BILL ANALYSIS Ó AB 1791 Page A 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 AB 1791 Page B 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 AB 1791 Page C $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 AB 1791 Page D 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).) AB 1791 Page E 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. AB 1791 Page F 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. AB 1791 Page G 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 AB 1791 Page H 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 AB 1791 Page I