BILL ANALYSIS �
SB 1388
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Date of Hearing: June 24, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1388 (Lieu) - As Amended: May 20, 2014
SUMMARY : Redefines the crime of prostitution, imposes a
mandatory minimum jail sentence for a first-offense, and imposes
mandatory minimum fines as specified. Specifically, this bill :
1)Redefines prostitution crimes by replacing the term
"prostitution" with the term "commercial sex" and separates as
crimes the following:
a) The purchase or agreeing to purchase sex; and,
b) Agreeing to provide or providing sex.
2)Requires that all persons who are granted probation for
purchasing or agreeing to purchase a commercial sexual act
must serve a continuous jail term of at least 48 hours and pay
a minimum mandatory fine of not less than $1,000 ($4,170 with
penalties and assessments), and up to $50,000 ($205,070).
a) Specifies the court may not waive the requirement that a
defendant - whether granted probation or not - serve at
least 48 hours of continuous confinement.
b) Provides that fines collected from a person who has been
convicted of purchasing or offering to purchase a
commercial sex act shall be deposited in the Victim-Witness
Assistance Fund to fund grants to "local programs." Fifty
percent of each fine shall be granted to public agencies
and nonprofit corporations providing exit or recovery
services to persons exploited through commercial sex.
Fifty percent of the fines shall be granted to law
enforcement and prosecution agencies in the jurisdiction of
the crime "to fund programs to prevent sex purchasing."
3)Creates an additional minimum mandatory fine of $1,000
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($4,170) and up to $10,000 ($41,070), in addition to any other
fines imposed, for any person who agrees to purchase a
commercial sex act with a minor.
4)Specifies an additional minimum mandatory fine of $5,000
($20,570), in addition to an existing fine of up to $5,000
($20,570) for placing a minor into prostitution, or furnishing
a minor to another person for sexual conduct.
EXISTING LAW :
1)Defines "unlawful sexual intercourse" as an act of sexual
intercourse accomplished with a person under the age of 18
years, when no other aggravating elements - such as force or
duress - are present. (Pen. Code � 261.5, subd. (a).)
2)Provides the following penalties for unlawful sexual
intercourse:
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 $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
$10,000. (Pen. Code � 261.5, subd (b)-(d).)
3)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:
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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).)
4)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).)
5)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).)
6)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).)
7)Includes numerous crimes concerning sexual exploitation of
minors for commercial purposes. These crimes include:
a) Pimping: Deriving income from the earnings of a
prostitute, deriving income from a place of prostitution,
or receiving compensation for soliciting a prostitute.
Where the victim is a minor under the age of 16, the crime
is punishable by a prison term of three, six or eight
years. (Pen. Code � 266h, subds. (a)-(b);
b) Pandering: Procuring another for prostitution, inducing
another to become a prostitute, procuring another person to
be placed in a house of prostitution, persuading a person
to remain in a house of prostitution, procuring another for
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prostitution by fraud, duress or abuse of authority, and
commercial exchange for procurement. (Pen. Code � 266i,
subd. (a).);
c) Procurement: Transporting or providing a child under 16
to another person for purposes of any lewd or lascivious
act. The crime is punishable by a prison term of three,
six, or eight years, and by a fine not to exceed $15,000.
(Pen. Code � 266j.)
d) Taking a minor from her or his parents or guardian for
purposes of prostitution. This is a felony punishable by a
prison term of 16 months, two years, or three years and a
fine of up to $2,000. (Pen. Code � 267.); and,
8)Provides that where a person is convicted of pimping or
pandering involving a minor the court may order the defendant
to pay an additional fine of up to $5,000. In setting the
fine, the court shall consider the seriousness and
circumstances of the offense, the illicit gain realized by the
defendant and the harm suffered by the victim. The proceeds
of this fine shall be deposited in the Victim-Witness
Assistance Fund and made available to fund programs for
prevention of child sexual abuse and treatment of victims.
(Pen. Code � 266k, subd. (a).)
9)Provides that where a defendant is convicted of taking a minor
under the age 16 from his or her parents to provide to others
for prostitution (Pen. Code � 267) or transporting or
providing a child under the age of 16 for purposes of any lewd
or lascivious act (Pen. Code � 266j), the court may impose an
additional fine of up to $20,000. (Pen. Code � 266k, subd.
