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 AB 996 Page 2 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." AB 996 Page 3 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 AB 996 Page 4 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 AB 996 Page 5 (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 AB 996 Page 6 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