BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Leland Y. Yee, Chair
BILL NO: SB 738
S
AUTHOR: Yee
B
VERSION: April 1, 2013
HEARING DATE: April 23, 2013
7
FISCAL: Appropriations
3
8
CONSULTANT: Sara Rogers
SUBJECT
Sexually exploited and trafficked minors
SUMMARY
This bill provides that a child who is a victim of human
trafficking, is paid to perform sexual acts, or who has
solicited, agreed to engage in, or engaged in any act of
prostitution, is within the jurisdiction of the juvenile
court. This bill requires that the state-mandated
certification program for administrators of group homes and
training programs for foster parents and relative
caregivers must include instruction on sensitivity and best
practices for providing adequate care to a sexually
exploited and trafficked minor in out-of-home care.
Additionally, this bill requires the California Health and
Human Services Agency to convene an interagency workgroup
to coordinate and plan how best to serve and protect
sexually exploited and trafficked minors.
ABSTRACT
Existing Federal Law:
Continued---
STAFF ANALYSIS OF SENATE BILL 738 (Yee)
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1.Enacts the Trafficking Victims Protection Act of 2000
which increased penalties for trafficking, provided for
mandatory restitution for victims and increased funding
for victim services.
2.Enacts a series of Trafficking Victims Protection
Reauthorization Acts in 2003, 2005, 2008, and 2013 which
mandated new information campaigns, required an annual
report from the Attorney General to Congress, created a
new civil cause of action allowing trafficking victims to
sue their traffickers in federal district court, and most
recently enhanced support for state and local efforts to
address victims of human trafficking, especially minor
sex trafficking victims.
3.Establishes the Presidents Interagency Task Force to
Monitor and Combat Trafficking in Persons (PITF), chaired
by the Secretary of State, bringing together federal
departments and agencies to develop a multi-agency
approach to human trafficking.
4.Includes, in defining the term "victim of a severe form
of trafficking in persons", a person who has been
subjected to sex trafficking in which a commercial sex
act is induced by force, fraud, or coercion and in which
the person induced to perform such act has not attained
18 years of age. (USC Section 7102 (8) of Title 22)
Existing State Law:
1.Establishes the criteria by which a child who has
suffered, or is at risk of suffering, significant abuse
or harm shall be within the jurisdiction of the juvenile
court which may adjudge that person to be a dependent
child of the court. (WIC 300)
2.Includes, within the definition of "child welfare
services", public social services that are directed
toward the prevention of exploitation or delinquency of
STAFF ANALYSIS OF SENATE BILL 738 (Yee)
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children as well as services provided on behalf of
children alleged to be the victims of exploitation.
Additionally includes, within the definitions of various
specific child welfare services provided by counties,
services aimed at the prevention of exploitation. (WIC
16501)
3.Provides that a minor who violates a state, federal, or
local law is within the jurisdiction of the juvenile
court, which may adjudge such person to be a ward of the
court. (WIC 602)
4.Provides that engaging in or agreeing to engage in any
act of prostitution is guilty of disorderly conduct, a
misdemeanor. (PEN 647)
5.Pursuant to Proposition 35 (California 2012) provides for
all of the following:
Any person who causes, induces, or persuades a
minor to engage in a commercial sexual act, as
specified, is guilty of human trafficking to be
punishable by imprisonment in state prison, as
specified. (PEN 236.1 (c))
Consent by a victim of human trafficking who is a
minor, and mistake of fact as to the age of the
victim, is not a defense to criminal prosecution.
(PEN 236.1 (e) and (f))
Evidence that a victim of human trafficking, as
defined, 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 that activity. (EC 1161)
Law enforcement agencies shall consider specified
indicators of human trafficking when a peace officer
comes into contact with a minor who has engaged in a
commercial sex act. (PEN 236.2)
Law enforcement officers assigned field or
investigative duties shall complete a minimum of two
hours of training pertaining to the handling of
victims of human trafficking by July 2014. (PEN
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13519.14)
1.Defines sexual abuse to include the promotion or
encouragement of a child to engage in an act of
prostitution or posed or performed sexual conduct. (PEN
11165.1)
2.Provides that sexual intercourse with a minor, who is not
the spouse of the perpetrator, is unlawful and punishable
as either a misdemeanor or felony, as specified. (PEN
261.5)
3.Establishes the California Child Welfare Council to serve
as an advisory body responsible for improving the
collaboration and processes of the multiple agencies and
the courts that service the children and youth in the
child welfare and foster care systems. (WIC 16540)
4.Requires the California Department of Social Services
(CDSS) to develop and establish a certification program
to ensure that group home administrators have appropriate
training. (HSC 1522.41)
5.Requires every licensed foster parent to complete a
minimum of 12 hours of foster parent training, prior to
the placement of any foster children and a minimum of
eight hours of foster parent training annually. (HSC
1529.2)
This bill:
1.Adds the following to the circumstances in which a child
is within the jurisdiction of the juvenile court which
may adjudge that person to be a dependent child of the
court:
The child is a victim of human trafficking, as
specified, is paid to perform sexual acts, as
STAFF ANALYSIS OF SENATE BILL 738 (Yee)
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specified, and no specialized provide exists to
refer the child to receive services as a victim of
human trafficking or sexual exploitation.
