Existing law requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters. Existing law requires the training programs to include a domestic violence session in any orientation session for newly appointed or elected judges and an annual training session in domestic violence. Existing law requires the training programs to include instruction in all aspects of domestic violence, including, but not limited to, the detriment to children of residing with a person who perpetrates domestic violence.

This bill would require the Judicial Council to establish, on or before July 1, 2026, judicial training programs for judges related to best practices related to treatment of sexual abuse and assault victims in courtroom cases. This bill would require the development of the training programs to include input by victim advocacy groups. be informed by research and evidence on the impact of sexual abuse and assault on victims. The bill would require, commencing January 1, 2027, that the training programs be provided to all newly appointed or elected judges and to all judicial officers on an annual basis. all newly appointed or elected judges as part of any orientation session or initial training, and all judicial officers upon assignment to a family court, juvenile court, criminal court, and any others deemed appropriate by the Judicial Council. The bill would also require the training to be made available to all judicial officers on an annual basis. The bill would authorize the Judicial Council to conduct the above-described training either in person or through remote technology.

Existing law requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters. Existing law requires the training programs to include a domestic violence session in any orientation session for newly appointed or elected judges and an annual training session in domestic violence. Existing law requires the training programs to include instruction in all aspects of domestic violence, including, but not limited to, the detriment to children of residing with a person who perpetrates domestic violence.

This bill would require the Judicial Council to establish, on or before July 1, 2026, judicial training programs for judges related to best practices related to treatment of sexual abuse and assault victims in courtroom cases. This bill would require the development of the training programs to include input by victim advocacy groups. The bill would require, commencing January 1, 2027, that the training programs be provided to all newly appointed or elected judges and to all judicial officers on an annual basis. The bill would authorize the Judicial Council to conduct the above-described training either in person or through remote technology.

Existing law requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters. Existing law requires the training programs to include a domestic violence session in any orientation session for newly appointed or elected judges and an annual training session in domestic violence. Existing law requires the training programs to include instruction in all aspects of domestic violence, including, but not limited to, the detriment to children of residing with a person who perpetrates domestic violence.

This bill would require the Judicial Council to establish, on or before July 1, 2026, judicial training programs for judges related to best practices related to treatment of sexual abuse and assault victims in courtroom cases. This bill would require the development of the training programs to include input by victim advocacy groups. The bill would require, commencing January 1, 2027, that the training programs be provided to all newly appointed or elected judges and to all judicial officers on an annual basis.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 1846 (Bauer-Kahan) - Judicial officers: training: sexual abuse and assault

Bill Summary:

AB 1846 requires the Judicial Council of California, on or before July 1, 2026, to establish judicial training programs for judges related to best practices related to treatment of alleged sexual abuse and assault victims in courtroom cases, as specified.

Fiscal Impact:

Significant costs (Trial Court Trust Fund, General Fund) to Judicial Council to develop and administer the training program required by this bill, likely in the hundreds of thousands of dollars annually. Judicial Council indicates that this bill will require additional staffing at the Judicial Council in order to create and deliver the required training annually. The one-time cost is estimated at $730,000 with an annual, ongoing cost of $695,000. The cumulative impact of having each judge in California allocate the time to take the annual training has unknown cost pressures which will result in calendar delays for court cases and may impact access to justice. The Budget Act of 2024, for the fiscal year beginning July 1, 2024, includes a $97 million reduction to the trial courts, a commensurate reduction of up to 7.95 percent to the budget for the state-level judiciary, and a reduction of the trial court state-level emergency reserve in the Trial Court Trust Fund from $10 million to $5 million. The Budget Act also includes a $37.3 million General Fund backfill for the Trial Court Trust Fund to address the continued decline in civil fee and criminal fine and penalty revenues expected in fiscal year 2024‒25.

Background:

Victims of sexual abuse and assault often experience post-traumatic stress disorder and other mental health impacts. Participating in court proceedings can be re-traumatizing for these victims, especially if they must testify.

Proposed Law:

This bill requires Judicial Council to develop, in consultation with advocacy groups, training programs for judicial officers concerning best practices for courtroom treatment of survivors of alleged sexual abuse and assault. Beginning in 2027, Judicial Council must provide these trainings to all newly appointed or elected judges and to all other judicial officers on an annual basis. As described above, Judicial Council will incur costs to develop and administer the trainings, as well as additional workload costs for all judges in the state to receive this training annually.

