BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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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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                                                             AB 694 (Bloom)
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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,  
               -----------------------
          <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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