The child has solicited, agreed to engage in,
or engaged in any act of prostitution, as specified,
is within the jurisdiction of the juvenile court.
1.Requires, by January 30, 2014, the California Health and
Human Services Agency to convene an interagency
workgroup, in consultation with the California Child
Welfare Council, to develop a State Plan to Serve and
Protect Sexually Exploited and Trafficked Minors.
2.Requires the interagency workgroup to be comprised of the
Department of Health Care Services, the Children and
Family Services Division of the DSS, the Division of
Juvenile Justice in the Department of Corrections and
Rehabilitation and the State Department of Education as
well as a broad spectrum of stakeholders responsible to
address the needs of the youth, as specified.
3.Requires the plan be submitted to the Legislature,
Judicial Council, and the Governor no later than January
30, 2015 and include the following:
An evaluation of juvenile court jurisdiction
pertaining to child trafficking, including the
adequacy of existing jurisdictional statuses under
existing law.
A multiagency-coordinated child trafficking
response protocol and guidelines for local
implementation addressing identification, screening,
assessment, immediate and safe shelter, and clear
lines of ongoing responsibility.
If new specialized services and programs are
needed, the identified of funding sources and
timeline for creation of those services, as
specified.
Identification of training needs of child
welfare staff, law enforcement, and probation staff,
as specified.
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The development of data collection and sharing
protocols among agencies.
1.Requires that in developing the plan, the workgroup
consider existing laws and practices in other states and
jurisdictions, and the outcomes and consequences of such
policies, as well as the adequacy of existing protocols.
2.Requires group home administrator certification programs
to include instruction on cultural competency and
sensitivity relating to, and best practices for,
providing adequate care to a sexually exploited and
trafficked minor in out of home care.
3.Requires foster parent training programs, including post
placement annual training programs, to provide
instruction on cultural competency and sensitivity
relating to, and best practices for, providing adequate
care to a sexually exploited and trafficked minor in out
of home care.
4.Requires community college district foster care education
programs for relative and non-relative extended family
member caregivers to include instruction on cultural
competency and sensitivity relating to, and best
practices for, providing adequate care to a sexually
exploited and trafficked minor in out of home care.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
The author cites a recent report released by the California
Child Welfare Council which writes that "within the United
States, California has emerged as a magnet for the
commercial sexual exploitation of children (CSEC)." The
report states that the Federal Bureau of Investigation
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estimates that over 100,000 children are trafficked
annually in the United States and as many of 300,000 are at
risk of becoming victims of commercial sexual exploitation.
The FBI has additionally found that are three of the FBI's
thirteen highest areas of CSEC are located within
California including San Francisco, Los Angeles, and the
San Diego metropolitan areas.
The author states that neither the child welfare nor
juvenile delinquency systems have a clear structure for
where a victim of CSEC is referred once a youth is
identified. According to the author, a few of the specific
challenges that need to be addressed include a lack of
specialized programs and training for law enforcement and
service providers working with victims of CSEC, as well as
clarifying jurisdictional issues between the child welfare
and delinquency systems.
The sponsor states that because services are so lacking for
these children, they are often being arrested for crimes
their traffickers force them to commit in order for them to
receive any services or support. According to the sponsor,
this bill will ensure trafficked minors can receive
protection and support through the dependency system.
Commercially Sexually Exploited Children
Commercial Sexual Exploitation (CSE) of children is defined
as the sexual exploitation of children entirely, or at
least primarily, for financial or other economic reasons.
Under this definition, the economic exchanges may be either
monetary or non-monetary (i.e., for food, shelter,
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drugs).<1> Sex trafficking of minors is defined as the
"recruitment, harboring, transportation, provision, or
obtaining of a person for the purpose of a commercial sex
act" where the person is a U.S. citizen or lawful permanent
resident under the age of 18 years.<2>
The California Child Welfare Council, in a March 2013
report, states that children who fall victim to commercial
sexual exploitation are frequently involved with the child
welfare system. Specifically, the report states that fifty
to eighty percent of CSEC are or were involved in the child
welfare system. Recent news reports quote the northern
California FBI task force on trafficked minors as
estimating that 90% of recovered trafficked youth in
northern California were involved with the child welfare
system.
