BILL ANALYSIS Ó AB 1760 Page 1 Date of Hearing: April 5, 2016 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 1760 (Santiago) - As Introduced February 2, 2016 SUMMARY: Requires police officers to make a determination if a minor arrestee is victim of human trafficking or has engaged in a commercial sex act. Provides the minor with immunity from arrest and prosecution for non-violent offenses committed as a direct result of being trafficked. Provides immunity from arrest and prosecution for minors that exchange sex acts for payment. Specifically, this bill: 1)Requires a peace officer to determine whether a suspect of a crime is a minor who has engaged in a commercial sex act or is a minor who is a human trafficking victim, and whether any nonviolent crime that person is suspected of was committed as a direct result of being trafficked. 2)Prohibits the arrest of a minor for the suspected crime, if the minor meets the criteria stated above. 3)Requires any record of an arrest previously made to be sealed and destroyed if an officer makes the specified factual determination. 4)Requires the peace officer to report suspected abuse or neglect of the minor to the county child welfare agency if the AB 1760 Page 2 officer has made the specified determination. 5)Prohibits the arrest or punishment of a minor who has exchanged or attempted to exchange sex acts in return for money or other consideration, commencing June 30, 2017. 6)Prohibits the arrest or punishment of a minor who has loitered in a public place with the intent to exchange sex acts in return for money or other consideration, commencing June 30, 2017. 7)The bill would instead allow the person to be adjudicated a dependent of the juvenile court and would require a peace officer to report suspected abuse or neglect to the county child welfare agency. 8)Requires the Commission on Peace Officer Standards and Training (POST) to update its training to conform with changes in law that this bill would make prohibiting the arrest and punishment of minor victims of human trafficking. 9)Enacts the State Plan to Serve and Protect Child Trafficking Victims and would require the California Health and Human Services Agency, no later than January 30, 2017, to convene an interagency workgroup, as specified, to develop the plan with the following minimum requirements: a) A multiagency-coordinated child trafficking response protocol and guidelines for local implementation that establish clear lines of ongoing responsibility to ensure that child trafficking victims have access to the necessary continuum of treatment options. b) Requires the workgroup to submit the plan to the Legislature, Judicial Council, and Governor no later than January 30, 2018. 10)Requires the State Department of Social Services to establish a working group in consultation with county welfare departments and other stakeholders to develop recommendations for the board, care, and supervision of child trafficking victims who are in need of placement in facilities that will AB 1760 Page 3 protect them from traffickers and provide needed specialized support and services. 11)States that the State Department of Social Services, with input from specified stakeholders, to identify, develop, and disseminate screening tools for use by county child welfare and probation staff to identify children who are child trafficking victims. 12)Requires the State Department of Social Services no later than December 31, 2017, to provide counties with guidance on the use of the screening tools. 13)Specifies that the State Department of Social Services and the State Department of Health Care Services, in consultation with specified stakeholders, shall identify tools and best practices to screen, assess, and serve child trafficking victims. 14)Requires the State Department of Social Services to develop curriculum and provide training to local multidisciplinary teams no later than December 31, 2017. 15)Requires each county to develop an interagency protocol to be utilized in serving child trafficking victims. The bill would require each county's protocol to be adopted by the board of supervisors no later than June 30, 2017. The bill would require the protocols to identify the roles and responsibilities of county based agencies and local service responders in serving victims of trafficking or commercial sexual exploitation. 16)States that the administrator certification program for group homes, the administrator certification program for short-term residential treatment centers, mandatory training for licensed or certified foster parents, and training for mandated child abuse reporters and child welfare personnel shall include instruction on cultural competency and sensitivity and related best practices for providing adequate care to child trafficking victims. 17)Requires the California Child Welfare Council to provide AB 1760 Page 4 recommendations and updates to the State Plan to Serve and Protect Child Trafficking Victims. EXISTING LAW: 1)Requires law enforcement agencies to use due diligence to identify all victims of human trafficking, regardless of the citizenship of the person. (Pen. Code, § 236.2.): 2)Specifies that when a peace officer comes into contact with a person who has been deprived of his or her personal liberty, a minor who has engaged in a commercial sex act, a person suspected of violating specified prostitution offenses, or a victim of a crime of domestic violence or sexual assault, the peace officer shall consider whether the following indicators of human trafficking are present (Pen. Code, § 236.2.): a) Signs of trauma, fatigue, injury, or other evidence of poor care. b) The person is withdrawn, afraid to talk, or his or her communication is censored by another person. c) The person does not have freedom of movement. d) The person lives and works in one place. e) The person owes a debt to his or her employer. f) Security measures are used to control who has contact with the person. g) The person does not have control over his or her own government-issued identification or over his or her worker immigration documents. 