BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 738 (Yee)
As Amended April 25, 2013
Hearing Date: April 30, 2013
Fiscal: Yes
Urgency: No
NR
SUBJECT
Sexually exploited and trafficked minors
DESCRIPTION
Existing law provides that a child may come within the
jurisdiction of the juvenile dependency court when the child is
severely abused, a parent or guardian fails to adequately
supervise or protect the child, as specified, or a parent or
guardian fails to provide the child with adequate food,
clothing, shelter, or medical treatment. This bill would add to
that list that a minor may come within the jurisdiction of the
juvenile dependency court if the minor is a victim of human
trafficking, a victim of sexual exploitation, or receives food
or shelter in exchange for sexual acts, or is paid to perform
sexual acts, and the parent or guardian failed or was unable to
protect the child.
This bill would also require the training for administrators of
a group home facilities, licensed foster parents, and relative
or nonrelative extended family member caregivers to include
instruction on cultural competency and sensitivity related to
providing adequate care to a sexually exploited and trafficked
minor. Finally, this bill would require the California Child
Welfare Council and California Health and Human Services Agency
to convene an interagency workgroup, as provided. This
workgroup would be required to provide recommendations and
updates to the State Plan to Serve and Protect Sexually
Exploited and Trafficked Minors by January 30, 2015.
BACKGROUND
(more)
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Human trafficking is an estimated $32 billion-a-year global
industry. After drug trafficking, human trafficking is the
world's second most profitable criminal enterprise. The United
States is one of the top destination countries for trafficking
in persons, and California - a populous border state with a
significant immigrant population and the world's ninth largest
economy - is one of the nation's top four destination states for
trafficking human beings. (Office of the Attorney General, The
State of Human Trafficking in California, (2012).)
According to the Attorney General, significant new challenges in
combating this crime have emerged in the last five years.
Criminal organizations and street gangs have increasingly turned
to human trafficking because they find it more profitable with
lower risk than drug trafficking. Additionally, new innovations
in technology make it possible for traffickers to recruit
victims and perpetrate their crimes online.
There has been considerable federal and state legislation in
response to human trafficking. In 2005, California passed the
California Trafficking Victims Protection Act, AB 22 (Lieber,
Chapter 240, Statutes of 2005) which established human
trafficking as a felony and provided assistance for victims.
The same year, SB 180 (Kuehl, Chapter 239, Statutes of 2005),
established a statewide taskforce chaired by the Attorney
General. Last year, California voters passed Proposition 35
which increased criminal penalties for traffickers. The
proposition also provided 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.
Heightened penalties, however, only address part of the problem.
Left in the wake of human trafficking are thousands of child
victims. States have attempted to address the issues concerning
sexually exploited children in a variety of ways including the
decriminalization of minor prostitution and diversion programs
which aim to channel victims into support services rather than
the criminal justice system. (Kate Walker, Child Welfare
Council, Ending the Commercial Sexual Exploitation of Children:
A Call for Multi-System Collaboration in California (2013).)
California, however, provides that minors engaging in any act of
prostitution are guilty of disorderly conduct, a misdemeanor.
Unlike the juvenile delinquency system which imposes
criminal-like penalties on minors, the juvenile dependency court
seeks to connect minor victims of abuse with services including
housing, healthcare, and mental health support. To address the
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issues related to commercially sexually exploited youth, this
bill would authorize the juvenile dependency court to exercise
jurisdiction over these minors, and would require that foster
parents, group homes, and other caregivers receive training on
sensitivity and best practices related to providing homes to
sexually abused youth. This bill would also require the State
of California's Health and Human Services Agency and the
California Child Welfare Council to convene an interagency
workgroup to coordinate and plan how to best serve and protect
sexually exploited and trafficked minors.
CHANGES TO EXISTING LAW
Existing law establishes the criteria by which a child who has
suffered, or is at risk of suffering, significant abuse or harm
is within the jurisdiction of the juvenile court, which may
adjudge that person to be a dependent child of the court. (Welf.
& Inst. Code Sec. 300.)
Existing law includes, within the definition of "child welfare
services," public social services that are directed toward the
prevention of exploitation or delinquency of children as well as
services provided on behalf of children alleged to be the
victims of exploitation. (Welf. & Inst. Code Sec. 16501.)
Existing law 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.
(Welf. & Inst. Code Sec. 602.)
Existing law provides that a person who engages in or agrees to
engage in any act of prostitution is guilty of disorderly
conduct, a misdemeanor. (Pen. Code Sec. 647.)
Existing 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. (Pen. Code Sec. 1161.)
Existing law provides that sexual intercourse with a minor, who
is not the spouse of the perpetrator, is unlawful and punishable
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as either a misdemeanor or felony, as specified. (Pen. Code Sec.
261.5.)
