AB 1761, as amended, Weber. Human trafficking: victims: affirmative defense.
(1) Under existing law, as amended by Proposition 35, an initiative measure approved by the voters at the November 6, 2012, statewide general election, a person who deprives or violates another person’s personal liberty with the intent to obtain forced labor or services or who deprives or violates another person’s personal liberty for the purpose of prostitution or sexual exploitation is guilty of human trafficking, a felony. Proposition 35 provides that it may be amended by a statute in furtherance of its objectives by a majority of the membership of each house of the Legislature concurring.
This bill would create an affirmative defense against a charge of a crime that the person was coerced to commit the offense as a direct result of being a human trafficking victim at the time of the offense and when the person had
reasonable fear of harm. The bill would prohibit this defense from being used with respect to a serious or violent crime, as defined, or a charge of human trafficking. The bill would grant a person who prevails on that affirmative defense the right to have all records in the casebegin delete sealedend deletebegin insert sealed, except as specified,end insert and to be released from all penalties and disabilities, as provided.
(2) Existing law makes expert testimony regarding intimate partner battering and its effects admissible in a criminal action.
This bill would make expert testimony regarding the effect of human trafficking on a human trafficking victim admissible in a criminal action.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1107.5 is added to the Evidence Code,
2to read:
(a) In a criminal action, expert testimony is admissible
4by either the prosecution or the defense regarding the effects of
5human trafficking on human trafficking victims, including the
6nature and effect of physical, emotional, or mental abuse on the
7beliefs, perceptions, or behavior of human trafficking victims.
8(b) The foundation shall be sufficient for admission of this expert
9testimony if the proponent of the evidence establishes its relevancy
10and the proper qualifications of the expert witness.
11(c) For purposes of this section, “human trafficking victim” is
12defined in Section 236.1 of the Penal Code.
13(d) This section is intended as a rule of evidence only and no
14substantive change affecting the Penal Code is intended.
Section 236.23 is added to the Penal Code, to read:
(a) In addition to any other affirmative defense, it is
17a defense to a charge of a crime that the person was coerced to
18commit the offense as a direct result of being a human trafficking
19victim at the time of the offense and had a reasonable fear of harm.
20This defense does not apply to a serious felony, as defined in
21subdivision (c) of Section 1192.7, or a violent felony, as defined
22in subdivision (c) of Section 667.5, or a violation of Section 236.1.
23(b) A defendant asserting the affirmative defense specified in
24subdivision (a) has the burden of establishing the affirmative
25defense by a preponderance of the evidence.
26(c) Certified records of a federal, state, tribal, or local court or
27governmental agency documenting the person’s status as a victim
P3 1of human trafficking at the time of the offense, including
2identification of a victim of human trafficking by a peace officer
3pursuant to Section 236.2 and certified records of approval notices
4or enforcement certifications generated from federal immigration
5proceedings,
may be presented to establish an affirmative defense
6pursuant to this section.
7(d) The affirmative defense may be asserted at any time before
8the entry of a plea of guilty or nolo contendere or admission to the
9truth of the charges and before the conclusion of any trial for the
10offense. If asserted before the preliminary hearing held in a case,
11the affirmative defense shall, upon request by the defendant, be
12determined at the preliminary hearing.
13(e) If the defendant prevails on the affirmative defense provided
14under subdivision (a), the defendant is entitled to all of the
15following relief:
16(1) begin insert(A)end insertbegin insert end insertThe
court shall order that all records in the case be sealed
17pursuant to Sectionbegin delete 851.86 and shall grant the relief provided in begin insert 851.86.end insert
18subdivision (b) of Section 851.8.end delete
19
(B) Records that have been sealed pursuant to this paragraph
20may be accessed, inspected, or utilized by law enforcement for
21subsequent investigatory purposes involving persons other than
22the defendant.
23(2) The person shall be released from all penalties and
24disabilities resulting from the charge, and all actions and
25proceedings by law enforcement personnel, courts, or other
26government
employees that led to the charge shall be deemed not
27to have occurred.
28(3) (A) The person may in all circumstances state that he or
29she has never been arrested for, or charged with, the crime that is
30the subject of the charge or conviction, including without limitation
31in response to questions on employment, housing, financial aid,
32or loan applications.
33(B) The person may not be denied rights or benefits, including,
34without limitation, employment, housing, financial aid, welfare,
35or a loan or other financial accommodation, based on the arrest or
36charge or
his or her failure or refusal to disclose the existence of
37or information concerning those events.
38(C) The person may not be thereafter charged or convicted of
39perjury or otherwise of giving a false statement by reason of having
P4 1failed to disclose or acknowledge the existence of the charge, or
2any arrest, indictment, trial, or other proceedings related thereto.
3(f) If, in a proceeding pursuant to Section 602 of the Welfare
4and Institutions Code, the juvenile court finds that the offense on
5which the proceeding is based was committed as a direct result of
6the minor being a human trafficking victim, and the affirmative
7defense established in subdivision (a) is established by a
8preponderance of the evidence, the court shall dismiss the
9proceeding and order the
relief prescribed in Section 786 of the
10Welfare and Institutions Code.
O
96