3)States 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 and shall be punished by imprisonment in the state prison for 5, 8, or 12 years and a fine of not more than five hundred thousand dollars ($500,000). (Pen. Code § 236.1, subd. (a).) AB 1760 Page 5 4)Specifies that any person who deprives or violates the personal liberty of another with the intent to effect or maintain a violation of specified sex offenses, is guilty of human trafficking and shall be punished by imprisonment in the state prison for 8, 14, or 20 years and a fine of not more than five hundred thousand dollars ($500,000). (Pen. Code § 236.1, subd. (b).) 5)Provides that any person who causes or persuades, or attempts to cause or persuade, a person who is a minor to engage in a commercial sex act, with the intent to effect a violation of specified sex offenses is guilty of human trafficking. A violation of this subdivision is punishable by imprisonment in the state prison as follows: a) Five, 8, or 12 years and a fine of not more than five hundred thousand dollars ($500,000). (Pen. Code § 236.1, subd. (c)(1).) a) Fifteen years to life and a fine of not more than five hundred thousand dollars ($500,000) when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person. (Pen. Code § 236.1, subd. (c)(2).) 6)Defines "coercion" as "any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; the abuse or threatened abuse of the legal process; debt bondage; or providing and facilitating the possession of any controlled substance to a person with the intent to impair the person's judgment." (Pen. Code § 236.1, subd. (h)(1).) 7)Defines "commercial sex act" as "sexual conduct on account of which anything of value is given or received by any person." (Pen. Code § 236.1, subd. (h)(2).) AB 1760 Page 6 8) Defines "deprivation or violation of the personal liberty of another" as "substantial and sustained restriction of another's liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out." (Pen. Code § 236.1, subd. (h)(3).) 9)Defines "duress" as a "direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to acquiesce in or perform an act which he or she would otherwise not have submitted to or performed; a direct or implied threat to destroy, conceal, remove, confiscate, or possess any actual or purported passport or immigration document of the victim; or knowingly destroying, concealing, removing, confiscating, or possessing any actual or purported passport or immigration document of the victim." (Pen. Code § 236.1, subd. (h)(5).) 10)Defines "Forced labor or services" as labor or services that are performed or provided by a person and are obtained or maintained through force, fraud, duress, or coercion, or equivalent conduct that would reasonably overbear the will of the person. (Pen. Code § 236.1, subd. (h)(5).) 11) Specifies that the total circumstances, including the age of the victim, the relationship between the victim and the trafficker or agents of the trafficker, and any handicap or disability of the victim, shall be factors to consider in determining the presence of "deprivation or violation of the personal liberty of another," "duress," and "coercion" as described in this section. (Pen. Code § 236.1, subd. (i).) 12)Specifies that persons who committed the act or made the omission under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused, are not guilty of a crime (unless AB 1760 Page 7 the crime be punishable with death). (Pen. Code, § 26.) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "Child victims of human trafficking are forced, induced, or coerced into providing labor services, or sex. A trafficked child may be compelled to engage in illegal activities such as prostitution or selling drugs. Instead of being identified as trafficked and treated as victims, many are treated as criminals and prosecuted for the very crimes that were part of the traffickers' victimization and profit. "Currently in California, a minor can be prosecuted for prostitution and for non-violent crimes their traffickers forced them to commit. Arrest and prosecution further traumatizes the victim and leaves him or her with a profound distrust of law enforcement. This can deter victims from seeking assistance or leave them vulnerable to continued exploitation. Furthermore, the criminal record that results from being arrested and prosecuted as a child can create long-term barriers to education, employment, housing, and other opportunities. "AB 1760 is necessary in order to protect trafficked child victims from being criminalized and to ensure there is a system in place that effectively identifies, houses, and cares for all trafficked children. This measure will reduce a trafficked child victims' distrust of law enforcement, establish multi-leveled coordinated efforts, ensure diversion to supportive services, and prevent the negative psychological impacts child trafficked victims have due to arrest and detention." 