Existing law authorizes a county to use a childrens advocacy center to implement a coordinated multidisciplinary response, as specified, to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment. Existing law requires a county that utilizes a child advocacy center for these purposes to meet specified standards, including, among other things, that the childrens advocacy center must verify that interviews conducted in the course of investigations are conducted in a forensically sound manner and occur in a child-focused setting designed to provide a safe, comfortable, and dedicated place for children and families.

This bill would require the childrens advocacy center or other identified multidisciplinary team member custodian to ensure that all recordings of child forensic interviews be released only in response to a court order. The bill would require the court to issue a protective order as part of the release, unless the court finds good cause that disclosure of the interview should not be subject to such an order. Notwithstanding that provision, the bill would require the childrens advocacy center or other identified multidisciplinary team member custodian to release a recording, upon request, to specified parties, including, among others, law enforcement agencies authorized to investigate child abuse. The bill would authorize the child advocacy center to use the recording for training, among other things. The bill would also prohibit the recording from becoming a public record in any legal proceeding, and would require the court to order the recording be sealed and preserved at the conclusion of a criminal proceeding.

Existing law requires a multidisciplinary team associated with the childrens advocacy center to consist of a representative of the childrens advocacy center and at least one representative from specified disciplines, including, among others, child protective services.

This bill would include, in the case of an Indian child, a representative from the childs tribe, including, but not limited to, a tribal social worker, tribal social services director, or tribal mental health professional, as part of the multidisciplinary team.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law authorizes a county to use a childrens advocacy center to implement a coordinated multidisciplinary response, as specified, to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment. Existing law requires a county that utilizes a child advocacy center for these purposes to meet specified standards, including, among other things, that the childrens advocacy center must verify that interviews conducted in the course of investigations are conducted in a forensically sound manner and occur in a child-focused setting designed to provide a safe, comfortable, and dedicated place for children and families.

This bill would require the childrens advocacy center or other identified multidisciplinary team member custodian to ensure that all recordings of child forensic interviews be released only in response to a court order. The bill would require the court to issue a protective order as part of the release, unless the court finds good cause that disclosure of the interview should not be subject to such an order. Notwithstanding that provision, the bill would require the childrens advocacy center or other identified multidisciplinary team member custodian to release a recording, upon request, to specified parties, including, among others, law enforcement agencies authorized to investigate child abuse. The bill would authorize the child advocacy center to use the recording for training, among other things. The bill would also prohibit the recording from becoming a public record in any legal proceeding, and would require the court to order the recording be sealed and preserved at the conclusion of a criminal proceeding.

Existing law requires a multidisciplinary team associated with the childrens advocacy center to consist of a representative of the childrens advocacy center and at least one representative from specified disciplines, including, among others, child protective services.

This bill would include, in the case of an Indian child, a representative from the childs tribe, including, but not limited to, a tribal social worker, tribal social services director, or tribal mental health professional, as part of the multidisciplinary team.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law authorizes a county to use a childrens advocacy center to implement a coordinated multidisciplinary response, as specified, to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment. Existing law requires a county that utilizes a child advocacy center for these purposes to meet specified standards, including, among other things, that the childrens advocacy center must verify that interviews conducted in the course of investigations are conducted in a forensically sound manner and occur in a child-focused setting designed to provide a safe, comfortable, and dedicated place for children and families.

This bill would require the childrens advocacy center or other identified multidisciplinary team member custodian to ensure that all recordings of child forensic interviews be released only in response to a court order. The bill would require the court to issue a protective order as part of the release, unless the court finds good cause that disclosure of the interview should not be subject to such an order. Notwithstanding that provision, the bill would require the childrens advocacy center or other identified multidisciplinary team member custodian to release a recording, upon request, to specified parties, including, among others, law enforcement agencies authorized to investigate child abuse. The bill would authorize the child advocacy center to use the recording for training, among other things. The bill would also prohibit the recording from becoming a public record in any legal proceeding, and would require the court to order the recording be sealed and preserved at the conclusion of a criminal proceeding.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law authorizes a county to use a childrens advocacy center to implement a coordinated multidisciplinary response, as specified, to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment. Existing law requires a county that utilizes a child advocacy center for these purposes to meet specified standards, including, among other things, that the childrens advocacy center must verify that interviews conducted in the course of investigations are conducted in a forensically sound manner and occur in a child-focused setting designed to provide a safe, comfortable, and dedicated place for children and families.

This bill would require the childrens advocacy center or other identified multidisciplinary team member custodian to ensure that all recordings of child forensic interviews be released only in response to a court order. The bill would require the court to issue a protective order as part of the release, unless the court finds good cause that disclosure of the interview should not be subject to such an order. Notwithstanding that provision, the bill would require the childrens advocacy center or other identified multidisciplinary team member custodian to release a recording, upon request, to specified parties, including, among others, law enforcement agencies authorized to investigate child abuse. The bill would authorize the child advocacy center to use the recording for training, among other things. The bill would also prohibit the recording from becoming a public record in any legal proceeding, and would require the court to order the recording be sealed and preserved at the conclusion of a criminal proceeding.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law authorizes a county to use a childrens advocacy center to implement a coordinated multidisciplinary response, as specified, to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment. Existing law requires a county that utilizes a child advocacy center for these purposes to meet specified standards, including, among other things, that the childrens advocacy center must verify that interviews conducted in the course of investigations are conducted in a forensically sound manner and occur in a child-focused setting designed to provide a safe, comfortable, and dedicated place for children and families.

This bill would require the childrens advocacy center custodian to ensure that all recordings of child forensic interviews be released only in response to a court order. The bill would require the court to issue a protective order as part of the release, unless the court finds good cause that disclosure of the interview should not be subject to such an order. Notwithstanding that provision, the bill would require the childrens advocacy center custodian to release a recording, upon request, to specified parties, including, among others, law enforcement agencies authorized to investigate child abuse. The bill would authorize the child advocacy center to use the recording for training, among other things. The bill would also prohibit the recording from becoming a public record in any legal proceeding, and would require the court to order the recording be sealed and preserved at the conclusion of a criminal proceeding.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

 UNFINISHED BUSINESS  

Bill No: SB 603

Author: Rubio (D)

Amended: 8/28/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/25/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SENATE FLOOR: 39-0, 5/11/23

AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

NO VOTE RECORDED: Grove

ASSEMBLY FLOOR: 73-0, 9/1/23 - See last page for vote

SUBJECT: Children’s advocacy centers: recordings

SOURCE: Los Angeles County District Attorney’s Office

DIGEST:

This bill creates a process and standards for the release of recordings of interviews taken by a children’s advocacy center in the course of investigation of a case of abuse.

Assembly Amendments

provide that in the case of an Indian child, a representative from the child’s tribe shall also be present.

ANALYSIS:

Existing law:

1. Defines “child abuse and neglect” as including physical injury or death inflicted by other than accidental mans upon a child by another person, sexual abuse, the willful harming or injuring of a child or the endangering of a person or health of a child. “Child abuse or neglect” does not include a mutual affray between minors. “Child abuse or neglect” does not include an injury caused by reasonable and necessary forced used by a peace officer acting within the scope of their duties. (Penal Code §111165.6)
2. Makes specified persons mandated reporters who shall make reports of suspected child abuse or neglect to any police department or sheriff. (Penal Code §§ 11165.7; 11165.9)
3. Provides that each county may use a children’s advocacy cent to implement a coordinated multidisciplinary response to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment and sets forth standards that a children’s advocacy center must meet. (Penal Code § 11166.4)
4. Provides that, among the standards that a children’s advocacy center must meet, the children’s advocacy center shall verify that interviews conducted in the course of investigations are conducted in a forensically sound manner and occur in a child-focused setting designed to provide a safe, comfortable, and dedicated place of children and families. (Penal Code § 11166.4(b)(8))
5. Provides that this section does not preclude a county from utilizing more than one children’s advocacy center.
6. Provides that the files, reports, records, communications, and working papers used or developed in providing services through a children’s advocacy center are confidential and not public records.
7. Allows for the sharing of confidential information among members of the children’s advocacy center for the purposes of facilitating a forensic interview or case discussion or providing services the child or family but the shared records are to be treated as confidential information by all.
8. Provides that any employee or designated agent of a child and family advocacy center that meets the requirements is immune from civil liability due to participation in the investigative process.

