BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 1 2 AB 12 (Swanson) As Amended May 9, 2011 Hearing date: June 14, 2011 Penal Code JM:mc PROSTITUTION INVOLVING MINORS - SPECIAL FINE HISTORY Source: City of Oakland Prior Legislation: AB 17 (Swanson) - Ch. 211, Stats. 2009 Support: American Federation of State, County, and Municipal Employees, AFL-CIO; California Against Slavery; California Catholic Conference; California National Organization for Women; California Nurses Association; California Teachers Association; Child Abuse Prevention Center; Children's Advocacy Institute; Concerned Women for America; Crime Victims United; Junior Leagues of California; California Chapter - National Association of Social Workers; Polaris Project; Eta Nu Omega Chapter of Alpha Kappa Sorority Incorporated; California Communities Untied Institute; California Narcotic Officers' Association; California Police Chiefs Association Opposition:California Public Defenders Association Assembly Floor Vote: Ayes 78 - Noes 0 (More) AB 12 (Swanson) PageB KEY ISSUES SHOULD A DEFENDANT CONVICTED OF A PROSTITUTION OFFENSE THAT INVOLVED A MINOR BE REQUIRED TO PAY A SPECIAL FINE OF UP TO $25,000? SHOULD THE PROCEEDS OF SUCH FINES BE AVAILABLE TO FUND PROGRAMS AND SERVICES FOR SEXUALLY EXPLOITED MINORS, AS SPECIFIED? PURPOSE The purposes of this bill are to 1) require the court to impose a special fine of up to $25,000 in a case where a defendant is convicted of prostitution involving a minor; and 2) provide that the proceeds of such funds be available, upon legislative appropriation, to fund programs and services for sexually exploited minors in the county of conviction. Existing law defines "unlawful sexual intercourse" as an act of sexual intercourse accomplished with a person under the age of 18 years. (Pen. Code § 261.5, subd. (a).) Existing law provides the following penalties for unlawful sexual intercourse: Where the defendant is not more than three years older or three years younger than the minor, the offense is a misdemeanor. Where the defendant is more than three years older than the minor, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000. Where the defendant is at least 21 years of age and the minor is under the age of 16, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000. (Pen. Code § 261.5, subd (b)-(d).) (More) AB 12 (Swanson) PageC Existing law provides that any person who engages in lewd conduct - any sexually motivated touching or a defined sex act - with a child under the age of 14 is guilty of a felony, punishable by a prison term of 3, 6 or 8 years. Where the offense involves force or coercion, the prison term is 5, 8 or 10 years. (Pen. Code § 288, subd. (b).) Existing law provides that where any person who engages in lewd conduct with a child who is 14 or 15 years old, and the person is at least 10 years older than the child, the person is guilty of an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000. (Pen. Code § 288, subd. (c)(1).) Existing law provides that any person who solicits, or who agrees to engage in, an act of prostitution, or any person who engages in an act of prostitution, is guilty of a misdemeanor, punishable by imprisonment in a county jail for up to six months, a fine of up to $1,000, or both. (Pen. Code § 647, subd. (b).) Existing law provides that an act of prostitution includes any lewd act between persons for money or other consideration. (Pen. Code § 647, subd. (b).) Existing law provides that an agreement to engage in an act of prostitution occurs only where the person making the agreement actually intends to engage in the act. The agreement does not constitute a crime unless the person made some act in furtherance of the agreement. (Pen. Code § 647, subd. (b).) This bill states that any person convicted of soliciting or engaging in an act of prostitution, where the person involved in the solicitation or the act was under 18 years of age, shall be ordered by the court, in addition to pay an additional fine not to exceed $25,000. (More) AB 12 (Swanson) PageD This bill specifies that, upon appropriation by the Legislature, the fine shall be available to fund programs and services for commercially sexually exploited minors in the counties where the offenses are committed. This bill includes numerous legislative declarations and findings concerning the prevalence of human trafficking of minors for sexual commerce, the harm caused this activity and the need for victims of these crimes to receive appropriate services. This bill states legislative intent to recast the state's laws relating to human trafficking and child sex slavery to treat the trafficked children as victims, rather than prostitutes. This bill states legislative intent that any person funding human trafficking and paying for the services of child sex slaves should be treated as severely as an adult engaging in a sex act with a minor, regardless of whether the person pays for the sexual services of the minor he or she is abusing. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. As these cases have progressed, prison conditions have continued to be assailed, and the scrutiny of the federal courts over California's prisons has intensified. On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California (More) AB 12 (Swanson) PageE to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances.In response to the unresolved prison capacity crisis, in early 2007 the Senate Committee on Public Safety began holding legislative proposals which could further exacerbate prison overcrowding through new or expanded felony prosecutions. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: The average age 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 (More) AB 12 (Swanson) PageF 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. Sex Trafficking of Minors - Estimated Prevalence There appears to be general agreement that sex trafficking of children is increasing and profitable. However, the 2007 Final Report of the California Alliance to Combat Trafficking and Slavery Task Force<1> noted that California lacks comprehensive statistics on human trafficking. Thus, many statistics on human trafficking in general, and sex trafficking of children in particular, are estimates. The task force report did cite statistics from various sources, including a study finding that 80% of documented cases in California occurred in urban areas and the (More) --------------------------- <1> The task force was administered by the California Attorney General's Office. majority of victims were non-citizens. Approximately 50% of human trafficking cases involved prostitution. A U.S. State Department report of global trafficking estimated that minors constituted 50% of trafficking victims. (2007 Alliance to Combat Trafficking. Final Report, pp. 33-39.<2>) The Federal Bureau of Investigation (FBI) conducts 24 Innocence Lost child sexual exploitation task forces and working groups across the country. Through 2007, 365 cases were opened and 281 child victims were located. The Shared Hope International non-profit organization has reported that approximately 100,000 domestic minors are sexually trafficked each year.<3> Numerous examples of trafficking cases were summarized in the California Alliance Report. In 2001, a Berkeley man was prosecuted for smuggling 15 girls from India for labor and sexual exploitation. In 2000, a man was prosecuted for bringing women and girls from Mexico and forcing them to work as prostitutes in Long Beach. Traffickers in Los Angeles and San Francisco were prosecuted for forcibly taking 100 women from Korea to be sex workers in massage businesses. (2007 Alliance to Combat Trafficking, Final Report, p. 18.) 3. Mandatory Special Fine Would Apply Regardless of Whether or not the Defendant Knew, or Should Have Known, that the Prostitute Involved in the Incident was a Minor This bill states that the court, in addition to any other penalty, shall impose a special fine of up to $25,000 where the defendant is convicted of a prostitution offense that involves a minor. The court has discretion only as to the amount of the fine. --------------------------- <2> http://ag.ca.gov/publications/Human_Trafficking_Final_Report.pdf . The report includes citations to the each of the studies quoted in the report. <3> http://www.sharedhope.org/Portals/0/Documents/SHI_National_Report _on_DMST_2009.pdf (More) AB 12 (Swanson) PageH The bill does not appear to require that the defendant knew, or should have known, that the prostitute involved in the incident was a minor. A 16 or 17-year-old minor acting as a prostitute could appear to be an adult. In such circumstances, it cannot be said that the defendant intended to exploit minors or knew that he was exploiting a minor for sexual services. Perhaps the bill could be amended to provide that the additional fine can be imposed in a case where the defendant knew or should have known that the prostitute was a minor. As shown in Comment 4, below, the maximum fine would be very costly. Where a defendant is ordered to pay a fine of $25,000, mandatory penalty assessments raise the actual amount to over $90,000. If the fine remains a strict liability penalty - that is, imposed regardless of the defendant's intent or knowledge - the Legislature can guide the court's discretion in determining the amount of fine to be imposed. Judicial discretion should be exercised in light of the purpose of the governing statute and to serve the ends of substantial justice. (Bailey v. Taffe (1896) 29 Cal.422, 424.) The bill could be amended to provide that the court, in choosing the amount of the fine, shall consider the following factors: The intention of the defendant. Whether or not the defendant has any prior convictions for prostitution involving minors. Whether or not the defendant has prior convictions for other offenses involving the sexual exploitation of minors. The age and appearance of the minor involved in the offense. Any other relevant factors. BECAUSE A PROSTITUTE WHO IS A MINOR MAY APPEAR TO BE OLDER THAN 18, SHOULD THE SPECIAL FINE ONLY APPLY WHERE THE DEFENDANT KNEW, OR SHOULD HAVE KNOWN, THAT THE OTHER PERSON INVOLVED IN THE OFFENSE WAS A MINOR? IF THE FINE MUST BE IMPOSED REGARDLESS OF THE KNOWLEDGE OR AB 12 (Swanson) PageI INTENT OF THE DEFENDANT, SHOULD THE BILL PROVIDE THAT THE COURT SHALL CONSIDER THE AGE AND APPEARANCE OF THE MINOR INVOLVED IN THE CASE, WHETHER THE DEFENDANT HAS ANY PRIOR CONVICTIONS INVOLVING SEXUAL EXPLOITATION OF MINORS, AND OTHER RELEVANT FACTORS? 4. Penalty Assessments Raise the Actual Amount of a $25,000 Fine to Approximately $92,000 Numerous penalty assessments fund various programs. Currently, penalty assessments are at least 270% of the base fine, depending on the county of conviction, with a flat $103 added to each fine. The following is an approximate calculation of penalty assessments on a base fine of $25,000: Base Fine: $25,000 Penal Code 1464 Assessment: $25,000($10 per $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 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 *************** AB 12 (Swanson) PageJ