BILL ANALYSIS Ó
AB 733
Page A
Date of Hearing: April 28, 2015
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
733 (Chávez) - As Amended March 26, 2015
SUMMARY: Requires sex offender registration, placement on the
Megan's Law Website, and mandates a minimum $10,000 ($ 41,070)
fine for solicitation of a minor. Specifically, this bill:
1)Creates a mandatory fine of $10,000 for solicitation of a
minor.
2)Requires that a person convicted of solicitation of a minor
make restitution to the minor that includes the cost of mental
health counseling for the minor.
3)Requires a person who is convicted of soliciting a minor to
register as a sex offender:
a) Specifies that these offenders, who are granted
probation, shall participate in a sex offender management
program as a condition of probation.
b) Requires specified postings about the offender on the
Megan's Law Website. Permits an offender to petition for
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removal from the Megan's Law Website if the person has
satisfied all conditions of probation or suspension of
imposition of his or her sentence and has not been
convicted of any other offense requiring registration as a
sex offender in a 5-year period following satisfaction of
those conditions.
EXISTING LAW:
1)Requires persons convicted of specified sex offenses to
register for life, or reregister if the person has been
previously registered, upon release from incarceration,
placement, commitment, or release on probation. States that
the registration shall consist of all of the following (Pen.
Code, § 290.015, subd. (a).):
a) A statement signed in writing by the person, giving
information as shall be required by DOJ and giving the name
and address of the person's employer, and the address of
the person's place of employment, if different from the
employer's main address;
b) Fingerprints and a current photograph taken by the
registering official;
c) The license plate number of any vehicle owned by,
regularly driven by or registered in the name of the
registrant;
d) Notice to the person that he or she may have a duty to
register in any other state where he or she may relocate;
and,
e) Copies of adequate proof of residence, such as a
California driver's license or identification card, recent
rent or utility receipt or any other information that the
registering official believes is reliable.
2)States every person who is required to register, as specified,
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who is living as a transient shall be required to register for
the rest of his or her life as follows:
a) He or she shall register, or reregister if the person
has previously registered, within five working days from
release from incarceration, placement or commitment, or
release on probation, pursuant to Penal Code Section
290(b), except that if the person previously registered as
a transient less than 30 days from the date of his or her
release from incarceration, he or she does not need to
reregister as a transient until his or her next required
30-day update of registration. If a transient is not
physically present in any one jurisdiction for five
consecutive working days, he or she shall register in the
jurisdiction in which he or she is physically present on
the fifth working day following release, as specified.
Beginning on or before the 30th day following initial
registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall
register with the chief of police of the city in which he
or she is physically present within that 30-day period, or
the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no
police department, and additionally, with the chief of
police of a campus of the University of California, the
California State University, or community college if he or
she is physically present upon the campus or in any of its
facilities. A transient shall reregister no less than once
every 30 days regardless of the length of time he or she
has been physically present in the particular jurisdiction
in which he or she reregisters. If a transient fails to
reregister within any 30-day period, he or she may be
prosecuted in any jurisdiction in which he or she is
physically present.
b) A transient who moves to a residence shall have five
working days within which to register at that address, in
accordance with Penal Code Section 290(b). A person
registered at a residence address in accordance with that
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provision who becomes transient shall have five working
days within which to reregister as a transient in
accordance with existing law.
c) Beginning on his or her first birthday following
registration, a transient shall register annually, within
five working days of his or her birthday, to update his or
her registration with the entities described in existing
law. A transient shall register in whichever jurisdiction
he or she is physically present on that date. At the 30-day
updates and the annual update, a transient shall provide
current information as required on the DOJ annual update
form, including the information.
d) A transient shall, upon registration and
re-registration, provide current information as required on
the DOJ registration forms, and shall also list the places
where he or she sleeps, eats, works, frequents, and engages
in leisure activities. If a transient changes or adds to
the places listed on the form during the 30-day period, he
or she does not need to report the new place or places
until the next required re-registration. (Pen. Code, §
290.011, subds. (a) to (d).)
3)Provides that willful violation of any part of the
registration requirements constitutes a misdemeanor if the
offense requiring registration was a misdemeanor, and
constitutes a felony of the offense requiring registration was
a felony or if the person has a prior conviction of failing to
register. (Pen. Code, § 290.018, subds. (a)&(b).)
