BILL ANALYSIS                                                                                                                                                                                                    Ó




                                                                  AB 1791
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          Date of Hearing:   April 29, 2014
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

              AB 1791 (Maienschein) - As Introduced:  February 18, 2014
                       As Proposed to be Amended in Committee

           
          SUMMARY  :  Increases the penalty for solicitation of prostitution  
          when the person being solicited is a minor from six months in  
          the county jail to one year in the county jail.  

           EXISTING LAW  :  
           
           1)Specifies that it is misdemeanor disorderly conduct when any  
            person who solicits or who agrees to engage in or who engages  
            in any act of prostitution.  A person agrees to engage in an  
            act of prostitution when, with specific intent to so engage,  
            he or she manifests an acceptance of an offer or solicitation  
            to so engage, regardless of whether the offer or solicitation  
            was made by a person who also possessed the specific intent to  
            engage in prostitution.  No agreement to engage in an act of  
            prostitution shall constitute a violation of this subdivision  
            unless some act, in addition to the agreement, is done within  
            this state in furtherance of the commission of an act of  
            prostitution by the person agreeing to engage in that act.  As  
            used in this subdivision, "prostitution" includes any lewd act  
            between persons for money or other consideration.  (Pen. Code,  
            § 647(b).)  

          2)States that a person is guilty of disorderly conduct, a  
            misdemeanor, when a person solicits or agrees to engage in or  
            engages in any act of prostitution, as defined.  No agreement  
            to engage in an act of prostitution constitute a violation of  
            this subdivision unless some act, in addition to the  
            agreement, is done within this state in furtherance of the  
            commission of an act of prostitution by the person agreeing to  
            engage in that act.  (Pen. Code, § 647, subd. (b).)

          3)Requires in any accusatory pleading charging a defendant with  
            solicitation or prostitution, as specified, if the defendant  









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            has been once previously convicted of a violation those  
            provisions, the previous conviction shall be charged in the  
            accusatory pleading.  (Pen. Code, § 647, subd. (k).)
           
           4)Provides the following penalties if the defendant has  
            previously been convicted of solicitation or prostitution:
           
             a)   If it is proven that the defendant has one previous  
               conviction, the defendant shall be imprisoned in a county  
               jail for a period of not less than 45 days; or
              
              b)   If it is proven that the defendant has two or more of  
               these previous convictions, the defendant shall be  
               imprisoned in a county jail for a period of not less than  
               90 days.  (Pen. Code, § 647, subd. (k).)
              
           5)Defines "unlawful sexual intercourse" as an act of sexual  
            intercourse accomplished with a person under the age of 18  
            years.  (Pen. Code, § 261.5, subd. (a).)  
           
           6)Provides the following penalties for unlawful sexual  
            intercourse with a minor [Penal Code Section 261.5(b)-(d).]:

             a)   Where the defendant is not more than three years older  
               or three years younger than the minor, the offense is a  
               misdemeanor;

             b)   Where the defendant is more than three years older than  
               the minor, the offense is an alternate felony-misdemeanor,  
               punishable by a jail term of up to one year, a fine of up  
               to $1,000, or both, or by a prison term of 16 months, two  
               years or three years and a fine of up to $10,000; or

             c)   Where the defendant is at least 21 years of age and the  
               minor is under the age of 16, the offense is an alternate  
               felony-misdemeanor, punishable by a jail term of up to one  
               year, a fine of up to $1,000, or both, or by a prison term  
               of 16 months, two years or three years and a fine of up to  
               $10,000.  

          7)States that any person convicted of seeking to procure or  
            procuring the sexual services of a prostitute, if the  
            prostitute is under 18 years of age, shall be ordered by the  
            court to pay an additional fine in an amount not to exceed  









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            $25,000.  (Pen. Code, § 261.9, subd. (a).)

          8)Provides that any person who engages in lewd conduct - any  
            sexually motivated touching or a defined sex act - with a  
            child under the age of 14 is guilty of a felony, punishable by  
            a prison term of 3, 6 or 8 years.  Where the offense involves  
            force or coercion, the prison term is 5, 8 or 10 years.  (Pen.  
            Code, § 288, subd. (b).)

          9)Provides that where any person who engages in lewd conduct  
            with a child who is 14 or 15 years old, and the person is at  
            least 10 years older than the child, the person is guilty of  
            an alternate felony-misdemeanor, punishable by a jail term of  
            up to one year, a fine of up to $1,000, or both, or by a  
            prison term of 16 months, two years or three years and a fine  
            of up to$10,000.  (Pen. Code, § 288, subd. (c)(1).)

          10)Defines "a lewd act" as touching the genitals, buttocks, or  
            female breast of either the prostitute or customer with some  
            part of the other person's body for the purpose of sexual  
            arousal or gratification. (CALCRIM 1154, citing Pryor v.  
            Municipal Court (1979) 25 Cal.3d 238, 256; See, Wooten v.  
            Superior Court (2001) 93 Cal.App.4th 422, pp. 431-433.)  

