of the school shall inform a member of the staff so selected by a child of the requirements of this section prior to the interview. A staff member selected by a child may decline the request to be present at the interview. If the staff person selected agrees to be present, the interview shall be held at a time during school hours when it does not involve an expense to the school. Failure to comply with the requirements of this section does not affect the admissibility of evidence in a criminal or civil proceeding.

b) The Superintendent of Public Instruction shall notify each school district, and each child protective agency shall notify each of its employees who participate in the investigation of reports of child abuse, or the requirements of this section. (Added Stats. 1987, Ch. 640)

a) It is the intent of the Legislature that nothing in this chapter deprive a prosecuting attorney of the ability to prosecute any person suspected of committing any crime in which a minor is a victim of an act of molestation, abuse, or neglect to the fullest extent of the law, if the prosecuting attorney so chooses.

b) Except as provided in subdivision c), in lieu of prosecuting a person suspected of committing any crime, involving a minor victim, of an act of abuse or neglect, the prosecuting attorney may refer that person to the county department in charge of public social services or the probation department for counseling or psychological treatment and such other services as the department deems necessary. The prosecuting attorney shall seek the advice of the county department in charge of public social services or the probation department in determining whether or not to make the referral.

c) 1. In lieu of trial, the prosecuting attorney may make a motion to the trial court to defer entry of judgment with respect to any crime charged in which a minor is a victim of an act of molestation of sexual abuse, provided that the defendant pleads guilty to all crimes and enhancements charged. Upon that motion and defendant’s plea of guilty to all charges and enhancements, the court may defer entry of judgment, contingent upon the defendant’s referral to, and completion of, a treatment program approved by the prosecuting attorney. Upon the defendant’s successful completion of the treatment program, and upon the positive recommendation of the treatment program authority and the motion of the prosecuting attorney, but no sooner than five years from the date of the defendant’s referral to the treatment program, the court shall dismiss the charge or charges against the defendant.

2. Upon any failure of treatment under the program described in paragraph (1), the prosecuting attorney may make a motion to the court for entry of judgment and the court shall, upon a finding of failure of treatment based on a preponderance of evidence, enter judgment upon the defendant’s pleas and admissions, and schedule a sentencing hearing as otherwise provided in this code.

3. The office of the prosecuting attorney shall promulgate eligibility standards for deferred entry of judgment and treatment of defendants described in paragraph (1), which shall include, but not be limited to, all of the following:

A) Deferred entry of judgment for the defendant is in the best interests of the minor victim.

B) Rehabilitation of the defendant is feasible in a recognized treatment program as defined in section 1203.066, designed to deal with child molestation, abuse, or neglect, as specifically related to the charges made, and, if the defendant is to remain in the minor victim’s household or to have unsupervised contact with the minor victim at any time during his or her participation in the treatment program, the program is specifically designed to deal with the conduct supporting the offense charged.

C) There is no threat of harm to the minor victim if entry of judgment is deferred.

D) No person shall be deemed eligible for deferred entry of judgment under this section unless he or she pleads guilty to all charges and enhancements.

E) Deferred entry of judgment shall not apply to any person who is charged under subdivision (b) of Section 288, or any sexual offense involving force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the minor victim or another person.

F) Any person who applies for deferred entry of judgment under this section shall also meet all of the requirements for the counseling program delineated under Section 1000.13.

4. Deferred entry of judgment shall be granted upon the following terms:

A) Defendant shall seek and participate in a rehabilitation program as prescribed by the district attorney.

B) Defendant shall not use, handle, or have in his or her possession marijuana, narcotics, dangerous drugs, or controlled substances of any kind, unless lawfully prescribed for the defendant by a licensed physician.

C) Defendant shall not associate with known or reputed users or sellers of marijuana, dangerous drugs, or narcotics, or be in places where narcotics or dangerous drugs are present.

D) Defendant shall submit his or her person, property, automobile, and any object under defendant’s control to search and seizure in or out of the presence of the defendant, by any law enforcement officer or probation officer.

E) Unification with the family or unsupervised contact with the minor victim or any other minor shall be prohibited except upon recommendation of the treatment program and motion of the district attorney and order of the court.

