BILL ANALYSIS Ó
AB 996
Page 1
Date of Hearing: May 3, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 996 (Donnelly) - As Amended: April 26, 2011
SUMMARY : Makes specified changes to the law relating to persons
required to register as sex offenders. Specifically, this bill
adds human trafficking committed with the purpose of sexual
slavery to the list of offenses requiring registration as a sex
offender.
EXISTING STATE LAW:
1)Enumerates certain crimes for which a person shall be required
to register as a sex offender. İPenal Code Section 290(c).]
2)Allows the court to order sex offender registration for
offenses not specified in Penal Code Section 290(c), if it
finds that the person committed the offense as a result of
sexual compulsion or for purposes of sexual gratification.
(Penal Code Section 290.006.)
3)Provides that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
felony violation of "procuring assignation, and seduction,"
pimping, pandering, abduction for prostitution, using a child
model in film involving sexual conduct, or extortion, or to
obtain forced labor or services, is guilty of human
trafficking. İPenal Code Section 236.1(a).]
4)Defines "forced labor or services" for purposes of the human
trafficking law as "labor or services that are performed or
provided by a person and are obtained or maintained through
force, fraud, or coercion, or equivalent conduct that would
reasonably overbear the will of the person." İPenal Code
Section 236.1(e).]
5)Requires the defendant to pay a fine of not more than
$100,000, in addition to incarceration, when the perpetrator
commits human trafficking involving a commercial sex act
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involving a victim under 18 years of age at the time the
offense was committed. İPenal Code Section 236.1(g)(1).]
6)Defines "commercial sex act" for purposes of the human
trafficking law as "sexual conduct on account of which
anything of value is given or received by any person." İPenal
Code Section 236.1(g)(2).]
7)Provides that every person who holds, or attempts to hold, any
person in involuntary servitude, or assumes, or attempts to
assume, rights of ownership over any person, or who sells, or
attempts to sell, any person to another, or receives money or
anything of value, in consideration of placing any person in
the custody, or under the power or control of another, or who
buys, or attempts to buy, any person, or pays money, or
anything of value, to another, in consideration of having any
person placed in his custody, or under his power or control,
or who knowingly aids or assists in the commission of such
offenses, is guilty of a felony, punishable by imprisonment in
the state prison for two, three or four years. İPenal Code
Section 181.]
EXISTING FEDERAL LAW defines "severe human trafficking," in
relevant part, as "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."
İ22 U.S.C. Section 7102(8)(A).] For the purposes of the federal
statute, a "commercial sex act" is defined as "any sex act on
account of which anything of value is given or received by any
person." İ22 U.S.C. Section 7102(3).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Human
trafficking with the purposes of sexual slavery is a serious
sexual offense and should be treated as such. Only in more
recent years has human trafficking been defined in California
Law. AB 996 would simply update the sexual offender
registration list to reflect those changes in law. By
requiring the convicted traffickers to register as a sexual
offender we are closing a loophole for people who commit
sexual offenses, but do not currently have to register as a
sexual offender."
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2)Issues Regarding Proof : This bill requires a person convicted
of human trafficking to register as a sex offender "where the
trier of fact has made a finding that the victim was used for
purposes of sexual slavery."
"To prove that the defendant is guilty of this crime, the
People must prove that: 1. The defendant either deprived
another person of personal liberty or violated that other
person's personal liberty; İAND] 2. When the defendant did so,
(he/she) intended to (obtain forced labor or services/(commit/
İor] maintain) a İfelony] violation of ( _______ )." (CALCRIM No. 1243.)
So, to convict a defendant of human trafficking, the jury is
not currently required to make a finding that "the victim was
used for purposes of sexual slavery." While the jury might be
required to find that the defendant intended to commit a
specified sex offense, this is arguably different than "use
for purposes of sexual slavery" particularly because this term
is not defined by statute.
3)Sex Offender Registration : The primary purpose of
sex-offender registration "is to assure that persons convicted
of the crimes enumerated therein shall be readily available
for police surveillance at all times because the legislature
deemed them likely to commit similar offenses in the future."
İPeople v. Hofsheier (2006) 37 Cal.4th 1185, 1196.] More
recently, sex-offender registration has taken on a secondary
purpose, namely "to notify members of the public of the
existence and location of sex offenders so they can take
protective measures." (Ibid.)
