Bill Text: CA SB982 | 2009-2010 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Deceased Child Victims' Protection and Privacy Act.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Engrossed - Dead) 2010-08-11 - In Assembly. Read first time. Held at Desk. [SB982 Detail]
Download: California-2009-SB982-Amended.html
Bill Title: Deceased Child Victims' Protection and Privacy Act.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Engrossed - Dead) 2010-08-11 - In Assembly. Read first time. Held at Desk. [SB982 Detail]
Download: California-2009-SB982-Amended.html
BILL NUMBER: SB 982 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 1, 2010
AMENDED IN SENATE JUNE 7, 2010
AMENDED IN SENATE MAY 26, 2010
AMENDED IN SENATE MAY 3, 2010
INTRODUCED BY Senator Hollingsworth
(Principal coauthor: Assembly Member Fletcher)
(Coauthors: Senators Ducheny and Harman)
FEBRUARY 8, 2010
An act to add Section 130 to the Code of Civil Procedure, relating
to victims' rights, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 982, as amended, Hollingsworth. Deceased child victim
of crime: autopsy information and privacy. Child
Victims' Protection and Privacy Act.
Existing law prohibits the making of a copy, reproduction, or
facsimile of any kind of photographs, negatives, or print of the
body, or any portion of the body, of a deceased person taken by or
for the coroner at the scene of death or in the course of a
postmortem exam or autopsy made by or caused to be made by the
coroner, except for use in a criminal proceeding in this state that
relates to the death of that person, or except as a court of this
state permits, as specified.
This bill would prohibit enact the
Deceased Child Victims' Protection and Privacy Act. The bill would
provide that, when a minor who is not within the jurisdiction of the
juvenile court, as specified, is killed as a result of a criminal act
and a person has been convicted of the crime and
sentenced, or been found to have committed the act by a juvenile
court and adjudged a ward of the juvenile court , upon the
request of the biological, adoptive, or foster parent,
spouse, or guardian of a deceased person who was under 18 years of
age when he or she was a victim of a crime that caused his or her
death a qualifying family member of the deceased minor
, the disclosure of the autopsy report and
evidence associated with the examination of the victim in the
possession of a public agency would be sealed and would not be
disclosed , except as specified. The bill would also provide
that a coroner or medical examiner shall not be liable for damages in
a civil action for any act or omission taken in compliance with
these provisions.
Because the bill would impose additional duties on local
officials, such as the county coroner, the district attorney, or the
public defender, relating to preventing the disclosure of this
information, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be
cited as the Deceased Child Victims' Protection and Privacy Act.
SEC. 2. The Legislature hereby finds and declares
all of the following:
(a) (1) Thousands of Californians are murdered each year, a
statistic that has remained steady for over 30 years. The emotional
pain suffered by the families of these lost victims is unimaginable.
That pain is relived through criminal proceedings, which serve as a
troubling reminder of the suffering that loved ones endured before
their lives were taken.
(2) No document is more telling of the specific nature of a victim'
s injuries than the autopsy report crafted by a medical examiner. For
the family of a crime victim, the writing and diagrams contain the
details of a loved one's last experiences in this world.
(3) Both the California and United States Constitutions have been
construed to vest privacy rights in the families of deceased victims,
prohibiting the unnecessary disclosure of that information.
(b) The purpose of this act is to protect the privacy of the
families of deceased victims by allowing them to request that autopsy
reports not be subject to public records act requests.
(c) This act is intended to limit the unnecessary dissemination of
autopsy and private medical information concerning a murdered child
by acknowledging a family's right to privacy in those documents when
there is no compelling interest in disclosure. This act allows
families to request that the autopsy report of the victim be sealed
from public inspection. This act does not affect the dissemination of
the reports to law enforcement agents or prosecutors, and it does
not affect their obligations to provide that information to
defendants, with a protective order, in compliance with state and
federal discovery obligations. This act does not affect the ability
of civil litigants, in a suit related to the death of the victim,
from subpoenaing those records after a showing of good cause to the
trial court.
SEC. 3. Section 130 is added to the
Code of Civil Procedure , to read:
130. (a) Notwithstanding any other law, when a child who is under
18 years of age is killed as a result of a criminal act and a person
has been convicted and sentenced for the commission of that criminal
act, or a person has been found to have committed that offense by
the juvenile court and adjudged a ward of the juvenile court, upon
the request of a qualifying family member of a deceased child, the
autopsy report and evidence associated with the examination of the
victim in the possession of a public agency shall be sealed and not
disclosed, except as provided in this subdivision.
