II

103D CONGRESS

1ST SESSION S. 1759

To establish a national background check procedure to ensure that persons

working as child care providers do not have a criminal history of child

abuse, to initiate the reporting of all State and Federal child abuse

crimes, to establish minimum guidelines for States to follow in conducting

background checks and provide protection from inaccurate information

for persons subjected to background checks, and for other purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 20 (legislative day, NOVEMBER 2), 1993

Mr. BIDEN (for himself, Mr. HATCH, Mr. DECONCINI, Mr. THURMOND, Mr.

HEFLIN, Mr. GRASSLEY, Mr. SIMON, Mr. METZENBAUM, and Mr.

MCCONNELL) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To establish a national background check procedure to ensure that persons working as child care providers do

not have a criminal history of child abuse, to initiate

the reporting of all State and Federal child abuse crimes,

to establish minimum guidelines for States to follow in

conducting background checks and provide protection

from inaccurate information for persons subjected to

background checks, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘National Child Protec3 tion Act of 1993’’.

4 SEC. 2. PURPOSES.

5 The purposes of this subtitle are—

6 (1) to establish a national system through

7 which child care organizations may obtain the bene8 fit of a nationwide criminal background check to de9 termine if persons who are current or prospective

10 child care providers have committed child abuse

11 crimes or other serious crimes;

12 (2) to establish minimum criteria for State laws

13 and procedures that permit child care organizations

14 to obtain the benefit of nationwide criminal back15 ground checks to determine if persons who are cur16 rent or prospective child care providers have commit17 ted child abuse crimes or other serious crimes;

18 (3) to provide procedural rights for persons who

19 are subject to nationwide criminal background

20 checks, including procedures to challenge and correct

21 inaccurate background check information;

22 (4) to establish a national system for the re23 porting by the States of child abuse crime informa24 tion; and

25 (5) to document and study the problem of child

26 abuse by providing statistical and informational data
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1 on child abuse and related crimes to the Department

2 of Justice and other interested parties.

3 SEC. 3. DEFINITIONS.

4 For the purposes of this subtitle—

5 (1) the term ‘‘authorized agency’’ means a divi6 sion or office of a State designated by a State to re7 port, receive, or disseminate information under this

8 subtitle;

9 (2) the term ‘‘background check crime’’ means

10 a child abuse crime, murder, manslaughter, aggra11 vated assault, kidnapping, arson, sexual assault, do12 mestic violence, incest, indecent exposure, prostitu13 tion, promotion of prostitution, and a felony offense

14 involving the use or distribution of a controlled sub15 stance;

16 (3) the term ‘‘child’’ means a person who is a

17 child for purposes of the criminal child abuse law of

18 a State;

19 (4) the term ‘‘child abuse’’ means the physical

20 or mental injury, sexual abuse or exploitation, ne21 glectful treatment, negligent treatment, or maltreat22 ment of a child by any person in violation of the

23 criminal child abuse laws of a State, but does not in24 clude discipline administered by a parent or legal

25 guardian to his or her child provided it is reasonable
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1 in manner and moderate in degree and otherwise

2 does not constitute cruelty;

3 (5) the term ‘‘child abuse crime’’ means a crime

4 committed under any law of a State that establishes

5 criminal penalties for the commission of child abuse

6 by a parent or other family member of a child or by

7 any other person;

8 (6) the term ‘‘child abuse crime information’’

9 means the following facts concerning a person who

10 is under indictment for, or has been convicted of, a

11 child abuse crime: full name, race, sex, date of birth,

12 height, weight, a brief description of the child abuse

13 crime or offenses for which the person has been ar14 rested or is under indictment or has been convicted,

15 the disposition of the charge, and any other informa16 tion that the Attorney General determines may be

17 useful in identifying persons arrested for, under in18 dictment for, or convicted of, a child abuse crime;

19 (7) the term ‘‘child care’’ means the provision

20 of care, treatment, education, training, instruction,

21 supervision, or recreation to children;

22 (8) the term ‘‘domestic violence’’ means a fel23 ony or misdemeanor involving the use or threatened

24 use of force by—
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1 (A) a present or former spouse of the vic2 tim;

3 (B) a person with whom the victim shares

4 a child in common;

5 (C) a person who is cohabiting with or has

6 cohabited with the victim as a spouse; or

7 (D) any person defined as a spouse of the

8 victim under the domestic or family violence

9 laws of a State;

10 (9) the term ‘‘exploitation’’ means child pornog11 raphy and child prostitution;

12 (10) the term ‘‘mental injury’’ means harm to

13 a child’s psychological or intellectual functioning,

14 which may be exhibited by severe anxiety, depres15 sion, withdrawal or outward aggressive behavior, or

