BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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




















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