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