BILL ANALYSIS Ó
AB 336
Page 1
Date of Hearing: April 23, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 336 (Ammiano) - As Introduced: February 13, 2013
As Proposed to be Amended in Committee
SUMMARY : Specifies that possession of one of more condoms shall
not be used as evidence that a defendant was engaged in
prostitution or loitering with intent to commit prostitution.
EXISTING LAW :
1)Provides that every person who commits any of the following
acts is guilty of disorderly conduct, a misdemeanor: (Penal
Code Section 647.)
a) Who solicits anyone to engage in or who engages in lewd
or dissolute conduct in any public place or in any place
open to the public or exposed to public view. [Penal Code
Section 647(a).]
b) Who solicits or who agrees to engage in or who engages
in any act of prostitution. A person agrees to engage in an
act of prostitution when, with specific intent to so
engage, he or she manifests an acceptance of an offer or
solicitation to so engage, regardless of whether the offer
or solicitation was made by a person who also possessed the
specific intent to engage in prostitution. No agreement to
engage in an act of prostitution shall constitute a
violation of this subdivision unless some act, in addition
to the agreement, is done within this state in furtherance
of the commission of an act of prostitution by the person
agreeing to engage in that act. As used in this
subdivision, 'prostitution' includes any lewd act between
persons for money or other consideration. [Penal Code
Section 647(b).]
c) Who loiters in or about any toilet open to the public
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for the purpose of engaging in or soliciting any lewd or
lascivious or any unlawful act. [Penal Code Section
647(d).]
2)States that in any accusatory pleading charging a violation of
'prostitution' as specified in Penal Code Section 647(b), if
the defendant has been once previously convicted of a
violation of that subdivision, the previous conviction shall
be charged in the accusatory pleading. If the previous
conviction is found to be true by the jury, upon a jury trial,
or by the court, upon a court trial, or is admitted by the
defendant, the defendant shall be imprisoned in a county jail
for a period of not less than 45 days and shall not be
eligible for release upon completion of sentence, on
probation, on parole, on work furlough or work release, or on
any other basis until he or she has served a period of not
less than 45 days in a county jail. In all cases in which
probation is granted, the court shall require as a condition
thereof that the person be confined in a county jail for at
least 45 days. In no event does the court have the power to
absolve a person who violates this subdivision from the
obligation of spending at least 45 days in confinement in a
county jail. [Penal Code Section 647(k).]
3)Provides that in any accusatory pleading charging a violation
of "prostitution" as specified in Penal Code Section 647(b),
if the defendant has been previously convicted two or more
times of a violation of that subdivision, each of these
previous convictions shall be charged in the accusatory
pleading. If two or more of these previous convictions are
found to be true by the jury, upon a jury trial, or by the
court, upon a court trial, or are admitted by the defendant,
the defendant shall be imprisoned in a county jail for a
period of not less than 90 days and shall not be eligible for
release upon completion of sentence, on probation, on parole,
on work furlough or work release, or on any other basis until
he or she has served a period of not less than 90 days in a
county jail. In all cases in which probation is granted, the
court shall require as a condition thereof that the person be
confined in a county jail for at least 90 days. In no event
does the court have the power to absolve a person who violates
this subdivision from the obligation of spending at least 90
days in confinement in a county jail. [Penal Code Section
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647(k).]
4)Provides for the suspension of driving privileges if a
violation of prostitution as specified is committed within
1,000 feet of a private residence and with the use of a
vehicle. [Penal Code Section 647(k).]