(1) Nothing in this section shall prohibit the use of autopsy
reports and evidence during criminal court proceedings.
(2) Disclosure of all autopsy information and evidence to law
enforcement, prosecutorial agencies and experts hired by those
agencies, social service agencies, or child death review teams is not
limited by this section.
(3) Disclosure to the defendant and the defense team in the course
of criminal proceedings or related habeas proceedings is not limited
by this section, except that the defendant and defense team are
prohibited from disseminating the autopsy report and evidence outside
of the defense team, except during criminal court proceedings.
(4) Civil litigants, in a cause of action related to the victim's
death, may obtain copies of autopsy reports and evidence with a court
order upon a showing of good cause and proper notice under Section
129, except that the litigants are prohibited from disseminating the
autopsy report and evidence outside of the litigation team, except
during court-related proceedings.
(5) Nothing in this section shall abrogate the rights of victims,
their authorized representatives, or insurance carriers to request
the release of information pursuant to subdivision (f) of Section
6254 of the Government Code. However, if a seal has been requested,
an insurance carrier receiving items pursuant to a request under that
subdivision is prohibited from disclosing the requested items except
as necessary in the normal course of business. An insurance carrier
shall not, under any circumstances, disclose items received pursuant
to subdivision (f) of Section 6254 of the Government Code to the
general public.
(6) This provision may not be invoked by a qualifying family
member who has been charged with or convicted of any act in
furtherance of the victim's death. Upon the filing of charges against
a qualifying family member, any seal maintained at the request of
that qualifying family member shall be removed.
(7) A coroner or medical examiner shall not be liable for damages
in a civil action for any act or omission taken in compliance with
this section.
(8) If sealing of the autopsy report has been requested by a
qualifying family member and another qualifying family member opposes
sealing, the opposing party may request a hearing in the superior
court in the county with jurisdiction over the crime leading to the
child's death for a determination of whether the sealing should be
maintained. The opposing party shall notify all other qualifying
family members, the medical examiner's office that conducted the
autopsy, and the district attorney's office with jurisdiction over
the crime at least 10 court days in advance of the hearing. At the
hearing, the court shall consider the interests of all qualifying
family members, the protection of the memory of the deceased child,
any evidence that the qualifying family member requesting the seal
was involved in the crime that resulted in the death of the child,
the public interest in scrutiny of the autopsy report or the
performance of the medical examiner, and any impact that unsealing
would have on pending investigations or litigation. Official
information in the possession of a public agency necessary to the
determination of the hearing shall be received in camera upon a
proper showing. This section shall not apply where a public agency
has independently sealed the autopsy report as an investigative file.
(9) An aunt, uncle, sibling, first cousin, or grandparent of the
deceased child may request that the seal be removed. The request to
remove the seal shall be adjudicated pursuant to paragraph (8), with
the party requesting the removal of the seal being the opposing
party.
(10) If an autopsy report is not sealed or is unsealed after a
hearing conducted pursuant to paragraph 8 or 9, the court may order
that the autopsy report itself may not be televised, published on the
Internet or in print, or displayed in a public manner.
(11) Nothing in this section shall limit the public access to
information contained in the death certificate including: name, age,
gender, race, date, time and location of death, the name of a
physician reporting a death in a hospital, the name of the certifying
pathologist, date of certification, burial information, and cause of
death.
(12) When a medical examiner declines a request to provide a copy
of an autopsy report pursuant to this section, the examiner shall
cite this section as the reason for declining to provide a copy of
the report.
(b) For purposes of this section:
(1) A "child who is under 18 years of age" does not include any
child who comes within either of the following descriptions:
(A) He or she was a dependent child of the juvenile court pursuant
to Section 300 of the Welfare and Institutions Code at the time of
his or her death.
(B) He or she was residing in a state or county juvenile facility,
or a private facility under contract with the state or county for
the placement of juveniles, as a ward of the juvenile court pursuant
to Section 602 of the Welfare and Institutions Code at the time of
his or her death.
(2) "Defense team" means supervisors, attorneys, investigators,
paralegals, support staff, defendant, and other experts consulted for
the purposes of investigation and defense of the person accused of
killing the deceased child victim.
(3) "Evidence" means any object, writing, diagram, recording,
computer file, photograph, video, DVD, CD, film, digital device, or
other item that was collected during, or serves to document, the
autopsy of an individual.