Related Legislation:

AB 419 (Bauer-Kahan), of this legislative session, was substantially the same as this bill. AB 419 was held on the Assembly Appropriation Committee’s suspense file.

Staff Comments:

Judicial Council opposes this bill because legislatively mandated training intrudes on the independence of the judicial branch. Judicial council already provides training on the complexities of handling cases involving sexual assault in a variety of educational contexts, including a two-day experienced assignment course that covers the dynamics of sexual assault cases, the needs of the victim and specially mandated accommodations, and myths and misconceptions about sexual assault victims and offenders.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 1846 (Author:Bauer-Kahan)

Version: March 13, 2024

Hearing Date: June 25, 2024

Fiscal: Yes

Urgency: No

Consultant: AM

SUBJECT

Judicial officers: training: sexual abuse and assault

DIGEST

This bill requires the Judicial Council of California (Judicial Council), on or before July 1, 2026, to establish judicial training programs for judges related to best practices related to treatment of alleged sexual abuse and assault victims in courtroom cases, as specified.

EXECUTIVE SUMMARY

This bill seeks to require judges to receive training regarding treatment of alleged sexual abuse and assault victims in courtroom cases. According to the California Department of Public Health, one in three women and one in four men report experiencing sexual violence involving physical contact in their lifetime, but the report likely “does not encompass how significant the problem is with many occurrences of sexual violence going unreported.”^[1] The author and sponsor of the bill argue that this bill is a critical step forward for protecting survivors of sexual assault from further injury by callous treatment in the courtroom when they attempt to seek justice. There is precedence for the Legislature enacting mandatory training for the judicial branch in the case of domestic violence. The bill is sponsored by former Alameda County District Attorney Nancy O’Malley. The bill is supported by various entities, including survivors advocacy organizations, associations representing employment and consumer attorneys, and SAG-AFTRA. The Judicial Council is opposed, not because of the subject of the training, but because it is mandatory, arguing that legislatively mandated training impinges on judicial independence.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Authorizes the Judicial Council to conduct institutes and seminars from time to time, either regionally or on a statewide basis, for the purpose of orienting judges to new judicial assignments, keeping them informed concerning new developments in the law and promoting uniformity in judicial procedure. (Gov. Code § 68551.)^[2]
2. Requires the Judicial Council to establish judicial training programs for judges, referees, commissioners, mediators, and others who are deemed appropriate who perform duties in family law matters. (§ 68553.)
3. Requires, that to the extent resources are available, the Judicial Council to provide education on mental health and developmental disability issues affecting juveniles in delinquency proceedings to judicial officers and, as appropriate, to other public officers and entities that may be involved in the arrest, evaluation, prosecution, defense, disposition, and post disposition or placement phases of delinquency proceedings. (§ 68553.5.)
4. Requires the Judicial Council to establish judicial training programs for judges, referees, commissioners, mediators, and others as deemed appropriate by the Judicial Council who perform duties in family law matters.
   1. The training program must include a family law session in any orientation session conducted for newly appointed or elected judges and an annual training session in family law.
   2. The training in 7)(a) must include instruction in all aspects of family law, including effects of gender, gender identity, and sexual orientation on family law proceedings, the economic effects of dissolution on the involved parties, and the effects of allegations of child abuse or neglect made during family law proceedings. (Gov. Code, § 68553; Cal. Rules of Court, Rule 10.463.)
5. Requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including, but not limited to, judges, referees, commissioners, mediators, and others as deemed appropriate by the Judicial Council.
   1. The training programs must include a domestic violence session in any orientation session conducted for newly appointed or elected judges and an annual training session in domestic violence.
   2. The domestic violence training programs must include instruction in all aspects of domestic violence, including, but not be limited to, training on the detriment to children of residing with a person who perpetrates domestic violence and the fact that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse. (Gov. Code, § 68555; Cal. Rules of Court, Rule 10.464.)
6. Authorizes the Judicial Council to publish and distribute manuals, guides, checklists and other materials designed to assist the judiciary. (§ 68552.)

This bill:

1. Requires the Judicial Council, on or before July 1, 2026, to establish judicial training programs for judges related to best practices related to treatment of alleged sexual abuse and assault victims in courtroom cases.
   1. The development of the training programs is required to include input by victim advocacy groups.
2. Requires the training programs developed pursuant 1), above, to be provided to all newly appointed or elected judges and to all judicial officers on an annual basis.
3. Authorizes the Judicial Council to offer the training by person or by using remote technology.