16 a combination of those behaviors or by a change in

17 behavior, emotional response, or cognition;

18 (11) the term ‘‘national criminal background

19 check system’’ means the system maintained by the

20 Federal Bureau of Investigation based on fingerprint

21 identification or any other method of positive identi22 fication;

23 (12) the term ‘‘negligent treatment’’ means the

24 failure to provide, for a reason other than poverty,

25 adequate food, clothing, shelter, or medical care so
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1 as to seriously endanger the physical health of a

2 child;

3 (13) the term ‘‘physical injury’’ includes lacera4 tions, fractured bones, burns, internal injuries, se5 vere bruising, and serious bodily harm;

6 (14) the term ‘‘provider’’ means

7 (A) a person who—

8 (i) is employed by or volunteers with

9 a qualified entity;

10 (ii) who owns or operates a qualified

11 entity; or

12 (iii) who has or may have unsuper13 vised access to a child to whom the quali14 fied entity provides child care; and

15 (B) a person who—

16 (i) seeks to be employed by or volun17 teer with a qualified entity;

18 (ii) seeks to own or operate a qualified

19 entity; or

20 (iii) seeks to have or may have unsu21 pervised access to a child to whom the

22 qualified entity provides child care;

23 (15) the term ‘‘qualified entity’’ means a busi24 ness or organization, whether public, private, for25 profit, not-for-profit, or voluntary, that provides
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1 child care or child care placement services, including

2 a business or organization that licenses or certifies

3 others to provide child care or child care placement

4 services;

5 (16) the term ‘‘sex crime’’ means an act of sex6 ual abuse that is a criminal act;

7 (17) the term ‘‘sexual abuse’’ includes the em8 ployment, use, persuasion, inducement, enticement,

9 or coercion of a child to engage in, or assist another

10 person to engage in, sexually explicit conduct or the

11 rape, molestation, prostitution, or other form of sex12 ual exploitation of children or incest with children;

13 and

14 (18) the term ‘‘State’’ means a State, the Dis15 trict of Columbia, the Commonwealth of Puerto

16 Rico, American Samoa, the Virgin Islands, Guam,

17 and the Trust Territories of the Pacific.

18 SEC. 4. REPORTING BY THE STATES.

19 (a) IN GENERAL.—An authorized criminal justice

20 agency of a State shall report child abuse crime informa21 tion to, or index child abuse crime information in, the na22 tional criminal background check system.

23 (b) PROVISION OF STATE CHILD ABUSE CRIME

24 RECORDS THROUGH THE NATIONAL CRIMINAL BACK25 GROUND CHECK SYSTEM.—(1) Not later than 180 days
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1 after the date of enactment of this Act, the Attorney Gen2 eral shall, subject to the availability of appropriations—

3 (A) investigate the criminal records of each

4 State and determine for each State a timetable by

5 which the State should be able to provide child

6 abuse crime records on an on-line capacity basis

7 through the national criminal background check sys8 tem;

9 (B) establish guidelines for the reporting or in10 dexing of child abuse crime information, including

11 guidelines relating to the format, content, and accu12 racy of child abuse crime information and other pro13 cedures for carrying out this Act; and

14 (C) notify each State of the determinations

15 made pursuant to subparagraphs (A) and (B).

16 (2) The Attorney General shall require as a part of

17 the State timetable that the State—

18 (A) achieve, by not later than the date that is

19 3 years after the date of enactment of this Act, at

20 least 80 percent currency of final case dispositions

21 in computerized criminal history files for all identifi22 able child abuse crime cases in which there has been

23 an event of activity within the last 5 years;

24 (B) continue to maintain at least 80 percent

25 currency of final case dispositions in all identifiable
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1 child abuse crime cases in which there has been an

2 event of activity within the preceding 5 years; and

3 (C) take steps to achieve full disposition report4 ing, including data quality audits and periodic no5 tices to criminal justice agencies identifying records

6 that lack final dispositions and requesting those dis7 positions.

8 (c) LIAISON.—An authorized agency of a State shall

9 maintain close liaison with the National Center on Child

10 Abuse and Neglect, the National Center for Missing and

11 Exploited Children, and the National Center for the Pros12 ecution of Child Abuse for the exchange of technical as13 sistance in cases of child abuse.

14 (d) ANNUAL SUMMARY.—(1) The Attorney General

15 shall publish an annual statistical summary of the child

16 abuse crime information reported under this subtitle.

17 (2) The annual statistical summary described in

18 paragraph (1) shall not contain any information that may

19 reveal the identity of any particular victim or alleged viola20 tor.