(b).)
10)Provides that where a defendant is convicted under the Penal
Code of taking a minor (under the age of 18) from his or her
parents for purposes of prostitution (Pen. Code � 267), or
transporting or providing a child under the age of 16 for
purposes of any lewd or lascivious act (266j), the court, if
it decides to impose a specified additional fine, the fine
must be no less than $5,000, but no more than $20,000. (Pen.
Code � 266k, subd. (b).)
11)Provides that any person who solicits, agrees to engage in,
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or engages in an act of prostitution is guilty of a
misdemeanor. The crime does not occur unless the person
specifically intends to engage in an act of prostitution and
some act is done in furtherance of agreed upon act.
Prostitution includes any lewd act between persons for money
or other consideration. (Pen. Code � 647, subd. (b).)
12)Provides that if the defendant agreed to engage in an act of
prostitution, the person soliciting the act of prostitution
need not specifically intend to engage in an act or
prostitution. (Pen. Code � 647, subd. (b).)
13)Provides that where any person is convicted of a second
prostitution offense, the person shall serve a sentence of at
least 45 days, no part of which can be suspended or reduced by
the court regardless of whether or not the court grants
probation. (Pen. Code � 647, subd. (k).)
14)Provides that where any person is convicted for a third
prostitution offense, the person shall serve a sentence of at
least 90 days, no part of which can be suspended or reduced by
the court regardless of whether or not the court grants
probation. (Pen. Code � 647, subd. (k).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This
bi-partisan measure seeks to shift the paradigm away from
prosecuting victims to prosecuting Johns and those who pimp
out sex workers. By increasing penalties and including
incarceration time for men and women who violate a human's
right to free will, it is my hope that increased punishment
and harsher repercussions will deter this odious and criminal
behavior. The country and the world need to know that
California's children are not for sale."
2)Mandatory Minimum Jail Sentence for First-Offense Prostitution
Offenses : Adults who procure the services of adult
prostitutes will face minimum mandatory jail time of 48 hours
for a first-offense of misdemeanor prostitution. The court
will have no discretion in deciding whether or not to sentence
a defendant to jail. Courts are generally in the best
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position to determine the whether the facts and circumstances
of a particular case merit jail time. This bill would remove
that discretion from judges. "Johns" who engage in
misdemeanor prostitution offenses will take up valuable jail
space that could be used to house offenders who commit violent
offenses. The mandatory jail time applies to all persons who
solicit a prostitute, not merely those who solicit a human
trafficking victim.
3)Graduated Sanctions Already Exist for Recidivist Johns : For a
first offense conviction of prostitution the defendant faces
up to 180 days in jail. If a defendant has one prior
conviction of prostitution he or she must receive a county
jail sentence of not less than 45 days. If the defendant has
two or more prior convictions, the minimum sentence is 90 days
in the county jail. This bill would require 48 hours of
custody for a first offense.
4)Prostitution and Human Trafficking, Though Related, are not
Always the Same Thing : A growing number of policy discussions
are equating prostitution offenses with human trafficking
offenses. There is no doubt that the crimes are related,
however, they are not the same crime. A number of proposals
seek to treat all prostitution offenses more severely because
of the grave threat and nature of human trafficking. Human
trafficking is a very serious crime, involving forced
servitude, with very serious penalties. Most prostitution
offenses between a person who is soliciting a prostitute and
the prostitute themselves are misdemeanor crimes, which are
unrelated to human trafficking. Additionally, pimps and
panderers generally are treated more severely by the law, with
much more serious consequences than the prostitute or the
"john." Unlike the crimes of pimping and pandering, human
trafficking is a crime that generally involves some form of
force or coercion.
California has existing strict laws for the treatment of pimps
and panderers, as well as human traffickers. However, those
crimes are not the same and should not be treated the same.
Furthermore, not every person who solicits a prostitute is
engaged in the crime of human trafficking. In fact, the vast
majority are not purchasing a commercial sex act with a person
who is being forced to engage in the activity through the
auspices of human trafficking. Categorizing all "johns" as
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human traffickers, or all pimps and panderers as human
traffickers, is unproductive in setting criminal justice
policy. Blurring the lines between the less severe crimes
related to prostitution, and the more severe crimes related to
human trafficking, weakens the severity of human trafficking
offenses. For instance, this committee has approved bills to
add human trafficking to the list of serious felonies.