This bill:

1. Provides, additionally, that such interviews are confidential and are not public records.
2. Provides that in the case of an Indian child, the multidisciplinary team shall include a representative from the child’s tribe.
3. Provides that the children’s advocacy center or other identified multidisciplinary team member custodian shall ensure that all recordings of child forensic interviews be released only in response to a court order. The court shall issue a protective order as part of the release, unless the court finds good cause that the disclosure of the interview shall be subject to such an order. The protective order shall include all the following language:
   1. That the recording be used only for the purposes of conducting the party’s side of the case, unless otherwise ordered by the court.
   2. That the recording not be copied, photographed, duplicated, or otherwise reproduced except as a written transcript that does not reveal the identity of the child, unless otherwise ordered by the court.
   3. That the recording not be given displayed, or in any way provided to a third party, except as otherwise permitted or as necessary in preparation for or during trial.
   4. That the recording remain in the exclusive custody of the attorneys, their employees, or agents, including expert witnesses by either party, who shall be provided a copy and instructed to abide by the protective order.
   5. That, if the party is not represented by an attorney, the party, the party’s employees and agents, including expert witnesses, shall not be given a copy of the recording but shall be given reasonable access to view or listen to the recording by the custodian of the recording. In a criminal case involving an In Pro Per defendant, if the court has appointed an investigator, the court may order a copy of the recording be provided to the investigator with a protective order consistent with this section and further order the investigator to return the recording to the court upon conclusion of the criminal case.
   6. That upon termination of representation of upon disposition of the matter after all appeals and writs of habeas corpus have been exhausted attorneys promptly return all copies of the recording.
4. Provides that notwithstanding the above, the children’s advocacy center or other identified multidisciplinary team member custodian shall release or consent to the release or use of any recording, upon request to any of the following:
   1. Law enforcement agencies authorized to investigate child abuse, or agencies authorized to prosecute juvenile or criminal conduct described in the forensic interview.
   2. County counsel evaluating an allegation of child abuse.
5. Provides that in any court proceeding, release of any recording pursuant to the civil, dependency, or criminal discovery process shall be accompanied by a protective order, unless the court finds good cause that disclosure of the recording should not be subject to such an order.
6. Provides that a child advocacy center where a forensic interview is conducted may use the recording for the purposes of supervision and peer review as required to meet national accreditation standards. Recordings that anonymize the child’s face or likeness may be used of training.
7. Provides that recognizing the inherent privacy interest that a child has with respect to the child’s recorded voice and image when describing highly sensitive details of abuse or neglect, any and all recordings of child forensic interviews shall not be subject to a Public Records Act Request and are exempt from any such request.
8. Provides the recording shall not become a public record in any legal proceeding.
9. Provides that the court shall order the recording be sealed and preserved at the conclusion of the criminal proceeding
10. Provides that as used in this bill “recording” includes audio, video, digital, or any other manner in which the child’s voice or likeness is memorialized.

Background

Existing law allows each county to use a children’s advocacy center to coordinate a multidisciplinary response to investigate reports involving child physical, or sexual abuse, exploitation, or maltreatment. The law sets forth standards that each advocacy center shall meet.

The law does not, however, set forth a uniform process for releasing recordings that are made of the forensic interviews of children at these centers. Recordings that could be used in criminal or civil cases. This bill provides that these recordings shall be released only in response to a court order. This bill requires the court to issue a protective order when allowing the release of the documents, unless the court finds good cause for why a protective order shall not be released. The bill specifies what the court order shall include:

• That the recording shall only be used for the party’s side of the case.
• That the recording shall not be copied etc. and if there is a written transcript the child shall not be identified.
• That the recordings not be given to third part, except for the employees or investigators of the attorney who have also been informed of the protective order.

If the party is not represented by an attorney, the party shall not be given a copy but shall instead be given reasonable access to view or listen to the recording.

If a criminal defendant is an In Pro Per defendant, if the court appointed an investigator, the court may order a copy of the recording be provided to the investigator with a protective order consistent with this section and further order the investigator to return the recording upon conclusion of the case.

This bill also clarifies that the recording shall not be a public record for the purposes of the PRA.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 9/1/23)

Los Angeles County District Attorney's Office (source)

Child Abuse Listening Interviewing Coordination Center

Children's Legacy Center

Community Violence Solutions/children's Interview Center

Crime Victims Alliance

Junior League of San Diego

Junior Leagues of California State Public Affairs Committee

Los Angeles County Sheriff's Department

Modoc County Victim Services

Petaluma Police Department

Prosecutors Alliance of California

Rady Children's Hospital

Sonoma County District Attorney's Office

The Children's Advocacy Center for Child Abuse Assessment and Treatment

OPPOSITION: (Verified 9/1/23)

California Public Defenders Association

Consumer Attorneys of California

ARGUMENTS IN SUPPORT: The Prosecutors Alliance of California supports this bill stating:

SB 603 aims to prevent the unauthorized release of child forensic interviews, which are recorded interviews of children conducted by specially trained forensic interviewers in cases involving suspected child abuse. During these interviews, children often disclose highly sensitive information related to physical and sexual abuse. Currently, California does not have clearly defined legal limits for the release of these recordings. This results in children’s advocacy centers being directly subpoenaed for copies of these recordings without any guidelines on their distribution. There have been instances where once copies of these recordings have been obtained from children’s advocacy centers, they have been duplicated, copied, and re-distributed to individuals who should not have access to the recordings. This provides a daily challenge for children’s advocacy centers throughout California who seek to protect the rights and privacy interests of these vulnerable victims.

ARGUMENTS IN OPPOSITION: The California Public Defenders Association opposes this bill stating:

SB 603 prohibits the district attorney from providing a recording of an interview of a minor performed at a Child Advocate Center to a party who is representing themselves in a criminal, dependency, or delinquency proceeding. It only allows a person representing themselves to view or hear the recording through a court-appointed investigator if the court appoints an investigator and if the court orders that a copy be provided to the investigator. Further, it provides that the court-appointed investigator maintains possession of the recording.

This prohibition violates the discovery requirement contained in section (f) of Penal Code section 1054.1, which requires the prosecuting attorney to provide a defendant with all relevant written or recorded statements of any witnesses it intends to call at trial. Although in-custody defendants who represent themselves may not have their own means of playing the recording, out of custody defendants often will. Limiting their ability to view critical evidence in their case to times when they can arrange it with an investigator is an undue restriction on their ability to prepare and present a defense. Further, many courts will not appoint investigators to assist parents in dependency proceedings who represent themselves. This means these parents would be unable to view crucial information in proceedings involving their children and their custodial rights.

ASSEMBLY FLOOR: 73-0, 9/1/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Valencia, Villapudua, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Bains, Bauer-Kahan, Chen, Haney, Hoover, Ting, Waldron

Prepared by: Mary Kennedy / PUB. S. /

9/2/23 8:20:22

**** END ****

SENATE THIRD READING

STR Bill Id:SB 603

Author:(Rubio)

As Amended Ver:August 28, 2023

Majority vote

SUMMARY

Creates a process and standards for the release of recordings of interviews taken by a children's advocacy center in the course of a child abuse investigation.