COMMENTS

1. Stated need for the bill

The author writes:

Survivors are not receiving justice. We must ensure court room proceedings are fair, appropriate, and do not cause further harm to victims of sexual violence. AB 1846 mandates that judges be trained about survivor-informed best practices for courtroom engagement with victims of sexual assault/violence. The fear of further trauma is often a barrier to victims reporting the crimes that have been committed against them. Behavior by some judges towards victims has a chilling effect that discourages more survivors from coming forward.

California courtrooms should not be causing further harm to survivors by virtue of careless or callous remarks. Victims are vulnerable in the courtroom setting, often forced to recall painful and terrifying facts while confronting their offender face to face. There is no reason why the quest for justice and sensitivity towards crime victims has to be mutually exclusive.

1. Background

Oftentimes it is essential for survivors of assault to testify in court in order to bring perpetrators to justice. This process is stressful and traumatic for survivors. Unfortunately, a lack of understanding regarding the effects of sexual abuse or assault on survivors can lead to unfortunate experiences that cause more trauma. A recent example to illustrate this was seen in New Jersey in 2019 where a judicial training program was implemented after a judge asked a woman seeking a restraining order if she could have avoided the assault by, “closing her legs.”^[3] In 2010, the Commission on Judicial Performance (CJP) publically admonished a judge for saying a survivor of rape “didn’t put up a fight” during her assault and that if a person does not want to have sexual intercourse their body “will not permit that to happen.”^[4] The Chairman of the CJP at the time stated that such comments “cannot help but diminish public confidence and trust in the impartiality of the judiciary.” It should be noted that, unlike in New Jersey, the Judicial Council did not institute any specific training after this incident related to interacting with victims of sexual abuse or assault on their own accord.

1. Bill may implicate separation of powers

The Judicial Council is opposed to the bill stating that legislatively mandated training improperly impinges on judicial independence under the separation of powers doctrine. Section 3 of Article III of the California Constitution provides that the powers of state government are legislative, executive, and judicial, and that persons charged with the exercise of one power may not exercise either of the others except as permitted by the state constitution. The courts have held that “the focus in questions of separation of powers is ‘the degree to which [the] governmental arrangements comport with, or threaten to undermine, either the independence and integrity of one of the branches or levels of government, or the ability of each to fulfill its mission in checking the others so as to preserve the interdependence without which independence can become domination.’” (City of Sacramento v. California State Legislature (1986) 187 Cal.App.3d 393, 398-99 (emphasis in original; citation omitted).)

The assignment power is constitutionally provided to the Chief Justice in furtherance of the Chief Justice’s constitutional duty to “seek to expedite judicial business” and “equalize the work of judges.” (Cal. Const., art. VI, § 6(e).) Courts have consistently held that broad discretionary authority over the judicial assignment process is essential to the Chief Justice’s ability to fulfill this duty. (See, e.g., Mahler v. Jud. Council of California (2021) 67 Cal. App. 5th 82, 96–97.) Though there is no case law directly on point regarding mandating training for judges, this type of Legislative mandate may fall within the realm of impermissible interference under the separation of powers doctrine. Regardless of the constitutionality of a mandatory training requirement, the Judicial Council asserts it is an inappropriate interference in the independence of the judicial branch, writing:

As with prior bills mandating specific judicial training, the council’s opposition is not based on the importance of providing training in the designated subject matter area, but rather the impingement on judicial independence that a legislative training mandate represents. The council provides training on the complexities of handling cases involving sexual assault in a variety of educational contexts, including a two-day experienced assignment course that covers the dynamics of sexual assault cases, the needs of the victim and specially mandated accommodations, and myths and misconceptions about sexual assault victims and offenders. This expansion of the Legislature’s efforts to regulate judicial training represents an unnecessary intrusion into the operations of the judicial branch, especially as it has demonstrated a commitment to robust training on these topics.

However, the Legislature has enacted mandatory judicial training statutes before. In 1987, the Legislature enacted Section 68553 to require the Judicial Council to establish judicial training programs for judges, referees, commissioners, mediators, and others as deemed appropriate who perform duties in family law matters. (SB 1209 (Roberti, Ch. 1134, Stats. 1987); § 68553.) Most relevant to this bill, in 1996 the Legislature required the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters. (AB 2819 Caldera (Ch. 695, Stats. 1996); § 68555.) AB 2819 required the training program to include a domestic violence session in any orientation session conducted for newly appointed or elected judges and an annual training session in domestic violence. (Ibid.)

