BILL ANALYSIS �
AB 694
Page 1
Date of Hearing: May 7, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 694 (Bloom) - As Introduced: February 21, 2013
SUMMARY : Prohibits the admissibility of evidence that a victim
had engaged in a commercial sex act as a result of being a
victim of human trafficking in order to prove the victim's
criminal liability for the commercial sex act.
EXISTING LAW :
1)Specifies that "commercial sex act" means sexual conduct on
account of which anything of value is given or received by any
person. [Penal Code Section 236.1(h) (2).]
2)Provides that human trafficking is one of the offenses which
is "criminal profiteering activity" subjecting proceeds from
the activity to forfeiture proceedings. [Penal Code Section
186.2(28).]
3)Provides that any person who deprives or violates the personal
liberty of another with the intent to obtain forced labor or
services, is guilty of human trafficking and shall be punished
by imprisonment in the state prison for 5, 8, or 12 years and
a fine of not more than five hundred thousand dollars
($500,000). [Penal Code Section 236.1(a).]
4)States that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
violation of specified sex crimes is guilty of human
trafficking and shall be punished by imprisonment in the state
prison for 8, 14, or 20 years and a fine of not more than five
hundred thousand dollars ($500,000). [Penal Code Section
236.1(b).]
5)Provides that any person who causes, induces, or persuades, or
attempts to cause, induce, or persuade, a person who is a
minor at the time of commission of the offense to engage in a
commercial sex act, with the intent to effect or maintain a
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violation of specified sex crimes is guilty of human
trafficking. A violation of this subdivision is punishable by
imprisonment in the state prison as follows: [Penal Code
Section 236.1(c).]
a) Five, 8, or 12 years and a fine of not more than five
hundred thousand dollars ($500,000).
b) Fifteen years to life and a fine of not more than five
hundred thousand dollars ($500,000) when the offense
involves force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury to the victim
or to another person.
6)Provides that in determining whether a minor was caused,
induced, or persuaded to engage in a commercial sex act, the
totality of the circumstances, including the age of the
victim, his or her relationship to the trafficker or agents of
the trafficker, and any handicap or disability of the victim,
shall be considered. [Penal Code Section 236.1(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Language from
Proposition 35 excludes evidence that a victim of human
trafficking took part in a commercial sexual act, such as
prostitution, in prosecutions related to that activity.
However, the language as it reads now could reach beyond its
intended use and potentially jeopardize other serious
prosecutions, such as robbery or murder of the human
trafficker, where that evidence may be key in establishing
motive. By narrowing this section to apply only to
prosecutions for the commercial sexual act, AB 694 makes a
simple change that ensures that Proposition 35 still protects
victims of human trafficking but allows for this type of
evidence to be used in other prosecutions."
2)Background : According to the background provided by the
author, The Californians Against Sexual Exploitation Act,
commonly known as the CASE Act ("Act"), was passed by
initiative on November 6, 2012. Evidence Code section 1161,
subdivision (a), which is in Section 4 of the Act, is
particularly problematic. It states: "Evidence that a victim
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of human trafficking, as defined in Section 236.1 of the Penal
Code, has engaged in any commercial sexual act as a result of
being a victim of human trafficking is inadmissible to prove
the victim's criminal liability for any conduct related to
that activity." [Section 1161, (a).]
Clearly, in a prosecution of a victim of human trafficking for
an act of prostitution that is related to the trafficking,
section 1161, subdivision (a), makes any evidence of a
commercial sexual act related to that trafficking
inadmissable. However, prosecutions beyond prostitution may
be affected.
The statute states that evidence of commercial sexual activity
is inadmissible to prove "criminal liability for any conduct
related to that activity" (Section 1161(a), emphasis added),
instead of the phrase "criminal liability for the commercial
sex act." Thus, the reach of section 1161, subdivision (a),
will turn on what a court believes is "conduct related to that
activity." This language could be readily interpreted to
apply to prosecutions such as pimping and pandering other
prostitutes, or the robbery or murder of a "john" or a
trafficker. If evidence of the commercial sexual act is found
to be inadmissible, these prosecutions will be compromised.
3)Human Trafficking : Human trafficking involves the
recruitment, transportation or sale of people for forced
labor. Through violence, threats and coercion, victims are
forced to work in, among other things, the sex trade, domestic
labor, factories, hotels and agriculture. According to the
January 2005 United States Department of State's Human
Smuggling and Trafficking Center report, "Fact Sheet:
Distinctions Between Human Smuggling and Human Trafficking",
there is an estimated 600,000 to 800,000 men, women and
children trafficked across international borders each year.
Of these, approximately 80% are women and girls and up to 50%
are minors. A recent report by the Human Rights Center at the
University of California, Berkeley cited 57 cases of forced
labor in California between 1998 and 2003, with over 500
victims. The report, "Freedom Denied", notes most of the
victims in California were from Thailand, Mexico, and Russia
and had been forced to work as prostitutes, domestic slaves,
farm laborers or sweatshop employees. [University of
California, Berkeley Human Rights Center, "Freedom Denied:
Forced Labor in California" (February, 2005).] According to
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the author:
"While the clandestine nature of human trafficking makes it
enormously difficult to accurately track how many people are
affected, the United States government estimates that about
17,000 to 20,000 women, men and children are trafficked into
the United States each year, meaning there may be as many as
100,000 to 200,000 people in the United States working as
modern slaves in homes, sweatshops, brothels, agricultural
fields, construction projects and restaurants."