(4) "Qualifying family member" means the biological or adoptive
parent, spouse, or legal guardian.
(c) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
SEC. 4. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SEC. 5. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to prevent, as soon as possible, autopsy information
concerning deceased children from being made available to the public,
it is necessary that this act take effect immediately.
SECTION 1. This act shall be known and may be
cited as the Deceased Child Victims' Protection and Privacy Act.
SEC. 2. The Legislature hereby finds and
declares all of the following:
(a) (1) Thousands of Californians are murdered each year, a
statistic that has remained steady for over 30 years. The emotional
pain suffered by the families of these lost victims is unimaginable.
That pain is relived through criminal proceedings, which serve as a
troubling reminder of the suffering that loved ones endured before
their lives were taken.
(2) No document is more telling of the specific nature of a victim'
s injuries than the autopsy report crafted by a medical examiner. For
the family of a crime victim, the writing and diagrams contain the
details of a loved one's last experiences in this world.
(3) While criminal proceedings and certain civil actions may
require the use of those documents to satisfy the needs of a
particular suit, there is no compelling interest in public production
and distribution of these documents.
(4) Both the California and United States Constitutions have been
construed to vest privacy rights in the families of deceased victims,
prohibiting the unnecessary disclosure of that information.
(b) The purpose of this act is to protect the privacy of the
families of deceased victims by allowing them to request that autopsy
reports not be subject to public records act requests.
(c) This act is intended to limit the unnecessary dissemination of
autopsy and private medical information concerning a murdered child
by acknowledging a family's right to privacy in those documents when
there is no compelling interest in disclosure. This act allows
families to request that the autopsy report of the victim be sealed
from public inspection. This act does not affect the dissemination of
the reports to law enforcement agents or prosecutors, and it does
not affect their obligations to provide that information to
defendants, with a protective order, in compliance with state and
federal discovery obligations. This act does not affect the ability
of civil litigants, in a suit related to the death of the victim,
from subpoenaing those records after a showing of good cause to the
trial court.
SEC. 3. Section 130 is added to the Code of
Civil Procedure, to read:
130. (a) Notwithstanding any other law, upon the request of the
biological, adoptive, or foster parent, spouse, or guardian of a
deceased victim of a crime who was under 18 years of age at the time
of the crime that caused his or her death, the autopsy report and
evidence associated with the examination of the victim shall be
sealed and not disclosed, except as provided in this subdivision.
(1) Nothing in this section shall prohibit the use of autopsy
reports and evidence during criminal court proceedings.
(2) Disclosure of all autopsy information and evidence to law
enforcement, prosecutorial agencies, or child death review teams is
not limited by this section.
(3) Disclosure to the defendant and the defense team in the course
of criminal proceedings or related habeas proceedings is not limited
by this section, except that the defendant and defense team are
prohibited from disseminating all autopsy information and evidence
outside of the defense team, except during criminal court
proceedings.
(4) Civil litigants, in a cause of action related to the victim's
death, may obtain copies of autopsy reports and evidence with a court
order upon a showing of good cause and proper notice under Section
129.
(5) Nothing in this section shall abrogate the rights of victims,
their authorized representatives, or insurance carriers to request
the release of information pursuant to subdivision (f) of Section
6254 of the Government Code. However, if a seal has been requested,
an insurance carrier receiving items pursuant to a request under that
subdivision is prohibited from disclosing the requested items except
as necessary in the normal course of business. An insurance carrier
shall not, under any circumstances, disclose items received pursuant
to subdivision (f) of Section 6254 of the Government Code to the
general public.
(6) This provision may not be invoked by a family member who has
been charged with or convicted of any act in furtherance of the
victim's death.
(7) A coroner or medical examiner shall not be liable for damages
in a civil action for any act or omission taken in compliance with
this section.
(b) For purposes of this section, "evidence" means any object,
writing, diagram, recording, computer file, photograph, video, DVD,
CD, film, digital device, or other item which was collected during or
serves to document the autopsy of an individual.
SEC. 4. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SEC. 5. This act is an urgency statute
necessary for the immediate preservation of the public peace, health,
or safety within the meaning of Article IV of the Constitution and
shall go into immediate effect. The facts constituting the necessity
are:
In order to prevent, as soon as possible, autopsy information
concerning deceased children from being made available to the public,
it is necessary that this act take effect immediately.