F) Any violation of the law constitutes a failure of treatment. (Amend. Stats. 1995, Ch. 935)

a) Notwithstanding Section 1000.12, no person suspected of violating any section of this code in which a minor is a victim of sexual abuse shall be referred for counseling in lieu of prosecution except upon written agreement between the prosecuting attorney and the suspected person and unless all of the following apply to the suspected person:

1. The person is a family member of the victim. For the purposes of this chapter :family member" means a parent, stepparent, sibling, aunt, uncle, cousin, grandparent, or a member of the victim’s household who has developed a family relationship with the victim.

2. The person’s criminal record does not indicate that diversion has been terminated, or probation or parole has been revoked, without thereafter being completed within the previous 10 years.

3. The person has not been referred for counseling or other services pursuant to this chapter prior to the commission of the present alleged offense.

4. The person has no prior conviction for any felony sexual offense or any offense in which a minor is a victim of sexual abuse and has no conviction for any felony offense involving violence against another person during the previous 10 years in which the suspected person remained free of prison custody.

b) The prosecuting attorney may impose additional relevant criteria for determining whether to refer the suspected person under this chapter. (Added by Stats. 1983, Ch. 804.)

Penal Code Section 1000.17 - Child abuse -- Diversion -- Cost. If the person is referred pursuant to this chapter he or she shall be responsible for paying the administrative cost of the referral and the expense of such counseling as determined by the county department responsible for public social services or the probation department. The administrative cost of the referral shall not exceed one hundred dollars ($100) for any person referred pursuant to this chapter for an offense punishable as a felony and shall not exceed fifty dollars ($50) for any person referred pursuant to the chapter for an offense punishable as a misdemeanor. the department shall take into consideration the ability of the referred party to pay and no such person shall be dined counseling services because of his or her inability to pay. (Added by Stats. 1983, Ch. 804.)

Penal Code Section 1203h - Child abuse or neglect convictions. If the court initiates an investigation pursuant to subdivision (a) or (d) of Section 1203 and the convicted person was convicted of violating any section of this code in which a minor is a victim of an act of abuse or neglect, then the investigation may include a psychological evaluation to determine the extent of counseling necessary for successful rehabilitation and which may be mandated by the court during the term of probation. Such evaluation may be performed by psychiatrists, psychologists, or licensed clinical social workers. The results of the examination shall be included in the probation officer’s report to the court. (Amend. Stats. 1982, Ch. 282)

W. I. C. 300 - Dependent child: Definition. Any minor who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court.

a) The minor has suffered, or these is substantial risk that the minor will suffer, serious physical harm inflicted nonaccidentally upon the minor by the minor’s parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated infliction’s of injuries on the minor or the minor’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, "serious physical harm" does not include reasonable and age appropriate spanking to the buttocks where there is no evidence of serious physical injury.

b) The minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the minor, or the willful or negligent failure of the minor’s parent or guardian to adequately supervise or protect the minor from the conduct of the custodian with whom the minor has been left, or by the willful or negligent failure of the parent or guardian to provide the minor with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the minor due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse. No minor shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family. Whenever it is alleged that a minor comes within the jurisdiction of the court on the basis of the parent’s or guardian’s willful failure to provide adequate medical treatment or specific decision to provide spiritual treatment through prayer, the court shall give deference to the parent’s or guardian’s medical treatment, nontreatment, or spiritual treatment through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by an accredited practitioner thereof, and shall not assume jurisdiction unless necessary to protect the minor from suffering serious physical harm or illness. In making its determination, the court shall consider (1) the nature of the treatment or nontreatment proposed by the parent or guardian (2) the risks to the minor posed by the course of treatment or nontreatment proposed by the parent or guardian (3) the risk, if any, of the course of treatment being proposed by the petitioning agency, and (4) the likely success of courses of treatment or nontreatment proposed by the parent or guardian and agency. The minor shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the minor from risk of suffering serious physical harm or illness.

c) The minor is suffering emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian. No minor shall be found to be a person described by this subdivision if the willful failure of the parent or guardian to provide adequate mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial intervention is available.