However, if we continue to expand the definition of human
trafficking to include more minor prostitution-related
offenses the committee would have to re-evaluate in the future
whether it would still consider human trafficking a serious
felony.
According to the Polaris Project, "Human trafficking is a form
of modern-day slavery where people profit from the control and
exploitation of others. As defined under U.S. federal law,
victims of human trafficking include children involved in the
sex trade, adults age 18 or over who are coerced or deceived
into commercial sex acts, and anyone forced into different
forms of 'labor or services,' such as domestic workers held in
a home, or farm-workers forced to labor against their will.
The factors that each of these situations have in common are
elements of force, fraud, or coercion that are used to control
people."
(< http://www.polarisproject.org/human-trafficking/overview >.)
Pimping under California law means receiving compensation from
the solicitation of a known prostitute. (Pen. Code, � 266h.)
Whereas pandering means procuring another person for the
purpose of prostitution by intentionally encouraging or
persuading that person to become or continue being a
prostitute. (Pen. Code, � 266i.) Oftentimes, pimps use
mental, emotional, and physical abuse to keep their
prostitutes generating money. Consequently, there has been a
paradigm shift where pimping and pandering is now viewed as
possible human trafficking.
This new approach has been criticized by some because it blurs
the line between human trafficking and prostitution. Sex
workers say it discounts their ability to willingly work in
the sex industry. (See Nevada Movement Draws the Line on
Human Trafficking by Tom Ragan, Las Vegas Review Journal, May
26, 2013, <
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http://www.reviewjournal.com/news/las-vegas/nevada-movement-dra
ws-line-human-trafficking >.)
a) Prostitution Generally : The basic crime of prostitution
is a misdemeanor offense. (Pen. Code � 647(b).)
Prostitution can be generally defined as "soliciting or
agreeing to engage in a lewd act between persons for money
or other consideration." Lewd acts include 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 of
either person.
To implicate a person for prostitution themselves, the
prosecutor must prove that the defendant "solicited" or
"agreed" to "engage" in prostitution. A person agrees to
engage in prostitution when the person accepts an offer to
commit prostitution with specific intent to accept the
offer, whether or not the offerer has the same intent.
For the crime of "soliciting a prostitute" the prosecutors
must prove that the defendant requested that another person
engage in an act of prostitution, and that the defendant
intended to engage in an act of prostitution with the other
person, and the other person received the communication
containing the request. The defendant must do something
more than just agree to engage in prostitution. The
defendant must do some act in furtherance of the agreement
to be convicted. Words alone may be sufficient to prove
the act in furtherance of the agreement to commit
prostitution
Violation of Pen. Code � 647(b) is a misdemeanor. For a
first offense conviction of prostitution the defendant
faces up to 180 days in jail. If a defendant has one prior
conviction of prostitution he or she must receive a county
jail sentence of not less than 45 days. If the defendant
has two or more prior convictions, the minimum sentence is
90 days in the county jail.
In addition to the punishment described above, if the
defendant is conviction of prostitution, he or she faces
fines, probation, possible professional licensing
restrictions or revocations, possible immigration
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consequences, possible asset forfeiture, and possible
driving license restrictions.
Closely associated crimes to prostitution include:
abduction of a minor for prostitution (Pen. Code 267);
seduction for prostitution (Pen. Code 266); keeping a house
of prostitution (Pen. Code 315); leasing a house for
prostitution (Pen. Code 318); sending a minor to a house of
prostitution (Pen. Code 273e); taking a person against that
person's will for prostitution (Pen. Code 266a); compelling
a person to live in an illicit relationship (Pen. Code
266b); placing or leaving one's wife in a house of
prostitution (Pen. Code 266g); loitering for prostitution
(Pen. Code 653.22 subd. (a)); pimping ( Pen. Code 266h);
or, pandering ( Pen. Code 266i). Most of these crimes are
punished much more severely than the underlying
prostitution offense, particularly the crimes of pimping,
pandering, and procurement.
b) Human Trafficking Generally : 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 is 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
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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 victim engaged in sexual conduct
from being used against victims in court proceedings.