2)Decriminalization of Minors Engaged in Prostitution: This bill would prohibit the arrest or punishment of a minor who has exchanged or attempted to exchange sex acts in return for money or other forms of payment. Under current law, minors committing prostitution can be arrested by law enforcement. Those minors are then dealt with through the juvenile justice AB 1760 Page 8 system. By decriminalizing prostitution of minors, those minors could no longer be arrested and would not go through the juvenile justice system. This bill would instead allow a temporary detention of the minor and a referral to the child welfare system (child protective services). There are tensions between addressing the problem of minors engaged in prostitution through the juvenile justice system versus child protective services. The ability to arrest a minor and go through the juvenile justice system arguably provides a higher likelihood that the minor will receive services. There is concern without a court process that has the ability to impose sanctions, the minor will simply return to the situation in which they had been engaging in prostitution. The child welfare system does not have the ability to provide a way to mandate services for a minor, or prevent the minor from returning to the life that involved prostitution. However, there are concerns about arresting minors engaged in prostitution and processing them through the juvenile justice system. To the extent that a minor engaged in prostitution is a victim of crime, arresting them and charging them with a crime are acts which treat them as a criminal. There is a concern that if a minor is subject to arrest they will be less likely to cooperate with law enforcement to seek help regarding their trafficker. There is also a concern that a minor would be less likely to seek services because of the minor is worried about coming in contact with authorities that might treat them as criminals. Many district attorney offices throughout the state are choosing to handle minors involved in prostitution through the juvenile justice system, but diverting them very early in the process to programs that can provide the juvenile appropriate services. Such diversion programs allow the minor to avoid any juvenile conviction. 3)Peace Officers are Already Mandated Reporters of Child Abuse or Neglect: The California Child Abuse Neglect Reporting Act (CANRA) requires mandatory reporting when certain individuals suspect that a child has been abused or neglected. Law AB 1760 Page 9 enforcement officers are one of the groups which have mandatory reporting responsibilities. A mandated reporter must make a report whenever, in his/her professional capacity or within the scope of his/her employment, he/she has knowledge of, or observes a child (a person under 18) whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. Abuse includes the sexual exploitation of a child. When law enforcement suspects abuse or neglect they inform child protective services and the district attorney's office of the suspected abuse. 4)This Bill Requires Police Officers to Take On Responsibilities Normally Reserved For the Judicial System: This bill requires officers to not only make a determination about whether or not a juvenile suspect they encounter on the street is a victim of human trafficking, but also whether there are other crimes (in any jurisdiction) that are a direct result of being trafficked. The requirement that the officer determine if there are other crimes that are a direct result of being trafficked requires the officer to make legal determinations ordinarily made by district attorneys and courts. The determination that an individual is a victim of human trafficking can require investigative resources and information not available to an officer making a decision in the field about whether to arrest a suspect. Officers are not in a position to make a factual and legal determinations other cases about which they have not investigated, or cases in other law enforcement jurisdictions. Generally, if an officer determines that a crime has in fact been committed, but there is a claim that the individual was forced to engage in the crime, the officer would refer the case to the district attorney's office for evaluation. That claim would be evaluated by the district attorney's office and if not resolved, be contested in court. Often the arresting officer doesn't have the ability to make a determination about facts that need to be investigated beyond the scene of the arrest. The determination of whether someone AB 1760 Page 10 is a victim of human trafficking is going to require investigation which cannot be done at the scene of the arrest. To require the arresting officer to make such a determination would place demands on that officer which have traditionally been placed on the judicial system. This bill not only places a burden on the officer to make determinations which can be outside the reach of his or her ability to immediately determine, but expects the officer to make determinations on cases in which the juvenile is a suspect, but about which the officer has no personal knowledge. 5)The Existing Legal Defenses of Duress and Necessity Can Apply to Victims of Human Trafficking Forced to Commit Crimes: California law provides the possibility of defenses based on duress or necessity when a person commits a crime to avoid a significant danger to themselves or others. These defenses certainly can apply to situations in which victims of human trafficking are forced into criminal behavior by their trafficker. Circumstances consistent with a defense of duress or necessity can be considered by a district attorney's office when they decide what criminal charges to file, or whether charges will be filed at all. If charges are filed, evidence to establish these defenses can be presented as part of the court process. The instruction the jury would receive when considering the defense of duress is as follows: The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ [or] someone else's) life would be in immediate danger if (he/she) refused a demand or request to commit the crime[s]. The demand or request may have been express or implied. The defendant's belief that (his/her/ [or] someone else's) life was in immediate danger must have been reasonable. When deciding whether the defendant's belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant AB 1760 Page 11 would have believed. (Calcrim 3402.) A defense of necessity is similar to duress. To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that she violated the law (1) to prevent a significant bodily harm or evil to themselves or someone else, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which she did not substantially contribute to the emergency. (Calcrim 3403.) 