4)Incomplete List of Crimes ? In most cases, human trafficking
can be prosecuted under other Penal Code sections. Other
criminal provisions prohibits slavery (Penal Code Section
181), kidnapping with the intent to sell a person into slavery
or involuntary servitude İPenal Code Section 207(c)],
kidnapping to commit sexual assault İPenal Code Section
209(b)], kidnapping a child under age 14 İPenal Code Section
208(b), false imprisonment, İPenal Code Section 236], as well
as other statutes which address several different facets of
the conduct involved in human trafficking. Query why this
specific provision was singled out as an offense requiring sex
offender registration when any of these other offenses would
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arguably qualify if also committed for the purpose of sexual
slavery?
5)Equal Protection Concerns : Under this bill, sex offender
registration for human trafficking with purpose of sexual
slavery is mandatory.
In People v. Hofsheier, supra, 37 Cal.4th 1185, the California
Supreme Court held that mandatory sex offender registration
for a violation of oral copulation with a minor was a
violation of equal protection because an individual convicted
of unlawful sexual intercourse with a minor is subject to
registration only in the court's discretion. There is no
reason why the Legislature would conclude that persons who are
convicted of oral copulation with adolescent 16 and 17 year
olds, as opposed to those who are convicted of voluntary
sexual intercourse with those in the same age group,
constitute a class of particularly incorrigible offenders who
require lifetime surveillance as sex offenders. The statutory
distinction violates the equal protection clauses of the
federal and state constitutions.
Given the fact that the conduct behind human trafficking can be
prosecuted under different Penal Code sections, it is possible
that the registration mandatory requirement for human
trafficking would pose similar equal protection problems.
6)California's Sex Offender Management Board's Background : On
September 20, 2006, Governor Arnold Schwarzenegger signed AB
1015, which created the California Sex Offender Management
Board. AB 1015 had been introduced by Assembly Members Judy
Chu and Todd Spitzer and passed the California Legislature
with nearly unanimous bipartisan support.
Because California is the most populated state in the Union
and has had lifetime registration for its convicted sex
offenders since 1947, California has more registered sex
offenders than any other state with about 88,000 identified
sex offenders (per the Department of Justice, August 2007).
Currently, the California Department of Corrections and
Rehabilitation (CDCR) supervises about 10,000 of those 88,000
sex offenders, of which about 3,200 have been designated as
"high-risk sex offenders". (CDCR Housing Summit, March 2007).
Additionally, there are about 22,500 adult sex offenders
serving time in one of 32 state prisons operated by CDCR
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(California Sex Offender Management Task Force Report, July
2007).
While it is commonly believed that most sexual assaults are
committed by strangers, the research suggests that the
overwhelming majority of sex offenders victimize people known
to them; approximately 90% of child victims know their
offenders, as do 80% of adult victims İper Kilpatrick, D.G.,
Edmunds, C.N., & Seymour, A.K. Rape in America: A Report to
the Nation (1992). Arlington, VA: National Victim Center.]
7)Argument in Support : According to the Bilateral Safety
Corridor Coalition , "AB 996 would include human traffickers,
whose purpose is sexual slavery, to the list of criminals
required to register as sex offenders. The fact that this is
not already required is astonishing and reflects a loophole in
current law."
8)Argument in Opposition : According to the California Public
Defenders Association , "California has over 90,000
registrants. The California Sex Offender Managements Board's
(CASOMB) January 2010 Recommendations Report, Appendix I
states in part that duration of the registration requirements
'should depend on individual risk assessment, history of
violent convictions, and sex offense recidivism.' To that
end, the CASOMB recommends a tiered system which would
appropriately target our limited resources for handling the
registration and supervision of past offenders who are more
likely to pose a risk of reoffense.
"To expand the list of individuals required to register is
contrary to the empirical data which led to the CASOMB's
recommendation, and would, in redirecting scarce resources, be
detrimental to public safety."
9)Related Legislation :
a) AB 12(Swanson) requires a person convicted of a crime
involving substantial sexual conduct with a minor under the
age of 16 to pay an additional $25,000 fine. AB 12 will be
heard by this Committee today.
b) AB 90 (Swanson) provides that any person that causes
induces or persuades a person under 18 years of age to
engage in a commercial sex act with specified felonious
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intent is guilty of human trafficking. AB 90 is pending
hearing by the Assembly Appropriations Committee.
10)Prior Legislation : AB 1900 (Lieu), Chapter 340, Statutes of
2006, established new criminal penalties for trafficking in
persons and forced labor.
REGISTERED SUPPORT / OPPOSITION :
Support
Bilateral Safety Corridor Coalition
Opposition
California Public Defenders Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744