BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 12
                                                                  Page  1

          Date of Hearing:   April 26, 2011
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Ammiano, Tom, Chair

                  AB 12 (Swanson) - As Introduced:  December 6, 2010


           SUMMARY  :   Requires a person convicted of a crime involving 
          substantial sexual conduct with a minor under the age of 16 to 
          pay an additional $25,000 fine ($92,603 with penalty 
          assessments) to be deposited in the District Attorney's 
          Victim-Witness Assistance Fund.  Specifically,  this bill  :  

          1)Provides that any person who is convicted of a crime involving 
            substantial sexual conduct, as specified, if the victim is 
            under 16 years of age, shall be ordered by the court, in 
            addition to any other penalty or fine imposed, to pay an 
            additional fine of $25,000.

          2)States that any person convicted of seeking to procure or 
            procuring the sexual services of a prostitute if the 
            prostitute is under 16 years of age, shall be ordered by the 
            court, in addition to any other penalty or fine imposed, to 
            pay an additional fine of $25,000.

          3)Specifies that every fine imposed and collected pursuant to 
            this section shall be deposited in the Victim-Witness 
            Assistance Fund to be available for appropriation to fund 
            child sexual exploitation and child sexual abuse victim 
            counseling centers and prevention programs.

          4)Finds and declares the following:  

             a)   Sexual slavery of minors through human trafficking is 
               one of the most sophisticated forms of organized crime in 
               the country and is now globally recognized as a modern day 
               form of slavery.

             b)   Human trafficking and sexual exploitation involve the 
               recruitment, transportation, and sale of people, primarily 
               women and children, to work in the sex trade. California 
               has become a major hub of international and domestic 








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               interstate human trafficking.

             c)   A United States Department of Justice study estimates 
               that over 300,000 American children are at risk of being 
               forced into prostitution. Human trafficking and child 
               sexual exploitation are not phenomena exclusive to 
               countries outside the United States or to states other than 
               California. It is a universal crisis that is occurring in 
               our own backyards and in our city streets in broad 
               daylight.

             d)   Children are not safe from trafficking and exploitation 
               in California. Some of the children trafficked are as young 
               as four years old, but many more are only 11 or 12 years of 
               age.

             e)   Researchers agree that internationally the median age 
               for the entrance of girls into prostitution is 14 years of 
               age. In the United States, the ages vary from state to 
               state, and in California the average age is about 12 years 
               old.

             f)   The business of the trafficking of children would not 
               exist without the demand for the services of those children 
               by the men and women who purchase those services on the 
               streets. California needs to increase the fines against 
               persons who engage children in these illicit activities.

             g)   It is the intent of the Legislature in enacting the 
               Abolition of Child Commerce, Exploitation, and Sexual 
               Slavery Act of 2011 to recast the state's laws relating to 
               human trafficking and child sex slavery to treat the 
               trafficked children as victims, rather than prostitutes. It 
               is also the intent of the Legislature that the ACCESS Act 
               of 2011 will ensure that persons funding the illicit 
               activities of human traffickers and paying for the services 
               of child sex slaves are treated as severely under the law 
               as an adult engaging in a sex act with a minor. The 
               predator should be dealt with the same, regardless of 
               whether that person is paying for the sexual services of 
               the minor he or she is abusing.

             h)   It is the intent of the Legislature that the ACCESS Act 
               Of 2011 further these purposes and also ensure that these 
               victimized children are given access to proper treatment 








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               and the resources they need to be safe from the men and 
               women who exploit them commercially.

           EXISTING LAW  :

          1)Defines "unlawful sexual intercourse" as an act of sexual 
            intercourse (consensual or nonconsensual) accomplished with a 
            person who is not the spouse of the perpetrator, if the person 
            is a minor.  For the purposes of this section, a "minor" is a 
            person under the age of 18 years and an "adult" is a person 18 
            years of age or older.  ÝPenal Code Section 261.5(a).]  

          2)Provides that any person who engages in an act of unlawful 
            sexual intercourse with a minor who is not more than three 
            years older or three years younger than the perpetrator, is 
            guilty of misdemeanor statutory rape.  ÝPenal Code Section 
            261.5(b).]