1. Other concerns raised by Judicial Council

The Judicial Council writes that the specific requirement that the training “include input by victim advocacy groups” creates an appearance that judicial training “would be biased in favor of an interpretation of the law and court procedures that is advocacy based, rather than neutral.” They further note that “it raises concerns that [victim advocacy groups’ will emphasize the needs of alleged victims over other concerns for the courts in providing due process.”

Lastly, Judicial Council states that requiring the training to be received annually is unprecedented and unnecessary, and would require existing training courses to be “discontinued in order to reallocate resources to provide” the training mandate under the bill. They conclude that the courts “must function and provide access to justice for the public so there is a limited amount of time that judges can allocate to training each year” and that the training “should be determined within the branch and meet the specific needs of each judicial assignment.”

In order to address the above concerns raised by the Judicial Council the author may wish to amend the bill to instead:

• have the training be informed by research and evidence on the impacts of sexual abuse and assault victims;
• have the training provided as part of any orientation session or initial training for new judges and upon assignment to juvenile court, family court, criminal court, or other assignments deemed appropriate by the Judicial Council; and
• have the training made available to all judicial officers on an annual basis.

1. Proposed amendments

The specific amendments are as follows:^[5]

Section 68556 is added to the Government Code, to read:

68556. (a) On or before July 1, 2026, the Judicial Council shall establish judicial training programs for judges related to best practices related to treatment of alleged sexual abuse and assault victims in courtroom cases. The development of the training programs shall include input by victim advocacy groups. be informed by research and evidence on the impact of sexual abuse and assault on victims.

(b) (1) Commencing January 1, 2027, the training programs developed pursuant to subdivision (a) shall be provided to both of the following:

1. All newly appointed or elected judges and to as part of any orientation session or initial training.
2. All judicial officers on an annual basis. upon assignment to family court, juvenile court, criminal court, and any others deemed appropriate by the Judicial Council.
3. The training shall be made available to all judicial officers on an annual basis.

(c) The Judicial Council, at its discretion, may offer the training required by this section in person or by using remote technology.

1. Statements in support

ValorUS, a sexual assault survivor advocacy organization, writes in support:

This bill is sorely needed to improve the ability of the court to recognize and respond to trauma resulting from sexual violence.

This is reflected in some high-profile cases where judges allowed abusive or dehumanizing cross examination, or regrettably, in the behavior of the presiding judges themselves. Testifying in court is often a traumatic experience for survivors. We must do everything possible to ensure that the courtroom setting is fair and respectful. Training is critical for judges to understand survivors’ behavior and the effects that testifying may have on them. Further, it can inform judges on how they can mitigate potential negative effects from testifying and establish ways to have a more positive impact on a sexual abuse victim’s experience with the justice system.

SUPPORT

Nancy O'Malley, former Alameda County District Attorney (sponsor)

California Employment Lawyers Association

California Faculty Association

City of West Hollywood

Consumer Attorneys of California

KBM Law

SAG-AFTRA

Stand With Survivors

ValorUS

OPPOSITION

Judicial Council of California

RELATED LEGISLATION

Pending Legislation:

SB 1356 (Wahab, 2024) requires the Judicial Council, when developing any training on gender bias, to consider the role of gender in court proceedings and meeting the needs of litigants in unique situations of vulnerability.

SB 1386 (Caballero, 2024) extends the Rape Shield Law’s prohibition on evidence of a plaintiff’s past sexual conduct to include introduction for purposes of attacking the credibility of a plaintiff’s testimony regarding consent or the amount of harm suffered, and extends the restrictions to cover admission for lack of harm and reworks provisions governing civil actions for sexual battery involving a minor. SB 1386 is pending on the Assembly Floor.

Prior Legislation:

SB 331 (Rubio, Ch. 865, Stats. 2023), among other things, required the Judicial Council to establish judicial training programs for individuals, including judicial officers and referees, who perform duties in domestic violence or child custody matters, including, among other topics, child sexual abuse and coercive control, as specified.

AB 2819 (Caldera, Ch. 695, Stats. 1996) see Comment 3, above.

SB 1209 (Roberti, Ch. 1134, Stats. 1987 see Comment 3, above.