Major Provisions

1. Provides that recordings of interviews taken by a children's advocacy center in the course of a child abuse investigation are confidential and are not public records.
2. Requires a multidisciplinary team associated with a children's advocacy center to include, in the case of an Indian child, a representative from the child's tribe, including, but not limited to, a tribal social worker, tribal social services director, or tribal mental health professional.
3. Provides that the children's advocacy center or other identified multidisciplinary team member custodian shall ensure that all recordings of child forensic interviews be released only in response to a court order.
4. Requires the court to issue a protective order as part of the release, unless the court finds good cause that the disclosure of the interview should not be subject to such an order.
5. Specifies the protective order shall include all the following language:
   1. That the recording be used only for the purposes of conducting the party's side of the case, unless otherwise ordered by the court;
   2. That the recording not be copied, photographed, duplicated, or otherwise reproduced except as a written transcript that does not reveal the identity of the child, unless otherwise ordered by the court;
   3. That the recording not be given, displayed, or in any way provided to a third party, except as otherwise permitted, or as necessary in preparation for or during trial;
   4. That the recording remain in the exclusive custody of the attorneys, or in the case of an Indian child, the tribal representative of a tribe unrepresented by an attorney, their employees, or agents, including expert witnesses by either party, who shall be provided a copy and instructed to abide by the protective order;
   5. That, except as specified above, if the party is not represented by an attorney, the party, the party's employees and agents, including expert witnesses, shall not be given a copy of the recording but shall be given reasonable access to view or listen to the recording by the custodian of the recording.
   6. Provides that in a criminal case involving an in pro per defendant, if the court has appointed an investigator, the court may order a copy of the recording be provided to the investigator with a protective order consistent with these provisions and further order the investigator to return the recording to the court upon conclusion of the criminal case; and,
   7. That upon termination of representation or upon disposition of the matter, after all appeals and writs of habeas corpus have been exhausted, attorneys promptly return all copies of the recording.
6. Provides that notwithstanding the above, the children's advocacy center or other identified multidisciplinary team member custodian shall release or consent to the release or use of any recording, upon request, to both of the following:
   1. Law enforcement agencies authorized to investigate child abuse, or agencies authorized to prosecute juvenile or criminal conduct described in the forensic interview and
   2. County counsel evaluating an allegation of child abuse.
7. Provides that in any court proceeding, release of any recording pursuant to the civil, dependency, or criminal discovery process shall be accompanied by a protective order, unless the court finds good cause that disclosure of the recording should not be subject to such an order.
8. Provides that a child advocacy center where a forensic interview is conducted may use the recording for the purposes of supervision and peer review as required to meet national accreditation standards. Recordings that anonymize the child's face or likeness may be used for training.
9. Provides that recognizing the inherent privacy interest that a child has with respect to the child's recorded voice and image when describing highly sensitive details of abuse or neglect, any and all recordings of child forensic interviews shall not be subject to a Public Records Act request and are exempt from any such request.
10. Provides the recording shall not become a public record in any legal proceeding.
11. Provides that the court shall order the recording be sealed and preserved at the conclusion of the criminal proceeding.
12. Defines "recording" as including audio, video, digital, or any other manner in which the child's voice or likeness is memorialized.

COMMENTS

According to the Author

"Currently, California does not have clearly defined legal limits for releasing recorded forensic interviews. Legislation is needed to allow for only the appropriate release of the recordings to counsel in criminal and civil cases. Distribution of these recordings should be for investigation and litigation via a protective order and these sensitive recordings should be secured from a public records act request. We have a responsibility to provide victims of child abuse with the strongest protections possible. Without any protections in place, children and their families may be discouraged from participating in recording forensic interviews, which is pivotal to the investigation of child abuse."

Arguments in Support

According to the Los Angeles County District Attorney's Office, the sponsor of this bill, "SB 603 aims to prevent the unauthorized release of child forensic interviews, which are recorded interviews of children conducted by specially trained forensic interviewers in cases involving suspected child abuse. During these interviews, children often disclose highly sensitive information related to physical and sexual abuse. Currently, California does not have clearly defined legal limits for the release of these recordings. This results in children's advocacy centers being directly subpoenaed for copies of these recordings without any guidelines on their distribution. There have been instances where once copies of these recording have been obtained from children's advocacy centers, they have been duplicated, copied, and re-distributed to individuals who should not have access to the recordings. This provides a daily challenge for children's advocacy centers throughout California who seek to protect the rights and privacy interests of these vulnerable victims.

"SB 603 seeks to address this legal deficiency by giving victims of child abuse the privacy protection they need and deserve under California law. To that end, the bill proposes to amend Penal Code Section 11166.4 under the Child Abuse and Neglect Reporting Act (CANRA). CANRA governs the responsibilities of children's advocacy centers and multidisciplinary teams, and it establishes rules for the manner in which forensic interviews may be conducted. Section 11164.4 establishes the confidential nature of information obtained by multidisciplinary teams in preparation for child forensic interviews and to provide services to the child or their family. However, it currently does not establish any guidelines for the distribution of these recordings once they have been directly subpoenaed from children's advocacy centers. It also does not establish any confidentiality rules or guidelines to protect these recordings from unnecessary duplication or distribution beyond what is necessary for investigation and litigation.

"Victims of child abuse are incredibly vulnerable and deserve significant protection under the law. SB 603 seeks to set consistent guidelines for the protection of child interviews conducted in response to suspected child abuse by statutorily mandating that such recordings only be released through an appropriate court order, with a protective order, and under limited circumstances.

"The provisions of this bill are not novel. Similar rules are already in place for the release of suspected child abuse reports (SCARS) and suspect forensic examinations. Moreover, states such as Washington, Nebraska, and Tennessee have all codified protections for child forensic interviews. Additionally, in California, Alameda County has a local ordinance codifying such protections."

Arguments in Opposition

According to the Consumer Attorneys of California, "CAOC agrees with your goal of protecting children victims of sexual abuse and in ensuring access to justice for all victims. Attorneys who represent children of sexual abuse must not be limited in their access to information that can assist them in prosecuting cases against violators. As drafted, SB 603 limits otherwise available evidence to the children and their legal representatives. There are many examples of why a juvenile victim of crime might need access to their own forensic evidence, but the basic premise is that they should have access to any evidence they have provided in order to assert their rights either in conjunction with a governmental agency or a civil attorney. This interview is of them.

"This information and other other [sic] evidence related to the crimes they have been subjected to should be a matter of right. They are rarely, if ever given access to a police department's file, and never to a District Attorney's file. That process is one-sided and must be balanced so that children who are victimized can assert their rights in whatever way they see fit pursuant to Marsy's Law. Further, if guardian ad litem is considering litigation, they should be able to obtain what is usually the only evidence of what occurred before making that decision. Similarly, no pre-filing settlements are possible without such evidence as all sides need to be able to evaluate what occurred. We should be doing everything we can to improve access to justice for children who are crime victims, not making it harder.

"To that end, we have requested the following very narrow amendment:

"Notwithstanding any other provision in this statute, the child's legal representative may obtain the video with the consent of the custodian. The video evidence may not be used in any manner other than by the child's legal representative for prosecuting a civil case."

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

VOTES

SENATE FLOOR: 39-0-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Grove

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Alanis, Bonta, Bryan, Lackey, Ortega, Santiago, Jackson

UPDATED

VERSION: August 28, 2023

CONSULTANT: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0001345

SENATE THIRD READING

STR Bill Id:SB 603

Author:(Rubio)

As Amended Ver:May 1, 2023

Majority vote

SUMMARY

Creates a process and standards for the release of recordings of interviews taken by a children's advocacy center in the course of a child abuse investigation.