          11)Provides that a minor cannot consent to a sexual act,  
            including sexual intercourse, oral copulation, sodomy, sexual  
            penetration with a foreign or unknown object, or lewd conduct.  
             (Pen. Code §§ 261.5, 286, 288, 288a, and 289, in relevant  
            part.)

          12)Provides that sexual intercourse with a minor where no  
            aggravating elements are proved is the crime of "unlawful  
            sexual intercourse," punishable as follows:

             a)   Where the person having intercourse with the minor is no  
               more than three years older or younger than the minor, the  
               offense is a misdemeanor, with a maximum jail term of 6  
               months;

             b)   Where the person is at least three years older than the  
               minor, the offense is an alternate felony-misdemeanor  
               (wobbler), with a maximum misdemeanor term of one year and  
               a felony jail term of 16 months, two years or three years;  
               or









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             c)   Where the person is at least 21 and the minor under 16  
               years of age, the offense is a wobbler, with a felony jail  
               term of 2, 3 or 4 years.  (Pen. Code, § 261.5.)

          13)Provides that in the absence of aggravating elements each  
            crime of sodomy, oral copulation or penetration with a foreign  
            or unknown object with a minor is punishable as follows:

             a)   Where the defendant is over 21 and the minor under 16  
               years of age, the offense is a felony, with a prison term  
               of 16 months, 2 years or 3 years.

             b)   In other cases sodomy with a minor is a wobbler, with a  
               felony prison term of 16 months, 2 years or 3 years.  (Pen.  
               Code, §§ 286, subd. (b), 288a, subd. (b), 289, subd.  (h).)

          14)Provides that where each crime of sodomy, oral copulation or  
            penetration with a foreign or unknown object with a minor who  
            is under 14 and the perpetrator is more than 10 years older  
            than the minor, the offense is a felony, punishable by a  
            prison term of 3, 6 or 8 years.  (Pen. Code, §§ 286, subd.  
            (c)(1), 288a, subd. (c)(1), 289, subd. (j).)

          15)Provides that sexual intercourse is rape "[w]here a person is  
            incapable, because of a mental disorder or developmental or  
            physical disability, of giving legal consent, and this is  
            known or reasonably should be known to the" perpetrator.   
            (Pen. Code, § 261, subd. (a)(1).)

          16)Provides that any person who engages in lewd conduct - any  
            sexually motivated touching or a defined sex act - with a  
            child under the age of 14 is guilty of a felony, punishable by  
            a prison term of 3, 6 or 8 years.  Where the offense involves  
            force or coercion, the prison term is 5, 8 or 10 years. (Pen.  
            Code, § 288, subd. (b).)

          17)Provides that where any person who engages in lewd conduct  
            with a child who is 14 or 15 years old, and the person is at  
            least 10 years older than the child, the person is guilty of  
            an alternate felony-misdemeanor, punishable by a jail term of  
            up to one year, a fine of up to $1,000, or both, or by a  
            prison term of 16 months, two years or three years and a fine  
            of up $10,000. (Pen. Code § 288, subd. (c)(1).)









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          FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, " Increasing the  
            maximum sentence to 12 months for soliciting or engaging in an  
            act of prostitution with a minor will be making important  
            progress towards addressing the demand for young girls and  
            boys who are often victims of human trafficking. As many may  
            be aware, human trafficking is a growing problem across the  
            United States, including right here in California. The  
            trafficking of minors is appalling and must be addressed in  
            any way possible to positively affect all aspects of this  
            terrible practice. We hope to provide a deterrent with this  
            increased sentence that may prevent some desire and demand for  
            these young victims of human trafficking and stop the often  
            forced prostitution of our vulnerable youth."

           2)Existing Punishments for Sex with Minors  :  Under existing law,  
            sexual activities with minors, whether forcible or not, are  
            punished very severely.  As detailed in the existing law  
            section above, any sexual contact with a minor is punishable  
            and the vast majority of incidents require registration as a  
            sex offender.  This bill would cover incidents where the minor  
            is solicited, but no sexual or illicit touching occurs.   
            Otherwise, much the much more severe penalties outlined above  
            would apply to the defendant.  

           3)No Knowledge Requirement  :  This bill states that where the  
            defendant is convicted engaging in or offering to engage in an  
            act of prostitution with a minor, the defendant is guilty of  
            an alternate felony-misdemeanor.  The crime is a straight  
            felony in repeated convictions. 

            The bill does not appear to require that the defendant knew,  
            or should have known, that the prostitute involved in the  
            incident was a minor.  A defendant who was not intending to  
            purchase sex specifically from a minor could engage with a 16  
            or 17-year-old minor who appeared to be an adult.  In such  
            circumstances, a defendant would not have intended to exploit  
            minors or known that he was exploiting a minor for sexual  
            services.










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           4)Solicitation of a Minor  :  Under current law solicitation of a  
            minor for the purposes of prostitution is not distinguished  
            from solicitation of a minor who is not under the age of  
            consent.  In California, the age of consent is 18 years of  
            age.  California punishes solicitation for prostitution with a  
            punishment of up to six months in the county jail.   
            Additionally, the penalty increases to a year in the county  
            jail for persons who solicit for prostitution with a prior  
            offense.  This bill would put the crime of solicitation of a  
            minor on par with solicitation with a prior offense.  