Additionally, the proposition lowered the evidential
requirements for showing of force in cases of minors.
i) Trafficking Victims Protection Act of 2000 (22 USC
Sections 7101 et seq.) : In October 2000, the Trafficking
Victims Protection Act of 2000 (TVPA) was enacted and is
comprehensive, addressing the various ways of combating
trafficking, including prevention, protection and
prosecution. The prevention measures include the
authorization of educational and public awareness
programs. Protection and assistance for victims of
trafficking include making housing, educational,
health-care, job training and other federally funded
social service programs available to assist victims in
rebuilding their lives. Finally, the TVPA provides law
enforcement with tools to strengthen the prosecution and
punishment of traffickers, making human trafficking a
federal crime.
ii) Recent Update to Human Trafficking Laws : In 2012,
Californians voted to pass Proposition 35, which modified
many provisions of California's already tough human
trafficking laws. Specifically, Proposition 35 increased
criminal penalties for human trafficking offenses,
including prison sentences up to 15-years-to-life and
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fines up to $1.5 million. The proposition specified that
the fines collected are to be used for victim services
and law enforcement. In criminal trials, the proposition
prohibits the use of evidence that a person was involved
in criminal sexual conduct (such as prostitution) to
prosecute that person for that crime if the conduct was a
result of being a victim of human trafficking, and makes
evidence of sexual conduct by a victim of human
trafficking inadmissible for the purposes of attacking
the victim's credibility or character in court. The
proposition lowered the evidentiary requirements for
showing of force in cases of minors.
Proposition 35 also requires persons convicted of human
trafficking to register as sex offenders and expanded
registration requirements by requiring registered sex
offenders to provide the names of their internet
providers and identifiers, such as e-mail addresses, user
names, and screen names, to local police or sheriff's
departments. After passage of Proposition 35, plaintiffs
American Civil Liberties Union and Electronic Frontier
Foundation filed a law suit claiming that these
provisions unconstitutionally restricts the First
Amendment rights of registered sex offenders in the
states. A United States District Court judge granted a
preliminary injunction prohibiting the implementation or
enforcement of Proposition 35's provisions that require
registered sex offenders to provide certain information
concerning their Internet use to law enforcement. [Doe
v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013
LEXIS 5428.]
iii)California Attorney General's Report on Human
Trafficking : The California Attorney General's Human
Trafficking in California 2012 report stated that human
trafficking investigations and prosecutions have become
more comprehensive and organized. There are nine human
trafficking task forces in California, composed of local,
state and federal law enforcement and prosecutors.
Data on human trafficking has improved, although the data
still does not reflect the actual extent and range of
human trafficking. Data from 2010 through 2012 collected
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by the California task forces are set out in the
following chart:
California Human Trafficking Task Forces Data
2010-2012
---------------------------------------------------------
|Investigations |2,552 |
|--------------------------------+------------------------|
|Victims Identified |1,277 |
|--------------------------------+------------------------|
|Arrests Made |1,798 |
---------------------------------------------------------
Trafficking by Category
----------------------------------------------------------
|Sex Trafficking |56% |
|--------------------------------+-------------------------|
|Labor Trafficking |23% |
|--------------------------------+-------------------------|
|Unclassified or Insufficient |21% |
|Information | |
----------------------------------------------------------
5)Incentive to Refuse Probation for Defendants Convicted of
Offering to Purchase of Purchasing Commercial Sex : This bill
provides that where a person convicted of agreeing to purchase
or purchasing a commercial sex act is granted probation, the
defendant must serve a continuous jail term of at least 48
hours and pay a fine of between $1,000 and $50,000. The
sentencing court cannot decline to impose the jail term. A
person convicted of such a crime who is not granted probation
must serve a continuous jail term of at least 48 hours, but
there is no requirement that the defendant pay a fine. If the
court imposes a fine, the maximum fine is $1,000, the default
maximum misdemeanor fine.
Arguably, subjecting only persons granted probation for
purchasing or agreeing to purchase a commercial sex act to a
mandatory fine of between $1,000 and $50,000 creates a very
strong incentive for defendants to refuse probation. A
defendant who refused probation would serve his jail term and
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face no more than a $1,000 fine. A defendant who refuses
probation would not receive supervision after serving his jail
term and could not have his punishment modified, unlike a
probationer. The court has essentially no authority over a
person who refuses probation and has suffered whatever
punishment the court imposes. Additionally, any treatment
offered by probation would not be provided to an offender.
