BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 6 9 4 AB 694(Bloom) As Introduced: February 21, 2013 Hearing date: June 11, 2013 Evidence Code MK:jr ADMISSIBILITY OF EVIDENCE: VICTIMS OF HUMAN TRAFFICKING HISTORY Source: Los Angeles District Attorney's Office Prior Legislation: Proposition 35, November 6 2012 Support: Unknown Opposition:None known Assembly Floor Vote: Ayes 70 - Noes 9 KEY ISSUE SHOULD THE EVIDENCE CODE PROVISION MAKING INADMISSIBLE EVIDENCE OF A COMMERCIAL SEX ACT BY A VICTIM OF HUMAN TRAFFICKING TO PROVE THE VICTIM'S CRIMINAL LIABILITY FOR ANY CONDUCT RELATED TO THE ACTIVITY BE AMENDED TO MAKE IT INADMISSIBLE TO PROVE THE VICTIM'S CRIMINAL LIABILITY FOR THE COMMERCIAL SEX ACT? PURPOSE (More) AB 694 (Bloom) PageB The purpose of this bill is to clarify that evidence that a victim of human trafficking has engaged in a commercial sex act cannot be used to prosecute that victim for the commercial sex act. Existing law 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).) Existing law 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).0 Existing law 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).) Existing law states that any person who deprives or violates the personal liberty of another with the intent to affect 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 § 236.1(b).) Existing law states 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 affect or maintain a violation of specified sex crimes is guilty of human trafficking. A violation of this subdivision is punishable by imprisonment in the state prison for 5, 8, or 12 years and a (More) AB 694 (Bloom) PageC fine of not more than five hundred thousand dollars ($500,000) or 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. (Penal Code Section 236.1(c).) Existing law 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 § 236.1(d).) Existing law prohibits the admissibility of evidence that a victim of human trafficking has engaged in any commercial sexual act as a result of being a victim of human trafficking in order to prove the victim's criminal liability for any conduct related to that activity. (Evidence Code § 1161(a)) This bill instead prohibits the admissibility of evidence that the victim has engaged in any commercial sexual act as a result of being a victim of human trafficking in order to prove the victim's liability for the commercial sex act. 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 (More) AB 694 (Bloom) PageD prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which 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. ROCA necessitated many hard and difficult decisions for the Committee. 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 issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part 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, who opposed the state's motion, argue in part 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 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered 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." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the (More) AB 694 (Bloom) PageE prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; 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 the bill . According to the sponsor: (More) 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),<1> which is in Section 4 of the Act, is particularly problematic.<2> It 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. (§ 1161, subd. (a).) Clearly, in a prosecution of a victim of human trafficking for an act of prostitution that is related to the trafficking,<3> section 1161, subdivision (a), makes any evidence of a commercial sexual act<4> 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" (§ 1161, ----------------------- <1> Unless otherwise stated, section references will be to the Evidence Code. <2> Although there may be objections to other sections of the Act, we are not proposing to amend those sections for the reason explained at page of this proposal <3> Penal Code section 246.1, subdivision (a), states that "[a]ny person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, is guilty of human trafficking." <4> "Commercial sexual act" is defined as "any sexual conduct on account of which anything of value is given or received. (Pen. Code § 236.1, subd. (h)(2).) (More) AB 694 (Bloom) PageG subd. (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.<5> ----------------------- <5> In some prosecutions, the evidence may be critical. For example, the commercial sex act may provide motive and circumstantial evidence that the trafficked prostitute killed or robbed his or her trafficker. 2. 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 are 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 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 victims engaged in sexual (More) AB 694 (Bloom) PageI conduct from being used against victims in court proceedings. Additionally, the proposition lowered the evidential requirements for showing of force in cases of minors. 3. Clarification in CASE Act As noted in the sponsor's statement in Comment 1, Evidence Code Section 1161, as enacted by the CASE Act, was intended to keep a victim of human trafficking from being prosecuted for a commercial sex act that was a result of his or her victimization. The concern is that the way the statute is currently drafted it could prohibit the evidence of a commercial sex act in a prosecution for another crime, not just the commercial sex act itself. This bill will amend that section to clarify that evidence that a victim of human trafficking committed a commercial sex act shall not be admissible proof of that victim's liability for that commercial sex act. ***************