BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1708|
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THIRD READING
Bill No: AB 1708
Author: Gonzalez (D), et al.
Amended: 8/15/16 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/21/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
ASSEMBLY FLOOR: 75-1, 5/19/16 - See last page for vote
SUBJECT: Disorderly conduct: prostitution
SOURCE: Author
DIGEST: This bill (1) recasts the crime of prostitution into
three parts, one applicable to the person who agreed to receive,
or received compensation in exchange for a sexual act , one
applicable to the person who paid, or agreed to pay
compensation, one applicable to the person who paid, or agreed
to pay compensation to a minor and placed prostitution-related
subdivisions together in Penal Code Section 647; (2) imposes a
mandatory minimum sentenced term of 72 hours in jail and a set
fine of between $250 and $1,000 for persons convicted of
purchasing commercial sex; (3) provides that if the defendant
knew or should have known that the other party was a minor, or
the defendant intended to purchase sex from a minor, the $1,000
fine is the minimum fine, with a maximum of $10,000; (4)
requires any person convicted of providing compensation, or
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agreeing to provide compensation for a sexual act to serve at
least a continuous 24 hours in jail before being eligible for
release on any basis - 48 hours if the defendant intended to
engage in prostitution with a minor, or knew or should have
known the other party was a minor; and (5) requires defendants
granted probation to serve a continuous 24 or 48 hours in jail
as a condition of probation.
ANALYSIS:
Existing law:
1) Provides that any person who deprives or violates the
personal liberty of another is guilty of human trafficking if
the person specifically intends one of the following: a) to
effect or maintain a specified felony commercial sex or
prostitution-related offense; b) commit extortion; c)
specified child pornography offenses or d) obtain forced
labor or services. (Pen. Code § 236.1, subd. (a)-(b).)
2) Provides that human trafficking of a minor does not include
an element of deprivation of the victim's liberty.
Trafficking of a minor is committed through inducing,
persuading or causing a minor to engage commercial sex acts,
child pornography or extortion, or attempting to do so. It
is punishable as follows:
a) Five, eight, or 12 years in prison and a fine of up to
$500,000.
b) Fifteen-years-to-life and a fine of up to $500,000 if
the offense involved force, threats, coercion, fraud or
deceit, as specified. (Pen. Code § 236.1, subd. (c).)
3) Includes these special rules applicable to human trafficking
of a minor:
a) Whether the defendant caused, induced or persuaded a
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minor to engage in a commercial sex act depends on the
totality of circumstances, including the relationship
between the victim and the defendant.
b) Mistake of fact as to the age of the victim is not a
defense.
c) Consent by a minor to an act underlying a human
trafficking charge is not a defense. (Pen. Code § 236.1,
subd. (d)-(f)
4) Provides for the following enhancements and special fines in
human trafficking cases:
a) The court may impose on the defendant an additional
fine of up to $1,000,000. (Pen. Code § 236.4, subd. (a).)
b) A defendant who inflicts great bodily injury on the
victim of human trafficking shall be punished by a
consecutive prison term enhancement of five, seven, or 10
years. (Pen. Code § 236.4, subd. (b).)
c) A defendant shall receive a consecutive prison
enhancement term of five years for each prior human
trafficking conviction.
5) Provides that taking a minor from her or his parents or
guardian for purposes of prostitution is a felony punishable
by a prison term of 16 months, two years, or three years and
a fine of up to $2,000. The offense can be committed through
inducements, not abduction alone. (Pen. Code § 267.)
6) Provides that prostitution involves any lewd act between
persons for money or other consideration. (Pen. Code § 647,
subd. (b); CALCRIM 1154)
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7) Defines a lewd act as "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." (CALCRIM 1154, citing Pryor v.
Municipal Court (1979) 25 Cal.3d 238, 256; See, Wooten v.
Superior Court (2001) 93 Cal.App.4th 422, pp. 431-433.)
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 includes an element that the
defendant specifically intended to engage in an act of
prostitution and some act was done in furtherance of the
agreed upon act. (Pen. Code § 647, subd. (b).)
9) Provides that where any person is convicted for 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).)