Major Provisions

1. Provides that recordings of interviews taken by a children's advocacy center in the course of a child abuse investigation are confidential and are not public records.
2. Provides that the children's advocacy center or other identified multidisciplinary team member custodian shall ensure that all recordings of child forensic interviews be released only in response to a court order.
3. Requires the court to issue a protective order as part of the release, unless the court finds good cause that the disclosure of the interview should not be subject to such an order.
4. Specifies the protective order shall include all the following language:
   1. That the recording be used only for the purposes of conducting the party's side of the case, unless otherwise ordered by the court;
   2. That the recording not be copied, photographed, duplicated, or otherwise reproduced except as a written transcript that does not reveal the identity of the child, unless otherwise ordered by the court;
   3. That the recording not be given, displayed, or in any way provided to a third party, except as otherwise permitted, or as necessary in preparation for or during trial;
   4. That the recording remain in the exclusive custody of the attorneys, their employees, or agents, including expert witnesses by either party, who shall be provided a copy and instructed to abide by the protective order;
   5. That, if the party is not represented by an attorney, the party, the party's employees and agents, including expert witnesses, shall not be given a copy of the recording but shall be given reasonable access to view or listen to the recording by the custodian of the recording.
   6. Provides that in a criminal case involving an in pro per defendant, if the court has appointed an investigator, the court may order a copy of the recording be provided to the investigator with a protective order consistent with these provisions and further order the investigator to return the recording to the court upon conclusion of the criminal case; and,
   7. That upon termination of representation or upon disposition of the matter, after all appeals and writs of habeas corpus have been exhausted, attorneys promptly return all copies of the recording.
5. Provides that notwithstanding the above, the children's advocacy center or other identified multidisciplinary team member custodian shall release or consent to the release or use of any recording, upon request, to both of the following:
   1. Law enforcement agencies authorized to investigate child abuse, or agencies authorized to prosecute juvenile or criminal conduct described in the forensic interview and
   2. County counsel evaluating an allegation of child abuse.
6. Provides that in any court proceeding, release of any recording pursuant to the civil, dependency, or criminal discovery process shall be accompanied by a protective order, unless the court finds good cause that disclosure of the recording should not be subject to such an order.
7. Provides that a child advocacy center where a forensic interview is conducted may use the recording for the purposes of supervision and peer review as required to meet national accreditation standards. Recordings that anonymize the child’s face or likeness may be used for training.
8. Provides that recognizing the inherent privacy interest that a child has with respect to the child's recorded voice and image when describing highly sensitive details of abuse or neglect, any and all recordings of child forensic interviews shall not be subject to a Public Records Act request and are exempt from any such request.
9. Provides the recording shall not become a public record in any legal proceeding.
10. Provides that the court shall order the recording be sealed and preserved at the conclusion of the criminal proceeding.
11. Defines "recording" as including audio, video, digital, or any other manner in which the child's voice or likeness is memorialized.

COMMENTS

According to the Author

"Currently, California does not have clearly defined legal limits for releasing recorded forensic interviews. Legislation is needed to allow for only the appropriate release of the recordings to counsel in criminal and civil cases. Distribution of these recordings should be for investigation and litigation via a protective order and these sensitive recordings should be secured from a public records act request. We have a responsibility to provide victims of child abuse with the strongest protections possible. Without any protections in place, children and their families may be discouraged from participating in recording forensic interviews, which is pivotal to the investigation of child abuse."

Arguments in Support

According to the Los Angeles County District Attorney's Office, the sponsor of this bill, "SB 603 aims to prevent the unauthorized release of child forensic interviews, which are recorded interviews of children conducted by specially trained forensic interviewers in cases involving suspected child abuse. During these interviews, children often disclose highly sensitive information related to physical and sexual abuse. Currently, California does not have clearly defined legal limits for the release of these recordings. This results in children's advocacy centers being directly subpoenaed for copies of these recordings without any guidelines on their distribution. There have been instances where once copies of these recording have been obtained from children's advocacy centers, they have been duplicated, copied, and re-distributed to individuals who should not have access to the recordings. This provides a daily challenge for children's advocacy centers throughout California who seek to protect the rights and privacy interests of these vulnerable victims.

"SB 603 seeks to address this legal deficiency by giving victims of child abuse the privacy protection they need and deserve under California law. To that end, the bill proposes to amend Penal Code Section 11166.4 under the Child Abuse and Neglect Reporting Act (CANRA). CANRA governs the responsibilities of children’s advocacy centers and multidisciplinary teams, and it establishes rules for the manner in which forensic interviews may be conducted. Section 11164.4 establishes the confidential nature of information obtained by multidisciplinary teams in preparation for child forensic interviews and to provide services to the child or their family. However, it currently does not establish any guidelines for the distribution of these recordings once they have been directly subpoenaed from children’s advocacy centers. It also does not establish any confidentiality rules or guidelines to protect these recordings from unnecessary duplication or distribution beyond what is necessary for investigation and litigation.

"Victims of child abuse are incredibly vulnerable and deserve significant protection under the law. SB 603 seeks to set consistent guidelines for the protection of child interviews conducted in response to suspected child abuse by statutorily mandating that such recordings only be released through an appropriate court order, with a protective order, and under limited circumstances.

"The provisions of this bill are not novel. Similar rules are already in place for the release of suspected child abuse reports (SCARS) and suspect forensic examinations. Moreover, states such as Washington, Nebraska, and Tennessee have all codified protections for child forensic interviews. Additionally, in California, Alameda County has a local ordinance codifying such protections."

Arguments in Opposition

According to the Consumer Attorneys of California, "CAOC agrees with your goal of protecting children victims of sexual abuse and in ensuring access to justice for all victims. Attorneys who represent children of sexual abuse must not be limited in their access to information that can assist them in prosecuting cases against violators. As drafted, SB 603 limits otherwise available evidence to the children and their legal representatives. There are many examples of why a juvenile victim of crime might need access to their own forensic evidence, but the basic premise is that they should have access to any evidence they have provided in order to assert their rights either in conjunction with a governmental agency or a civil attorney. This interview is of them.

"This information and other other [sic] evidence related to the crimes they have been subjected to should be a matter of right. They are rarely, if ever given access to a police department's file, and never to a District Attorney's file. That process is one-sided and must be balanced so that children who are victimized can assert their rights in whatever way they see fit pursuant to Marsy's Law. Further, if guardian ad litem is considering litigation, they should be able to obtain what is usually the only evidence of what occurred before making that decision. Similarly, no pre-filing settlements are possible without such evidence as all sides need to be able to evaluate what occurred. We should be doing everything we can to improve access to justice for children who are crime victims, not making it harder.

"To that end, we have requested the following very narrow amendment:

"Notwithstanding any other provision in this statute, the child's legal representative may obtain the video with the consent of the custodian. The video evidence may not be used in any manner other than by the child’s legal representative for prosecuting a civil case."

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

VOTES

SENATE FLOOR: 39-0-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Grove

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Alanis, Bonta, Bryan, Lackey, Ortega, Santiago, Jackson

UPDATED

VERSION: May 1, 2023

CONSULTANT: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0001170

Date of Hearing: June 27, 2023

Counsel: Cheryl Anderson

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 603

Author:(Rubio) – As Amended Ver:May 1, 2023

SUMMARY: Creates a process and standards for the release of recordings of interviews taken by a children’s advocacy center in the course of a child abuse investigation. Specifically, this bill:

1. Provides that recordings of interviews taken by a children’s advocacy center in the course of a child abuse investigation are confidential and are not public records.
   
2. Provides that the children’s advocacy center or other identified multidisciplinary team member custodian shall ensure that all recordings of child forensic interviews be released only in response to a court order.
   
3. Requires the court to issue a protective order as part of the release, unless the court finds good cause that the disclosure of the interview should not be subject to such an order.
   
4. Specifies the protective order shall include all the following language:
   1. That the recording be used only for the purposes of conducting the party’s side of the case, unless otherwise ordered by the court;
      
   2. That the recording not be copied, photographed, duplicated, or otherwise reproduced except as a written transcript that does not reveal the identity of the child, unless otherwise ordered by the court;
      
   3. That the recording not be given, displayed, or in any way provided to a third party, except as otherwise permitted, or as necessary in preparation for or during trial;
      
   4. That the recording remain in the exclusive custody of the attorneys, their employees, or agents, including expert witnesses by either party, who shall be provided a copy and instructed to abide by the protective order;
      
   5. That, if the party is not represented by an attorney, the party, the party’s employees and agents, including expert witnesses, shall not be given a copy of the recording but shall be given reasonable access to view or listen to the recording by the custodian of the recording.
      