6)Minimum Mandatory Fines Remove Judicial Discretion and are
Subject to Penalties and Assessments : Judges are in the best
position to determine the appropriate sentence in a particular
case. The judge presiding over a particular case is an
independent arbiter of the facts and circumstances presented.
The Legislature should pause before removing this discretion
from judges, and tie their hands in particular matters. For
this reason, minimum mandatory fines have been generally
disfavored as a form of punishment.
This bill imposes a number of "additional" fines on top of an
existing base fine. Specifically, this bill does the
following:
a) Requires that all persons who are granted probation for
purchasing or agreeing to purchase a commercial sexual act
(regardless of the age of the person solicited) must serve
a continuous jail term of at least 48 hours and pay a
minimum mandatory fine of not less than $1,000, and up to
$50,000;
b) Creates an additional minimum mandatory fine of $1,000
and up to $10,000, in addition to any other fines imposed,
for any person who agrees to purchase a commercial sex act
with a minor; and,
c) Specifies an additional minimum mandatory fine of $5,000
in addition to an existing fine of up to $5,000 for placing
a minor into prostitution, or furnishing a minor to another
person for sexual conduct. Under existing law, the court
can already issue a fine of up to $20,000.
Setting the penalty, or range of penalties, for a crime is an
inherently legislative function. The Legislature does have
the power to require a minimum term or other specific
sentence. (Keeler v. Superior Court (1970) 2 Cal.3d 619,
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631.) Sentencing, however, is solely a judicial power.
(People v. Tenorio (1970) 3 Cal.3d 89, 90-93; People v.
Superior Court (Fellman) (1976) 59 Cal.App.3d 270, 275.)
California law effectively directs judges to impose an
individualized sentence that fits the crime and the
defendant's background, attitude, and record. (Cal. Rules of
Court, rules 4.401-4.425.) This bill limits judicial
discretion and requires a minimum fine of $500 to be imposed
in each case, regardless of the facts of the case and the
defendant's record.
Also, there are penalty assessments and fees assessed on the
base fine for a crime. Assuming a defendant was fined $50,000
for engaging in prostitution as the maximum fine, the
following penalty assessments would be imposed pursuant to the
Penal Code and the California Government Code:
Base Fine:
$
50,000
Penal Code 1464 assessment:
$ 50,000 ($10 for every $10)
Penal Code 1465.7 surcharge:
10,000
(20% surcharge)
Penal Code 1465.8 assessment:
40 ($40 fee per offense)
Government Code 70372 assessment:
25,000 ($5 for every $10)
Government Code 70373 assessment:
30 ($30 for felony or misd.)
Government Code 76000 assessment:
35,000 ($7 for every $10)
Government Code 76000.5 assessment:
10,000 ($2 for every $10)
Government Code 76104.6 assessment:
5,000 ($1 for every $10)
Government Code 76104.7 assessment:
20,000 ($4 for every $10)
Total Additional Fine with Assessments: $
205,070.00
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Under this legislation an individual, who solicits a
prostitute, could be fined over $200,000.00 for consensual
sexual activity between two adults.
7)Double Punishment : This bill seeks to impose a number of
second punishments for single acts. The bill is imposing a
number of "additional" fines on top of existing criminal fines
related to commercial sex acts with minors. For one of the
fines, the bill seeks to divert the additional funds to law
enforcement and victim services. The bill is imposing an
additional fine on top of the existing punishment. As a
public policy, the Legislature imposes a distinct fine for
each distinct criminal act. As outlined above, each fine is
subject to individual penalties and assessments. An offender
suffering two fines for one act would pay many of the
assessments twice for one act.
8)Fine Distribution to Law Enforcement Creates a Potential
Conflict of Interest : The payment of criminal fines or fees
to a law enforcement entity or for direct law enforcement
purposes raises issues of an improper bounty - an incentive
for law enforcement agencies to pursue investigations based on
financial interest, rather than public safety. These concerns
may be heightened when government budgets are strained.