d) The minor has been sexually abused, or there is a substantial risk that the minor will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent of guardian has failed to adequately protect the minor from sexual abuse when the parent or guardian knew or reasonable should have known that the minor was in danger of sexual abuse.

e) The minor is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the minor. For the purposes of this subdivision, "severe physical abuse" means any of the following: any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death; any single act of sexual abuse which causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food. A minor may not be removed from the physical custody of his or her parent or guardian on the basis of finding of severe physical abuse unless the probation officer has made an allegation of severe physical abuse pursuant to Section 332.

f) The minor’s parent or guardian has been convicted of causing the death of another child through abuse or neglect.

g) The minor has been left without any provision for support; or the minor’s parent has been incarcerated or institutionalized and cannot arrange for the care of the minor; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent is unknown, and reasonable efforts to locate the parent have been unsuccessful.

h) The minor has been freed for adoption from one or both parents for 12 months by either relinquishment or termination of parental rights or an adoption petition has not been granted.

I) The minor has been subjected to an act or acts of cruelty by the parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the minor from an act or acts of cruelty when the parent or guardian knew or reasonably should have known that the minor was in danger of being subjected to an act or acts of cruelty.

j) The minor’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), or (e), or (f), and there is a substantial risk that the minor will be abused or neglected, as defined in those subdivisions. the court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the minor.

It is the intent of the Legislature in enacting this section to provide maximum protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to protect children who are at risk of that harm. This protection includes provision of a full array of social and health services to help the child and family and to prevent reabuse of children. That protection shall focus on the preservation of the family whenever possible. Nothing in this section is intended to disrupt the family unnecessarily or to intrude inappropriately into family life, to prohibit the use of reasonable methods of parental discipline, or to prescribe a particular method of parenting. Further, nothing in this section is intended to limit the offering of voluntary services to those families in need of assistance but who do not come within the descriptions of this section. To the extent that savings accrue to the state from child welfare services funding obtained as a result of the enactment of the act that enacted this section, those savings shall be used to promote services which support family maintenance and family reunification plans, such as client transportation, out-of-home respite care, parenting training, and the provision of temporary or emergency in-home caretakers and persons teaching and demonstrating homemaking skills. The Legislature further declares that a physical disability, such as blindness or deafness, is no bar to the raising of happy and well-adjusted children and that a court’s determination pursuant to this section shall center upon whether a parent’s disability prevents him or her from exercising care and control.

As used in this section "guardian" means the legal guardian of the child. (Amend. Stats. 1992, Ch. 382).

Penal Code Section 270 - Provision of necessities. If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both such find and imprisonment. If a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication and he or she than willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance or other remedial care for his or her child, this conduct is punishable by imprisonment in the county jail not exceeding one year or in a state prison not exceeding one year and one day, or by a fine not exceeding two thousand dollars ($2,000), or by both such find and imprisonment. This statute shall not be construed so as to relieve such parent from the criminal liability defined herein for such omission merely because the other parent of such child is legally entitled to the custody of such child nor because the other parent of such child or any other person or organization voluntarily or involuntarily furnishes such necessary food, clothing, shelter or medical attendance or other remedial care for such child or undertakes to do so.

Proof of abandonment or desertion of a child by such parent, or the omission by such parent to furnish necessary food, clothing, shelter or medical attendance or other remedial care for his or her child is prima facie evidence that such abandonment or desertion or omission to furnish necessary food, clothing, shelter or medical attendance or other remedial care is willful and without lawful excuse.

The court, in determining the ability of the parent to support his or her child, shall consider all income, including social insurance benefits and gifts.

The provisions of this section are applicable whether the parents of such child are or were ever married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child. A child conceived but not yet born is to be deemed an existing person insofar as this section is concerned.

The husband of a woman who bears a child as a result of artificial insemination shall be considered the father of that child for the purpose of this section, if he consented in writing to the artificial insemination.