PRIOR VOTES

Assembly Floor (Ayes 73, Noes 0)

Assembly Appropriations Committee (Ayes 15, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

1. Sexual Violence/Rape Prevention and Education Program, Cal. Dept. of Pub. Health, available at https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/SACB/Pages/SexualViolencePrevention.aspx#:~:text=In%20California%2C%20more%20than%201,physical%20contact%20in%20their%20lifetime. ↑

2. All further references are to the Government Code unless specified otherwise. ↑

3. Debra Weiss, State orders training for judges after rape comment controversies; 'good family' judge resigns, ABA Journal, (Jul. 18, 2019), available at: https://www.abajournal.com/news/article/state-orders-training-for-judges-after-rape-comment-controversies-good-family-judge-resigns/. ↑

4. California judge says victim's body can prevent rape, Guardian, (Dec. 14, 2021), available at https://www.theguardian.com/society/2012/dec/14/us-judge-victims-body-prevent-rape. ↑

5. The amendments may also include technical, nonsubstantive changes recommended by the Office of Legislative Counsel as well as the addition of co-authors. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 1846

Author:(Bauer-Kahan)

As Amended Ver:March 13, 2024

Majority vote

SUMMARY

Requires the Judicial Council to establish a training program for judicial officers regarding the treatment of alleged sexual abuse and assault victims in courtrooms.

Major Provisions

1. Requires the Judicial Council, on or before July 1, 2026, to establish judicial training programs for judges related to best practices related to the treatment of alleged sexual abuse and assault victims in courtroom cases.
2. Requires the development of the training specified in 1) to be developed with input from victim advocacy groups.
3. Requires, commencing January 1, 2027, the training program developed pursuant to 1) to be provided to all newly appointed or elected judges and annually to all judicial officers thereafter.
4. Clarifies that the Judicial Council may, at its discretion, offer the training in person or using remote technology.

COMMENTS

Survivors of sexual abuse and assault regularly experience post-traumatic stress disorder and other mental stressors related to their assaults. Far too often testifying in court against the perpetrator or having to describe the abuse in family law proceedings often re-victimizes these survivors. Too often court personnel, including attorneys and judges, can inadvertently make this trauma worse. Seeking to ensure that California judges are better equipped to handle the unique needs of sexual assault survivors in California courts, this bill directs the Judicial Council to develop a training program for judges regarding the treatment of alleged sexual abuse and assault survivors in courtrooms.

A significant body of evidence suggests that sexual assaults and abuse can result in post-traumatic stress. One study noted that 94% of survivors suffer post-traumatic stress in the immediate aftermath of an attack and upwards of 30% of survivors experience lifelong symptoms. (U.S. Department of Veterans Affairs, PTSD: National Center for PTSD, available at https://www.ptsd.va.gov/professional/treat/type/sexual_assault_female.asp#three.) Given that virtually all survivors experience short-term stress and many experience lifelong PTSD, it is imperative to reduce the stress that survivors experience while appearing in a courtroom.

While testifying against a perpetrator is an unfortunate necessity for many assault survivors, far too frequently court personnel inadvertently make the experience more traumatic. For example, the State of New Jersey implemented a judicial training program after one judge asked a woman seeking a restraining order if she could have avoided the assault by, "closing her legs." (Debra Weiss, State orders training for judges after rape comment controversies; 'good family' judge resigns, ABA Journal, Jul. 18, 2019, available at: https://www.abajournal.com/news/article/state-orders-training-for-judges-after-rape-comment-controversies-good-family-judge-resigns/.) Such inappropriate comments have also occurred in California. In the last decade, the Commission on Judicial Performance has reprimanded several bench officers for inexcusable treatment of assault survivors, including one judge who publically admonished a rape victim by contending that she "didn't put up a fight." (Reed, California judge says victim's body can prevent rape, The Guardian, Dec. 14, 2012, available at: https://www.theguardian.com/society/2012/dec/14/us-judge-victims-body-prevent-rape.) These inexcusable comments to survivors serve only to further traumatize assault survivors and highlight a need for judges to be better equipped to handle such sensitive matters in a compassionate and respectful manner. Testifying about a sexual assault is already a highly stressful experience for survivors. A judge's actions in the courtroom should not make the experience more traumatic than it has to be.

Recognizing the specific needs of sexual assault survivors in court, this measure would direct the Judicial Council to develop training programs for judges regarding the handling of cases involving sexual abuse and assault survivors. The bill requires the Judicial Council to work with assault victim advocacy groups in developing the training. The trainings would need to be developed by July 1, 2026 and provided to judges starting in January of 2027. Finally, seeking to address concerns raised by the courts, this bill clarifies that the trainings may be offered in person or via the use of remote technology.

According to the Author

Survivors are not receiving justice. We must ensure court room proceedings are fair, appropriate, and do not cause further harm to victims of sexual violence.