Further, designating that criminal fines be paid to a
particular kind of law enforcement program could set a
precedent under which other law enforcement entities could
press to receive the proceeds of criminal fines.
Investigations of many crimes - murders, sexual assaults,
financial crimes, construction fraud and worker's compensation
fraud - may be as costly and complicated as commercial sex
crimes. For example, the Contractors' State License Board
uses stings to catch unlicensed contractors. If criminal
fines are used to fund decoy programs in which law enforcement
personnel pretend to be commercial sex workers, law
enforcement officers and prosecutors who handle other complex
cases could well demand that fines be used to support their
operations.
To avoid creation of an incentive for law enforcement to
pursue certain crimes for financial purposes, not solely law
enforcement purposes, and to avoid a precedent for funding law
enforcement through criminal fines, it is suggested that the
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bill could be amended to deposit special fines in commercial
sex cases into victim services.
In this bill, another concern is that the law enforcement
funding is designated for prevention programs. As the name
states, law enforcement entities enforce the criminal law by
arresting subjects and collecting evidence for the prosecutor.
Law enforcement agencies conduct prostitution "stings" in
which a law enforcement decoy pretends to be a prostitute in
order to arrest a person for solicitation of prostitution.
While this can be said to prevent a prostitution offense on
the night of arrest, it cannot be determined if the arrested
person would seek out prostitutes at a later time. Further,
the person might learn from the arrest how to avoid decoys and
arrests on other occasions. Further, law enforcement entities
generally do not have programs to turn prostitutes away from
sexual commerce and toward different employment and social
contacts and conducting stings to arrest sex purchasers would
not directly affect sex workers.
9)Recidivism Rates for Persons Arrested for Soliciting
Prostitution are Low : A study in 2002 in the Western
Criminology Review of a now defunct first-offender program in
Portland (SEEP) found very low recidivism rates for all
prostitution arrestees regardless of whether they were
referred to SEEP and participated, were referred to SEEP but
did not attend, or were not referred to the program. The
study considered only a two-year period and a relatively small
number of offenders. The researchers inferred from the data
that an arrest, per se, could have deterred offenders, as
prostitution offenses involve significant shame. The authors,
however, also questioned if the offenders continued to solicit
prostitutes but simply learned how to avoid arrest. They
could not say whether the education from the SEEP program
would have led the participants to a avoid prostitution for a
substantial time in the future.
A number of cities around the country have adopted special
first-offender prostitution diversion programs that educate
men arrested for soliciting an act of prostitution about the
harms caused by or attendant to the commercial sex trade. The
San Francisco program - First Offender Prostitution Program
(FOPP) - was one of the first of these programs. The program
requires men arrested for the first time for a prostitution
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offense to attend a one-day course of the harms caused or
exacerbated by the demand for prostitution. Men who complete
the course are diverted out of the criminal justice system.
A report on the San Francisco FOPP conducted by Abt Associates
concluded that program was well run and effective. The
program educated participants about the risk of harm to
prostitution customers, such as robbery, reinforcement of
sexually compulsive behaviors and sexually transmitted
diseases (STDs). The course also examined the negative
consequences for prostitutes, such as drug abuse, STDs and
other health problems, criminal convictions, exploitation by
pimps, rape and other violence and harm to the community. The
Abt report found a sharp drop in recidivism attributable to
the program.
The claims of a sharp drop in recidivism in the Abt report
have been criticized and questioned. One study by researchers
from DePaul University and American University found
methodological flaws in the Abt report. The study from the
Western Criminology Review (noted above) found that recidivism
rates attributable to FOPP programs are difficult to measure,
as johns arrested for prostitution offenses can easily learn
how to avoid arrest. Further, the increasing shift of
prostitution to the Internet makes it difficult to measure
recidivism.
10)No Knowledge Requirement : There is no requirement that an
offender who solicits a minor know that the person engaged in
prostitution is a minor. (Pen. Code � 236.1 subd. (f).)