If a parent provides a minor with treatment by spiritual mean through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute "other remedial care", as used in this section. (Amend. Stats. 1984, Ch. 1432)

a) Every parent who refuses, without lawful excuse, to accept his or her minor child into the parent’s home, or, failing to do so, to provide alternative shelter, upon being requested to do so by a child protective agency and after being informed of the duty imposed by this statute to do so, is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500).

b) For purposed of this section, "child protective agency" means a police or sheriff’s department, a county probation department, or a county welfare department.

c) For purposes of this section, "lawful excuse" shall include, but not be limited to, a reasonable fear that the minor child’s presence in the home will endanger the safety of the parent or other persons residing in the home. (Added by Stats. 1984, Ch. 1616.)

Proof of abandonment or desertion of a child by such parent, or the omission by such parent to furnish necessary food, clothing, shelter or medical attendance or other remedial care for his or her child is prima facie evidence that such abandonment or desertion or omission to furnish necessary food, clothing, shelter or medical attendance or other remedial care is willful and without lawful excuse.

The court, in determining the ability of the parent to support his or her child, shall consider all income, including social insurance benefits and gifts.

The provisions of this section are applicable whether the parents of such child are or were ever married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child. A child conceived but not yet born is to be deemed an existing person as insofar as this section is concerned.

The husband of a woman who bears a child as a result of artificial insemination shall be considered the father of that child for the purpose of this section, if he consented in writing to the artificial insemination.

If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute "other remedial care," as used in this section. (Amended Stats. 1984, Ch. 1432).

Penal Code Section 270d - Payment of fine. In any case where there is a conviction and sentence under the provisions of either Section 270 or Section 270a, of this code, should a fine be imposed, such fine shall be directed by the court to be paid in whole or in part to the spouse of the defendant or guardian or custodian of the child or children of such defendant, except as follows:

If the children are receiving public assistance, all fines, penalties or forfeitures imposed and all funds collected form the defendant shall be paid to the county department. Money so paid shall be applied first to support for the calendar month following its receipt by the county department and any balance remaining shall be applied to future needs, or be treated as reimbursement for past support furnished from public assistance funds. (Amended Stats. 1974, Ch. 893.)

Penal Code Section 271a - Willful abandonment. Every person who knowingly and willfully abandons, or who, having ability so to do, fails or refuses to maintain his or her minor child under the age of fourteen years, or who falsely, knowing the same to be false, represents to any manager, officer or agent of any orphan asylum or charitable institution for the care of orphans, that any child for whose admission into such asylum or institution application has been made is an orphan is punishable by imprisonment in the state prison, or in the county jail not exceeding one year, or by find not exceeding one thousand dollars ($1,000), or by both (Amend. Stats. 1983, Ch. 1092)

a) 1. Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in such situation that its person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

2. Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in such a situation that its person or health may be endangered, is guilty of a misdemeanor.

b) Any person who, having the care or custody of a minor child, assaults the child by means of force likely to produce great bodily injury, resulting the child’s death, is punishable in the state prison for a term of 15 years to life. Nothing in this subdivision shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189. (Amend. Stats. 1994, Ch. 1263)

Penal Code Section 273ab - Child abuse penalty. Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 15 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189. (Add. Stats. 1994, 1st Ex. See., Ch. 47)

Penal Code Section 273d - Inflicting corporal punishment. Any person who willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for 2, 4, or 6 years, or in the county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both.

In any case in which a person is convicted of violating this section and probation is granted ,the court shall require supervised counseling as a condition of probation unless, considering all of the facts and circumstances, the court finds counseling inappropriate for the defendant. (Amend. Stats. 1987, Ch. 415)

B&PC 2196 - Dissemination of information, child abuse. The board shall periodically develop and disseminate information regarding the detection and treatment of child abuse and neglect to all of the physician and surgeon certificate holders under this chapter. The board shall consult with the State Office of Child Abuse Prevention in developing the materials distributed pursuant to this section. (Added Stats. 1980, Ch. 1313.)