4)Provides that within three days thereafter, the registering
law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the DOJ. (Pen. Code § 290.015, subd. (b).)
5)States that a misdemeanor failure to register shall be
punishable by imprisonment in a county jail not exceeding one
year, and a felony failure to register shall be punishable in
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the state prison for 16 months, two or three years. (Pen.
Code, § 290.018, subds. (a)&(b).)
6)Provides that the DOJ shall make available information
concerning persons who are required to register as a sex
offender to the public via an internet website. The DOJ shall
update the website on an ongoing basis. Victim information
shall be excluded from the website. (Pen. Code § 290.46.)
The information provided on the website is dependent upon what
offenses the person has been convicted of, but generally
includes identifying information and a photograph of the
registrant.
7)Generally prevents the use of the information on the website
from being used in relation to the following areas: (Pen.
Code, § 290.46, subd. (l)(2).)
a) Health insurance;
b) Insurance;
c) Loans;
d) Credit;
e) Employment;
f) Education, scholarships, or fellowships;
g) Housing or accommodations; and
h) Benefits, privileges, or services provided by any
business establishment.
8)Provides that any person who solicits, agrees to engage in, 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
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any lewd act between persons for money or other consideration.
(Pen. Code, § 647, subd. (b).)
9)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).)
10)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).)
11)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).)
12)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).)
13)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
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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).)
14)Provides that in the absence of aggravating elements each
crime of sodomy, oral copulation or penetration with a foreign
or unknown object with a minor is punishable as follows:
a) Where the defendant is over 21 and the minor under 16
years of age, the offense is a felony, with a prison term
of 16 months, two years or three years.
b) In other cases sodomy with a minor is a wobbler, with a
felony prison term of 16 months, two years or three years.
(Pen. Code §§ 286, subd. (b), 288a, subd. (b), 289, subd.
(h).)
15)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).)
16)Provides that any person who engages in lewd conduct - any
sexually motivated touching or a defined sex act - with a
child under the age of 14 is guilty of a felony, punishable by
a prison term of 3, 6 or 8 years. Where the offense involves
force or coercion, the prison term is 5, 8 or 10 years. (Pen.
Code § 288, subd. (b).)
17)Provides that where any person who engages in lewd conduct
with a child who is 14 or 15 years old, and the person is at
least 10 years older than the child, the person is guilty of
an alternate felony-misdemeanor, punishable by a jail term of
up to one year, a fine of up to $1,000, or both, or by a
prison term of 16 months, two years or three years and a fine
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of up $10,000. (Pen. Code § 288, subd. (c)(1).)
18)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
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,
19)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
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prevention of child sexual abuse and treatment of victims.
(Pen. Code § 266k, subd. (a).)
20)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).)
21)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).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "it is
horrifying to know that California is notorious for
trafficking children for sex. We must work harder to increase
punishments for those who commit such heinous acts and this
preventive measure will address just that."
2)Heavy Penalties and Registration Requirements Already Exist
for Persons who Engage in Sexual Acts with Minors: Under
current law, existing penalties which are almost too numerous
to count exist for crimes involving various sexual acts with
minors. From lewd and lascivious acts with a child to
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statutory rape, any individual who is an adult that engages in
sexual contact with a minor is punished under California law.
The penalties for these offenses almost universally include
long prison sentences, and require sex registration. This
bill would add the crime of misdemeanor solicitation for
prostitution to the list of offenses which would require sex
registration and inclusion on the Megan's Law Website.
3)California's Sex Offender Management Board's Background: On
September 20, 2006, Governor Arnold Schwarzenegger signed
Assembly Bill 1015, which created the California Sex Offender
Management Board. AB 1015 had been introduced by Assembly
Members Judy Chu and Todd Spitzer and passed the California
Legislature with nearly unanimous bipartisan support.