11)Sexual Contact with Minors is Already Heavily Punished by
Other Crimes : Sexual conduct with a minor constitutes a
felony in most instances, regardless of whether anything of
value was offered or exchanged for the sexual acts. Arguably,
the exchange of money could be an aggravating factor in the
underlying sex crime, as it could be seen as an improper
attempt to normalize the behavior or coerce the victim. If
the minor involved in commercial sex of was under the age of
14, the defendant has committed the felony of lewd conduct,
with a prison term of three, six or eight years. (Pen. Code �
288, subd. (a).) The crime is punishable by a term of 5, 8 or
10 years if the defendant used force, threats, duress or
coercion. Solicitation of an act of prostitution from a minor
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under the age of 14 could likely be prosecuted as attempted
lewd conduct - the intention to commit the crime and a direct
step towards its commission. The prison or jail term of an
attempt is generally one-half the punishment for the completed
crime. Where the defendant solicited or employed a minor who
was14 or 15 years old, and the defendant was at least 10 years
older than the minor, the defendant has committed an alternate
felony-misdemeanor.
Any defined sex act - sodomy, sexual penetration, oral
copulation or sexual intercourse - with a minor is a crime.
The penalties depend on the relative ages of the defendant and
the minor and whether the crime involved some form of force,
coercion or improper advantage.
A defendant charged with a prostitution-related offense
involving a minor could also be charged and convicted of a sex
crime in the same case. Generally, because the defined sex
crime and the sexual commerce offense would involve a single
transaction or act, the defendant could only be punished for
one offense - the offense carrying the greatest penalty.
(Pen. Code � 654.)
12)Argument in Support : According to the Junior Leagues of
California, "eliminating human trafficking and slavery in all
its forms and educating the community at large is a key focus
area of the Junior Leagues of California and its member
leagues.
"Human trafficking is considered to be one of the fastest
growing criminal industries. Each year, human traffickers
generate billions of dollars in profits by victimizing
millions of people around the world. According to the Polaris
Project, 41% of sex trafficking and 20% of labor trafficking
cases referenced U.S. citizens as victims. Women were
referenced as victims in 85% of sex trafficking cases and men
are referenced in 40% of labor trafficking. In addition, more
than 100,000 children are estimated to be sex trafficked in
the United States annually."
13)Argument in Opposition: According to the California Public
Defenders Association , "SB 1388 proposes to amend section
266k(b) to require additional fines from $5,000 to $20,000 for
individuals convicted of procuring a minor under the age of 16
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for prostitution (Penal Code Section 266j) or taking a minor
under 18 years of age without the legal guardian's permission
for purposes of prostitution (Penal Code Section 267). Under
existing law, procuring a minor under 16 has a maximum fine of
$15,000 and taking a minor without the legal guardian's
permission has a maximum fine of $2,000. Under existing Penal
Code Section 266k(b), the court may impose an additional
maximum fine of $20,0000. However, there is no minimum
additional fine.
"SB 1388 proposes to amend Penal Code Section 647(b) to
clarify the language of agreeing to purchase or perform
commercial sex acts. It also provides for mandatory 48 hour
minimum jail sentence and if probation is granted, a minimum
fine of $1,000 and a maximum fine of $50,000 for purchasers of
commercial sex acts. It would also provide an additional fine
of a minimum of $1,000 and a maximum of $10,000 if the victim
prostitute was a minor. Under existing law, the maximum fine
for a misdemeanor is $1,000.
"The funds collected go variously to the Victim Witness Fund
to disburse to local nonprofits, the county's general fund for
collecting the fines, law enforcement and prosecution agencies
in the local jurisdiction and a new state Commercial Sexual
Exploitation of Children Services Fund.
"We object to these massive fine increases. A potential fifty
(50) fold increased fine for a misdemeanor violation of
solicitation for prostitution is unjust and counterproductive.
"Although it is a worthy goal to end the sexual exploitation
of minors most of whom come from impoverished or abusive
families, it should not be funded by impoverishing other
families and children. Doing so merely replicates the cycle
of poverty and abuse.
"The individuals charged under California's human trafficking
and prostitution statutes are not human trafficking kingpins
or madams. They are for the most part individuals with no
organized crime ties.
"Individuals who are convicted of misdemeanor violations of
Penal Code Section 647(b) are already subject to a mandatory
restitution fine up to $1,000 and restitution to any victims.
