BILL ANALYSIS Ó AB 1684 Page 1 Date of Hearing: March 15, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 1684 (Mark Stone) - As Introduced January 20, 2016 As Proposed to be Amended SUBJECT: Civil actions: human trafficking KEY ISSUE: where A victim of human trafficking has THE right to bring a civil action, Should the Department of Fair Employment and housing be authoritized to bring a civil action on the victim's behalf? SYNOPSIS Human trafficking is generally defined as the use of force, fraud, or coercion to exploit another person for forced labor or sexual services, or both. It is, in short, a modern form of slavery, in which persons are forced into labor or services, including prostitution, domestic service, sweatshop labor, or other forms of debt bondage. Under the California Penal Code, anyone who "deprives or violates the personal liberty of another . . . [in order to] obtain forced labor or services" is guilty of a felony. AB 22 (Chapter 240, Statutes of 2005), which first made human trafficking a felony, also enacted Civil Code Section 52.5, which authorized a victim of human trafficking to bring a civil action for damages against the criminal perpetrator. AB 1684 Page 2 However, as early as 2007, a report by the California Alliance to Combat Trafficking and Slavery Task Force found that "a trafficked victim's right to civil relief is not well known and, therefore, is often not addressed." Nearly a decade after this report, Civil Code Section 52.5 remains underused. It appears that, in large part, this is because victims often lack the necessary resources, information, and, as a practical matter, a realistic opportunity to bring a lawsuit on their own. This measure seeks to improve this situation by authorizing the Department of Fair Employment and Housing (DFEH) to bring a civil action pursuant to Section 52.5 on the victim's behalf and award damages and any penalty to the victim. As introduced, this bill also gave the Attorney General and District Attorneys authority to bring such actions. However, because the Attorney General and District Attorneys already have authority, in theory at least, to take action against any violation of the law, the author has decided to eliminate those provisions from the bill. As such, the author will take an amendment in this Committee deleting Section 1 of the bill in print. This amendment is reflected in the summary and analysis below. SUMMARY: Authorizes the Department of Fair Employment and Housing (DFEH) to bring a civil action on behalf of a victim of human trafficking, as specified. Specifically, this bill: 1)Grants DFEH the authority to receive, investigate, conciliate, mediate, and prosecute complaints alleging a violation of Penal Code Section 236.1, and to bring a civil action under Civil Code Section 52.5 on behalf of a person harmed by human trafficking. Provides that any damages awarded pursuant to such a civil action shall be awarded to the person harmed by human trafficking, and that any costs and attorney's fees awarded shall be awarded to the DFEH. 2)Specifies that the remedies and procedures provided by this bill shall be independent of any other remedy or procedures AB 1684 Page 3 that might apply. EXISTING LAW: 1)Provides that any person who deprives or violates the personal liberty of another, with the intent to obtain forced labor or services, is guilty of human trafficking, as defined, and shall be punished by imprisonment in state prison for 5, 8, or 12 years and a fine of not more than five hundred thousand dollars ($500,000). Provides longer terms of imprisonment for any person who deprives or violates the personal liberty of another with the intent and effect to commit other specified crimes. (Penal Code Section 236.1 (a)-(b), (g).) 2)Provides that any person who induces or coerces a minor to engage in any commercial sex act, as specified, is guilty of human trafficking and shall be imprisoned for terms ranging from five years to life, depending on the extent of coercion, as specified. (Penal Code Section 236.1 (c)-(f).) 3)Provides that a victim of human trafficking, as defined in Section 236.1 of the Penal Code, may bring a civil action for damages, compensatory damages, punitive damages, injunctive relief, and combination thereof, or any other appropriate relief. Specifies that, in addition to attorney's fees and costs, a prevailing plaintiff may be awarded three times his or her actual damages or $10,000, whichever is greater. Specifies that punitive damages may be awarded upon proof of the defendant's malice, oppression, fraud, or duress in committing the act of human trafficking. (Civil Code Section 52.5.) 