10)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).)
11)Provides that where a defendant is convicted of a
prostitution offense in which the defendant sought to procure
or procured the "sexual services of a prostitute who was a
minor," the following shall apply:
a) The defendant shall, in addition to any other fine or
penalty, be ordered to pay up to $25,000; and
b) Upon appropriation by the Legislature, the proceeds of
the fine shall "be available to fund programs and services
for commercially sexually exploited minors in the
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counties" of conviction. (Pen. Code §§ 261.9 and 647,
subd. (b).
This bill:
1) Defines and divides the crime of prostitution into three
separate forms:
a) The defendant agreed to receive compensation, received
compensation, or solicited compensation in exchange for a
lewd act;
b) The defendant provided compensation, agreed to provide
compensation, or solicited an adult to accept compensation
in exchange for a lewd act; and
c) The defendant provided compensation, or agreed to
provide compensation, to a minor in exchange for a lewd
act, regardless of which party made the initial
solicitation.
2) Specifies that a defendant, who purchased or agreed to
purchase commercial sex, is guilty of a misdemeanor,
punishable as follows:
a) A mandatory minimum 72 hours in county jail;
b) Up to six months in the county jail; and
c) A fine of between $250 and $1,000;
d) A convicted defendant is not eligible for release upon
completion of sentence on parole, on work furlough or work
release, or on any other basis until he or she has served
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a period of not less than 24 hours in a county jail; and
e) A defendant granted probation must serve a term of 24
continuous hours in jail as a condition or of probation.
3) Specifies that if a defendant who purchased or agreed to
purchase commercial sex knew or should have known that the
provider of the commercial sex act was a minor, or
specifically intended to obtain such services from a minor,
the misdemeanor is punishable as follows:
a) A term of up to one year in a county jail;
b) A mandatory minimum term of 72 hours; and
c) A fine of at least $1,000 (with a maximum of $10,000);
d) A convicted defendant is not eligible for release upon
completion of sentence on parole, on work furlough or work
release, or on any other basis until he or she has served
a period of not less than 48 hours in a county jail;
e) A defendant granted probation must serve a term of48
continuous hours in jail as a condition or of probation.
4) Provides that where the defendant purchased, or agreed to
purchase commercial sex and the defendant knew or should have
known that the person to be compensated is a minor, or where
the defendant specifically intended to purchase sex from a
minor, the penalties are as follows: must impose a sentence
of at least 72 hours in jail; and a defendant must serve a
minimum of 48 continuous hours in jail before release on
parole, on work furlough or work release, or on any other
basis.
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5) Grants the court discretion to allow a defendant to serve
the required 48 continuous hours in jail so as to not
interfere with his work schedule. If 48 continuous hours of
custody would interfere the defendant's work schedule, the
court can allow the defendant to serve that time when he is
not working.
Background
According to the author:
Traditionally, law enforcement has tackled prostitution
by arresting the women and girls on the street, while
"pimps" and "johns" have been the least likely offenders
to face jail time. This ignores that many of these
"prostitutes" are actually victims of sex trafficking.
In San Diego County, a recent joint study by researchers
at University of San Diego and Point Loma Nazarene
University found that 42 percent of first-time
prostitution arrests involve sex trafficking, and that
the average age of entry into child commercial sexual
exploitation was 15 years old.
Strides have been made to recognize these sex trafficking
victims as such, particularly children. We are starting
to provide appropriate services for these victims -
mental health services, job training and stable housing.
We also must recognize that we need to combat the demand
for commercial sex which incentivizes trafficking to
happen. Commercial sex trafficking remains a lucrative
business, with a high demand leading to more and more
youth exploitation. AB 1708 would help tackle the
problem of commercial sexual exploitation by taking a
hard stance against those contributing to the demand for
sex trafficking. We need to make sure that the negative
consequences fall on the true criminals, not the victims.
This bill separately defines prostitution in which the person
who provides, or agreed to provide, sexual services is a minor.
Any sexual conduct with a minor constitutes a felony in most
instances.
