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 AB 12 Page 2 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 AB 12 Page 3 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 AB 12 Page 4 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 AB 12 Page 5 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 AB 12 Page 6 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?" AB 12 Page 7 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