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"The restitution fund fines are subject to penalty
assessments. Penalty assessments have proliferated wildly
over the past few decades, to the point where a typical total
fine is now triple or quadruple the base fine. An inevitable
side effect of these ballooning fines is that fewer and fewer
criminal defendants can afford to pay them. Three quarters of
misdemeanor defendants and 90% of felony defendants are
indigent, as indicated by the fact they are represented by
public defenders or other appointed counsel. When defendants
cannot pay the fine it is unconstitutional to imprison them
for their poverty, so the fine goes uncollected and measures
such as this are virtually dead letters. In other cases
defendants who are already sentenced to jail, but can't afford
the monetary portion of their sentence will simply opt to
convert the fine to additional jail time, which results in
more cost to the government rather than more money in their
coffers.
"Since counties now routinely send the unpaid balance of these
fines and fees to the State Controller for collection, it is
almost impossible for many individuals who now have a
conviction to get back on their feet and support themselves
and their families.
"These proposed increased fines on top of all the fines and
fees detailed above is bad public policy. By making it even
more difficult for convicted misdemeanants and felons to
become law abiding citizens, it will endanger the public."
14)Related Legislation: AB 1791 (Maienschein), 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. Was amended in Assembly Public
Safety Committee to remove provisions which imposed felony
penalties and lifetime registration on persons who solicit a
minor for prostitution. AB 1791 has been referred to Senate
Public Safety.
15)Prior Legislation :
a) AB 90 (Swanson) , statutes of 2011, Ch. 457, included,
within the definition of criminal profiteering activity,
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any crime in which the perpetrator induces, encourages, or
persuades, or causes through force, fear, coercion, deceit,
violence, duress, menace, or threat of unlawful injury to
the victim or to another person, a person under 18 years of
age to engage in a commercial sex act, and specifies that
the proceeds shall be deposited in a Victim-Witness Fund,
as specified.
b) AB 17 (Swanson), statutes of 2010, Ch. 211, added
abduction or procurement for prostitution to the criminal
profiteering asset forfeiture law; provided that the court
may impose a fine of up to $20,000, in addition to any
other fines and penalties, where the defendant has been
convicted of abduction of a minor for purposes of
prostitution or procurement of a minor under the age of 16
for lewd conduct; and provided that 50 percent of the
additional fine shall be deposited in the Victim-Witness
Assistance Fund for purposes of grants to community-based
organizations that serve minor victims of human
trafficking.
c) AB 22 (Lieber), Chapter 240, Statutes of 2005, created
the California Trafficking Victims Protection Act, which
established civil and criminal penalties for human
trafficking and allowed for forfeiture of assets derived
from human trafficking. In addition, the Act required law
enforcement agencies to provide Law Enforcement Agency
Endorsement to trafficking victims, providing trafficking
victims with protection from deportation and created the
Human Trafficking Task Force.
REGISTERED SUPPORT / OPPOSITION :
Support
A21 Campaign
Alameda County District Attorney
American Academy of Pediatrics
American Federation of State, County and Municipal Employees
Association for Los Angeles County Deputy Sheriffs
Association for the Recovery of Children
Bridge Network
California Catholic Conference
California Fraternal Order of Police
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California Narcotic Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
California Statewide Law Enforcement Association
City of Long Beach
City of Los Angeles
City of Vista
Christians Against Slavery
Church State Council
Community Against Sexual Harm
Community Overcoming Relationship Abuse
Concerned Women for America
County of Los Angeles
Domestic Violence Center
First United Methodist Church of Escondido
Freedom from Exploitation
Gems Uncovered
Generate Hope
Grandma's House of Hope
Guadalupe Art Program
Joyful Child Foundation
Journey Community Church
Junior Leagues of California
Junior Leagues of Orange County
Laura's House
Long Beach Peace Officers Association
Los Angeles Professional Peace Officers Association
Los Angeles Police Protective League
Mary Magdalene Project
MISSSEY
New Directions for Women
Peace Officer Research Association of California
Red Window Project
Riverside Sheriffs' Association
Sacramento County Deputy Sheriffs Association
Safety Corridor Coalition
Soroptimist International of Vista
Soroptimists Together Against Trafficking
Surviving Parents Coalition
Survivors for Solutions
United Nations Association, San Diego Chapter
Urban Counties Caucus
Without Permission
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Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Erotic Service Providers Union
Transgender Law Center
US PROStitutes Collective
1 Private Citizen
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744