Additionally, the report states that youth in the child
welfare system are particularly vulnerable to commercial
sexual exploitation. Children who become victims of such
exploitation frequently have a history of suffering
physical and emotional abuse, which led to their contact
with the child welfare system. This abuse and neglect
combined with unstable placements in foster care and a
frequent absence of positive and loving adult relationships
create emotional vulnerabilities that are exploited. On
average, early adolescence is the most common age for
-------------------------
<1> Estes and Weiner. "The Commercial Sexual Exploitation
of Children In the U. S., Canada and Mexico." Univ. of PA,
2002.
http://www.sp2.upenn.edu/restes/CSEC_Files/Exec_Sum_020220.p
df
<2> Smith et al. "The National Report on Domestic Minor Sex
Trafficking: America's Prostituted Youth." Shared Hope
Int'l, 2009.
http://sharedhope.org/wp-content/uploads/2012/09/SHI_Nationa
l_Report_on_DMST_2009.pdf
STAFF ANALYSIS OF SENATE BILL 738 (Yee)
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children to fall victim to commercial sexual exploitation -
between ages 11 to 13 for boys and ages 12 to 14 for girls.
The report cites research finding that 68 percent of
victims of CSEC suffered from chronic health problems and
Post-Traumatic Stress Disorder stating that the experience
of victims are likened to the experiences of "hostages,
prisoners of war, or concentration camp inmates."
California Child Welfare Council
The California Child Welfare Council was created in statute
to serve as a multi-agency advisory body responsible for
improving the collaboration and processes among the broad
range of agencies, including the courts that serve children
and youth in the child welfare and foster care systems. The
Council is co-chaired by the Secretary of Health and Human
Services and the designee of the Chief Justice of
California, and is charged with monitoring and reporting
the extent to which child welfare and foster care programs
and the courts are responsive to the needs of children in
their joint care. The Council may issue advisory reports
whenever it deems appropriate, and is required to report at
least annually to the Governor, the Legislature, the
Judicial Council and the public.
The Council has convened a CSEC workgroup which is
comprised of public and private agency representatives from
social services, mental health, probation, law enforcement,
courts and child advocacy groups. In March 2013, the
workgroup released a report entitled "Ending the Commercial
Sexual Exploitation of Children: A Call for Multi-System
Collaboration in California," which concludes that
"California must develop a comprehensive and collaborative
response to ensure CSE victims are identified and receive
the services they need to overcome trauma and live healthy,
productive lives."
This workgroup concluded that "Because many CSEC are
involved with child protective services and foster care,
the child welfare system is uniquely positioned to
implement prevention and early intervention services." The
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report additionally lists ongoing efforts to be undertaken
by the CSEC Action Committee, a creation of the CSEC
workgroup that is recommended by the report to be an
ongoing committee.
Criminal Prosecution of Victims of CSE
Federal law, under the Trafficking Victims Protection Act,
clearly designates minors who have engaged in commercial
sexual acts as victims of commercial sexual exploitation
and sex trafficking. In contrast, California Penal Code and
Welfare and Institutions Code permits minors to be charged
with disorderly conduct, a misdemeanor, or other charges,
and placed in juvenile detention facilities as wards of the
juvenile court.
A 2009 report published by Shared Hope International and
funded under a U.S. Department of Justice grant, conducted
research in partnership with the U.S. Department of
Justice-funded human trafficking task forces to assess
domestic minor sex trafficking in the United States. The
report found the "misidentification of the victims to be
the primary barrier to the rescue and response to domestic
minor sex trafficking victims."
The report discussed the phenomenon of "criminalization of
the victim through misidentification" stating:
"Those victims who are identified as minors are
frequently charged with a delinquent act either
for prostitution related activities or for a
related offense...These children are found in
detention facilities across the country, as well
as in juvenile justice rehabilitative programs.
Due to the unique trauma bonding that occurs
between a victim and her trafficker, these
children often go from juvenile facilities right
back to the person that exploited them."
The report further found that law enforcement reports they
STAFF ANALYSIS OF SENATE BILL 738 (Yee)
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are often compelled to use what was described as a
"stop-gap measure" of charging a victim with a delinquency
offence in order to detain the victim in a locked facility
to keep her safe from the trafficker and the trauma-driven
response of flight.
