BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 90
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          Date of Hearing:   May 4, 2011

                                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


          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 


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          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 

           3)Federal law defining human trafficking  states in part, "The 


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            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 

           5)Similar legislation, AB 2319 (Swanson), 2010, was held on this 
            committee's Suspense File  . 

           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081