21 (e) ANNUAL REPORT.—The Attorney General shall

22 publish an annual summary of each State’s progress in

23 reporting child abuse crime information to the national

24 criminal background check system.
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1 (f) STUDY OF CHILD ABUSE OFFENDERS.—(1) Not

2 later than 180 days after the date of enactment of this

3 Act, the Administrator of the Office of Juvenile Justice

4 and Delinquency Prevention shall begin a study based on

5 a statistically significant sample of convicted child abuse

6 offenders and other relevant information to determine—

7 (A) the percentage of convicted child abuse of8 fenders who have more than 1 conviction for an of9 fense involving child abuse;

10 (B) the percentage of convicted child abuse of11 fenders who have been convicted of an offense in12 volving child abuse in more than 1 State;

13 (C) whether there are crimes or classes of

14 crimes, in addition to those defined as background

15 check crimes in section 3, that are indicative of a

16 potential to abuse children; and

17 (D) the extent to which and the manner in

18 which instances of child abuse form a basis for con19 victions for crimes other than child abuse crimes.

20 (2) Not later than 1 year after the date of enactment

21 of this Act, the Administrator shall submit a report to the

22 Chairman of the Committee on the Judiciary of the Senate

23 and the Chairman of the Committee on the Judiciary of

24 the House of Representatives containing a description of
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1 and a summary of the results of the study conducted pur2 suant to paragraph (1).

3 SEC. 5. BACKGROUND CHECKS.

4 (a) IN GENERAL.—(1) A State may have in effect

5 procedures (established by or under State statute or regu6 lation) to permit a qualified entity to contact an author7 ized agency of the State to request a nationwide back8 ground check for the purpose of determining whether

9 there is a report that a provider is under indictment for,

10 or has been convicted of, a background check crime.

11 (2) The authorized agency shall access and review

12 State and Federal records of background check crimes

13 through the national criminal background check system

14 and shall respond promptly to the inquiry.

15 (b) GUIDELINES.—(1) The Attorney General shall es16 tablish guidelines for State background check procedures

17 established under subsection (a), which guidelines shall in18 clude the requirements and protections of this subtitle.

19 (2) The guidelines established under paragraph (1)

20 shall require—

21 (A) that no qualified entity may request a back22 ground check of a provider under subsection (a) un23 less the provider first completes and signs a state24 ment that—
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1 (i) contains the name, address, and date of

2 birth appearing on a valid identification docu3 ment (as defined by section 1028(d)(1) of title

4 18, United States Code) of the provider;

5 (ii) the provider is not under indictment

6 for, and has not been convicted of, a back7 ground check crime and, if the provider is

8 under indictment for or has been convicted of

9 a background check crime, contains a descrip10 tion of the crime and the particulars of the in11 dictment or conviction;

12 (iii) notifies the provider that the entity

13 may request a background check under sub14 section (a);

15 (iv) notifies the provider of the provider’s

16 rights under subparagraph (B); and

17 (v) notifies the provider that prior to the

18 receipt of the background check the qualified

19 entity may choose to deny the provider unsuper20 vised access to a child to whom the qualified en21 tity provides child care;

22 (B) that each State establish procedures under

23 which a provider who is the subject of a background

24 check under subsection (a) is entitled—
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1 (i) to obtain a copy of any background

2 check report and any record that forms the

3 basis for any such report; and

4 (ii) to challenge the accuracy and com5 pleteness of any information contained in any

6 such report or record and obtain a prompt de7 termination from an authorized agency as to

8 the validity of such challenge;

9 (C) that an authorized agency to which a quali10 fied entity has provided notice pursuant to sub11 section (a) make reasonable efforts to complete re12 search in whatever State and local recordkeeping

13 systems are available and in the national criminal

14 background check system and respond to the quali15 fied entity within 15 business days;

16 (D) that the response of an authorized agency

17 to an inquiry pursuant to subsection (a) inform the

18 qualified entity that the background check pursuant

19 to this section—

20 (i) may not reflect all indictments or con21 victions for a background check crime; and

22 (ii) may not be the sole basis for determin23 ing the fitness of a provider;

24 (E) that the response of an authorized agency

25 to an inquiry pursuant to subsection (a) be limited
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1 to the conviction or pending indictment information

2 reasonably required to accomplish the purposes of

3 this Act;

4 (F) that the qualified entity may choose to deny

5 the provider unsupervised access to a child to whom

6 the qualified entity provides child care on the basis

7 of a background check under subsection (a) until the

8 provider has obtained a determination as to the va9 lidity of any challenge under subparagraph (B) or

10 waived the right to make such challenge;

11 (G) that each State establish procedures to en12 sure that any background check under subsection

13 (a) and the results thereof shall be requested by and

14 provided only to—

15 (i) qualified entities identified by States;

16 (ii) authorized representatives of a quali17 fied entity who have a need to know such infor18 mation;

