PRINTER'S NO. 1382
No. 1092 Session of 2007
INTRODUCED BY A. WILLIAMS, RAFFERTY, MUSTO, ERICKSON AND
C. WILLIAMS, SEPTEMBER 17, 2007
REFERRED TO JUDICIARY, SEPTEMBER 17, 2007
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, providing for liability
3 of parents and guardians and for pretrial diversion.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Title 42 of the Pennsylvania Consolidated
7 Statutes is amended by adding sections to read:
8 § 6312. Liability of parents and guardians.
9 (a) Liability.--Every person who commits any act or omits
10 the performance of any duty, which act or omission causes or
11 tends to cause or encourage any person under the age of 18 years
12 to come within the provisions of section 6341 (relating to
13 adjudication), 23 Pa.C.S. § 6315 (relating to taking child into
14 protective custody) or section 1327 of the act of March 10, 1949
15 (P.L.30, No.14), known as the Public School Code of 1949, or
16 which act or omission contributes thereto, or any person who, by
17 any act or omission, or by threats, commands or persuasion,
18 induces or endeavors to induce any person under the age of 18
1 years to fail or refuse to conform to a lawful order of the
2 juvenile court, or to do or to perform any act or to follow any
3 course of conduct or to so live as would cause or manifestly
4 tend to cause that person to become or to remain a person within
5 the provisions of section 6341, 23 Pa.C.S. § 6315, or section
6 1327 of the Public School Code of 1949, is guilty of a
7 misdemeanor of the third degree and shall, upon conviction, be
8 sentenced to pay a fine not exceeding $2,500 or to imprisonment
9 in the county jail for not more than one year, or both, or may
10 be released on probation for a period of not more than five
11 years.
12 (b) Standard of care.--For purposes of this section, a
13 parent or legal guardian to any person under the age of 18 years
14 shall have the duty to exercise reasonable care, supervision,
15 protection and control over the minor child.
16 § 6313. Pretrial diversion program.
17 (a) Review and approval.--Every prosecutor with jurisdiction
18 to prosecute violations of section 6312 (relating to liability
19 of parents and guardians) shall review annually any diversion
20 program established pursuant to this section, and no program
21 shall commence or continue without the approval of the
22 prosecutor. No person shall be diverted under a program unless
23 it has been approved by the prosecutor. Nothing in this
24 subsection shall authorize the prosecutor to determine whether a
25 particular defendant shall be diverted.
26 (b) Applicability.--This section shall apply whenever a case
27 is before any court upon an accusatory pleading alleging a
28 parent or legal guardian to have violated section 6312 with
29 respect to his or her minor child, and all of the following
30 apply to the defendant:
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1 (1) The defendant's record does not indicate that
2 probation or parole has ever been revoked without thereafter
3 being completed.
4 (2) The defendant's record does not indicate that he or
5 she has previously been diverted pursuant to this section.
6 (c) Waiver.--If the defendant consents and waives his or her
7 right to a speedy trial, the case shall be referred to the
8 county probation department. The county probation department
9 shall conduct an investigation as is necessary to determine
10 whether the defendant qualifies for diversion under this
11 section, and whether he or she is a person who would be
12 benefited by education, treatment or rehabilitation. The county
13 probation department shall also determine which education,
14 treatment or rehabilitative plan would benefit the defendant.
15 The county probation department shall report its findings and
16 recommendations to the court. If the recommendation includes
17 referral to a community service program, the report shall
18 contain a statement regarding the program's willingness to
19 accept the defendant and the manner in which the services they
20 offer can assist the defendant in completing the diversion
21 program successfully.
22 (d) Admissibility.--No statement or any information made by
23 the defendant to any county probation officer, during the course
24 of any investigation conducted by the county probation
25 department pursuant to subsection (a) and prior to the reporting
26 of the county probation department's findings and
27 recommendations to the court, shall be admissible in any action
28 or proceeding brought subsequent to the investigation. No
29 statement or any information, with respect to the specific
30 offense with which the defendant is charged which is made to any
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1 county probation officer subsequent to the granting of
2 diversion, shall be admissible in any action or proceeding. In
3 the event that diversion is either denied or is subsequently
4 revoked once it has been granted, neither the probation
5 investigation nor statements or information divulged during that
6 investigation shall be used in any pretrial sentencing
7 procedures.
8 (e) Hearing.--The court shall hold a hearing and after
9 consideration of the county probation department's report, and
10 any other relevant information, shall determine if the defendant
11 consents to further proceedings under this section and waives
12 his or her right to a speedy trial. If the court orders a
13 defendant to be diverted, the court may make inquiry into the
14 financial condition of the defendant, and upon a finding that
15 the defendant is able, in whole or in part, to pay the
16 reasonable cost of diversion, the court may order him or her to
17 pay all or part of the expense. The reasonable cost of diversion
18 shall not exceed the amount determined to be the actual average
19 cost of diversion services.
20 (f) Finding that diversion is not beneficial.--If the court
21 does not deem the defendant to be a person who would be
22 benefited by diversion or if the defendant does not consent to
23 participate, the proceedings shall continue as in any other
24 case. At the time that a defendant's case is diverted, any bail
25 bond or undertaking or deposit in lieu thereof, on file by or on
26 behalf of the defendant shall be exonerated, and the court shall
27 enter an order so directing. The period during which the further
28 criminal proceedings against the defendant may be diverted shall
29 be for the length of time required to complete and verify the
30 diversion program but in no case shall be more than two years.
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1 (g) Unsatisfactory progress or other conviction.--If it
2 appears to the county probation department that the divertee is
3 performing unsatisfactorily in the assigned program or that the
4 divertee is not benefiting from education, treatment or
5 rehabilitation, or that the divertee is convicted of a
6 misdemeanor in which force or violence was used, or if the
7 divertee is convicted of a felony, after notice to the divertee,
8 the court shall hold a hearing to determine whether the criminal
9 proceedings should be reinstituted. If the court finds that the
10 divertee is not performing satisfactorily in the assigned
11 program, or that the divertee has been convicted of a crime as
12 indicated above, the criminal case shall be referred back to the
13 court for resumption of the criminal proceedings. If the
14 divertee has performed satisfactorily during the period of
15 diversion, the criminal charges shall be dismissed.
16 (h) Indication of disposition.--Any record filed with the
17 Pennsylvania State Police shall indicate the disposition in
18 those cases diverted pursuant to this section. Upon successful
19 completion of a diversion program, the arrest upon which the
20 diversion was based shall be deemed to have never occurred. The
21 divertee may indicate in response to any question concerning his
22 or her prior criminal record that he or she was not arrested or
23 diverted for that offense, except as specified in subsection
24 (b). A record pertaining to an arrest resulting in successful
25 completion of a diversion program shall not, without the
26 divertee's consent, be used in any way that would result in the
27 denial of any employment, benefit, license or certificate.
28 (i) Disclosure.--The divertee shall be advised that,
29 regardless of his or her successful completion of diversion, the
30 arrest upon which the diversion was based may be disclosed by
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1 the Pennsylvania State Police in response to any peace officer
2 application request and that, notwithstanding subsection (a),
3 this section does not relieve him or her of the obligation to
4 disclose the arrest in response to any direct question contained
5 in any questionnaire or application for employment.
6 (j) Definition.--As used in this section, the term "pretrial
7 diversion" means the procedure of postponing prosecution either
8 temporarily or permanently at any point in the judicial process
9 from the point at which the accused is charged until
10 adjudication.
11 Section 2. This act shall take effect in 60 days.
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