BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1684 (Mark Stone)
Version: March 17, 2016
Hearing Date: June 14, 2016
Fiscal: Yes
Urgency: No
RD
SUBJECT
Civil actions: human trafficking
DESCRIPTION
This bill, independent of any other remedy or procedure that
might apply, would provide the Department of Fair Employment and
Housing (DFEH) with the authority to receive, investigate,
conciliate, mediate, and prosecute human trafficking complaints
on behalf of a human trafficking victim, as specified. Damages
awarded in any such DFEH action shall be awarded to the person
harmed by the violation of human trafficking, as specified, but
costs and attorney's fees awarded in any such action shall be
awarded to the DFEH.
BACKGROUND
In 2005, AB 22 (Lieber, Keuhl and Liu, Ch. 240, Stats. 2005)
enacted the California Trafficking Victims Protection Act,
explicitly rendering human trafficking a felony in this state
and adding a new civil rights statute to grant human trafficking
victims a longer statute of limitations period than other
victims of civil rights crimes to bring their claims due to the
special circumstances faced by those victims. (See Pen. Code
Sec. 236.1 and Civ. Code Sec. 52.5.) Specifically, the
resulting statute, as amended by subsequent legislation, permits
a victim of human trafficking to bring a civil action to recover
actual damages, compensatory damages, punitive damages,
injunctive relief, any combination of those, or any other
appropriate relief, and sets the statute of limitations for
bringing such claims within seven years of the date on which the
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trafficking victim was freed from the trafficking situation.
Moreover, if the victim was a minor when the act of human
trafficking against the victim occurred, the statute of
limitations is extended to ten years after the date the
plaintiff attains the age of majority. (Civ. Code Sec. 52.5(c).)
This bill seeks to allow the Department of Fair Employment and
Housing to receive, investigate, and prosecute claims that may
be brought under the state's Trafficking Victims Protection Act
on behalf of victims of human trafficking, as specified.
CHANGES TO EXISTING LAW
Existing law provides that any person who deprives or violates
the personal liberty of another is guilty of human trafficking
if the person has the intent to: (1) effect or maintain
specified felony prostitution-related offenses; (2) commit
extortion, (3) use a minor to produce or distribute obscene
material or child pornography; or (4) obtain forced labor or
services. Existing law provides for various specified fines and
imprisonment for the crime of human trafficking. (Pen. Code
Sec. 236.1(a)-(c).)
Existing law provides for various civil actions based on
violations of a person's civil or personal rights, including the
Unruh Civil Rights Act, the Ralph Civil Rights Act, and the
California Trafficking Victims Protection Act, among others.
(Civ. Code Sec. 51-51.9.)
Existing law , the California Trafficking Victims Protection Act,
authorizes a victim of human trafficking to bring a civil action
for actual damages, compensatory damages, punitive damages,
injunctive relief, any combination of those, or any other
appropriate relief. A prevailing plaintiff may also be awarded
reasonable attorney's fees and litigation costs including, but
not limited to, expert witness fees and expenses as part of the
costs. (Civ. Code Sec. 52.5(a), (f).)
Existing law requires such actions to be brought within seven
years of the date on which the trafficking victim was freed from
the trafficking situation, or if the victim was a minor when the
act of human trafficking against the victim occurred, within 10
years after the date the plaintiff attains the age of majority.
(Civ. Code Sec. 52.5(c).) Existing law provides for the stay of
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these actions and the tolling of the statute of limitations for
these actions under specified circumstances. (Civ. Code Sec.
52.5(d), (e), (h).)
Existing law provides that whoever denies, aids or incites a
denial, or makes any discrimination or distinction contrary to
specified civil and personal rights is liable for each and every
offense for the actual damages, and any amount that may be
determined by a jury, or a court sitting without a jury, up to a
maximum of three times the amount of actual damage but in no
case less than four thousand dollars ($4,000), and any
attorney's fees that may be determined by the court in addition
thereto. (Civ. Code Sec. 52(a).)
Existing law provides, in relevant part, that whoever denies a
right provided by Section 51.7 (the Ralph Civil Rights Act), or
aids, incites, or conspires in that denial, is liable for each
and every offense for the actual damages suffered by any person
denied that right and, in addition, the following:
an amount to be determined by a jury, or a court sitting
without a jury, for exemplary damages;
a civil penalty of $25,000 to be awarded to the person denied
the right provided by the Ralph Civil Rights Act in any action
brought by the person denied the right, or by the Attorney
General, a district attorney, or a city attorney; and
attorney's fees as may be determined by the court. (Civ. Code
Sec. 52(b)(1)-(3).)