Because California is the most populated state in the Union and
has had lifetime registration for its convicted sex offenders
since 1947, California has more registered sex offenders than
any other state with about 88,000 identified sex offenders
(per DOJ, August 2007). Currently, the California Department
of Corrections and Rehabilitation (CDCR) supervises about
10,000 of those 88,000 sex offenders, of which about 3,200
have been designated as "high-risk sex offenders". (CDCR
Housing Summit, March 2007). Additionally, there are about
22,500 adult sex offenders serving time in one of 32 state
prisons operated by CDCR (California Sex Offender Management
Task Force Report, July 2007).
While it is commonly believed that most sexual assaults are
committed by strangers, the research suggests that the
overwhelming majority of sex offenders victimize people known
to them; approximately 90% of child victims know their
offenders, as do 80% of adult victims [per Kilpatrick, D.G.,
Edmunds, C.N., & Seymour, A.K. Rape in America: A Report to
the Nation (1992). Arlington, VA: National Victim Center.]
4)Sex Offender Registration and the Megan's Law Website:
According to a 2014 report by the California Sex Offender
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Management Board<1>, the intent of registration was to assist
law enforcement in tracking and monitoring sex offenders since
they were viewed as the group most likely to commit another
sex offense. It was thought that having their names and
addresses known to law enforcement and with the expansion of
community notification also available to the public would
dissuade them from committing a new offense, enable members of
the public to exercise caution around them, enable law
enforcement to monitor them and, if necessary, solve new sex
offense cases more readily. Although research suggests that
use of a registry may help law enforcement solve sex crimes
against children involving strangers more quickly, United
States DOJ statistics tell us that most crimes against
children (about 93%) are committed not by a stranger but by a
person known to the child and his or her family, usually an
acquaintance or family member.
Since 1947, earlier by far than any other state, California
has required "universal lifetime" registration for persons
convicted of most sex crimes. (Pen. Code, § 290.) Though every
other state has instituted some form of registration since
then, California is among only four states which require
lifetime registration for every convicted sex offender, no
matter the nature of the crime or the level of risk for
reoffending. Almost all other states use some version of a
"tiering" or "level" system which: 1. recognizes that not all
sex offenders are the same, 2. provides meaningful
distinctions between different types of offenders and 3.
requires registration at varying levels and for various
periods of time. There are nearly 100,000 registrants today
in California, a number accumulated over the past 66 years
since the Registry was created in 1947. In 2004 California
began to provide pictures and other identifying information on
the Megan's Law website for about 80% of registrants.
( www.meganslaw.ca.gov )
--------------------------
<1>
http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Backgroun
d%20Paper%20FINAL%20FINAL%204-2-14.pdf
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There are about 98,000 registered sex offenders on
California's registry. About 76,000 live in California
communities and the other 22,000 are currently in custody. Of
these offenders, 80% are posted on the state's Megan's Law web
site with their full address or ZIP Code and other
information, depending upon the offense they committed. About
20% are not posted or are excluded from posting on the web
site by law, again depending on the conviction offense.
Posting on the web site does not take into account years in
the community without reoffending, the offender's risk level
for committing a new sexual or violent crime, or successful
completion of treatment. About one-third of registered
offenders are considered "moderate to high risk" while the
remaining two-thirds are "moderate to low risk" or "low risk."
Local police departments and sheriff's offices are charged
with managing the registration process. Registered sex
offenders must re-register annually on their birthdays as well
as every time they have a change of address. Transient sex
offenders re-register every 30 days and sexually violent
predators every 90 days. Registration information collected by
law enforcement is sent to the California Department of
Justice (DOJ) and stored in the California Sex and Arson
Registry. If an offender's information is posted online and
he fails to register or re-register on time, he will be shown
as "in violation" on the Megan's Law web site. When proof is
provided by local law enforcement to DOJ of a registrant's
death, he or she is removed from the registry. Every ten
years since the Registry was first established has been marked
by a dramatic increase in the number of registrants.
As noted above, the original goal of registration was to
assist law enforcement in tracking and monitoring sex
offenders. Over time, registration was expanded to include
community notification and also began to encompass a wider
variety of crimes and behaviors. Due to these changes,
research has focused on exploring the changes in sex 4 CASOMB
"Tiering Background Paper" offender registration laws and this
has resulted in a constantly growing body of research that has
altered the perspective on sex offender registration. This
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research has made it clear that:
The sexual recidivism rate of identified sex
offenders is lower than the recidivism rate of
individuals who have committed any other type of crime
except for murder.
