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.
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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
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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
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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
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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,
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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
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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
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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.
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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
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