19 (iii) the provider who is the subject of a

20 background check;

21 (iv) law enforcement authorities; or

22 (v) pursuant to the direction of a court of

23 law;

24 (H) that background check information con25 veyed to a qualified entity pursuant to subsection (a)
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1 shall not be conveyed to any person except as pro2 vided under subparagraph (G);

3 (I) that an authorized agency shall not be liable

4 in an action at law for damages for failure to pre5 vent a qualified entity from taking action adverse to

6 a provider on the basis of a background check;

7 (J) that a State employee or a political subdivi8 sion of a State or employee thereof responsible for

9 providing information to the national criminal back10 ground check system shall not be liable in an action

11 at law for damages for failure to prevent a qualified

12 entity from taking action adverse to a provider on

13 the basis of a background check; and

14 (K) that a State or Federal provider of criminal

15 history records, and any employee thereof, shall not

16 be liable in an action at law for damages for failure

17 to prevent a qualified entity from taking action ad18 verse to a provider on the basis of a criminal back19 ground check, or due to a criminal history record’s

20 being incomplete.

21 (c) EQUIVALENT PROCEDURES.—(1) Notwithstand22 ing anything to the contrary in this section, the Attorney

23 General may certify that a State licensing or certification

24 procedure that differs from the procedures described in

25 subsections (a) and (b) shall be deemed to be the equiva-
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1 lent of such procedures for purposes of this Act, but the

2 procedures described in subsections (a) and (b) shall con3 tinue to apply to those qualified entities, providers, and

4 background check crimes that are not governed by or in5 cluded within the State licensing or certification proce6 dure.

7 (2) The Attorney General shall by regulation estab8 lish criteria for certifications under this subsection. Such

9 criteria shall include a finding by the Attorney General

10 that the State licensing or certification procedure accom11 plishes the purposes of this Act and incorporates a nation12 wide review of State and Federal records of background

13 check offenses through the national criminal background

14 check system.

15 (d) REGULATIONS.—(1) The Attorney General may

16 by regulation prescribe such other measures as may be

17 required to carry out the purposes of this Act, including

18 measures relating to the security, confidentiality, accu19 racy, use, misuse, and dissemination of information, and

20 audits and recordkeeping.

21 (2) The Attorney General shall, to the maximum ex22 tent possible, encourage the use of the best technology

23 available in conducting background checks.
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1 SEC. 6. FUNDING FOR IMPROVEMENT OF CHILD ABUSE

2 CRIME INFORMATION.

3 (a) USE OF FORMULA GRANTS FOR IMPROVEMENTS

4 IN STATE RECORDS AND SYSTEMS.—Section 509(b) of

5 the Omnibus Crime Control and Safe Streets Act of 1968

6 (42 U.S.C. 3759(b)) is amended—

7 (1) in paragraph (2) by striking ‘‘and’’ after

8 the semicolon;

9 (2) in paragraph (3) by striking the period and

10 inserting ‘‘; and’’; and

11 (3) by adding at the end the following new

12 paragraph:

13 ‘‘(4) the improvement of State record systems

14 and the sharing of all of the records described in

15 paragraphs (1), (2), and (3) and the records re16 quired by the Attorney General under section 4 of

17 the National Child Protection Act of 1993 with the

18 Attorney General for the purpose of implementing

19 the National Child Protection Act of 1993.’’.

20 (b) ADDITIONAL FUNDING GRANTS FOR THE IM21 PROVEMENT OF CHILD ABUSE CRIME INFORMATION.—

22 (1) The Attorney General shall, subject to appropriations

23 and with preference to States that as of the date of enact24 ment of this Act have the lowest percent currency of case

25 dispositions in computerized criminal history files, make

26 a grant to each State to be used—
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1 (A) for the computerization of criminal history

2 files for the purposes of this subtitle;

3 (B) for the improvement of existing computer4 ized criminal history files for the purposes of this

5 subtitle;

6 (C) to improve accessibility to the national

7 criminal background check system for the purposes

8 of this subtitle; and

9 (D) to assist the State in the transmittal of

10 criminal records to, or the indexing of criminal his11 tory records in, the national criminal background

12 check system for the purposes of this subtitle.

13 (2) There are authorized to be appropriated for

14 grants under paragraph (1) a total of $20,000,000 for fis15 cal years 1995, 1996, and 1997.

16 (c) WITHHOLDING STATE FUNDS.—Effective 1 year

17 after the date of enactment of this Act, the Attorney Gen18 eral may reduce by up to 10 percent the allocation to a

19 State for a fiscal year under title I of the Omnibus Crime

20 Control and Safe Streets Act of 1968 of a State that is

21 not in compliance with the timetable established for that

22 State under section 4 of this Act.

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