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