Existing law provides that whenever there is reasonable cause to
believe that any person or group of persons is engaged in
conduct of resistance to the full enjoyment of any civil or
personal rights, as specified, and that conduct is of that
nature and is intended to deny the full exercise of those
rights, the Attorney General, any district attorney or city
attorney, or any person aggrieved by the conduct, may bring a
civil action in the appropriate court by filing with it a
complaint. (Civ. Code Sec. 52(c).)
Existing law provides that actions brought pursuant to the above
provisions are independent of any other actions, remedies, or
procedures that may be available to an aggrieved party pursuant
to any other law. (Civ. Code Sec. 52(e).)
Existing law specifies the functions, powers, and duties of the
Department of Fair Employment and Housing (DFEH), which include,
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among other things, to receive, investigate, conciliate,
mediate, and prosecute complaints alleging practices made
unlawful pursuant to the Fair Employment and Housing Act and
other specified nondiscrimination or personal and civil rights
laws, including the Unruh Civil Rights Act (prohibiting
discrimination on the basis of certain characteristics in
business practices) and the Ralph Civil Rights Act (relating to
the right to be free from hate violence based on certain
characteristics), among others. (Gov. Code Sec. 12930(f).)
This bill would further authorize the DFEH to receive,
investigate, conciliate, mediate, and prosecute complaints
alleging human trafficking, and bring civil actions for, a
victim of human trafficking, as described above. This bill
would specify that any damages awarded in any action brought by
the DFEH pursuant to the California Trafficking Victims
Protection Act shall be awarded to the person harmed by the
violation of Section 236.1 of the Penal Code (making human
trafficking a felony), above. This bill would specify that
costs and attorney's fees awarded in such an action shall be
awarded to the department and that these remedies and procedures
shall be independent of any other remedy or procedure that might
apply.
COMMENT
1. Stated need for the bill
According to the author, "existing law already allows a victim
of human trafficking to bring a civil action against the
perpetrator. However, this statute has rarely if ever been
used. Victims of human trafficking lack the resources and
information to make use of their right to bring an action and
receive compensation for harm suffered. This bill would allow
DFEH to bring an action on the victim's behalf and award damages
and penalties to the victim."
2. Human trafficking persists in California despite
improvements made by AB 22's anti-trafficking laws
As noted in the Background, in 2005, California passed
groundbreaking anti-trafficking legislation, AB 22 (Lieber,
Keuhl and Liu, Ch. 240, Stats. 2005), to take a comprehensive
approach to the human trafficking problem by, among other
things: (1) expressly defining and establishing human
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trafficking as a felony under California law; (2) adding a new
civil cause of action for victims which recognized the
circumstances unique to those victims by allowing for extended
statutes of limitations as well as the ability to recover costs
and attorneys' fees, and; (3) establishing a task force to study
various issues in connection with human trafficking and to
advise the Legislature on or before July 1, 2007. In 2012,
Attorney General (AG) created a Human Trafficking Work Group to
examine the current nature and scope of human trafficking in
California, evaluate the state's progress in combating human
trafficking, and identify challenges and opportunities in
protecting and assisting victims and bringing traffickers to
justice. The work group found that, "California has made
tremendous progress in combating human trafficking [ . . . ] but
significant new challenges in combating this crime have emerged
in the last five years." (Office of the AG, The State of Human
Trafficking in California (2012)
[as of May 16, 2016], pp. 3-4.)
According to the AG's report, human trafficking "is a crime
perpetrated against men, women, and children of every
nationality and socioeconomic status. Human trafficking is a
low-risk, high-profit business - an estimated $32 billion-a-year
global industry that has recently attracted the participation of
increasingly sophisticated, organized criminal gangs. Domestic
street gangs set aside traditional rivalries to set up
commercial sex rings and maximize profits from the sale of young
women. Transnational gangs use cross-border tunnels to move not
only guns and drugs, but also human beings, from Mexico into
California. The Internet and new technologies have also
transformed the landscape of human trafficking. Traffickers use
social media and other online tools to recruit victims and, in
the case of sex trafficking, find and communicate with
customers." (Id. at 5.) The report found, among other things,
that:
from mid-2010 to mid-2012, California's nine regional human
trafficking task forces identified 1,277 victims, initiated
2,552 investigations, and arrested 1,798 individuals;
labor trafficking is under-reported and under-investigated as
compared to sex trafficking;
local and transnational gangs are increasingly trafficking in
human beings because it is a low-risk and high, renewable
profit crime. (Id. at 4.)