   6. Provides that in a criminal case involving an in pro per defendant, if the court has appointed an investigator, the court may order a copy of the recording be provided to the investigator with a protective order consistent with these provisions and further order the investigator to return the recording to the court upon conclusion of the criminal case; and,
      
   7. That upon termination of representation or upon disposition of the matter, after all appeals and writs of habeas corpus have been exhausted, attorneys promptly return all copies of the recording.
5. Provides that notwithstanding the above, the children’s advocacy center or other identified multidisciplinary team member custodian shall release or consent to the release or use of any recording, upon request, to both of the following:
   1. Law enforcement agencies authorized to investigate child abuse, or agencies authorized to prosecute juvenile or criminal conduct described in the forensic interview and
      
   2. County counsel evaluating an allegation of child abuse.
6. Provides that in any court proceeding, release of any recording pursuant to the civil, dependency, or criminal discovery process shall be accompanied by a protective order, unless the court finds good cause that disclosure of the recording should not be subject to such an order.
7. Provides that a child advocacy center where a forensic interview is conducted may use the recording for the purposes of supervision and peer review as required to meet national accreditation standards. Recordings that anonymize the child’s face or likeness may be used for training.
8. Provides that recognizing the inherent privacy interest that a child has with respect to the child’s recorded voice and image when describing highly sensitive details of abuse or neglect, any and all recordings of child forensic interviews shall not be subject to a Public Records Act request and are exempt from any such request.
9. Provides the recording shall not become a public record in any legal proceeding.
10. Provides that the court shall order the recording be sealed and preserved at the conclusion of the criminal proceeding.
11. Defines “recording” as including audio, video, digital, or any other manner in which the child’s voice or likeness is memorialized.

EXISTING LAW:

1. Defines “child abuse and neglect” as including physical injury or death inflicted by other than accidental means upon a child by another person, sexual abuse, the willful harming or injuring of a child or the endangering of a person or health of a child. (Pen. Code, §11165.6.)
   
2. Provides that “child abuse or neglect” does not include a mutual affray between minors or an injury caused by reasonable and necessary forced used by a peace officer acting within the course and scope of their employment. (Pen. Code, §11165.6.)
3. Makes specified persons mandated reporters who are required to make reports of suspected child abuse or neglect to any police department or sheriff. (Pen. Code, §§ 11165.7, 11165.9.)
4. Provides that each county may use a children’s advocacy center to implement a coordinated multidisciplinary response to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment and sets forth standards that a children’s advocacy center must meet. (Pen. Code, § 11166.4.)
5. Provides that, among the standards that a children’s advocacy center must meet, the children’s advocacy center shall verify that interviews conducted in the course of investigations are conducted in a forensically-sound manner and occur in a child-focused setting designed to provide a safe, comfortable, and dedicated place of children and families. (Pen. Code, § 11166.4, subd. (b)(8).)
6. Provides that a county is not precluded from utilizing more than one children’s advocacy center. (Pen. Code, § 11166.4, subd. (c).)
7. Provides that the files, reports, records, communications, and working papers used or developed in providing services through a children’s advocacy center are confidential and not public records. (Pen. Code, § 11166.4, subd. (d).)
8. Allows for the sharing of confidential information among multidisciplinary team members of the children’s advocacy center for the purposes of facilitating a forensic interview or case discussion or providing services to the child or family but the shared records are to be treated as confidential information to the extent required by law by all. (Pen. Code, § 11166.4, subd. (e).)
9. Provides that any employee or designated agent of a child and family advocacy center, as specified, is immune from any civil liability due to participation in the investigative process and services provided, unless they acted with malice or have been charged with or are suspected of abusing or neglecting the child who is the subject of the investigation or services provided. (Pen. Code, § 11166.4, subd. (f).)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “Currently, California does not have clearly defined legal limits for releasing recorded forensic interviews. Legislation is needed to allow for only the appropriate release of the recordings to counsel in criminal and civil cases. Distribution of these recordings should be for investigation and litigation via a protective order and these sensitive recordings should be secured from a public records act request. We have a responsibility to provide victims of child abuse with the strongest protections possible. Without any protections in place, children and their families may be discouraged from participating in recording forensic interviews, which is pivotal to the investigation of child abuse.”
   
2. Children’s Advocacy Centers: According to the Children’s Advocacy Centers of California, “A children's advocacy center (CAC) is a child-friendly facility in which law enforcement, child protection, prosecution, mental health, medical and victim advocacy professionals work together to investigate abuse, help children heal from abuse, and hold offenders accountable. In the neutral setting of the CAC, team members can collaborate on strategies that will aid investigators and prosecutors without causing further harm to the victim. This innovative approach significantly increases the likelihood of a successful outcome in court and long-term healing for the child. Kids can go on to live full and rich lives, and child advocacy centers help them get there.” (https://www.cacc-online.org/.)
   
3. Recordings of Interviews at a Children’s Advocacy Center: Existing law allows each county to use a children’s advocacy center to coordinate a multidisciplinary response to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment. The law sets forth standards that each advocacy center must meet. The law does not, however, set forth a uniform process for releasing recordings that are made of the forensic interviews of children at these centers – i.e., recordings that could be used in criminal or civil cases. (See Pen. Code, § 11166.4.)
   
   By contrast, current law provides that suspected child abuse reports (SCARS) are confidential and specifies how they may be disclosed. (Pen. Code, § 11167.5.) Similarly, current law provides for the confidentiality of forensic medical exams performed on sexual assault suspects and outlines how they may be disclosed. (Pen. Code, § 11160.1.)
   
   This bill would create a process and standards for the release of recordings of interviews taken by a children’s advocacy center in the course of a child abuse investigation. It would provide that these recordings are confidential and not public records. It would authorize their release only in response to a court order. Additionally, it would require the court to issue a protective order when allowing the release of the documents, unless the court finds good cause that disclosure should not be subject to a protective order.
   
   This bill would specify what a protective order must include: that the recording shall only be used for the party’s side of the case unless ordered by the court; that the recording shall not be copied etc. except as a written transcript that does not identify the child unless ordered by the court; that the recordings not be given to a third party, except for the employees or investigators of the attorney who have also been informed of the protective order; that a pro per party and their employees must not be given a copy of the recording but must be given reasonable access^[1] to view or listen to the recording; that the court may order a copy to be provided to a pro per party’s court appointed investigator and returned at the conclusion of the case; and that upon termination of representation or after all appeals and writs have been exhausted, attorneys return all copies.
   
   In addition, this bill would also provide for the release of the recording to law enforcement agencies investigating child abuse or agencies prosecuting juvenile or criminal conduct, as well as to county counsel investigating allegations of child abuse.
   
4. Argument in Support: According to the Los Angeles County District Attorney’s Office, the sponsor of this bill, “SB 603 aims to prevent the unauthorized release of child forensic interviews, which are recorded interviews of children conducted by specially trained forensic interviewers in cases involving suspected child abuse. During these interviews, children often disclose highly sensitive information related to physical and sexual abuse. Currently, California does not have clearly defined legal limits for the release of these recordings. This results in children’s advocacy centers being directly subpoenaed for copies of these recordings without any guidelines on their distribution. There have been instances where once copies of these recording have been obtained from children’s advocacy centers, they have been duplicated, copied, and re-distributed to individuals who should not have access to the recordings. This provides a daily challenge for children’s advocacy centers throughout California who seek to protect the rights and privacy interests of these vulnerable victims.
   
   “SB 603 seeks to address this legal deficiency by giving victims of child abuse the privacy protection they need and deserve under California law. To that end, the bill proposes to amend Penal Code Section 11166.4 under the Child Abuse and Neglect Reporting Act (CANRA). CANRA governs the responsibilities of children’s advocacy centers and multidisciplinary teams, and it establishes rules for the manner in which forensic interviews may be conducted. Section 11164.4 establishes the confidential nature of information obtained by multidisciplinary teams in preparation for child forensic interviews and to provide services to the child or their family. However, it currently does not establish any guidelines for the distribution of these recordings once they have been directly subpoenaed from children’s advocacy centers. It also does not establish any confidentiality rules or guidelines to protect these recordings from unnecessary duplication or distribution beyond what is necessary for investigation and litigation.
   