AB 1846 mandates that judges be trained about survivor-informed best practices for courtroom engagement with victims of sexual assault/violence. The fear of further trauma is often a barrier to victims reporting the crimes that have been committed against them. Behavior by some judges towards victims has a chilling effect that discourages more survivors from coming forward.

CA courtrooms should not be causing further harm to survivors by virtue of careless or callous remarks. Victims are vulnerable in the courtroom setting, often forced to recall painful and terrifying facts while confronting their offender face to face.

There is no reason why the quest for justice and sensitivity towards crime victims has to be mutually exclusive.

Arguments in Support

Several sexual assault survivor advocacy organizations have written in support of this measure. Representative of the coalition Valor California notes:

This bill is sorely needed to improve the ability of the court to recognize and respond to trauma resulting from sexual violence.

This is reflected in some high-profile cases where judges allowed abusive or dehumanizing cross examination, or regrettably, in the behavior of the presiding judges themselves. Testifying in court is often a traumatic experience for survivors. We must do everything possible to ensure that the courtroom setting is fair and respectful. Training is critical for judges to understand survivors' behavior and the effects that testifying may have on them. Further, it can inform judges on how they can mitigate potential negative effects from testifying and establish ways to have a more positive impact on a sexual abuse victim's experience with the justice system.

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Assembly Appropriations analysis, costs (Trial Court Trust Fund, General Fund) to Judicial Council to develop and administer the training program required by this bill, likely in the hundreds of thousands of dollars annually. Judicial Council reports one-time costs of $730,000 to create the training and annual, ongoing costs of $695,000 to deliver the training to judicial officers. The courts will experience additional workload costs of an unknown amount for judges and judicial officers to spend time in training each year.

Increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor's 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund. According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

VOTES

ASM JUDICIARY: 10-0-2

YES: Kalra, Dixon, Bauer-Kahan, Bryan, Connolly, Maienschein, McKinnor, Pacheco, Reyes, Sanchez

ABS, ABST OR NV: Haney, Waldron

ASM APPROPRIATIONS: 15-0-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

UPDATED

VERSION: March 13, 2024

CONSULTANT: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0002975

Date of Hearing: March 20, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 1846

Author:(Bauer-Kahan) – As Amended Ver:March 13, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires Judicial Council to establish judicial training programs for judges on best practices for treatment in the courtroom of survivors of alleged sexual abuse and assault. The bill requires the training programs to be administered to all newly appointed or elected judges and to all judicial officers on an annual basis.

FISCAL EFFECT:

Costs (Trial Court Trust Fund, General Fund) to Judicial Council to develop and administer the training program required by this bill, likely in the hundreds of thousands of dollars annually. Judicial Council reports one-time costs of $730,000 to create the training and annual, ongoing costs of $695,000 to deliver the training to judicial officers. The courts will experience additional workload costs of an unknown amount for judges and judicial officers to spend time in training each year.

Increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor’s 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund. According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. According to the author:

Survivors are not receiving justice. We must ensure court room proceedings are fair, appropriate, and do not cause further harm to victims of sexual violence…Behavior by some judges towards victims has a chilling effect that discourages more survivors from coming forward. CA courtrooms should not be causing further harm to survivors by virtue of careless or callous remarks. Victims are vulnerable in the courtroom setting, often forced to recall painful and terrifying facts while confronting their offender face to face. There is no reason why the quest for justice and sensitivity towards crime victims has to be mutually exclusive.

1. Background. Victims of sexual abuse and assault often experience post-traumatic stress disorder and other mental health impacts. Participating in court proceedings can be re-traumatizing for these victims, especially if they must testify. This bill requires Judicial Council to develop, in consultation with advocacy groups, training programs for judicial officers concerning best practices for courtroom treatment of survivors of alleged sexual abuse and assault. Beginning in 2027, Judicial Council must provide these trainings to all newly appointed or elected judges and to all other judicial officers on an annual basis. As described above, Judicial Council will incur costs to develop and administer the trainings, as well as additional workload costs for all judges in the state to receive this training annually.
2. Prior Legislation. AB 419 (Bauer-Kahan), of this legislative session, was substantially the same as this bill. AB 419 was held on this committee’s suspense file.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: March 12, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 1846

Author:(Bauer-Kahan) – As Introduced Ver:January 17, 2024

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: Judicial officers: training: sexual abuse and assault

KEY ISSUE: SHOULD THE JUDICIAL COUNCIL BE REQUIRED TO DEVELOP A TRAINING PROGRAM FOR JUDICIAL OFFICERS REGARDING THE TREATMENT IN COURTROOMS OF SURVIVORS OF ALLEGED SEXUAL ABUSE AND ASSAULT?