The debate surrounding decriminalization of children
engaged in commercial sexual acts typically centers around
the question of how best to protect the safety and
well-being of the child given the frequency with which an
exploited child may return to the trafficker. Some law
enforcement agencies believe that absent a criminal charge
associated with a minor engaging in this activity they
would have no ability to detain an exploited minor.
Additionally, in response to the relationship between law
enforcement and exploited minors, specialized programs and
resources have been largely developed under the delinquency
jurisdiction, rather than through the child welfare system.
This bill does not remove the ability of law enforcement to
charge a minor with a crime under the Penal Code, but
rather permits child welfare to respond to reports of CSEC
and to develop specialized services through the child
welfare system. Given the changing nature of the crime due
to increased use of online solicitation, it's reported to
be increasingly difficult for law enforcement to locate and
detain youth who are being exploited.
Other States
The state of New York was the first to pass a "Safe Harbor
law" which created a presumption that a minor arrested for
prostitution is a victim of trafficking as provided under
federal law. New York's law mandates that first-time
victims be treated as status offenders rather than
delinquents, and thus provides that victims receive
services through the Department of Social Services rather
than be detained. Washington State followed suit, passing a
substantially similar law. Second time offenders may be
prosecuted under the juvenile court. The outcomes for this
program are mixed, and experts note that negative outcomes
may be the result of the lack of additional funding and
specialized services for victims of commercial sexual
exploitation under child welfare jurisdiction.
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Illinois has passed a Safe Harbor law that prohibits the
prosecution of minors for prostitution and requires the
victim to be placed in protective custody. The law provides
that law enforcement may take a minor into temporary
custody if there is a reasonable belief that the youth is a
victim of sex trafficking, and such custody may involve
placement in secure facilities. Additionally, Minnesota has
passed a law providing that as of August of 2014, a youth
under the age of 16, who has no previous adjudication for
prostitution, shall not be prosecuted for prostitution or
related charges. Further, the states of Connecticut,
Florida, Illinois and Oregon have passed laws to include
sexual exploitation or sex trafficking as a reportable form
of maltreatment under the mandated reporting guidelines
which enables child welfare agencies to engage.
California Legislation and Proposition 35
In 2005, California passed the California Trafficking
Victims Protection Act, AB 22 (Lieber) which established
human trafficking as a felony and provided victims
assistance. The same year, SB 180 (Kuehl) established a
statewide taskforce chaired by the Attorney General. As
required, the taskforce produced a report to the
Legislature and Governor in 2007, and though the statutory
mandate for the taskforce was sunset in 2008, the Attorney
General reconvened the taskforce and produced a new report
in 2012.
The findings of that report centered on the role of law
enforcement in addressing sex trafficking and made several
recommendations including cross-unit law enforcement
training and coordination, the development of specialized
expertise, and how to effectively leverage technology to
combat trafficking. Additionally, the report recommended a
"victim-centered approach" which includes appropriate
training for health care providers and victim services
providers, mandatory reporting law changes, and the
development of long-term shelters for victims.
Last year, California voters passed Proposition 35 which
STAFF ANALYSIS OF SENATE BILL 738 (Yee)
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increased criminal penalties for traffickers. The
proposition also provides that consent by a victim of human
trafficking who is a minor, or a mistake of fact as to the
age of the victim are not defenses to criminal prosecution.
Additionally, the law provides that evidence that a victim
of human trafficking, as defined, 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 that activity. This provision has
led to confusion among law enforcement and other service
providers about whether Proposition 35 effectively
decriminalized minors identified as engaging in
prostitution, and thus prevents law enforcement from
detaining minors suspected to be victims of CSE.
Katie A. Settlement
Recently, the state settled the Katie A. v Bonta case, a
lawsuit filed on behalf of children in California who are
in foster care or at imminent risk of foster care
placement, have a documented mental health need, and who
need certain individualized mental health services to treat
or ameliorate their illness or condition. In response, the
state of California has agreed to establish three new
Medi-Cal specialized mental health services aimed at
meeting the needs of the youth who are covered under the
settlement.<3>
In fulfilling the obligations of the settlement, DHCS and
CDSS have drafted a Core Practice Model (CPM) to provide
practice guidance and establish a standard of care for
county child welfare and mental health agencies, and other
service providers that provide services to covered youth.
Additionally, the departments have jointly released a new
Medi-Cal Manual to provide guidelines for delivering and
billing for Intensive Care Coordination (ICC) and Intensive
-------------------------
<3> "Medi-Cal Manual for Intensive Care Coordination (ICC),
Intensive Home Based Services (IHBS) and Therapeutic Foster
Care (TFC) for Katie A. Subclass Members." DHCS and CDSS.