   “Victims of child abuse are incredibly vulnerable and deserve significant protection under the law. SB 603 seeks to set consistent guidelines for the protection of child interviews conducted in response to suspected child abuse by statutorily mandating that such recordings only be released through an appropriate court order, with a protective order, and under limited circumstances.
   
   “The provisions of this bill are not novel. Similar rules are already in place for the release of suspected child abuse reports (SCARS) and suspect forensic examinations. Moreover, states such as Washington, Nebraska, and Tennessee have all codified protections for child forensic interviews. Additionally, in California, Alameda County has a local ordinance codifying such protections.”
   
5. Argument in Opposition: According to the Consumer Attorneys of California, “CAOC agrees with your goal of protecting children victims of sexual abuse and in ensuring access to justice for all victims. Attorneys who represent children of sexual abuse must not be limited in their access to information that can assist them in prosecuting cases against violators. As drafted, SB 603 limits otherwise available evidence to the children and their legal representatives. There are many examples of why a juvenile victim of crime might need access to their own forensic evidence, but the basic premise is that they should have access to any evidence they have provided in order to assert their rights either in conjunction with a governmental agency or a civil attorney. This interview is of them.
   
   “This information and other other [sic] evidence related to the crimes they have been subjected to should be a matter of right. They are rarely, if ever given access to a police department's file, and never to a District Attorney’s file. That process is one-sided and must be balanced so that children who are victimized can assert their rights in whatever way they see fit pursuant to Marsy's Law. Further, if guardian ad litem is considering litigation, they should be able to obtain what is usually the only evidence of what occurred before making that decision. Similarly, no pre-filing settlements are possible without such evidence as all sides need to be able to evaluate what occurred. We should be doing everything we can to improve access to justice for children who are crime victims, not making it harder.
   
   “To that end, we have requested the following very narrow amendment:
   
   “Notwithstanding any other provision in this statute, the child’s legal representative may obtain the video with the consent of the custodian. The video evidence may not be used in any manner other than by the child’s legal representative for prosecuting a civil case.”
6. Prior Legislation:
   1. AB 2741 (B. Rubio) Chapter 353, Statutes of 2020, authorized counties to create Child Advocacy Centers to implement a coordinated multidisciplinary approach to investigative reports of child abuse.
   2. AB 1221 (Cooley), of the 2019-2020 Legislative Session, was identical to AB 2741. AB 1221 was vetoed by the Governor.
      
   3. AB 320 (Cooley), of the 2017-18 Legislative Session, was identical to AB 2741. AB 320 was held without a hearing in the Assembly Human Services Committee at the request of the author.

REGISTERED SUPPORT / OPPOSITION:

Support

Los Angeles County District Attorney's Office (Sponsor)

Child Abuse Listening Interviewing Coordination (CALICO) Center

Children's Advocacy Centers of California

Children's Legacy Center

Community Violence Solutions/children's Interview Center

Crime Victims Alliance

Junior Leagues of California State Public Affairs Committee (CALSPAC)

Los Angeles County Sheriff's Department

Modoc County Victim Services

Petaluma Police Department

Prosecutors Alliance California

Sonoma County District Attorney's Office

The Children's Advocacy Center for Child Abuse Assessment and Treatment

1 Private Individual

Opposition

California Public Defenders Association
Consumer Attorneys of California

Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744

1. The Ninth Circuit has held that "time to prepare and some access to materials and witnesses are fundamental to a meaningful right of representation," and that "[a]n incarcerated defendant may not meaningfully exercise his right to represent himself without access to law books, witnesses, or other tools to prepare a defense." (Milton v. Morris (9th Cir. 1985) 767 F.2d 1443, 1446 (citing Faretta v. California (1975) 422 U.S.806, 818); see also United States v. Sarno (9th Cir. 1995) 73 F.3d 1470, 1491 ["[T]he Sixth Amendment demands that a pro se defendant who is incarcerated be afforded reasonable access to 'law books, witnesses, or other tools to prepare a defense.'" (quoting Milton, 767 F.2d at 1446]; see also People v. Blair (2005) 36 Cal.4th 686, 733-734 [“the crucial question underlying . . . defendant's constitutional claim[] is whether he had reasonable access to the ancillary services that were reasonably necessary for his defense"].) ↑

 THIRD READING  

Bill No: SB 603

Author: Rubio (D)

Amended: 5/1/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/25/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SUBJECT: Children’s advocacy centers: recordings

SOURCE: Los Angeles County District Attorney’s Office

DIGEST:

This bill creates a process and standards for the release of recordings of interviews taken by a children’s advocacy center in the course of investigation of a case of abuse.

ANALYSIS:

Existing law:

1. Defines “child abuse and neglect” as including physical injury or death inflicted by other than accidental mans upon a child by another person, sexual abuse, the willful harming or injuring of a child or the endangering of a person or health of a child. “Child abuse or neglect” does not include a mutual affray between minors. “Child abuse or neglect” does not include an injury caused by reasonable and necessary forced used by a peace officer acting within the scope of their duties. (Penal Code §111165.6)
2. Makes specified persons mandated reporters who shall make reports of suspected child abuse or neglect to any police department or sheriff. (Penal Code §§ 11165.7; 11165.9)
3. Provides that each county may use a children’s advocacy cent to implement a coordinated multidisciplinary response to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment and sets forth standards that a children’s advocacy center must meet. (Penal Code § 11166.4)
4. Provides that, among the standards that a children’s advocacy center must meet, the children’s advocacy center shall verify that interviews conducted in the course of investigations are conducted in a forensically sound manner and occur in a child-focused setting designed to provide a safe, comfortable, and dedicated place of children and families. (Penal Code § 11166.4(b)(8))
5. Provides that this section does not preclude a county from utilizing more than one children’s advocacy center.
6. Provides that the files, reports, records, communications, and working papers used or developed in providing services through a children’s advocacy center are confidential and not public records.
7. Allows for the sharing of confidential information among members of the children’s advocacy center for the purposes of facilitating a forensic interview or case discussion or providing services the child or family but the shared records are to be treated as confidential information by all.
8. Provides that any employee or designated agent of a child and family advocacy center that meets the requirements is immune from civil liability due to participation in the investigative process.

This bill:

1. Additionally provides that such interviews are confidential and are not public records.
2. Provides that the children’s advocacy center or other identified multidisciplinary team member custodian shall ensure that all recordings of child forensic interviews be released only in response to a court order. The court shall issue a protective order as part of the release, unless the court finds good cause that the disclosure of the interview shall be subject to such an order. The protective order shall include all the following language:
   1. That the recording be used only for the purposes of conducting the party’s side of the case, unless otherwise ordered by the court.
   2. That the recording not be copied, photographed, duplicated, or otherwise reproduced except as a written transcript that does not reveal the identity of the child, unless otherwise ordered by the court.
   3. That the recording not be given displayed, or in any way provided to a third party, except as otherwise permitted or as necessary in preparation for or during trial.
   4. That the recording remain in the exclusive custody of the attorneys, their employees, or agents, including expert witnesses by either party, who shall be provided a copy and instructed to abide by the protective order.
   5. That, if the party is not represented by an attorney, the party, the party’s employees and agents, including expert witnesses, shall not be given a copy of the recording but shall be given reasonable access to view or listen to the recording by the custodian of the recording. In a criminal case involving an In Pro Per defendant, if the court has appointed an investigator, the court may order a copy of the recording be provided to the investigator with a protective order consistent with this section and further order the investigator to return the recording to the court upon conclusion of the criminal case.
   6. That upon termination of representation of upon disposition of the matter after all appeals and writs of habeas corpus have been exhausted attorneys promptly return all copies of the recording.
3. Provides that notwithstanding the above, the children’s advocacy center or other identified multidisciplinary team member custodian shall release or consent to the release or use of any recording, upon request to any of the following:
   1. Law enforcement agencies authorized to investigate child abuse, or agencies authorized to prosecute juvenile or criminal conduct described in the forensic interview.
   2. County counsel evaluating an allegation of child abuse.
4. Provides that in any court proceeding, release of any recording pursuant to the civil, dependency, or criminal discovery process shall be accompanied by a protective order, unless the court finds good cause that disclosure of the recording should not be subject to such an order.
5. Provides that a child advocacy center where a forensic interview is conducted may use the recording for the purposes of supervision and peer review as required to meet national accreditation standards. Recordings that anonymize the child’s face or likeness may be used of training.
6. Provides that recognizing the inherent privacy interest that a child has with respect to the child’s recorded voice and image when describing highly sensitive details of abuse or neglect, any and all recordings of child forensic interviews shall not be subject to a Public Records Act Request and are exempt from any such request.
7. Provides the recording shall not become a public record in any legal proceeding.
8. Provides that the court shall order the recording be sealed and preserved at the conclusion of the criminal proceeding
9. Provides that as used in this section “recording” includes audio, video, digital, or any other manner in which the child’s voice or likeness is memorialized.