Existing law 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. (Welf. & Inst. Code Sec. 16540.)
Existing law requires the California Department of Social
Services (CDSS) to develop and establish a certification program
to ensure that group home administrators have appropriate
training. (Health & Saf. Code Sec. 1522.41)
Existing law 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. (Health & Saf. Code Sec.
1529.2.)
This bill would authorize the juvenile court to exercise
jurisdiction over a child who is a victim of human trafficking,
as specified, or who receives food or shelter in exchange for
sexual acts, or is paid to perform sexual acts, and the parent
or guardian failed to or was unable to protect the child.
This bill would require, 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.
This bill would require 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 specified stakeholders responsible to address the needs of
the youth.
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This bill would require that 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 statutes 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; and
the development of data collection and sharing protocols among
agencies.
This bill would require, 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.
This bill would require 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.
This bill would require 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.
This bill would require 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.
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COMMENT
1.Stated need for the bill
According to the author:
The Federal Bureau of Investigation estimates that over
100,000 children are trafficked annually in the United States.
Three of the FBI's thirteen highest areas of commercially
sexually exploited children (CSEC) are found in California:
San Francisco, Los Angeles, and the San Diego metropolitan
areas. A 2012 report released by Attorney General Kamala
Harris on The State of Human Trafficking in California, states
that in the past two years, California's nine human
trafficking task forces identified 1,277 victims of human
trafficking. Another report published by the California Child
Welfare Council found that fifty to eighty percent of CSEC are
or were involved in the child welfare system.
Due to systemic problems in both the child welfare and
juvenile delinquency systems, there is no structure for where
a CSEC is referred to once taken off the streets. The lack of
specialized programs for CSEC, training for law enforcement
and service providers working with CSEC, and whether CSEC fall
under welfare or delinquency are just a few of the challenges
that need to be addressed.
2.Commercially sexually exploited children under the
jurisdiction of the dependency court
This bill would authorize the juvenile dependency court to
exercise jurisdiction over children who are victims of human
trafficking, or who receive food or shelter in exchange for
sexual acts, or who are paid to perform sexual acts, as
specified. This bill would provide that these children may come
within the court's jurisdiction despite an absence of parental
fault.
In practice, authorizing the court to exercise this jurisdiction
will arguably not dramatically affect the amount of children
within the system. The California Child Welfare Council, in a
March 2013 report, expressed that the majority of children
arrested for prostitution were previously involved with the
child welfare system. However, by adding sexually exploited
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children as a category of abuse which would qualify them for the
services of the dependency court, this bill could be an
important step in eliminating the negative stigma which
accompanies minor prostitution, and allow these children to be
seen universally as victims.
In support of this bill, the Children's Law Center (CLC) writes,
"CLC applauds the step forward in ensuring that youth who have
been commercially sexually exploited or trafficked can gain
access to supports and services through the dependency system.
Currently in the state of California these child victims are
arrested, treated as criminals, and funneled through the
juvenile delinquency system for acts their traffickers forced
them to commit.
a. Function of the dependency system
Overall, the dependency system strives to recognize and
accommodate the fundamental rights of parents and children.
Children have a fundamental interest in belonging to a family
unit, as well as the right to be safe from abuse and neglect.
Parents have the essential and basic right to the care,
custody, management, and companionship of their children. In
achieving these goals, the dependency system also seeks to
serve the needs of abused or neglected children, thereby
reducing the need to remove them from the home, encouraging
speedy reunification of families when safe, and locating
permanent homes for children who cannot return to their
families.
While the dependency system routinely connects abused children
with services, it is not entirely clear that it will
adequately be able to address the special needs of
commercially sexually exploited minors. First, the dependency
system functions largely to reunite families. Arguably,
reunification may not be in the best interest of many of these
youth, either because of abuse they suffered at the hands of
their parents, or because reunification might return the child
back to the neighborhood of his or her exploiter. Second,
sexually exploited youth may require unique services above and
beyond what other children in the dependency system need. In
addition to placement with foster parents who are likely to
have not received special training on the emotional and
psychological needs of trafficked youth, these children are
highly susceptible to relapse, making group homes a risk as
well. "Exploiters often know where foster care group homes
are and they directly recruit girls from these settings-they
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prey on the kids they know are the most vulnerable." (Kate
Walker, Child Welfare Council, Ending the Commercial Sexual
Exploitation of Children: A Call for Multi-System
Collaboration in California (2013) p. 20.)
Whether or not the dependency system can adequately address
the needs of CSEC will be evaluated by the interagency
workgroup created under this bill (see Comment 3). The
following amendment would sunset the provisions of this bill
related to the jurisdiction of the dependency court
approximately two years after the plan is due, thus allowing
the Legislature to evaluate whether the dependency system is
able to appropriately serve commercially sexually exploited
children.