5)Specifies that it is unlawful for any person to loiter in any
public place with the intent to commit prostitution. This
intent is evidenced by acting in a manner and under
circumstances which openly demonstrate the purpose of
inducing, enticing, or soliciting prostitution, or procuring
another to commit prostitution. [Penal Code Section
653.22(a).]
a) Specifies that among the circumstances that may be
considered in determining whether a person loiters with the
intent to commit prostitution is that the person: [Penal
Code Section 653.22(b).]
i) Repeatedly beckons to, stops, engages in
conversations with, or attempts to stop or engage in
conversations with passersby, indicative of soliciting
for prostitution.
ii) Repeatedly stops or attempts to stop motor vehicles
by hailing the drivers, waving arms, or making any other
bodily gestures, or engages or attempts to engage the
drivers or passengers of the motor vehicles in
conversation, indicative of soliciting for prostitution.
iii) Has been convicted of violating this section,
prostitution, or any other offense relating to or
involving prostitution, within five years of the arrest
under this section.
iv) Circles and area in a motor vehicle and repeatedly
beckons to, contacts, or attempts to contact or stop
pedestrians or other motorists, indicative of soliciting
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for prostitution.
v) Has engaged, within six months prior to the arrest
under this section, in any behavior described in this
subdivision, or in any other behavior indicative of
prostitution activity.
b) Specifies that the above list of circumstances set forth
is not exclusive. The circumstances set forth should be
considered particularly salient if they occur in an area
that is known for prostitution activity. Any other relevant
circumstances may be considered in determining whether a
person has the requisite intent. Moreover, no one
circumstance or combination of circumstances is in itself
determinative of intent. Intent must be determined based on
an evaluation of the particular circumstances of each case.
[Penal Code Section 653.22(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "According to
the US Center for Disease Control and Prevention, HIV
continues to pose a major public health threat in the United
States, particularly within communities of color where 46% of
people living with HIV are African American and 64% of new
infections are among blacks or Latinos. Addressing the
epidemic requires understanding the risk environment among
vulnerable populations. Sex workers share many factors that
increase their risk of acquiring and spreading HIV. Public
policy should reflect the public health goal of ending HIV
transmission.
"AB 336 states that possession of one or more condoms shall not
be used as evidence of soliciting or engaging in
prostitution."
2)Background on Condom Possession in Prostitution Prosecutions :
According to the background submitted by the author, Human
Rights Watch (HRW), released a report in July 2012 titled "Sex
Workers at Risk: Condoms as Evidence of Prostitution in Four
US Cities" reviewed research literature on sex workers in Los
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Angeles and San Francisco and conducted its own interviews
with persons either in sex trades or in organizations that
provide health and social services to that population. In
addition to specific cases in which possession of condoms was
used as evidence of prostitution, HRW found that the threats
of harassment of sex workers about possessing condoms had
resulted in a prevalent belief that one is risking arrest and
prosecution as a prostitute by having any condoms in one's
possession when approached by law enforcement. As a result,
many sex workers will no longer carry any condoms or a
sufficient number of condoms, thereby creating multiple
opportunities for transmission of HIV to and from the sex
worker.
In San Francisco, a 1995 decision by the District Attorney and
police generally ended the practice of using condoms as
evidence of prostitution. However, in the ensuing nearly two
decades, that practice reasserted itself in direct
contradiction to city and county policy. As a result, the
police were forced again to declare that they would no longer
use condoms as evidence of prostitution. However, what San
Francisco's history demonstrates is that in the absence of a
statutory prohibition, the practice will emerge again once
attention is directed elsewhere. In Los Angeles, sex workers
report that it is common knowledge that carrying more than 2
or 3 condoms could get you arrested for prostitution. As a
result, many do not use condoms.
3)Concerns About Lack of Condom Use by Prostitutes Due to Fear
of Prosecution : According to an article entitled SF Public
Defender Worried Prostitutes Skip Condom Use Over Prosecution
Fears published on August 21, 2012 in the San Francisco
Chronicle, "San Francisco's Public Defender Jeff Adachi is
raising concerns about condoms being used as evidence in
prostitution cases.
"Specifically, Adachi said he's worried that sex workers are
being discouraged from engaging in safe sex if the city strays
from a policy that bars condoms as evidence.