Background

Existing law allows each county to use a children’s advocacy center to coordinate a multidisciplinary response to investigate reports involving child physical, or sexual abuse, exploitation, or maltreatment. The law sets forth standards that each advocacy center shall meet.

The law does not, however, set forth a uniform process for releasing recordings that are made of the forensic interviews of children at these centers. Recordings that could be used in criminal or civil cases. This bill provides that these recordings shall be released only in response to a court order. The bill requires the court to issue a protective order when allowing the release of the documents, unless the court finds good cause for why a protective order shall not be released. The bill specifies what the court order shall include:

• That the recording shall only be used for the party’s side of the case.
• That the recording shall not be copied etc. and if there is a written transcript the child shall not be identified.
• That the recordings not be given to third part, except for the employees or investigators of the attorney who have also been informed of the protective order.

If the party is not represented by an attorney, the party shall not be given a copy but shall instead be given reasonable access to view or listen to the recording.

If a criminal defendant is an In Pro Per defendant, if the court appointed an investigator, the court may order a copy of the recording be provided to the investigator with a protective order consistent with this section and further order the investigator to return the recording upon conclusion of the case.

This bill also clarifies that the recording shall not be a public record for the purposes of the PRA.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 5/2/23)

Los Angeles County District Attorney’s Office (source)

Crime Victims Alliance
Junior Leagues of California State Public Affairs Committee
Los Angeles County Sheriff's Department
Prosecutors Alliance California

OPPOSITION: (Verified 5/2/23)

Consumer Attorneys of California

ARGUMENTS IN SUPPORT: The Prosecutors Alliance of California support this bill stating:

SB 603 aims to prevent the unauthorized release of child forensic interviews, which are recorded interviews of children conducted by specially trained forensic interviewers in cases involving suspected child abuse. During these interviews, children often disclose highly sensitive information related to physical and sexual abuse. Currently, California does not have clearly defined legal limits for the release of these recordings. This results in children’s advocacy centers being directly subpoenaed for copies of these recordings without any guidelines on their distribution. There have been instances where once copies of these recordings have been obtained from children’s advocacy centers, they have been duplicated, copied, and re-distributed to individuals who should not have access to the recordings. This provides a daily challenge for children’s advocacy centers throughout California who seek to protect the rights and privacy interests of these vulnerable victims.

SB 603 would set consistent guidelines for the protection of child interviews conducted in response to suspected child abuse by statutorily mandating that such recordings only be released through an appropriate court order, with a protective order, and under limited circumstances. Similar rules are already in place for the release of suspected child abuse reports and suspect forensic examinations. Moreover, states such as Washington, Nebraska, and Tennessee have all codified protections for child forensic interviews.

ARGUMENTS IN OPPOSITION: Consumer Attorneys of California oppose this bill stating:

CAOC agrees with your goal of protecting children victims of sexual abuse and in ensuring access to justice for all victims. Attorneys who represent children of sexual abuse must not be limited in their access to information that can assist them in prosecuting cases against violators. As drafted, SB 603 limits otherwise available evidence to the children and their legal representatives. There are many examples of why a juvenile victim of crime might need access to their own forensic evidence, but the basic premise is that they should have access to any evidence they have provided in order to assert their rights either in conjunction with a governmental agency or a civil attorney. This interview is of them.

This information and other other evidence related to the crimes they have been subjected to should be a matter of right.  They are rarely, if ever given access to a police department's file, and never to a District Attorney’s file.  That process is one-sided and must be balanced so that children who are victimized can assert their rights in whatever way they see fit pursuant to Marsy's Law. Further, if guardian ad litem is considering litigation, they should be able to obtain what is usually the only evidence of what occurred before making that decision.  Similarly, no pre-filing settlements are possible without such evidence as all sides need to be able to evaluate what occurred.  We should be doing

everything we can to improve access to justice for children who are crime victims, not making it harder

Prepared by: Mary Kennedy / PUB. S. /

5/3/23 15:16:11

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 603 Hearing Date: April 25, 2023

Subject: Children’s advocacy centers: recordings

HISTORY

Source: Los Angeles County District Attorney’s Office

Prior Legislation: AB 2741 (Blanca Rubio) Chapter 353, Stats. 2020

Support: Crime Victims Alliance; Los Angeles County District Attorney's Office; Prosecutors Alliance California; Children’s Advocacy Center of California

Opposition: California Public Defenders Association (unless amended); Consumer Attorneys of California (unless amended)

ANALYSIS REFLECTS AUTHORS AMENDMENTS TO BE OFFERED IN COMMITTEE

PURPOSE

The purpose of this bill is create a process and standards for the release of recordings of interviews taken by a children’s advocacy center in the course of investigation of a case of abuse.

Existing law defines “child abuse and neglect” as including physical injury or death inflicted by other than accidental mans upon a child by another person, sexual abuse, the willful harming or injuring of a child or the endangering of a person or health of a child. “Child abuse or neglect” does not include a mutual affray between minors. “Child abuse or neglect” does not include an injury caused by reasonable and necessary forced used by a peace officer acting within the scope of their duties. (Penal Code §111165.6)

Existing law makes specified persons mandated reporters who shall make reports of suspected child abuse or neglect to any police department or sheriff. (Penal Code §§ 11165.7; 11165.9)-

Existing law provides that each county may use a children’s advocacy cent to implement a coordinated multidisciplinary response to investigate reports involving child physical or sexual abuse, exploitation, or maltreatment and sets forth standards that a children’s advocacy center must meet. (Penal Code § 11166.4)

Exiting law provides that, among the standards that a children’s advocacy center must meet, the children’s advocacy center shall verify that interviews conducted in the course of investigations are conducted in a forensically sound manner and occur in a child-focused setting designed to provide a safe, comfortable, and dedicated place of children and families. (Penal Code § 11166.4(b)(8))

Existing law provides that this section does not preclude a county from utilizing more than one children’s advocacy center.

Existing law provides that the files, reports, records, communications, and working papers used or developed in providing services through a children’s advocacy center are confidential and not public records.

Existing law allows for the sharing of confidential information among members of the children’s advocacy center for the purposes of facilitating a forensic interview or case discussion or providing services the child or family but the shared records are to be treated as confidential information by all.

Existing law provides that any employee or designated agent of a child and family advocacy center that meets the requirements is immune from civil liability due to participation in the investigative process.

This bill, as proposed to be amended, additionally provides that such interviews are confidential and are not public records.

