CJ C.S.H.B. 1336 75(R)BILL ANALYSIS JUVENILE JUSTICE & FAMILY ISSUES BY: Wise C.S.H.B. 1336 4-8-97 Committee Report (Substituted) BACKGROUND The purpose of this legislation is basically to add teeth to the current law in the state's Family Code regarding the taking possession of children in cases of an emergency, particularly situations involving sexual abuse and neglect, sexual exploitation, sexual molestation, and sexual victimization. It strengthens current law by adding a provision on entitlement to protective order under Chapter 71 of the Family Code. In the past several years, our nation has discovered that large numbers of our children and youth have been sexually victimized or are at risk of sexual victimization. These children may contract sexually transmitted diseases such as syphilis, gonorrhea, herpes, and the human immunodeficiency virus (HIV). Sexually victimized children are, however, far more likely to suffer emotionally from their ordeal. Many children experience problems such as sleep disturbances, depression, low self-esteem, isolation, fears and phobia, eating disorders, and other illnesses that can lead to delinquency or self-destructive behavior. Fortunately, many children may not suffer permanent mental health problems, especially if they receive assistance such as counseling, family therapy, and a prompt disposition of any legal proceedings from the criminal justice and social services systems. Types of sexual offenses against children include forcible rape, oral sodomy of the child or forcing the child to perform oral sodomy of the molester, anal sodomy, touching the genitals and breasts of the child, or forcing the child to touch the genitals of the molester. Children may also be victimized by engaging in prostitution, pornography, and live sexual performances. There is frequent confusion about the terms involved in the sexual victimization of children. For example, the legal definitions of sexual abuse and sexual exploitation vary from state to state, and there are types of sexual victimization that are not included in either. In most state statutes, sexual abuse refers to sexual acts involving a child and an adult who is responsible for the child's welfare, such as a parent, guardian, legal custodian, or person acting in that role. Sexual abuse is usually investigated by child protective services agency caseworkers in addition to law enforcement officers and is prosecuted in the juvenile or family court. The sexually abused child may be taken from the parent and placed in foster care if other means are not available to protect the child. In most statutes, sexual exploitation is restricted to child pornography and live sexual performances involving a child. If these involve a person responsible for the child's welfare, the sexual exploitation is included in the definition of sexual abuse. The public frequently uses the terms sexual abuse and sexual exploitation interchangeably even though their meanings are different. Many people use the term sexual abuse or child molestation to mean any form of sexual victimization of a child, regardless of the child's relationship to the perpetrator. Throughout this request, the term sexual abuse will be used only in its legal sense, that is, sexual acts involving a person responsible for the child's welfare, and the terms sexual molestation and sexual victimization will be used to refer to all types of sexual victimization. Sexual exploitation will be used only to refer to child pornography and live sexual performances. Various kinds of sexual victimization of children are prohibited by either state or federal criminal law. A child molester can be prosecuted in the criminal court and be fined, imprisoned, or put on probation. If the convicted molester is placed on probation, participation in treatment and periodic monitoring by the court can be made a condition of that probation. There can also be a trial in the family or juvenile court if he or she is a person responsible for the child's welfare. The adult can be ordered into treatment and the child taken from his or her custody. In addition, if the defendant is a juvenile, he or she can be prosecuted in the juvenile court for committing the sexual offense upon the child. Emergency Protection for the Child State child abuse and neglect laws authorize child protective services caseworkers and, in most instances, law enforcement officers to take a child into emergency custody when a child is in imminent danger of being physically or sexually abused or neglected. Law enforcement officers are usually authorized to take any juvenile into emergency custody when the juvenile is endangered by the environment. In addition, state domestic violence laws can provide protection to a child. In domestic violence proceedings, a judge can issue an emergency ex parte order that will order a person who either shares a household with another or has recently had an intimate relationship with another to refrain from injuring, threatening, or harassing the other. In some states, the judge can order the person to leave the household. While some of these laws specifically state that the ex parte orders can be issued to protect a child, others do not specifically exclude a child from such protection. Domestic violence laws authorize the judge to issue a similar permanent order if the person requesting the order proves the need for it at a judicial hearing. PURPOSE An emergency protection law should: 1.Authorize a child protective services agency caseworker to take a child into emergency custody when the child is in imminent danger of physical abuse, sexual abuse, or neglect and such custody is necessary to protect the child or to secure emergency medical or mental health treatment. 2.Authorize a law enforcement officer to take a child into emergency custody when the child is in imminent danger from his or her environment. 3.Authorize a judge to issue an emergency ex parte restraining order to protect a child from injury, intimidation, or harassment by a person who shares a household or a familial relationship with the child. Such authority should include authority to exclude the alleged offender from the child's home. The judge should also be authorized to issue a permanent restraining order at a judicial hearing to protect the child upon proof of need. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends the Family Code by adding the neglect of children as a justifiable reason for a child to be in immediate danger of victimization, just like one who has been sexually abused. SECTION 2 . Adds a provision regarding entitlement to protective order under Chapter 71 of the Family Code, specifying how the child should be protected under court order if an investigation determines that the child has been sexually abused or neglected. It provides protection for the child from family violence by a member of the child's family or household. SECTION 3. Stipulates that a child may be protected by a court order if the court finds that the child needs protection from family violence. SECTION 4. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE 1. On line 14 of the original bill, change the words "or neglect" to "neglect or" and place them before the word " sexual. 2. On lines 16 and 17 of the original bill, delete the words "or mental". 3. On lines 22-24 of page 1 and lines 1-3 of page 2 of the original bill, delete the reference to the wording "intimidation" and "harassment" and make clear reference to Chapter 71 of the Family Code, Section 71.01, as the definition of family violence. 4. On line 13 of the original bill, delete the language "imminent danger from the child's environment" and add language that allows the court to order a protective order for family violence.