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Recognizing that human trafficking, by its nature, presents
significant obstacles to those who seek to protect and assist
victims, the AG's report recommended a continuation of the
victim-centered approach that has already started to take hold
in California. While this approach really begins with training
law enforcement, first responders, and non-traditional first
identifiers on how to recognize and respond to human
trafficking, it is also important that victims are aware of and
have access to critical services to meet their immediate safety,
health, and housing needs. (Id. at 9-10.) Understandably,
though AB 22 created an avenue for victims of human trafficking
to be able to seek redress in civil court and provided longer
statute of limitations to do so in recognition of the particular
circumstances that human trafficking victims face, these victims
seemingly still struggle to bring their civil actions on their
own behalf. Unfortunately, while other personal or civil rights
statutes expressly authorize the Attorney General and the
Department of Fair Employment and Housing (DFEH) to bring civil
claims on behalf of victims, there is no public enforcement
mechanism of this anti-trafficking statute. This bill would
provide that public enforcement mechanism.
3. Authority granted to Department of Fair Employment and
Housing to bring civil actions relating to human trafficking
violations
Under existing law, the DFEH has the authority to bring claims
enforcing various civil and personal rights statutes, as well as
anti-discrimination laws. These statutes include the Unruh
Civil Rights Act (involving discrimination on the bases of
protected characteristics by businesses) and the Ralph Civil
Rights Act (involving hate crimes). This bill would now
authorize the DFEH to also bring civil actions under the
California Trafficking Victims Protection Act on behalf of
victims of human trafficking. In doing so, this bill would help
provide a comprehensive approach to the investigation and
enforcement of the various personal and civil rights protected
under California law. In support of the bill, the Consumer
Attorneys of California writes:
It has been over ten years since California adopted a
comprehensive approach to human trafficking. AB 22 (Chapter
240, Stats. of 2005) created a human trafficking task force,
added a chapter to the Penal Code defining the crime of human
trafficking and providing penalties, and created a civil cause
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of action for victims of human trafficking. In 2012, Attorney
General Kamala Harris convened a working group to reassess
human trafficking in our state. The working group's final
report noted [that] in "just two years of reporting,
California's nine regional anti-trafficking task forces
initiated over 2,500 investigations, identified almost 1,300
victims of human trafficking, and arrested almost 1,800
individuals." Despite those 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. This bill seeks to address the problem by
effectively authorizing [. . . ] the Department of Fair
Employment and Housing to bring a civil action on the victim's
behalf. Although existing law allows victims to bring civil
actions against perpetrators for actual and punitive damages,
many victims lack resources to bring an action. This bill
would allow public authorities to bring actions and award
damages to victims."
4. Attorney's fees
Under existing law, any person who violates the personal or
civil rights of another person, as specified, is liable for
attorney's fees as may be determined by the court. In some
cases, those fees are recoverable by the victim who brings an
action for violations of their civil or personal rights; in
others, they could be recovered by the Attorney General or
district attorney when bringing claims as they are authorized to
do so under these various statutes. (See Civ. Code Sec. 52(a),
(c).) Moreover, under the California Trafficking Victims
Protection Act itself, a prevailing plaintiff can currently be
awarded reasonable attorney's fees and litigation costs. (See
Civ. Code Sec. 52.5(f).) This bill would now require that any
costs and attorney's fees awarded by the court in an action
brought by the DFEH under the California Trafficking Victims
Protection Act be awarded to the DFEH. In doing so, this bill
would be consistent with existing public policy allowing
recovery of attorney's fees by the party bringing the action.
Support : Consumer Attorneys of California
Opposition : None Known
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HISTORY
Source : Author
Related Pending Legislation :
SB 1334 (Stone, 2016) would add human trafficking to the lists
of forms of conduct that constitute "assaultive and abusive
conduct" for purposes of a health practitioner's reporting
requirements.