Not all sex offenders are at equal risk to reoffend.
Low risk offenders reoffend at low rates, high risk
offenders at much higher rates.
It is possible to use well-researched actuarial risk
assessment instruments to assign offenders to groups
according to risk level. (i.e. Low, Medium, High.)
Risk of a new sex offense drops each year the
offender remains offense-free in the community.
Eventually, for many offenders, the risk becomes so low
as to be meaningless and the identification of these
individuals through a registry becomes unhelpful due to
the sheer numbers on the registry. Research has
identified differing time frames of decreased risk for
the various categories of offenders (i.e. low, medium,
high).
Research on both general and sexual offenders has
consistently indicated that focusing on higher risk
offenders delivers the greatest return on efforts to
reduce reoffending.
Completing a properly designed and delivered
specialized sex offender treatment program delivered
within the context of effective supervision reduces
recidivism risk even further. In California, all
registered sex offenders on parole or probation are now
required by state law to enter and complete such a
program.
This bill would add more low-risk sex offenders to the
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registry, making the monitoring of the existing high-risk sex
offenders even more difficult than it already is.
1)The Current Sex Offender Registration System and Megan's Law
Website has Become too Unwieldy to be Effective for Law
Enforcement: Again, according to California's Sex Offender
Management Board, there are a number of problems with the
current system as a result of adding too many low-risk sex
offenders. California's system of lifetime registration for
all convicted sex offenders has created a registry that is
very large and that includes many individuals who do not
necessarily pose a risk to the community. The consequences of
these realities are that the registry has, in some ways,
become counterproductive to improving public safety. When
everyone is viewed as posing a significant risk, the ability
for law enforcement and the community to differentiate between
who is truly high risk and more likely to reoffend becomes
impossible. There needs to be a way for all persons to
distinguish between sex offenders who require increased
monitoring, attention and resources and those who are unlikely
to reoffend.
There are many unintended consequences and indirect costs
associated with sex offender registration.
Innocent families and children of offenders
(including victims of intra-familial sexual abuse)
also bear the consequences of lifetime registration
since they can often be identified by the public.
Adverse consequences also arise for employers,
landlords, neighbors and others.
There has been a proliferation of residence
restrictions and exclusion zones for registered sex
offenders in many jurisdictions in California.
Violation of these can lead to criminal charges. The
obstacles posed by registration status prevent many
individuals from obtaining housing or employment and
becoming functioning, contributing, tax-paying members
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of society.
There is reason to believe that registration
policies, especially lifetime registration, keep some
victims, particularly family members of the offender,
from disclosing the abuse because they wish to avoid
the stigma that will impact their family and their own
lives for a very long time.
The presence nearby of one or more registered
sex offenders can drive down property values in a
neighborhood and make houses difficult to sell. If
the current registration system was effective in the
ways intended, these might be considered part of the
price to pay for the greater good. But, since the
current registry does not attain its intended
purposes, many of these unintended consequences are
without justification.
1)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.
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,
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
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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 $10,000 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 $10,000
for engaging in prostitution as the minimum fine, the
following penalty assessments would be imposed pursuant to the
Penal Code and the California Government Code:
Base Fine:
$
10,000
Penal Code 1464 assessment:
$ 10,000 ($10 for every $10)
Penal Code 1465.7 surcharge:
2,000
(20% surcharge)
Penal Code 1465.8 assessment:
40 ($40 fee per offense)
Government Code 70372 assessment:
5,000 ($5 for every $10)
Government Code 70373 assessment:
30 ($30 for felony or misd.)
Government Code 76000 assessment:
7,000 ($7 for every $10)
Government Code 76000.5 assessment:
2,000 ($2 for every $10)
Government Code 76104.6 assessment:
1,000 ($1 for every $10)
Government Code 76104.7 assessment:
4,000 ($4 for every $10)
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Total Additional Fine with Assessments:
$ 41,070
2)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.
3)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
human traffickers, or all pimps and panderers as human
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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.
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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, <
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
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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
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.
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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
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.
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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
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.