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This bill requires prostitution "johns" to serve 24
continuous hours in jail. The bill also provides that a
person who is not granted probation, or who refuses
probation, and who is then sentenced to a term of at least
72 hours in jail would be eligible for release on work
furlough, work release or some other basis after 24 hours.
Most county jails are crowded, particularly in urban areas.
A defendant convicted of a prostitution offense and
sentenced to serve 72 hours in jail in a county with
crowded jail conditions could well serve no more than the
continuous 24 hours in jail. As such, it is unlikely that
a prostitution defendant would agree to probation, as he
would serve the same jail term as a sentenced inmate. A
sentenced inmate might well elect to serve his sentence and
avoid probation supervision. A defendant who is not on
probation cannot be monitored by the probation department
or the court or ordered to engage in rehabilitative or
restorative justice programs. If the odds of getting
caught committing such a crime is low, and that may be
likely, such a person could remain a significant source of
demand for prostitution.
A draft University of Chicago study examined street-level
prostitution in Chicago. The study noted that more upscale
prostitution occurred over the Internet and through escort
services, where the likelihood of arrest was low. Levitt
found "many men making a few visits and a small number of
men making very frequent visits." He found that 25 johns
were arrested twice and 2,969 johns were arrested once.
Leavitt concluded that some men may have learned from one
arrest how to avoid another.
A 2002 study in the Western Criminology Review of a
first-offender program in Portland, Oregon (SEEP) found
very low recidivism rates for all arrestees, regardless of
whether they participated in SEEP. They could not say
whether the education from the SEEP program would have led
the participants to a avoid prostitution in the future. A
number of other cities adopted special first-offender
prostitution diversion programs that educate "johns" about
the harms caused by commercial sex. The San Francisco
program - First Offender Prostitution Program (FOPP) - was
one of the first. A report on FOPP conducted by Abt
Associates concluded that program was effective. The claims
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of a sharp drop in recidivism in the Abt report have been
harshly criticized and questioned by academic researchers.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
County jails: Ongoing increase in local incarceration costs,
potentially in the hundreds of thousands of dollars (Local
Funds/General Fund*) annually due to the imposition of
mandatory minimum jail terms. Department of Justice statistics
indicate over 2,000 convictions annually under this specified
provision of law. Although the proportion of convictions that
would be subject to a mandatory minimum jail term is unknown,
for every 25 percent of convictions subject to a 72-hour jail
term could cost over $180,000.
County fine revenues: Potential increase in overall fine
revenues (Local Funds) due to the minimum fine amounts
specified.
State penalty assessment revenues: Potential minor increase
in state penalty and assessment revenues (General Fund) to the
extent imposing minimum fines results in increased state
penalty assessment and state surcharge revenues.
Proposition 30: Under 2011 Realignment Legislation, the state
provided funding to the counties to place offenders in county
jail for specified felonies that previously would have
required a state prison sentence. Pursuant to Proposition 30
(2012), legislation enacted after September 30, 2012, that has
an overall effect of increasing the costs already borne by a
local agency for programs or levels of service mandated by the
2011 Realignment Legislation apply to local agencies only to
the extent that the state provides annual funding for the cost
increase. While Proposition 30 specifies that legislation
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defining a new crime or changing the definition of an existing
crime is not subject to this provision, changing the penalty
for a crime is not specifically exempted and could potentially
require a subvention of funds from the state.
SUPPORT: (Verified8/12/16)
Alameda County District Attorney
California District Attorneys Association
Grossmont Union High School District
Peace Officers Research Association of California
San Diego County
San Diego County District Attorney
San Diego School Police Officers Association
State Coalition of Probation Organizations
OPPOSITION: (Verified8/12/16)
American Civil Liberties Union of California
California Public Defenders Association
ASSEMBLY FLOOR: 75-1, 5/19/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke,
Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Cooper,
Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines,
Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson,
Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger
Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey,
Levine, Linder, Lopez, Low, Maienschein, Mayes, Medina,
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Wood, Rendon
NOES: Quirk
NO VOTE RECORDED: Chang, Mathis, McCarty, Williams
Prepared by:Jerome McGuire / PUB. S. /
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8/16/16 13:08:18
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