SYNOPSIS

Sexual assault and abuse can result in livelong trauma for survivors. Unfortunately, in order to seek justice, many survivors are forced to testify against their abusers in court and relive their trauma. Sadly, and far too frequently, judicial officers have exacerbated this trauma by questioning survivors’ sincerity or making otherwise inappropriate remarks to survivors about their assault. This measure, building on similar efforts in other states, would direct the Judicial Council to develop a training program for judicial officers regarding the treatment of sexual abuse and assault survivors in the court system. The Judicial Council would be required to consult with experts and advocates for survivors when creating the program to ensure that the best practices will be utilized in developing the training. Finally, proposed amendments will clarify that the Judicial Council may offer the trainings both in person or using remote technology.

This bill is supported by survivors’ advocates organizations, local governments, and several law firms who highlight the need for judicial training regarding sexual assault and abuse survivors in order to avoid further traumatizing sexual assault survivors testifying or appearing in court. This bill, both in print and as proposed to be amended, has no known opposition.

SUMMARY: Requires the Judicial Council to establish a training program for judicial officers regarding the treatment of alleged sexual abuse and assault victims in courtrooms. Specifically, this bill:

1. Requires the Judicial Council, on or before July 1, 2026, to establish judicial training programs for judges related to best practices related to the treatment of alleged sexual abuse and assault victims in courtroom cases.
2. Requires the development of the training specified in 1) to be developed with input from victim advocacy groups.
3. Requires, commencing January 1, 2027, the training program developed pursuant to 1) to be provided to all newly appointed or elected judges and annually to all judicial officers thereafter.
4. Clarifies that the Judicial Council may, at its discretion, offer the training in person or using remote technology.

EXISTING LAW:

1. Authorizes the Judicial Council to conduct institutes and seminars from time to time, either regionally or on a statewide basis, for the purpose of orienting judges to new judicial assignments, keeping them informed concerning new developments in the law and promoting uniformity in judicial procedure. (Government Code Section 68551.)
2. Requires the Judicial Council to establish judicial training programs for judges, referees, commissioners, mediators, and others who are deemed appropriate who perform duties in family law matters. (Government Code Section 68553.)
3. Requires, that to the extent resources are available, the Judicial Council to provide education on mental health and developmental disability issues affecting juveniles in delinquency proceedings to judicial officers and, as appropriate, to other public officers and entities that may be involved in the arrest, evaluation, prosecution, defense, disposition, and post disposition or placement phases of delinquency proceedings. (Government Code Section 68553.5.)
4. Requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including, but not limited to, judges, referees, commissioners, mediators, and others as deemed appropriate. (Government Code Section 68555.)
5. Permits the Judicial Council to publish and distribute manuals, guides, checklists and other materials designed to assist the judiciary. (Government Code Section 68552.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Survivors of sexual abuse and assault regularly experience post-traumatic stress disorder and other mental stressors related to their assaults. Far too often testifying in court against the perpetrator or having to describe the abuse in family law proceedings often re-victimizes these survivors. Too often court personnel, including attorneys and judges, can inadvertently make this trauma worse. Seeking to ensure that California judges are better equipped to handle the unique needs of sexual assault survivors in California courts, this bill directs the Judicial Council to develop a training program for judges regarding the treatment of alleged sexual abuse and assault survivors in courtrooms. In support of this bill the author states:

Survivors are not receiving justice. We must ensure court room proceedings are fair, appropriate, and do not cause further harm to victims of sexual violence.

AB 1846 mandates that judges be trained about survivor-informed best practices for courtroom engagement with victims of sexual assault/violence. The fear of further trauma is often a barrier to victims reporting the crimes that have been committed against them. Behavior by some judges towards victims has a chilling effect that discourages more survivors from coming forward.

CA courtrooms should not be causing further harm to survivors by virtue of careless or callous remarks. Victims are vulnerable in the courtroom setting, often forced to recall painful and terrifying facts while confronting their offender face to face.

There is no reason why the quest for justice and sensitivity towards crime victims has to be mutually exclusive.