Suggested amendment:
Sunset provision in this bill related to commercially
sexually exploited children coming under the jurisdiction
of the juvenile court on January 1, 2017, pursuant to Welf.
& Inst. Code Sec 300.
3.Sensitivity and best practices training
This bill would require that specified caregivers receive
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. Caregivers
required to receive this training would include: (1)
administrators of group home facilities; (2) foster parents
prior to placement of a foster child in his or her home; and (3)
foster parents in post placement annual training. Consistent
with existing law which requires community college districts
with a foster care education program to make specified training
available to foster parents, this bill would require that these
community college districts make competency and sensitivity
training related to commercially sexually exploited youth, as
specified, available as well.
Training caretakers as to what behavior to anticipate from
trafficked minors, and how to treat these vulnerable youths with
consistency and respect is crucial. The vast majority of these
children were victims of serious abuse prior to sexual
exploitation, and are highly susceptible to relapse. For many
children the process may involve twenty relapses before she is
able to permanently free herself of her exploiter. A recent
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report on sexually exploited children describes the situation
many girls find themselves in.
The hold that pimps and street culture have over prostituted
youth is too powerful to be displaced by traditional social
services or brief interventions. There is no curriculum that
can provide an abused and frightened fourteen-year-old girl
with the cognitive ability and refusal skills to outthink a
twenty-six-year-old offering love, money, and to take care of
her. (Kate Walker, Child Welfare Council, Ending the
Commercial Sexual Exploitation of Children: A Call for
Multi-System Collaboration in California (2013) p. 26.)
In support of this bill, the Legal Advocates for Children &
Youth (LACY) notes that, "simply providing the legal vehicle to
bring these children within the purview of the child welfare
system does not go far enough. That is why LACY is pleased to
see the inclusion of a training component for group home staff,
foster parents, and relative caregivers. Offering education on
the sensitive needs of this unique population will enhance the
efforts of the system to provide proper care."
4.Interagency workgroup to develop comprehensive state plan
This bill would require the California Health and Human Services
Agency and California Child Welfare Council to convene an
interagency workgroup to coordinate and plan how to best serve
and protect sexually exploited and trafficked minors. This
workgroup would be comprised of the Department of Health Care
Services, the Children and Family Services Division of the
Department of Social Services, 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 who are responsible for addressing the needs of
commercially sexually exploited children.
The workgroup would be required to conduct a thorough review of
existing programs and services for trafficked youth and identify
areas of need. The workgroup would also be required to develop a
comprehensive state plan, as specified, to serve and protect
sexually exploited and trafficked minors including a timeline
for implementation. This bill would require the plan to be
submitted to the Legislature, Judicial Council, and the Governor
no later than January 30, 2015.
In support of this bill, Crittenton Services for Children
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writes, "the formation of an interagency workgroup can provide a
coordinated, thoughtful response to the appropriateness and
effectiveness of services currently provided, as well as
establish improved policy and programming where applicable."
Support : Art of Yoga Project; California Alliance for Child and
Family Services; Children's Law Center of California; Children
Now; Food Chain Workers Alliance; Crittenton Services for
Children and Families; Junior Leagues of California, State
Public Affairs Committee; Legal Advocates for Children and
Youth; National Center for Youth Law; Polaris Project; Public
Counsel; Religious Sisters of Charity; State Public Affairs
Committee; Survivors for Solutions; Thai Community Development
Center; West Coast Children's Center
Opposition : None Known
HISTORY
Source : Coalition to Abolish Slavery and Trafficking;
International Justice Mission; Junior League of California
Related Pending Legislation : SB 114 (Pavley), would extend the
sunset date to January 1, 2017, for the discretionary pilot
project related to commercially sexually exploited minors
established pursuant to SB 1279 (Pavley, Chapter 116 , Statutes
of 2010) and extends the sunset date for the District Attorney
of Los Angeles to submit a report to the Legislature to April 1,
2016.
Prior Legislation :
AB 799 (Swanson, Chapter 51, Statutes of 2011) extended 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.
SB 1279 (Pavley, Chapter 116, Statutes of 2010) authorized,
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
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commercially sexually exploited children who have been arrested
or detained by local law enforcement for prostitution crimes.
AB 499 (Swanson, Chapter 359, Statutes of 2008), authorized 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, as specified.
SB 180 (Kuehl, Chapter 239, Statutes of 2005), established the
California Alliance to Combat Trafficking and Slavery Task Force
to be chaired by the California Attorney General and set forth
its course of action and physical make-up.
AB 22 (Lieber, Chapter 240, Statutes of 2005), established 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 to trafficking
victims, creates the California Alliance to Combat Trafficking
Task Force, and provided restitution to victims.
Prior Vote : Senate Committee on Health (Ayes 6, Noes 0)
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