In 2012, Californians voted to pass Proposition 35, which
modified many provisions of California's already tough human
trafficking laws. The proposition increased criminal
penalties for human trafficking, including prison sentences up
to 15-years-to-life and fines up to $1,500,000. Additionally,
the proposition specified that the fines collected are to be
used for victim services and law enforcement. Proposition 35
requires persons convicted of trafficking to register as sex
offenders. Proposition 35 prohibits evidence that victim
engaged in sexual conduct from being used against victim in
court proceedings. Additionally, the proposition lowered the
evidential requirements for showing of force in cases of
minors.
4)Trafficking Victims Protection Act of 2000 (22 USC Sections
7101 et seq.) : In October 2000, the Trafficking Victims
Protection Act of 2000 (TVPA) was enacted and is
comprehensive, addressing the various ways of combating
trafficking, including prevention, protection and prosecution.
The prevention measures include the authorization of
educational and public awareness programs. Protection and
assistance for victims of trafficking include making housing,
educational, health-care, job training and other federally
funded social service programs available to assist victims in
rebuilding their lives. Finally, the TVPA provides law
enforcement with tools to strengthen the prosecution and
punishment of traffickers, making human trafficking a federal
crime.
5)Human Trafficking Studies: The Family Violence Prevention
Fund study, in the Executive Summary of "Turning Pain into
Power: Trafficking Survivors' Perspectives on Early
Intervention Strategies", states the following:
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"This study was undertaken to examine the hypothesis that the
health care system might be an ideal place to focus education
and intervention efforts on victims of slavery. Human
trafficking is without question a health care issue: victims
of trafficking suffer a host of health-related problems and
are at high risk of injury, illness and even death from the
circumstances of their forced employment. . . . Is health
care a missed opportunity to intervene on behalf of trafficked
women and children? . . . If health care providers do
interact with this population unknowingly, what steps could be
taken to enable practitioners to recognize trafficking victims
and understand their special needs?"
A February 2005 report by the Human Rights Center at the
University of California, Berkeley discussed the legislative
response to the human trafficking problem. This report found
that the California State Legislature must address several
critical areas including criminal prosecution and civil
remedies; training for law enforcement to better help them
recognize forced labor cases; the provisions of social
services, including medical care, shelter, witness protection
and other benefits; and the creation of a task force to
examine, propose and coordinate ongoing efforts to combat
trafficking and forced labor.
6)Argument in Support : According to the Los Angeles District
Attorney's Office , "The Californians Against Sexual
Exploitation Act (Proposition 35), commonly known as the CASE
Act, was passed by initiative on November 6, 2012. Among the
many provisions of the CASE Act was the addition of Evidence
Code section 1161. Evidence Code section 1161 states:
'Evidence that a victim of human trafficking, as defined in
Section 236.1 of the Penal Code, has engaged in any commercial
sexual act as a result of being a victim of human trafficking
is inadmissible to prove the victim's criminal liability for
any conduct related to that activity.'
"Clearly, in a prosecution of a victim of human trafficking
for an act of prostitution that is related to the trafficking,
Evidence Code section 1161(a), makes any evidence of a
commercial sexual act related to that trafficking
inadmissable.
"However, this language creates potential problems for the
prosecution if a victim of human trafficking is being
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prosecuted for a crime other than a commercial sexual act
related to human trafficking. For instance, if a defendant
was a victim of human trafficking and murdered his or her
pimp, the statute as currently enacted could be interpreted to
make inadmissible evidence that the defendant was a prostitute
and that the murder victim was the defendant's pimp, thereby
excluding important evidence connecting the defendant and
murder victim and potential evidence of motive for the murder.
"The analysis by the legislative analyst in the Official Voter
Information Guide, provided the electorate a narrower
interpretation of what the section intended. Captioned
'Changes Affecting Court Proceedings', the analysis stated:
'The measure also affects the trial of criminal cases
involving charges of human trafficking. Specifically, the
measure prohibits the use of evidence that a person was
involved in criminal sexual conduct (such as prostitution) to
prosecute that person for that crime if the conduct was a
result of being a victim of human trafficking. The measure
also makes evidence of sexual conduct by a victim of human
trafficking inadmissible for the purposes of attacking the
victim's credibility or character in court. In addition, this
measure disallows certain defenses in human trafficking cases
involving minors. For example, a defendant could not claim as
a defense being unaware of the minor's age.' (Official Voter
Information Guide, Prop 35, Analysis by the Legislative
Analyst, found at
.)
"Assembly Bill 694 would clarify, as expressed in the
legislative analysis, that the limitation on the admissibility
of evidence that a victim of human trafficking engaged in any
commercial sexual act, is intended to limit such evidence when
being introduced to prosecute that person for a commercial
sexual act crime, such as prostitution.
"AB 694 replaces the phrase 'any conduct related to that
activity' with 'the commercial sexual act', so that Evidence
Code section 1161, subdivision (a), will read: 'Evidence that
a victim of human trafficking, as defined in Section 236.1 of
the Penal Code, has engaged in any commercial sexual act as a
result of being a victim of human trafficking is inadmissible
to prove the victim's criminal liability for the commercial
sexual act.'
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"Prior to proposing AB 694, our office met with Chris Kelly,
the proponent of the CASE Act, who informed us that the intent
of Evidence Code section 1161(a) was to limit the prosecutions
of the sexual act (i.e. prostitution), and that he supports
our legislation that clarifies the intent of Proposition 35."
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles District Attorney's Office
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744