          3)Specifies that it is misdemeanor disorderly conduct when any 
            person who solicits or who agrees to engage in or who engages 
            in any act of prostitution.  A person agrees to engage in an 
            act of prostitution when, with specific intent to so engage, 
            he or she manifests an acceptance of an offer or solicitation 
            to so engage, regardless of whether the offer or solicitation 
            was made by a person who also possessed the specific intent to 
            engage in prostitution.  No agreement to engage in an act of 
            prostitution shall constitute a violation of this subdivision 
            unless some act, in addition to the agreement, is done within 
            this state in furtherance of the commission of an act of 
            prostitution by the person agreeing to engage in that act.  As 
            used in this subdivision, "prostitution" includes any lewd act 
            between persons for money or other consideration.  ÝPenal Code 
            Section 647(b).]  

          4)Defines "substantial sexual conduct" as penetration of the 
            vagina or rectum of either the victim or the offender by the 
            penis of the other or by any foreign object, oral copulation, 
            or masturbation of either the victim or the offender.  ÝPenal 
            Code Section 1203.066(b).]  

           FISCAL EFFECT  :  None

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "The average age 








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            of a child entering the sex industry is 12 years old, with 
            some of the most horrific cases involving children as young as 
            4 years old.  Annually, over 300,000 minors are captive 
            victims of traffickers and the customers engaging in these 
            illicit activities keep the industry alive.

          "The Abolition of Child Commerce, Exploitation, and Sexual 
            Slavery Act of 2011 (AB 12) raises to $25,000 the fine against 
            a person convicted of engaging in sex with a minor for money.  
            Under current law, the fines for such activities are less than 
            those for a person engaging in sex with a minor without the 
            exchange of money.

          "No amount of money could ever make up for the violence and 
            mental abuse that sexually exploited minors experience from 
            the traffickers who force them into the sex industry and the 
            men who pay for their sexual services.  However, the increased 
            fines which would be assessed against 'Johns' in accordance 
            with this bill, would be dedicated to community agencies that 
            provide education, counseling, and shelter for sexually 
            exploited minors." 

           2)Nearly a $100,000 Mandatory Fine  :  With state and local budget 
            constraints in recent years, penalty assessments have become a 
            way for California and its counties to raise needed funds.  
            Currently, penalty assessments are 270% of the base fine, with 
            a flat $103 added to each fine.  

          Calculation of penalty assessments on a base fine of $25,000:

          Base Fine:                              $25,000
           
           Penal Code 1464 Assessment:                  $25,000($10 for 
            every $10 in fines)
          Penal Code 1465.7 Assessment:                    5,000(20% 
            surcharge)
          Penal Code 1465.8 Assessment:                         40($40 fee 
            per fine)
          Government Code 70372 Assessment:              12,500($5 for 
            every $10 in fines)
          Government Code 76000 Assessment:              17,500($7 for 
            every $10 in fines)
            Government Code 76000.10 Assessment:               4($4 fee 
            per fine)
            Government Code 76000.5 Assessment:              5,000 ($2 for 








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            every $10 in fines)
            Government Code 76104.6 Assessment:              2,500($1 for 
            every $10 in fines)
            Vehicle Code 42007.1(a) Assessment:                   49($49 
            fee per fine)
            Vehicle Code 40508.6 Assessment:                      10($10 
            fee per fine)

            Total Fine with Assessment:        $92,603

           3)Overbroad  :  The author has introduced this bill as the 
            "Abolition of Child Commerce, Exploitation, and Sexual Slavery 
            Act of 2011;" however, this bill applies to far more than 
            child exploitation.  This bill requires that a judge issue a 
            mandatory fine for any offense involving sexual activity with 
            a minor under the age of 16.  The conduct can be a misdemeanor 
            or a felony, consensual or not consensual, and it applies to 
            both juvenile and adult offenders.  

