BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 336 (Ammiano)
As Amended May 29, 2014
Hearing date: June 24, 2014
Evidence Code
JM:sl
PROSTITUTION OFFENSES:
CONDOM POSSESSION AS EVIDENCE
HISTORY
Source: AIDS Healthcare Foundation
Prior Legislation: None Directly on Point
Support: California Attorneys for Criminal Justice; California
Public Defenders Association
Opposition:California District Attorneys Association; California
State Sheriffs' Association
Assembly Floor Vote: Ayes 44 - Noes 32
KEY ISSUE
SHOULD EVIDENCE OF CONDOM POSSESSION BE ADMITTED AGAINST THE
DEFENDANT IN A PROSTITUTION CASE ONLY IF THE COURT SPECIFICALLY
RULES IN A PROCEEDING OUTSIDE THE PRESENCE OF THE JURY THAT THE
EVIDENCE IS RELEVANT?
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PURPOSE
The purpose of this bill is to require that if the prosecution
intends to use evidence of condom possession by the defendant as
evidence in a prostitution case, the evidence can only be
admitted through the following process: the prosecutor must file
a written motion and offer of proof, with a sealed affidavit,
arguing the relevance of the evidence; the court must review the
offer of proof to determine if there are grounds for a hearing
on the admissibility of the condom evidence; if the court finds
there is some basis for the evidence, it shall hold a hearing to
determine if the evidence is relevant and not overly
prejudicial.
Prostitution Offenses Generally
Existing law provides that any person who solicits, agrees to
engage in, or engages in an act of prostitution<1> is guilty of
misdemeanor. The crime does not occur unless the person
specifically intends to engage in an act of prostitution and
some act is done in furtherance of agreed upon act.
Prostitution includes any lewd act between persons for money or
other consideration. (Pen. Code § 647, subd. (b).)
Existing law provides that if the defendant agreed to engage in
an act of prostitution, the person soliciting the act of
prostitution need not specifically intend to engage in an act or
prostitution.<2> (Pen. Code § 647, subd. (b).)
Existing law provides that where any person is convicted of a
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<1> Soliciting or engaging in an act of prostitution is a form
of disorderly conduct. (Pen. Code § 647.)
<2> This provision concerns the use of police decoys to solicit
a defendant for an act of prostitution.
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second prostitution offense, the person shall serve a sentence
of at least 45 days, no part of which can be suspended or
reduced by the court regardless of whether or not the court
grants probation. (Pen. Code § 647, subd. (k).)
Existing law provides that where any person is convicted for a
third prostitution offense, the person shall serve a sentence
of at least 90 days, no part of which can be suspended or
reduced by the court regardless of whether or not the court
grants probation. (Pen. Code § 647, subd. (k).)
Relevant Evidence Laws
Existing provisions of the California Constitution provide that
all relevant evidence is admissible, with the exception that
evidence that arises from certain categories of privilege or
confidentiality, such attorney-client, doctor-patient, marital,
priest-penitent and psychotherapist-patient, evidence of the
defendant's propensity to commit crimes, is excluded. (Cal.
Const., Art. I, § 28, subd. (d); Evid. Code §§ 210, 352, 782,
1103.)
Existing law provides that evidence that is more prejudicial
than probative - tends to create an emotional bias against the
defendant in the mind of the jurors that outweighs the value of
the evidence in resolving the issues in the case - is
inadmissible. (Evid. Code § 352; (Vorse v. Sarasy (1997) 53
Cal.App.4th 998, 1008.)
This bill provides that if the prosecution intends to use
evidence of condom possession by the defendant as evidence in a
prostitution case, the evidence can only be admitted through the
following process:
The prosecutor must file a written motion and offer of
proof, with a sealed affidavit, arguing the relevance of
the evidence; the court must review the offer of proof;
The court reviews the affidavit to determine if there
are grounds for a hearing on the admissibility of the
condom evidence; and,
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If the court finds there is some basis for the evidence,
it shall hold a hearing pursuant to Evidence Code §352 to
determine if the evidence is relevant and not overly
prejudicial.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
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state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
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reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The US Center for Disease Control and Prevention has
reported that 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
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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. The use of unused condoms as evidence
deters many sex workers to not carry or use condoms
for fear that the possession of this protective device
could be used as evidence of intent to commit and
illegal act. AB 336 establishes a judicial process
for introducing one or more condoms as evidence in
cases involving charges of prostitution or loitering
with the intent to engage in prostitution, to ensure
the possession of the condoms is relevant evidence in
the commission of the crime.