4)Authorizes the DFEH to receive, investigate, conciliate, mediate, and prosecute complaints alleging a violation of AB 1684 Page 4 specified civil and personal rights statutes, including Civil Code Section 51 (the Unruh Civil Rights Act, prohibiting discrimination in business practices), Section 51.5 (relating to discriminatory boycotts), Section 51.7 (the Ralph Act, relating to freedom from hate violence), and Sections 54 and 54.1 (relating to access to public facilities). (Government Code Section 12930 (f)(2).) 5)Provides that whoever violates, by direct action or by aid or incitement, specified civil and personal rights, as enumerated in Sections 51 through 51.9 of the Civil Code, is liable for each and every offense for the actual and punitive damages, as specified, up to a maximum of three times the amount of actual damage but in no case less than $4,000 and attorney's fees. Provides that in an action brought by the Attorney General, a district attorney, or a city attorney for a violation of the Ralph Act, the person who denies the right is liable for a civil penalty of $25,000, to be awarded to the person denied the right. (Civil Code Section 52.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: According to a recent report by the California Attorney General's Office, human trafficking is a $32 billion-a-year global industry, and California is one of the top destinations for trafficking victims. Human trafficking is generally defined as the use of force, fraud, or coercion to exploit another person for forced labor or sexual services, or both. It is, in short, the modern form of slavery, in which persons are forced into labor or services, including prostitution, domestic service, sweatshop labor, or other forms of debt bondage. In 2012, Attorney General Kamala Harris convened a working group to reassess human trafficking in our state. The working group's final report noted in "just two years of reporting, California's nine regional anti-trafficking AB 1684 Page 5 task forces initiated over 2,500 investigations, identified almost 1,300 victims of human trafficking, and arrested almost 1,800 individuals." Despite these actions, the report concluded that human trafficking continues to be "a substantial problem facing California" and, in some ways, has become worse due to the increasing role played by transnational and domestic criminal networks. Criminal and Civil Penalties under Existing Law: Under the California Penal Code, anyone who "deprives or violates the personal liberty of another . . . [in order to] obtain forced labor or services" is guilty of a felony. AB 22 (Chapter 240, Statutes of 2005, which first made human trafficking an independent felony) also enacted Civil Code Section 52.5 which authorized a victim of human trafficking to bring a civil action for damages against the criminal perpetrator. The victim may also obtain attorney's fees and costs, punitive damages, injunctive relief, or any other appropriate relief. A prevailing plaintiff may be awarded up to three times his or her actual damages or $10,000, whichever is greater. Despite the relatively strong damages available to a victim, a 2007 report by the California Alliance to Combat Trafficking and Slavery Task Force found that "a trafficked victim's right to civil relief is not well known and, therefore, is often not addressed." By most accounts, nearly a decade after this report, the civil remedy afforded by AB 22 continues to be relatively unknown and underused. The Attorney General's 2012 follow-up report says little about civil remedies under Section 52.5, but it did find that "the provision of legal services for trafficking survivors had not kept up with demand for assistance." According to the report, pro bono attorneys and a number of regional and statewide networks provide critical assistance to human trafficking survivors on everything from obtaining state benefits to exploring immigration status options. The extent to which these attorneys and organizations have assisted victims in bringing civil actions is, however, AB 1684 Page 6 less certain. Clearly, one reason for the paucity of actions under Section 52.5 reflects the victims' lack of necessary resources, information, and, as a practical matter, opportunity to bring a lawsuit on their own. This measure seeks to address this situation, at least in part, by authorizing the Department of Fair Employment and Housing (DFEH) to bring a civil action pursuant to Section 52.5 on the victim's behalf. It specifies that any damages awarded in an action brought by DFEH shall be awarded to the victim, with reasonable costs and attorney's fees awarded to DFEH. The bill also specifies that remedies provided under this bill are independent of any other remedy that may apply. DFEH Authority under Existing Law: There is well-established precedent for granting DFEH authority to bring civil actions on behalf of victims who