2013.
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Home Based Services (IHBS).
Supporters of this bill state that the development of these
new services present an opportunity to develop specialized
treatment services for victims of CSEC who are also foster
youth and whose needs meet the criteria of the Katie A.
sub-class.
Comments:
1.This bill does not remove the potential jurisdiction of
the juvenile delinquency court for youth determined to be
wards of the juvenile court under WIC 602. Instead it
will clarify that child welfare may act if a victim of
commercial sexual exploitation is identified independent
of the juvenile justice system, or if counties determine
that child welfare would be a more appropriate
jurisdiction for such youth.
2.As it was not the author's intent to condition child
welfare's potential involvement upon the availability of
specialized programs, staff recommends clarifying that in
some instances a youth may become a victim of human
trafficking or sexual exploitation despite an absence of
parental fault, which is generally the basis for a
dependency court's jurisdiction. In such an instance, the
youth has been subject to severe abuse, but not due to
the actions or neglect of the parent. In order to permit
a court to establish jurisdiction, Staff recommends the
amendment below.
Page 14, lines 33-39, amend as follows:
(k) The child is a victim of human trafficking, as
described in Section 236.1 of the Penal Code, is a victim
of sexual exploitation as described in Section 11165.1 of
the Penal Code , or receives food or shelter in exchange
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for or is paid to perform sexual acts described in
Section 236.1 or 11165.1 of the Penal Code, and no
specialized program exists to refer the child to receive
services as a victim of human trafficking or sexual
exploitation.
(l) The or the child has solicited, agreed to engage in,
or engaged in any act of prostitution prohibited by
Section 647 of the Penal Code , and the parent or guardian
failed or was unable to protect the child who is a victim
of human trafficking or sexual exploitation.
Prior Legislation:
SB 114 (Pavley), 2013, Extends the sunset date to January
1, 2017, for the discretionary pilot project related to
commercially sexually exploited minors established pursuant
to SB 1279 (Pavley, 2010) and extends the sunset date for
the District Attorney of Los Angeles to submit a report to
the Legislature to April 1, 2016.
AB 799 (Swanson), Chapter 51, Statutes of 2011, Extends the
sunset of a authorizing the Alameda County District
Attorney to create a pilot project, contingent upon local
funding, for the purposes of developing a comprehensive,
replicative, multidisciplinary model to address the needs
and effective treatment of commercially sexually exploited
minors, as specified. Requires the Alameda County District
Attorney to provide a report to the Legislature on the
pilot contingent upon local funding and operation of the
pilot.
SB 1279 (Pavley), Chapter 116, Statutes of 2010,
Authorizes, until January 1, 2014, a discretionary pilot
project in Los Angeles County to encourage the development
of a comprehensive, multidisciplinary model reflecting the
best practices for the response of law enforcement and the
criminal and juvenile justice systems to identify, assess
and address the needs of commercially sexually exploited
children who have been arrested or detained by local law
enforcement for prostitution crimes, as specified.
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AB 499 (Swanson), Chapter 359, Statutes of 2008,
Authorizes, January 1, 2012, a discretionary pilot project
in Alameda County to encourage the development of a
comprehensive, replicative, multidisciplinary model
reflecting the best practices for the response of law
enforcement and the criminal and juvenile justice systems
to identify, assess and address the needs of commercially
sexually exploited children who have been arrested or
detained by local law enforcement, as specified.
SB 180 (Kuehl), Chapter 239, Statutes of 2005, Establishes
the California Alliance to Combat Trafficking and Slavery
Task Force to be chaired by the California Attorney General
and sets forth its course of action and physical make-up.
AB 22 (Lieber), Chapter 240, Statutes of 2005, Establishes
civil and criminal penalties for trafficking in human
beings, allows for forfeiture of assets derived from human
trafficking, makes legislative findings and requires law
enforcement agencies to provide Law Enforcement Agency
Endorsement (LEAE) to trafficking victims, creates the
California Alliance to Combat Trafficking and (California
ACTS) Task Force, and provides restitution to victims.
POSITIONS
Support: Coalition to Abolish Slavery and Trafficking
(Co-Sponsor)
International Justice Mission (Co-sponsor)
California Alliance for Child and Family
Services
Children's Law Center of California
Children Now
Food Chain Workers Alliance
Junior Leagues of California, State Public
Affairs Com. (SPAC)
Legal Advocates for Children and Youth
National Center for Youth Law
Polaris Project
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Public Counsel
Religious Sisters of Charity
Thai Community Development Center
West Coast Children's Center
Oppose: None received
-- END --