2. Submission by the Prosecutor of a Sealed Affidavit Stating the
Relevance of Proposed Condom Evidence
This bill requires the prosecution to submit a sealed affidavit
with an "offer or proof" stating the relevance of condom
evidence the prosecutor intends to introduce at the trial of a
prosecution charge. It is likely that a prosecutor would argue
that the possession of condoms - especially more than one or two
condoms for use with an intimate partner - shows that the person
was planning to engage in commercial sex transactions.
The process of requiring an affidavit with an offer of proof in
this bill appears to be modeled on the process used where the
defendant seeks to introduce evidence of prior sexual conduct by
the alleged victim of a sex crime. (Evid. Code § 782.) In such
circumstances, it is most likely that the defense would argue
that the alleged victim's behavior in the past is relevant to
whether he or she intended or agreed to sexual conduct or not.
Prior sexual conduct, especially prior sexual conduct that did
not involve the defendant, is likely to be particularly
prejudicial, as jurors might judge the victim on the basis of
perceived promiscuity or licentiousness, not the facts of the
case.
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It would appear that the parallel concern about evidence of
condom possession in a prostitution case might be that jurors
might conclude that a person who carried numerous condoms was
predisposed to engage in prostitution regardless of the
particular facts of the alleged solicitation or act of
prostitution, allowing conviction on assumptions about the
defendant's conduct on other occasions. The prosecution would
likely counter that the defendant's possession of numerous
condoms at the time she or he is alleged to have solicited a
person to engage in sexual conduct indicates that the
interaction was for commercial purposes. That is, the condoms
were essentially tools of the defendant's trade.
3. 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
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,
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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 cause an
arrest for prostitution. As a result, many do not use condoms.
4. Concerns About Lack of Condom Use by Prostitutes Due to Fear
of Prosecution
An article entitled SF Public Defender Worried Prostitutes Skip
Condom Use Over Prosecution Fears published on August 21, 2012
in the San Francisco Chronicle reported:
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 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
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mean that they're not happening,' Adachi said."
5. San Francisco Ban on Evidence of Condom Possession in
Prostitution
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." ?Gascón said Public
Defender Jeff Adachi's office has agreed to "eliminate
any discussion concerning the presence or absence of
condoms as evidence in ? 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 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 ? take another three months to examine the
issue, [as] ? he had almost no data to evaluate.
[Gascon's spokesman] Alex Bastian ?said use of condoms
as evidence is rare. Sex worker advocates, public
health officials, and others have expressed concerns
that using condoms as evidence? discourages people
from carrying them, thereby putting them at greater
risk for HIV and other sexually transmitted diseases.
Gascón's letter to Sparks said his office needed to
balance health and safety issues. "Concerns raised
during our two meetings have persuaded me that police
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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. 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 ? [he was] confident that the public safety
concerns can be addressed without jeopardizing? sex
workers."
?. 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." 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?" Sparks 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." ? San Francisco is one
of the first cities in the U.S. to prohibit using
condoms as evidence ?[and] she ? hopes the process
"can serve as a model." ?Assemblyman Tom Ammiano has
introduced a bill [requiring a showing of relevance
for condom possession evidence.] 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.
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6. Argument in Support :
The AIDS Healthcare Foundation argues in support:
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.
7. Argument in Opposition
The California District Attorneys Association argues in
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opposition:
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 without the necessity of
a cumbersome and time-consuming process. It is
unreasonable to believe that a person is being
arrested, charged, and convicted merely because he or
she possesses condoms.
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