6)Argument in Support: According to The California Public Defenders Association, "Commercial sexual exploitation and sex trafficking of minors should be understood as acts of abuse and violence against minors. Minors who are commercially sexually exploited or trafficked for sexual purposes should not be considered criminals. Identification of victims and survivors and any intervention, above all, should do no further harm to any child or adolescent. There is substantial and compelling evidence that commercial exploitation and sex trafficking of minors in the United States are serious problems with immediate and long-term adverse consequences for children and adolescents, as well as for families, communities, and society as a whole. Efforts to identify and respond to the commercial sexual exploitation and sex trafficking of minors in the United States are emerging, but efforts to date are largely under supported, insufficient, uncoordinated, and unevaluated. Efforts to prevent, identify, and respond to commercial sexual exploitation and sex trafficking of minors require collaborative approaches that build upon the core capabilities of people and entities from a range of sectors. "Law enforcement officers are often the earliest to respond to minors that are the victims of commercial sexual exploitation and sex trafficking. Their knowledge and ability to identify victims, investigate cases for appropriate treatment/services, AB 1760 Page 12 and make appropriate referrals/recommendations to the court is crucial to the development of an overall response to commercial sexual exploitation and sex trafficking of minors at the earliest opportunity. That said, many law enforcement personnel do not recognize commercial sexual exploitation and sex trafficking of minors as serious problems. As a result, they may fail to identify victims of these crimes and may be uncertain about how to handle these cases. "Recently the Committee on The Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States (Committee), Institute of Medicine and National Research Council issued a report with The National Academies Press entitled Confronting Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States, found that "Although efforts to train personnel within the legal system to address human trafficking have increased, the majority of personnel in the system have not been trained to recognize and respond to suspected or confirmed cases of commercial sexual exploitation and sex trafficking of minors." The Committee further observed that "Juvenile justice personnel need training in identifying victims of trafficking who are in the system on charges unrelated to prostitution through intake screenings, runaway and homeless programs, and programming in juvenile detention centers." Recommendations by the Committee included the establishment of diversion programs so that youth identified as victims of commercial sexual exploitation and sex trafficking receive treatment as part of their rehabilitation or in lieu of punishment; and that juvenile justice agency personnel should refer youth identified as victims of commercial sexual exploitation and sex trafficking to appropriate treatment services. The Committee further recommended that states should develop laws and policies that redirect young victims and survivors of commercial sexual exploitation and sex trafficking from arrest and prosecution as criminals or adjudication as delinquents to systems, agencies and services that are equipped to meet their needs and that such laws should apply to all children and adolescents under age 18. "It has also been recognized that many victim and support service providers working with vulnerable youth lack an AB 1760 Page 13 understanding of commercial sexual exploitation and sex trafficking, and therefore may not recognize youth in their care who are at risk of or are victims/survivors of these abuses. As a result, these service providers sometime fail to connect youth in need to appropriate and timely services. The Committee further acknowledged that victims and survivors of commercial sexual exploitation and sex trafficking are frequently in need of services, often including out-of-home placement, which are limited and often nonexistent. This bill would assist in insuring that law enforcement offices, other stakeholders, and providers receive the appropriate training to better assist the victims of commercial sexual exploitation and sex trafficking and where necessary the appropriate treatment and services for the care and treatment of exploited children. This bill would further provide for a consistent and appropriate legal response to victims and survivors of commercial sexual exploitation and sex trafficking." 