This bill, as proposed to be amended, provides that the children’s advocacy center or other identified multidisciplinary team member custodian shall ensure that all recordings of child forensic interviews be released only in response to a court order. The court shall issue a protective order as part of the release, unless the court finds good cause that the disclosure of the interview shall be subject to such an order. The protective order shall include all the following language:

• That the recording be used only for the purposes of conducting the party’s side of the case, unless otherwise ordered by the court.
• That the recording not be copied, photographed, duplicated, or otherwise reproduced except as a written transcript that does not reveal the identity of the child, unless otherwise ordered by the court.
• That the recording not be given displayed, or in any way provided to a third party, except as otherwise permitted or as necessary in preparation for or during trial.
• That the recording remain in the exclusive custody of the attorneys, their employees, or agents, including expert witnesses by either party, who shall be provided a copy and instructed to abide by the protective order.
• That, if the party is not represented by an attorney, the party, the party’s employees and agents, including expert witnesses, shall not be given a copy of the recording but shall be given reasonable access to view or listen to the recording by the custodian of the recording. In a criminal case involving an In Pro Per defendant, if the court has appointed an investigator, the court may order a copy of the recording be provided to the investigator with a protective order consistent with this section and further order the investigator to return the recording to the court upon conclusion of the criminal case.
• That upon termination of representation of upon disposition of the matter after all appeals and writs of habeas corpus have been exhausted attorneys promptly return all copies of the recording.

This bill provides that notwithstanding the above, the children’s advocacy center or other identified multidisciplinary team member custodian shall release or consent to the release or use of any recording, upon request to any of the following:

• Law enforcement agencies authorized to investigate child abuse, or agencies authorized to prosecute juvenile or criminal conduct described in the forensic interview.
• County counsel evaluating an allegation of child abuse.

This bill provides that in any court proceeding, release of any recording pursuant to the civil, dependency, or criminal discovery process shall be accompanied by a protective order, unless the court finds good cause that disclosure of the recording should not be subject to such an order.

This bill provides that a child advocacy center where a forensic interview is conducted may use the recording for the purposes of supervision and peer review as required to meet national accreditation standards. Recordings that anonymize the child’s face or likeness may be used of training.

This bill provides that recognizing the inherent privacy interest that a child has with respect to the child’s recorded voice and image when describing highly sensitive details of abuse or neglect, any and all recordings of child forensic interviews shall not be subject to a Public Records Act Request and are exempt from any such request.

This bill provides the recording shall not become a public record in any legal proceeding.

This bill provides that the court shall order the recording be sealed and preserved at the conclusion of the criminal proceeding.

This bill provides that as used in this section “recording” includes audio, video, digital, or any other manner in which the child’s voice or likeness is memorialized.

COMMENTS

1. Need for This Bill

According to the author:

We have a responsibility to provide victims of child abuse with the strongest protections possible. There are currently no guidelines regarding the distribution of child forensic interview (CFI) recordings from children’s advocacy centers in California. Children, victims, and families could have their sensitive recordings fall into the wrong hands without the appropriate safeguards. SB 603 creates protections for victims and their families, by requiring a protective order before a recording can be distributed. This will allow for the appropriate release of these recordings to go to counsel in criminal and civil cases, while also limiting their distribution beyond what is necessary for investigation and litigation without a protective order. Without these safeguards in place, children and their families may be discouraged from participated in recording forensic interviews, which are crucial to the investigation of child abuse.

2. Recordings of interviews of at a children’s advocacy centers

Existing law allows each county to use a children’s advocacy center to coordinate a multidisciplinary response to investigate reports involving child physical, or sexual abuse, exploitation, or maltreatment. The law sets forth standards that each advocacy center shall meet.

The law does not, however, set forth a uniform process for releasing recordings that are made of the forensic interviews of children at these centers. Recordings that could be used in criminal or civil cases. This bill provides that these recordings shall be released only in response to a court order. The bill requires the court to issue a protective order when allowing the release of the documents, unless the court finds good cause for why a protective order shall not be released. The bill specifies what the court order shall include:

• That the recording shall only be used for the party’s side of the case.
• That the recording shall not be copied etc. and if there is a written transcript the child shall not be identified.
• That the recordings not be given to third part, except for the employees or investigators of the attorney who have also been informed of the protective order.

If the party is not represented by an attorney, the party shall not be given a copy but shall instead be given reasonable access to view or listen to the recording.

If a criminal defendant is an In Pro Per defendant, if the court appointed an investigator, the court may order a copy of the recording be provided to the investigator with a protective order consistent with this section and further order the investigator to return the recording upon conclusion of the case.

This bill also clarifies that the recording shall not be a public record for the purposes of the PRA.

3. Access by the victim

The Consumer Attorneys of California raise a concern that requiring a court order limits access to the recordings by the actual victim or their representatives. This may interfere with the victim bring a civil suit including any pre-filing settlements.

It is conceivable whether for a civil case or maybe even as part of therapy an adult who was a child victim of sexual assault or other misconduct may wish to have access to the recording. The statute of limitations for civil cases brought by a victim of sexual assault that happened as a child has been extended so that victim who did the interview could very well be an adult.

Should the bill perhaps consider a separate process for when the victim would like access to the recording?

4. Return of the copies

The California Public Defenders Association raised a concern that, as in print, this bill requires that upon termination of representation or upon disposition of the matter attorneys shall promptly return all copies of the recording because in criminal cases there often post-conviction motions. As proposed to be amended this bill would require the return after all appeals and writs of habeas corpus have been exhausted, so this may address CPDA’s concern.

The attorney who has the underlying case will probably not be the attorney who does the appeal or habeas and even as a case progresses counsel may change. Does the reference to “termination of representation in case” raise any concerns in criminal cases? Should it be clarified the recording stays with case file and all the limitations of the protective order apply to whomever is the current attorney?

5. Argument in Support

The Prosecutors Alliance of California support this bill stating:

SB 603 aims to prevent the unauthorized release of child forensic interviews, which are recorded interviews of children conducted by specially trained forensic interviewers in cases involving suspected child abuse. During these interviews, children often disclose highly sensitive information related to physical and sexual abuse. Currently, California does not have clearly defined legal limits for the release of these recordings. This results in children’s advocacy centers being directly subpoenaed for copies of these recordings without any guidelines on their distribution. There have been instances where once copies of these recordings have been obtained from children’s advocacy centers, they have been duplicated, copied, and re-distributed to individuals who should not have access to the recordings. This provides a daily challenge for children’s advocacy centers throughout California who seek to protect the rights and privacy interests of these vulnerable victims.

SB 603 would set consistent guidelines for the protection of child interviews conducted in response to suspected child abuse by statutorily mandating that such recordings only be released through an appropriate court order, with a protective order, and under limited circumstances. Similar rules are already in place for the release of suspected child abuse reports and suspect forensic examinations. Moreover, states such as Washington, Nebraska, and Tennessee have all codified protections for child forensic interviews.

6. Argument in Opposition (unless amended)

As noted in Comment 3 the Consumer Attorneys of California oppose this bill unless amended, stating specifically:

CAOC agrees with your goal of protecting children victims of sexual abuse and in ensuring access to justice for all victims. Attorneys who represent children of sexual abuse must not be limited in their access to information that can assist them in prosecuting cases against violators. As drafted, SB 603 limits otherwise available evidence to the children and their legal representatives. There are many examples of why a juvenile victim of crime might need access to their own forensic evidence, but the basic premise is that they should have access to any evidence they have provided in order to assert their rights either in conjunction with a governmental agency or a civil attorney. This interview is of them.

This information and other evidence related to the crimes they have been subjected to should be a matter of right.  They are rarely, if ever given access to a police department's file, and never to a District Attorney’s file.  That process is one-sided and must be balanced so that children who are victimized can assert their rights in whatever way they see fit pursuant to Marsy's Law. Further, if guardian ad litem is considering litigation, they should be able to obtain what is usually the only evidence of what occurred before making that decision. Similarly, no pre-filing settlements are possible without such evidence as all sides need to be able to evaluate what occurred.  We should be doing everything we can to improve access to justice for children who are crime victims, not making it harder. 

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