"Back in 1994 during the AIDS crisis, the Board of Supervisors
adopted a policy to encourage sex workers to use condoms. It
said condoms could not be used as evidence in prostitution
cases. But fast forward to 2012, where the public defender has
said he's had at least three cases in the past three weeks
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where photographs of condoms were used as evidence to
prosecute prostitutes.
" 'If a sex worker knows that they are more likely to be
prosecuted for prostitution if they have a condom on their
person, they're not going to use and carry them,' Adachi said.
"The problem was first raised last month in a report by Human
Rights Watch. The District Attorney's office said few
prostitution arrests end up in court and no one is prosecuted
for having a condom.
" 'The fact that there aren't as many prostitution cases as
there were say 10 or 15 years ago doesn't mean that they're
not happening,' Adachi said."
4)Agreement by the San Francisco District Attorney to Abide by
the Policy Set Forth in this Bill : According to the Bay Area
Reporter, on April 17, 2013 "San Francisco District Attorney
George Gascón has agreed to make a ban on using condoms as
evidence of prostitution permanent. In a March 30 letter to
Theresa Sparks, the executive director of the city's Human
Rights Commission, Gascón said prosecutors 'will no longer
introduce physical evidence of condoms in our criminal
prostitution cases.' The DA's office provided the letter to
the Bay Area Reporter today (Friday, April 12). Gascón said
Public Defender Jeff Adachi's office has agreed to 'eliminate
any discussion concerning the presence or absence of condoms
as evidence in convicting or acquitting an individual of a
prostitution-related crime.' Adachi said in a statement
Friday, 'It's good policy that police and prosecutors will no
longer treat carrying condoms as evidence of prostitution.
Nobody should have to choose between protecting their health
and avoiding arrest.' A temporary ban on collecting or
photographing condoms in suspected prostitution cases or
discussing them in court had been in effect since October.
Citing public health and other concerns, Adachi and San
Francisco Police Chief Greg Suhr said months ago that they
wanted to make the prohibition permanent. But in January,
Gascón decided to extend the trial period saying he wanted to
take another three months to examine the issue. In an
interview at the time, he said his office had almost no data
to evaluate. Alex Bastian, a spokesman for the DA, has said
use of condoms as evidence is rare. Sex worker advocates,
public health officials, and others have expressed concerns
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that using condoms as evidence of prostitution discourages
people from carrying them, thereby putting them at greater
risk for HIV and other sexually transmitted diseases. In his
letter to Sparks, Gascón said his office needed to balance
health and safety issues. 'Concerns raised during our two
meetings have persuaded me that police seizure and trial
prosecutions that use condoms as evidence make it less likely
that a sex worker will carry and use condoms to protect
themselves,' he said. 'The competing challenges we face in law
enforcement is the impact street level prostitution activity
has on the neighborhoods where it takes place, and the dangers
that befall many sex workers.' But after six months of
evaluating arrests by police and the outcomes of cases that
have been prosecuted, 'I feel confident that the public safety
concerns can be addressed without jeopardizing the health of
sex workers,' Gascón said. 'We are pleased that we can meet
both of these important goals and excited to improve our
policy to achieve greater public health and public safety.' A
spokesman for the San Francisco Police Department wasn't
available for comment Friday afternoon. In an interview
Friday, Sparks said the agreement between the district
attorney and public defender marks 'a huge advancement.' 'We
now can clearly say that we're putting victims' rights before
enforcement, and that's what we're always trying to do,'
Sparks said. Officials want to 'remind people that a lot of
people in the sex industry are truly victims, and we should
give them at least the option of protection when they're
participating in these activities,' she said. She said the
next step is 'to get the message out to the community so that
they understand that this is real, and that they understand
their rights. A meeting with advocates and city agencies will
be held in the next couple weeks to determine how to spread
awareness of the policy. Sparks noted that along with her
staff, representatives from the city's health department and
the nonprofit St. James Infirmary have also been part of the
effort to address the condoms issue. Public Health Director
Barbara Garcia and St. James Executive Director Naomi Akers
weren't immediately available for comment. San Francisco is
one of the first cities in the U.S. to prohibit using condoms
as evidence in prostitution cases, and Sparks said it's the
largest metropolitan community in the country with such a ban.