have experienced a violation of their civil and personal rights. For example, pursuant to Government Code Section 12930, DFEH has the right to investigate and prosecute violations of the Civil Code Section 51 (the Unruh Civil Rights Act prohibiting discrimination in business establishments); Section 51.5 (relating to discriminatory boycotts); Section 51.7 (the Ralph Civil Rights Act prohibiting violence or intimidation against another based on protected characteristics); Section 51.9 (prohibiting sexual harassment); and Sections 54 and 54.1 (relating to access to public facilities). Although Section 52.5, giving a victim of human trafficking the right to bring a civil action, is situated among these other statutes, it is not similarly included in the provisions of the Government Code that allow the DFEH to bring an action on behalf of a victim. There is no evidence suggesting that the omission of any reference to Section 52.5 reflects a legislative intent to preclude the human trafficking statute from DFEH jurisdiction; rather, its omission may merely reflect the fact that the human trafficking statute was added in 2005, well after the statutes granting DFEH the authority to AB 1684 Page 7 bring actions under the surrounding statutes protecting civil and personal rights. PROPOSED AUTHOR AMENDMENTS: In order to eliminate the arguably duplicative provisions of this bill granting authority to the Attorney General and District Attorneys, the author wishes to take the following amendment in this Committee, which deletes Section 1 of the bill in print: - Delete lines 1 through 35 on page 2, delete page 3, and delete lines 1-2 on page 4. ARGUMENTS IN SUPPORT: According to the author, it "has been over ten years since California adopted a comprehensive approach to human trafficking. In 2005, AB 22 created a human trafficking task force, added a chapter to the Penal Code defining the crime of human trafficking, and created a civil cause of action for victims of human trafficking." Yet, the author notes, "the provision of that landmark legislation granting the victim of human trafficking the right to bring a civil action, and receive at least some measure of recompense for harms suffered, remains underutilized." Certainly one reason the civil action is underused, the author contends, "is because victims often lack the necessary resources, information, and opportunity to initiate a lawsuit on their own. The bill seeks to counter this lack of resources, information, and opportunity by authorizing the Department of Fair Employment and Housing, in a manner consistent with its existing authority, to bring a civil action on the victim's behalf." The Consumer Attorneys of California (CAOC) support this bill for similar reasons. CAOC writes: "Although existing law allows victims to bring civil actions against perpetrators for actual and punitive damages, many victims lack the resources to bring an action. This bill would allow public AB 1684 Page 8 authorities to bring actions and award damages to victims. For these reasons we support AB 1684." Related Pending Legislation: The current session of the Legislature has witnessed the introduction of several bills related to human trafficking, including the following: AB 2202 (Baker, 2016) funds district attorneys that employ a "vertical prosecution methodology" in human trafficking prosecutions. AB 1731 (Atkins, 2016) establishes a statewide Interagency Human Trafficking Task Force. AB 1942 (Garcia, 2016) requires human trafficking training for persons employed in the motel, hotel, and lodging industry. AB 1595 does the same for persons employed in businesses that provide mass transportation services. AB 2514 (Williams, 2016) allows a court to consider a criminal defendant's participation in human trafficking into account as an aggravating factor for sentencing purposes. AB 1761 (Weber, 2016) allows a person charged with a nonviolent crime that was a byproduct of that person's status as a victim of human trafficking (e.g. prostitution) to raise this as an affirmative defense. AB 1762 (Campos, 2016) allows victims of human trafficking to vacate any conviction that was a byproduct of that person's status as a victim of human trafficking. AB 2498 (Bonta, 2016) allows the names and other personal information of a human trafficking victim, or the victim's family, to be exempted from disclosure pursuant to a public records request. AB 1684 Page 9 SB 1334 (Stone, 2016) adds human trafficking to the lists of forms of conduct that constitute "assaultive and abusive conduct" for purposes of a health practitioner's reporting requirements. REGISTERED SUPPORT / OPPOSITION: Support Consumer Attorneys of California Opposition None on file Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334 AB 1684 Page 10