BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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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
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AB 12 (Swanson)
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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).)
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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.
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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
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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
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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
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<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.
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<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
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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
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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
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