          For instance, consensual sex between two minors where one minor 
            is three years older than the other is a misdemeanor for the 
            older minor.  ÝPenal Code Section 261.5(b).]  If this bill 
            becomes law and the older minor is found to have committed the 
            misdemeanor, a judge is required, with no discretion, to issue 
            a fine amounting to $92,603 in addition to any other fines 
            imposed by the underlying offense.    

           4)Removal of Judicial Discretion  :  This bill requires judges to 
            issue fines that amount to $92,603 in all cases where the 
            victim is under the age of 16 and sexual activity was 
            involved.  As stated previously, this applies very broadly to 
            a variety of cases in juvenile court and misdemeanors.  The 
            fine in this case is an extremely large mandatory additional 
            fine.  In general, additional fines in criminal cases give a 
            maximum amount with no mandatory minimum, allowing a judge, 
            who is in the best position to evaluate a particular case, to 
            issue a fine that is appropriate.  Additional fines also 
            generally include an ability to pay provision.  This fine does 
            not.  The vast majority of these crimes have offenders who are 
            utilizing the services of the public defender.  These 
            defendants are not in a position to pay nearly $100,000 in 
            additional fines.  By removing judicial discretion, this bill 
            ties the hands of a judge and require him or her to issue the 
            fine regardless of the circumstances - even in cases where the 
            sexual conduct involved was a misdemeanor and the sex was 








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            consensual.   

           5)Findings that Minors Engaged in Acts of Prostitution are Not 
            Criminals  :  This bill finds and declares that following:

          "It is the intent of the Legislature in enacting the Abolition 
            of Child Commerce, Exploitation, and Sexual Slavery Act of 
            2011 to recast the state's laws relating to human trafficking 
            and child sex slavery to treat the trafficked children as 
            victims, rather than prostitutes.  It is also the intent of 
            the Legislature that the ACCESS Act of 2011 will ensure that 
            persons funding the illicit activities of human traffickers 
            and paying for the services of child sex slaves are treated as 
            severely under the law as an adult engaging in a sex act with 
            a minor.  The predator should be dealt with the same, 
            regardless of whether that person is paying for the sexual 
            services of the minor he or she is abusing.  It is the intent 
            of the Legislature that the ACCESS Act of 2011 further these 
            purposes and also ensure that these victimized children are 
            given access to proper treatment and the resources they need 
            to be safe from the men and women who exploit them 
            commercially."

          However, this bill does not modify the code sections related to 
            prostitution to indicate that minors who engage in those acts 
            are exempted.  It is unclear if this bill legalizes 
            prostitution for minors.  

           6)Argument in Support  :  According to the  Junior Leagues of 
            California  , "Ýi]n light of increasing cases of minor 
            prostitution and human trafficking, and worsening budget 
            crisis for the state and support organizations, this bill will 
            be critical to help deter human trafficking and minor 
            prostitution crimes, and will provide the funding so very 
            necessary to support witnesses and victims."  

           7)Argument in Opposition  :  According to the  California Public 
            Defenders Association  , "Ýt]he language is mandatory and does 
            not include language stating a fine 'up to' but requires 
            $25,000 as the fine per se.  A person who procures the 
            services of a minor under the age of 16 is also subject to the 
            $25,000 fine, regardless of the age of the defendant, and 
            regardless of whether the defendant knew or reasonably knew 
            the child prostitute to be 16 - for example, what if the girl 
            represented herself to be only 18?"  








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           8)Prior Legislation  :  AB 17 (Swanson), Statutes of 2009, Chapter 
            211, increased the maximum fine for pimping, pandering, or 
            procurement from $5,000 to $20,000.  All mandatory minimum 
            fines were removed from AB 17 in this Committee.    

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Federation of State, County, and Municipal Employees
          California Against Slavery
          California Catholic Conference
          California National Organization for Women
          California Teachers Association
          Child Abuse Prevention Center
          Children's Advocacy Institute 
          Concerned Women for America
          Crime Victims United
          Junior Leagues of California
          National Association of Social Workers, California Chapter
          National Organization for Women
          11 private citizens

           Opposition 
           
          California Public Defenders Association

           
          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916) 
          319-3744