E.C. 44690 - School personnel. "School personnel" means all persons who work directly and on a regular basis with pupils, including teachers, administrators, pupil service employees defined in sub division (e) of Section 33150, paraprofessionals and volunteers. (Added Stats. 1978, Ch. 1225)

E.C. 44691 - Dissemination of information. The State Office of Child abuse Prevention shall develop and disseminate information to all school districts and district school personnel in California regarding the detection of child abuse. The information may be disseminated by the use of literature, as deemed suitable by the Department of Education. Staff development seminars and any other appropriate means of instructing school personnel in the detection of child abuse and neglect and the proper action school personnel should take in suspected cases of child abuse and neglect, shall be developed by the Department of Education. (Added Stats. 1978, Ch. 1225)

a) The commission shall prepare guidelines establishing standard procedures which may be followed by police agencies in the detection, investigation, and response to cases in which a minor is a victim of an act of abuse or neglect prohibited by this code. The guidelines shall include procedures for determining whether or not a child should be taken into protective custody. The guidelines shall also include procedures for minimizing the number of times a child is interviewed by law enforcement personnel.

b) The course of training leading to the basis certificate issued by the commission shall, not later than July 1, 1979, include adequate instruction in the procedures described in subdivision (a).

c) The commission shall prepare and implement an optional course of training of specialists in the investigation of cases in which a minor is a victim of an act of abuse or neglect prohibited by this code.

d) The commission shall consult with the State Office of Child Abuse Prevention in developing the guidelines and optional course of training. (Added Stats. 1985, Ch. 672.)

C CIVIL CODES

California Welfare and Institutions Code Section 300 (dependency proceedings) states: Any person under the age of 18 years who come within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court:

1. Who is in needs of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control. No parent shall be found to be incapable of exercising proper and effective parental care or control solely because of a physical disability, including, but no limited to, a ,defect in the visual or auditory functions of his or her body, unless the court finds that the disability prevents the parent from exercising such care or control.

2. Who is destitute, or who is not provided with the necessities of life, or who is not provided with a home or suitable place of abode.

3. Who is physically dangerous to the public because of a mental or physical deficiency, disorder, or abnormality.

4. Whose home is an unfit place for him by reason of neglect, cruelty, depravity, or Physical Abuse of either of his parents, or of his guardian or other person in whose custody or care he is.

CWIC Section 318

Welfare and Institutions Code Section 318 provides that the Court shall appoint an attorney to represent the child in an unfitness hearing and may appoint the district attorney to represent the minor.

Welfare and Institutions Code Section 16509 enacted in 1968 provides that anyone, who, in good faith, reported a case of child abuse should have immunity from any civil or criminal liability that might otherwise be incurred or imposed. Anyone who participated in any judicial proceedings resulting from such a report is also immune. (Van de Kampe, 1985; West's 1987)

The preceding child abuse laws have several inherent weaknesses:

1. There is little to no recognition of cultural and societal abuse.

2. Physical Neglect, Emotional Abuse, and emotional neglect, are not adequately covered nor defined under the law.

3. The child abuse laws, with the exception of those on sexual abuse are extremely ambiguous.

Collection of information about child abuse has been impaired by the absence of an established baseline or symptomatology for nosology, and by the reluctance of mental health and health professionals to involve themselves in apparent cases of child abuse. Additionally, the development of a uniform definition of child abuse has been impeded by the social biases of the reporting party, law enforcement agencies, and social service agencies. Social bias has had a determining effect in establishing the right of a child for protection when his rights are conflict with parental or societal rights. Unlike disease which can be attributed to an invading organism or genetic predisposition, child abuse is a psychosocial disorder. Such a disorder is understood as a system of rewards and punishment based upon erroneous assumptions that are transmitted from one generation to the next, incorporating behavior patterns both classical and operand that are dysfunctional and often detrimental for the individual.

There has been no agreement in the differentiating between abusive and benign behavior among researchers. The disagreements among experts be they individuals or agencies, on the characteristics of child abuse have extended to all aspects of it. Such uncertainties have resulted in contradictory and ad hoc responses in similar circumstances. These contradictions reflect the child rearing attitudes of the general public. Furthermore, Cultural and Societal Child Abuse have not been sufficiently defined legally or medically and are the most difficult forms of child abuse to define. This concludes the review of child abuse laws medical definitions will be discussed next.