BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair AB 336 (Ammiano) - Crimes: prostitution: evidence. Amended: May 29, 2014 Policy Vote: Public Safety 5-2 Urgency: No Mandate: No Hearing Date: August 4, 2014 Consultant: Jolie Onodera This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 336 would provide for specified procedures to be followed, potentially including a hearing out of the presence of the jury, during the prosecution of a prostitution case, if the prosecution intends to introduce as evidence the possession of condoms by the defendant. Fiscal Impact: Potentially significant increase in court workload to process motions and potentially hold separate hearings out of the presence of a jury in prostitution cases. For every 500 motions filed (less than 10 motions per court per year), costs could range from $250,000 to $750,000 (General Fund*) assuming one to three additional hours of court time per case. *Trial Court Trust Fund Background: The Human Rights Watch (HRW) report, "Sex Workers at Risk: Condoms as Evidence of Prostitution in Four U.S. Cities (July 2012)," documents how law enforcement officers and prosecutors in the cities of New York, San Francisco, Los Angeles, and Washington, DC, use condoms to support prostitution charges. According to the report, "The practice makes sex workers and transgender women reluctant to carry condoms for fear of arrest, causes them to engage in sex without protection, and puts them at risk of HIV and other sexually transmitted diseases." HRW interviewed more than 300 people for the report, including 200 current and former sex workers as well as outreach workers, advocates, prosecutors, public defenders, police, and health department officials. The report includes testimony from sex workers and transgender women who said that police harass, AB 336 (Ammiano) Page 1 threaten, and arrest them for carrying condoms. 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. This bill seeks to establish a judicial process in any prosecution for specified prostitution offenses when the possession of condoms is to be introduced as evidence, to ensure the possession of condoms by the defendant is relevant to the commission of the crime. Proposed Law: This bill would provide that in any prosecution for committing an act of disorderly conduct or for loitering in any public place with the intent to commit prostitution, if the possession of one or more condoms is to be introduced as evidence in support of the commission of the crime, the following procedure shall be followed: Requires the prosecutor to make a written motion to the court and to the defendant stating that the prosecution has an offer of proof of the relevancy of the possession by the defendant of one or more condoms. Requires the written motion to be accompanied by an affidavit, to be filed under seal, as specified, in which the offer of proof shall be stated. Requires the court to order a hearing out of the presence of the jury, if any, if the court finds that the offer of proof is sufficient, and at the hearing allow questioning regarding the offer of proof made by the prosecution. Provides that at the conclusion of the hearing, if evidence found to be relevant, as specified, the court may make an order stating what evidence may be introduced by the prosecutor. Provides that an affidavit resealed by the court shall remain sealed, unless the defendant raises an issue on appeal or collateral review relating to the offer of proof. Authorizes the Attorney General and appellate counsel to AB 336 (Ammiano) Page 2 access the sealed affidavit if the defendant raisers that issue on appeal, and authorizes access to the district attorney and defendant's counsel if the issue is raiser on collateral review. Staff Comments: This bill creates a new process, potentially requiring a hearing, for consideration of specified evidence regarding condoms in criminal prosecutions for soliciting prostitution or for loitering with intent to commit prostitution. This bill would require the prosecutor to file a written motion to the court, and for the court to make a decision on the motion, potentially requiring a hearing, on the necessity and value of introducing condoms as evidence to prove the charges. The Judicial Council estimates this new process could require one to three additional hours of court time per case. For those motions filed and upon which no hearing is required, about one hour of court time to accept, process, review, and prepare a determination is estimated. For motions filed that require a hearing, an additional two hours of court time is estimated. Based on an estimated cost of $4,000 for an eight-hour court day, an additional one to three hours of court time is estimated to cost between $500 and $1,500 per case. It cannot be known with certainty how many motions will be filed in these cases in any one year statewide, and of the motions filed, which motions will require a separate hearing. As a result, as an example of potential costs: for every 500 motions filed (less than 10 motions per court per year), annual costs could range from $250,000 to $750,000 annually. To the extent the actual number of motions filed in these cases is greater or less than 500, costs would be commensurately higher or lower.