AB 2513 (Williams, 2016) would allow a court to consider and
take into account as an aggravating factor, for sentencing
purposes, a criminal defendant's participation in human
trafficking, as specified. This bill is currently in the Senate
Public Safety Committee.
AB 2498 (Bonta, 2016) would allow 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. This bill is set to be heard in this Committee
on the same day as this bill.
AB 2202 (Baker, 2016) would establish within the Office of
Emergency Services a program of financial and technical
assistance for district attorney offices that employ a "vertical
prosecution methodology" in human trafficking prosecutions, as
specified. This bill was held on the suspense file in the
Assembly Appropriations Committee.
AB 2027 (Quirk, 2016) would require specified state or local
officials to certify the cooperation of a victim of human
trafficking in an investigation or prosecution of those
trafficking crimes, when the victim is, has been, or is likely
to be, cooperative, as specified, and the victim or the victim's
family requests such certification on his or her application for
a special "T" visa to temporarily remain in the U.S. This bill
is currently in the Senate Rules Committee.
AB 1942 (Garcia, 2016) would require a hotel or motel that
provides lodging services in the state to train employees who
are likely to interact or come into contact with victims of
human trafficking in recognizing the signs of human trafficking
and how to report those signs to the appropriate law enforcement
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agency, as specified. The bill would require the Department of
Justice to develop guidelines for the training and to post them
on its Internet Web site. This bill was held on the suspense
file in the Assembly Appropriations Committee.
AB 1762 (Campos, 2016) would allow a victim of human trafficking
to apply to the court to vacate any conviction for a nonviolent
crime that was committed while that individual was a victim of
human trafficking. The bill would also allow an individual
adjudicated a ward of the juvenile court as the result of a
nonviolent crime committed while he or she was a human
trafficking victim to apply to have the petition dismissed. This
bill is currently in the Senate Rules Committee.
AB 1761 (Weber, 2016) would establish an affirmative defense
against a charge of a crime that the person was coerced to
commit as a direct result of being a human trafficking victim
(e.g. prostitution) and when the person had reasonable fear of
harm. This bill would not apply to charges involving a serious
or violent crime, as specified, or a charge of human
trafficking. This bill is currently in the Senate Public Safety
Committee.
AB 1760 (Santiago, 2016) would require a peace officer to
determine whether a suspect of a crime is a minor who is a human
trafficking victim, and whether any other crime that person is
suspected of was committed as a direct result of being
trafficked. The bill would require the peace officer to take
specified steps, including that the officer make a record of
this determination and provide the district attorney with the
record for an independent review. This bill was held on the
suspense file in the Assembly Appropriations Committee.
AB 1731 (Atkins, 2016) would establish a statewide Interagency
Human Trafficking Task Force to: (1) gather statewide data on
sex and labor traffickers, sex buyers, and human trafficking
victims; (2) recommend interagency protocols and best practices
for training and outreach to law enforcement, victim service
providers, and other state and private sector employees likely
to encounter sex trafficking; and, (3) evaluate and implement
approaches to increase public awareness about human trafficking.
This bill is in the Senate Rules Committee.
AB 1595 (Campos, 2016) would require a private or public
employer that provides mass transportation services, as
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specified, in the state to train its employees, who are likely
to interact or come into contact with victims of human
trafficking, in recognizing the signs of human trafficking and
how to report those signs to the appropriate law enforcement
agency. The bill would require the Department of Justice to
develop guidelines for the training, including, but not limited
to, guidance on how to report human trafficking. This bill was
held on the suspense file in the Assembly Appropriations
Committee.
AB 1276 (Santiago, 2016) would authorize, under specified
conditions, a minor 17 years of age or younger to testify by
contemporaneous examination and cross-examination in another
place and out of the presence of the judge, jury, defendant or
defendants, and attorneys if the testimony will involve the
recitation of the facts of an alleged offense of human
trafficking, if the court makes certain findings. This bill is
currently in the Senate Public Safety Committee.
Prior Legislation :
AB 15 (Holden, Ch. 474, Stats. 2015), among other things,
extended the statute of limitations for victims of human
trafficking to bring a civil action under Section 51.5 from five
to seven years, and, in the case of minors, from eight to 10
years after the plaintiff attains the age of majority.
AB 22 (Lieber, Keuhl and Liu, Ch. 240, Stats. 2005), See
Background.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Appropriations Committee (Ayes 18, Noes 0)
Assembly Judiciary Committee (Ayes 8, Noes 0)
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