She said officials hope the process 'can serve as a model' for
other communities. One California lawmaker is already working
to make the ban on using condoms as evidence of prostitution
the policy for the entire state. In February, gay Assemblyman
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Tom Ammiano (D-San Francisco) introduced a bill that would
prohibit police from using the possession of one or more
condoms as a factor in prostitution arrests and prosecution.
'The police have plenty of other criteria they can use in
determining who should be arrested as a prostitute, but
condoms are the only effective deterrent to the spread of
HIV,' Ammiano has stated. 'We have to encourage safe-sex
practices, not frighten people into spreading disease.'
Ammiano's proposal, Assembly Bill 336, is set for an April 23
hearing at the Public Safety Committee, which he chairs."
5)Argument in Support : According to the AIDS Healthcare
Foundation , "It is important to note that the bill would have
no effect on the ability of law enforcement to arrest a person
for alleged prostitution based on a wide variety of other
indicators of criminal activity.
"Since the earliest days of the HIV/AIDS epidemic, public health
officials at every level of government have stressed the
critical and essential importance of condoms as an effective
barrier to transmitting HIV. The US Centers for Disease
Control and Prevention declares, 'The body of research on the
effectiveness of latex condoms in preventing sexual
transmission of HIV is both comprehensive and conclusive. The
ability of latex condoms to prevent transmission of HIV has
been scientifically established in 'real-life' studies of
sexually active couples as well as in laboratory studies.'
"The core of every HIV prevention education campaign is to use a
condom as the most effective means by which to prevent
transmission of HIV. This message has been strenuously
directed at persons in the sex trades, in large part because
there exists the potential for transmission of HIV among sex
workers and their customers and into the general public.
"However, in direct contradiction to this urgent public health
message, law enforcement in several major US cities use the
possession of condoms by a person suspected of prostitution as
evidence that the person is engaged in prostitution.
6)Argument in Opposition : According to the California District
Attorneys Association , "This bill would provide that
possession of one or more condoms shall not be used as
evidence of a violation of the prohibition against
prostitution or solicitation of prostitution.
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"Proponents argue that prostitutes are of the mind that a
person can be arrested and prosecuted merely because he or she
possesses condoms. Notwithstanding the absurdity of this
misunderstanding of the law and criminal procedure, the
sponsor asserts that the result is that prostitutes are not
carrying and/or using condoms when they engage in their
criminal activity (prostitution).
"We understand the public health concern generated by
prostitutes engaging in unprotected sex. That said, we must
oppose this measure because it is more appropriate for courts
and court officers to determine the admissibility of evidence.
It is unreasonable to believe that a person is being
arrested, charged, and convicted merely because he or she
possesses condoms and yet this bill precludes the use of
important evidence based solely on this mistaken belief.
"Perhaps more importantly, this bill violates Article I,
Section 28, of the California Constitution, which states, in
relevant part: 'except as provided by statute hereafter
enacted by a two-thirds vote of the membership in each house
of the Legislature, relevant evidence shall not be excluded in
any criminal proceeding, including pretrial and postconviction
motions and hearings, or in any trial or hearing of a juvenile
for a criminal offense, whether heard in juvenile or adult
court.' "
REGISTERED SUPPORT / OPPOSITION :
Support
AIDS Healthcare Foundation
Bay Area Sex Worker Advocacy Network
California Attorneys for Criminal Justice
California Public Defenders Association
California State Sheriffs' Association
L.A. Gay and Lesbian Center
San Francisco AIDS Foundation
St. James Infirmary
Opposition
California District Attorneys Association
AB 336
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Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744