           5)Recent Studies:   Recent years have seen a great increase in  
            concerns about minors - generally girls - engaged in  
            commercial sex activities.  Organized, coerced trafficking has  
            received the most attention.  Sex trafficking has been  
            described as sexual slavery.  Trafficked minors are isolated,  
            controlled by and made dependent on their exploiters, and can  
            even be perversely loyal because of the manufactured  
            dependency.<1>

            However, a 2008 study by the John Jay College of Criminal  
            Justice<2> and the Center for Court Innovation<3> found that  
            most of the minors engaging in commercial sex in New York City  
            are homeless or runaway minors who engage in "survival sex" to  
            obtain small amounts of money for food and other necessities.   
            Many of these CSEC - commercially sexually exploited children  
            - are gay, lesbian and transgender youth who left unsupportive  
            families and communities.  The study authors were surprised to  
            find that most of CSEC were recruited or initiated into  
            survival sex by their peers, with no involvement by adult  
            pimps.  The John Jay study reported that many CSEC were simply  
            approached on the street by would-be customers, without any  
            solicitation by the CSEC.  Also surprising, there were as many  
            male CSEC as female CSEC in New York City. 

            --------------------------
          <1> Rachel Lloyd, Girls Like Us, pp.153-159, Harper Collins,  
          2011.)
          <2>  https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf  , pp.  
          48-49. 32-102.
          <3>  http://www.courtinnovation.org/  - The New York Court System  
          research agency, with national and international consulting  
          project.










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            Rachel Aviv's December 2012<4> profile of homeless young  
            people in the New Yorker magazine noted the results of the  
            John Jay study and then carefully documented the daily lives  
            of a number of homeless young people on the New York City  
            streets.   They often form loose communities for support.   
            They sometimes shared repeat sex customers and money earned  
            from commercial sex, technically acting as pimps for each  
            other.  Adults who purchase sex from CSEC are certainly aware  
            that they are taking advantage of these children.  Some men  
            use violence against the homeless young people. 

            Aviv's profile documented that living on the streets and  
            engaging in survival sex is perilous.   The rate of HIV among  
            homeless youth is triple that of the general population.   
            Hunger and illness are common and many show symptoms of  
            psychiatric disorders.  And there is the prospect of becoming  
            chronically or permanently homeless.   Aviv wrote:  "Samantha  
            and Ryan were both terrified of becoming 'lifers.'  They saw  
            the signs in their friends, who stopped trying to get job  
            interviews, missed appointments with caseworkers, and cycled  
            in and out of psychiatric hospitals or rehab centers, becoming  
            accustomed to people telling them what to do and when."

           6)Related Legislation  : 

             a)   SB 1388 (Lieu) would make a person who seeks to purchase  
               or purchases a commercial sex act guilty of a misdemeanor,  
               punishable by imprisonment in the county jail for at least  
               48 hours, but not more than 6 months, and by a fine of at  
               least $1,000, and, if probation is granted, by a fine of at  
               least $1,000, but not more than $50,000, to be deposited in  
               the Victim-Witness Assistance Fund to fund grants to local  
               programs. SB 1388 is pending hearing by the Senate  
               Appropriations Committee.

             b)   SB 982 (Huff) would make it either a misdemeanor,  
               punishable by not more than one year in a county jail, or a  
               felony, punishable in a county jail for 16 months or 2 or 3  
               years, the first time a person seeks to procure the sexual  
               services of a prostitute if the prostitute is under 18  
               years of age and the defendant knows or should know that  
               the prostitute is under 18 years of age. The bill would  

             --------------------------
          <4>  
          http://www.newyorker.com/reporting/2012/12/10/121210fa_fact_aviv? 
          currentPage=all&pink=HhM7xT








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               make a second or subsequent violation of that offense a  
               felony, punishable as felony in a county jail for 16 months  
               or 2 or 3 years.  SB 982 is pending hearing by the Senate  
               Committee on Public Safety.

             c)   SB 244 (Liu) would have created a 90-day mandatory jail  
               term minimum for solicitation of a minor for prostitution  
               related offenses.  SB 244 was pulled by the author and  
               never heard by this Committee.

           7)Prior Legislation  :  AB 12 (Swanson), Chapter 75, Statutes of  
            2011, requires the court to impose a special fine of up to  
            $25,000 in a case where a defendant is convicted of  
            prostitution involving a minor; and provides that the proceeds  
            of such funds be available, upon legislative appropriation, to  
            fund programs and services for sexually exploited minors in  
            the county of conviction.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Catholic Conference 
          California Police Chiefs Association 
          Conference of California Bar Associations 
          The Child Abuse Prevention Center 
          Crime Victims United of California 
          Junior Leagues of California 

           Opposition 
           
          California Attorneys for Criminal Justice 
          California Public Defenders Association 
          Taxpayers for Improving Public Safety
           

          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744 















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