7)Argument in Opposition: According to The California State Sheriffs' Association, "We are sympathetic to the plight of crime victims, especially minor victims of human trafficking. That said, this bill's response to horrific situation is to inappropriately blend the roles of members of the criminal justice system, potentially allow criminals to escape liability, and inadvertently encourage human traffickers to use minors in their illicit trade. "It is not the role of a frontline law enforcement officer to make a determination that a person is actually the victim of a crime. Rather, officers gather facts and investigate crime scenes to form reasonable beliefs about what might have transpired. It is the duty of the prosecutor to allege liability and victim status, and perhaps confer immunity to certain parties. This bill jumbles that relationship and requires peace officers to effectively determine whether or not certain persons are criminally liable for their behavior. The bill further usurps the roles of judges and juries who ultimately determine culpability and punishment. "We also fear that this bill, inasmuch as it automatically grants immunity to a minor who has committed any offense that is not a violent felony if it results from human trafficking, AB 1760 Page 14 will allow offenders to escape punishment. Again, this decision should be made by the judicial system and not frontline law enforcement officers. Additionally, given the immunity provisions this bill creates, we believe that human traffickers would be encouraged to utilize minors in their illegal activities because minors are effectively precluded from being arrested, charged, or penalized." 8)Related Legislation: a) AB 1675 (Stone), would specify that a minor who commits those crimes is not subject to criminal charges in the juvenile court, but he or she may be adjudged a dependent child of the child welfare court. AB 1675 is pending hearing in Assembly Public Safety Committee. b) AB 1731 (Atkins), authorizes the chief probation officer of a county to create a program to provide services to youth within the county that address the need for services relating to the commercial sexual exploitation of youth. AB 1731 is pending hearing in Assembly Appropriations. c) AB 1761 (Weber), would create an affirmative defense against a charge of a nonviolent crime that was committed as a direct result of being a human trafficking victim. AB 1761 is pending hearing in the Assembly Public Safety Committee. d) AB 1762 (Campos), would allow an individual convicted of a nonviolent crime while he or she was human trafficking victim to apply to the court to vacate the conviction at any time after it was entered. AB 1762 is pending hearing Assembly Appropriations Committee. e) SB 1322 (Mitchell), would decriminalize specified prostitution related offenses committed by person under 18, but would authorize a peace officer to take a minor into temporary custody. SB 1322 is pending hearing in Senate Public Safety Committee. 9)Prior Legislation: AB 1760 Page 15 a) AB 1585 (Alejo), Chapter, 708, Statutes of 2014, provides that a defendant who has been convicted of solicitation or prostitution may petition the court to set aside the conviction if the defendant can establish by clear and convincing evidence that the conviction was the result of his or her status as a victim of human trafficking. b) AB 2040 (Swanson), Chapter 197, Statutes of 2012, provides that a person who was adjudicated a ward of the court for the commission of a violation of specified provisions prohibiting prostitution may petition a court to have his or her records sealed as these records pertain to the prostitution offenses without showing that he or she has not been subsequently convicted of a felony or misdemeanor involving moral turpitude, or that rehabilitation has been attained. c) AB 1940 (Hill), of the 2011-12 Legislative Session, would have authorized a court to seal a record of conviction for prostitution based on a finding that the petitioner is a victim of human trafficking, that the offense is the result of the petitioner's status as a victim of that crime, and that the petitioner is therefore factually innocent. AB 1940 was held on the Assembly Committee on Appropriations' Suspense File. d) AB 702 (Swanson), of the 2011-12 Legislative Session, would have allowed a person adjudicated a ward of the court or a person convicted of prostitution to have his or her record sealed or conviction expunged without showing that he or she has not been subsequently convicted or that he or she has been rehabilitated. AB 702 was never heard by this Committee and was returned to the Chief Clerk. e) AB 22 (Lieber), Chapter 240, Statutes of 2005, created the California Trafficking Victims Protection Act, which established civil and criminal penalties for human trafficking and allowed for forfeiture of assets derived from human trafficking. In addition, the Act required law enforcement agencies to provide Law Enforcement Agency Endorsement to trafficking victims, providing trafficking AB 1760 Page 16 victims with protection from deportation and created the human trafficking task force. REGISTERED SUPPORT / OPPOSITION: Support Coalition to Abolish Slavery & Trafficking (Sponsor) ACT for Women and Girls American Academy of Pediatrics American Association of University Women Long Beach California Church IMPACT California Public Defenders Association California Women's Law Center CAST Survivor Advisory Caucus California Public Defenders Association Clergy and Laity United for Economic Justice Coalition for Humane Immigrant Rights of Los Angeles Department on the Status of Women, City and County of San Francisco Housing California Legal Services for Prisoners with Children Los Angeles Alliance for a New Economy Opening Doors National Association of Social Workers, California Chapter National Council of Jewish Women CA Religious Action Center of Reform Judaism Shared Hope International Opposition California State Sheriffs' Association Office of the District Attorney, Alameda County Sacramento County District Attorney Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 AB 1760 Page 17