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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
by the California task forces are set out in the
following chart:
California Human Trafficking Task Forces Data
2010-2012
---------------------------------------------------------
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|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 | |
| | |
| | |
| | |
| | |
----------------------------------------------------------
4)Known or Should Have Known: For all of the provisions of
this legislation which are tying additional registration
requirements, and punishments for solicitation of a minor, the
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author has included language which is not in the underlying
offense. The defendant must either know that the person is a
minor at the time they solicit the minor for prostitution, or
they "should know" that the person they are soliciting is a
minor. The bill would cover persons who are targeting minors
on purpose, but the provisions leave room for people who do
not know that they are soliciting a minor with the "should
have known" provision.
5)Argument in Support: None submitted
6)Argument in Opposition: According to The American Civil
Liberties Union, "AB 733 seeks to equate the crime of
soliciting a minor to engage in prostitution with the crime of
actually having sex with a minor. The lifetime registration
and other penalties contemplated by this bill for the crime of
solicitation are excessive and inappropriate.
"AB 733 would make four changes to sentencing laws for
individuals convicted of soliciting a prostitute, in violation
of Penal Code section 647(b), in cases where the convicted
person knew or should have known that the person solicited was a
minor. Specifically, AB 733 would: (1) establish a mandatory
$10,000 fine; (2) require lifetime registration as a sex
offender; (3) require that a convicted person's information be
posted online; and (4) require participation in a sex offender
management program as a condition of probation.
"Effectively, AB 733 seeks to equate the crime of soliciting a
minor to engage in prostitution with the crime of actually
having sex with a minor. This is inappropriate. There is a wide
gap between those crimes in terms of the harm caused and the
likely risk posed by the person convicted. This is especially
true given that the crime of soliciting a minor applies to
someone who did not know that the person solicited was a minor
but 'should have known.' A person who solicits an individual
that he or she 'should have known' is a minor may well stop the
encounter upon learning that the individual solicited is in fact
a minor. Simply put, individuals who actually engage in sex with
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a minor should face higher penalties than those who do not.
"AB 733 will also make it more difficult to effectively manage
true sex offenders. California already requires a vast number of
people to register as sex offenders for life, imposing residency
and other restrictions. California's Sex Offender Management
Board (CASOMB) has strongly criticized the vast scope of the
current registration system:
"Under the current system, many local registering agencies
are challenged just keeping up with registration paperwork.
It takes an hour or more to process each registrant, the
majority of whom are low risk offenders. As a result, law
enforcement cannot monitor higher risk offenders more
intensively in the community due to the sheer numbers now
in the registry. Some of the consequences of lengthy and
unnecessary registration requirements actually destabilize
the lives of registrants and those - such as families -
whose lives are often substantially impacted. Such
consequences are thought to raise levels of known risk
factors while providing no discernible benefit in terms of
community safety.
"CASOMB has become convinced that California policy makers
need to rethink the registration laws and the time has
come, after nearly 70 years of use, to make some major
changes in the state's registration system.<2>
"Moreover, AB 733 is unnecessary. Courts already have the
discretion to order anyone who commits any offense to register
as a sex offender under Penal Code section 290.006. Courts
also have the discretion to order participation in a sex
offender treatment program as a condition of probation, where
appropriate. And courts have the power to impose a $10,000
fine and order appropriate restitution. For these reasons, we
--------------------------
<2> California's Sex Offender Management Board Year End Report
2014 (February 2015), at pp. 12-13; available at
http://www.cce.csus.edu/portal/admin/handouts/CASOMB_End_of_Year_
Report_to_Legislature_2014.pdf.
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respectfully oppose AB 733."
7)Related Legislation: AB 201 (Brough), would eliminate the
state preemption which prohibits a local agency from enacting
local ordinances that restrict a sex offender from residing or
being present in specific locations, and authorize local
agencies to enact ordinances that are more restrictive than
state law. AB 201 is awaiting a hearing in the Assembly Local
Government Committee and has been double referred to this
Committee.
1)Prior Legislation:
a) AB 90 (Swanson) , Statutes of 2011, Ch. 457, included,
within the definition of criminal profiteering activity,
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
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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
None
Opposition
American Civil Liberties Union
Legal Services for Prisoners with Children
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744