BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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9
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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
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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
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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
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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
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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:
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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,
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<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).)
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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>
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<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
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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.
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