Evidence demonstrates testifying in court can be traumatic for survivors of sexual assault and abuse. A significant body of evidence suggests that sexual assaults and abuse can result in post-traumatic stress. One study noted that 94 percent of survivors suffer post-traumatic stress in the immediate aftermath of an attack and upwards of 30 percent of survivors experience lifelong symptoms. (U.S. Department of Veterans Affairs, PTSD: National Center for PTSD, available at https://www.ptsd.va.gov/professional/treat/type/sexual_assault_female.asp#three.) Given that virtually all survivors experience short-term stress and many experience lifelong PTSD, it is imperative to reduce the stress that survivors experience while appearing in a courtroom.

While testifying against a perpetrator is an unfortunate necessity for many assault survivors, far too frequently court personnel inadvertently make the experience more traumatic. For example, the State of New Jersey implemented a judicial training program after one judge asked a woman seeking a restraining order if she could have avoided the assault by, “closing her legs.” (Debra Weiss, State orders training for judges after rape comment controversies; 'good family' judge resigns, ABA Journal, Jul. 18, 2019, available at: https://www.abajournal.com/news/article/state-orders-training-for-judges-after-rape-comment-controversies-good-family-judge-resigns/.) Such inappropriate comments have also occurred in California. In the last decade, the Commission on Judicial Performance has reprimanded several bench officers for inexcusable treatment of assault survivors, including one judge who publically admonished a rape victim by contending that she “didn’t put up a fight.” (Reed, California judge says victim's body can prevent rape, The Guardian, Dec. 14, 2012, available at: https://www.theguardian.com/society/2012/dec/14/us-judge-victims-body-prevent-rape.) These inexcusable comments to survivors serve only to further traumatize assault survivors and highlight a need for judges to be better equipped to handle such sensitive matters in a compassionate and respectful manner. Testifying about a sexual assault is already a highly stressful experience for survivors. A judge’s actions in the courtroom should not make the experience more traumatic than it has to be.

This bill. Recognizing the specific needs of sexual assault survivors in court, this measure would direct the Judicial Council to develop training programs for judges regarding the handling of cases involving sexual abuse and assault survivors. The bill requires the Judicial Council to work with assault victim advocacy groups in developing the training. The trainings would need to be developed by July 1, 2026 and provided to judges starting in January of 2027. Finally, seeking to address concerns raised by the courts, this bill clarifies that the trainings may be offered in person or via the use of remote technology.

Proposed author’s amendments. The author has indicated to the Committee that the Judicial Council raised concerns that the training proposed by this bill would be required to be held in person, thus increasing costs to the courts related to travel. To clarify that this is not the case, and to eliminate any ambiguity regarding the use of remote technology, the author is proposing to add the following subdivision to the bill:

(c) The Judicial Council, at its discretion, may offer the training required by this section in person or using remote technology.

Additional amendments that the author may wish to consider as the bill moves forward. The bill in print uses terminology that is not as sensitive to survivors of sexual assault and abuse as it could be. For example, the bill describes the training program is being designed for judges in the “treatment of alleged sexual abuse and assault victims” as if it were unclear whether such persons are, in fact, “victims” (regardless of whether the fact of their sexual assault can be proven in court under the applicable standard of proof) and they are the parties facing an accusation. Also, most advocates use the term “survivors” to describe these persons in a more sensitive and empowering way. Therefore, as the bill moves forward, the author may wish to modify subdivision (a) as follows:

68556. (a) On or before July 1, 2026, the Judicial Council shall establish judicial training programs for judges related to best practices related to treatment of alleged sexual abuse and assault victims in courtroom cases in the courtroom of survivors of alleged sexual abuse and assault. The development of the training programs shall include input by victim survivor advocacy groups.

ARGUMENTS IN SUPPORT: Several sexual assault survivor advocacy organizations have written in support of this measure. Representative of the coalition Valor California notes:

This bill is sorely needed to improve the ability of the court to recognize and respond to trauma resulting from sexual violence.

This is reflected in some high-profile cases where judges allowed abusive or dehumanizing cross examination, or regrettably, in the behavior of the presiding judges themselves. Testifying in court is often a traumatic experience for survivors. We must do everything possible to ensure that the courtroom setting is fair and respectful. Training is critical for judges to understand survivors’ behavior and the effects that testifying may have on them. Further, it can inform judges on how they can mitigate potential negative effects from testifying and establish ways to have a more positive impact on a sexual abuse victim’s experience with the justice system.

REGISTERED SUPPORT / OPPOSITION:

Support

California Employment Lawyers Association

City of West Hollywood

Consumer Attorneys of California

Former Alameda Co. District Attorney Nancy O'Malley

KBM Law

Stand With Survivors

Valorus

One Individual

Opposition

None on file

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334