BILL ANALYSIS Ó AB 90 Page 1 Date of Hearing: May 4, 2011 ASSEMBLY COMMITTEE ON APPROPRIATIONS Felipe Fuentes, Chair AB 90 (Swanson) - As Amended: April 4, 2011 Policy Committee: Public SafetyVote: 7-0 Urgency: No State Mandated Local Program: Yes Reimbursable: No SUMMARY This bill expands the definition of "human trafficking" to include causing or persuading a minor under the age of 18 to engage in a commercial sex act, as specified, with the intent to commit pimping, pandering, sexual exploitation of a child, enticement, use of a minor in pornography, extortion, or solicitation of prostitution. (Human trafficking involving a minor under the age of 18 is punishable by four, six, or eight years in state prison.) FISCAL EFFECT Minor to moderate annual GF costs for increased state prison terms, potentially in excess of $150,000 per year, to the extent the expanded definition of human trafficking results in additional commitments. In 2009 and 2010 combined, 13 persons were committed to state prison under this section. If this bill results in two additional persons per year receiving the six-year midterm sentence, in four years the increased cost for incarceration will exceed $250,000, assuming full sentence credit and $50,000 per capita. Though proponents of this bill contend it is merely a consistent clarification of the intent of current law, if the clarification is helpful in gaining convictions and state prison commitments, there will be attendant costs. If there are no attendant costs, there is arguably no need for the clarification. COMMENTS AB 90 Page 2 1)Rationale. The author and sponsor, the Alameda County D.A.'s Office, contend this bill simply clarifies an ambiguity in state law, and a discrepancy between state and federal law, regarding the need to prove force or coercion in the trafficking of minors. According to the Alameda County D.A., due to unclear draftsmanship in current human trafficking law, the issue of whether proof of force or coercion is required, when a minor is sold for sex, is unclear. The ambiguity of state law places local prosecutors at a significant disadvantage in the fight to protect vulnerable minors and hold accountable those who profit from exploiting them. Current Penal Code Section 236.1(f) states the '"Legislature finds that the definition of human trafficking in this section is equivalent to the federal definition." Despite the fact that the federal definition clearly states that prosecutors do not have to prove force or coercion in domestic minor sex trafficking cases, Section 236.1 does not explicitly state what it implies. As a result, according to proponents, the statute may be misinterpreted, resulting in the misconception that force or coercion must be proven when trafficking victims are minors. AB 2319 is intended to remedy what the Alameda D.A. views as a drafting defect. 2)Current law specifies that depriving or violating the liberty of another with the intent to commit a felony violation of enticement of a minor into prostitution, pimping or pandering, abduction of a minor for the purposes of prostitution, extortion, or to obtain forced labor or services, is human trafficking. Depriving or violating the liberty of another includes substantial and sustained restriction of another's liberty via fraud, deceit, coercion, violence, duress, menace, or threat. Human trafficking of a person over the age of 18 is punishable by imprisonment by three, four, or five years. If the victim is under 18 the offense is punishable by four, six, or eight years. 3)Federal law defining human trafficking states in part, "The AB 90 Page 3 term 'severe forms of trafficking in persons' means: sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." Federal law does not require force, fraud or coercion if the victim is under 18 years of age. 4)In addition, as minors cannot consent to sexual acts, the proposed clarification appears consistent with the current state law . As noted in the Assembly Public Safety analysis, consent is not required for several other offenses involving sexual contact with children. There is arguably no reason to require force in sexual commercial trafficking cases involving minors as they are not capable of consent at any rate. Moreover, given that Penal Code Section 236.1(f) clearly cross-references the federal provision eliminating the need to show force, this bill appears consistent with the state Penal Code. 5)Similar legislation, AB 2319 (Swanson), 2010, was held on this committee's Suspense File . Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081