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