BILL ANALYSIS Ó
AB 1761
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Date of Hearing: April 12, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1761 (Weber) - As Amended March 28, 2016
As Proposed to be Amended in Committee
SUMMARY: Creates a human trafficking affirmative defense
applicable to non-violent, non-serious, non-trafficking crimes.
Specifically, this bill:
1)States that, in addition to any other affirmative defense, it
is a defense to 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 of reasonable fear of
harm.
2)States that this affirmative defense does not apply to a
serious felony, a violent felony, or the offense of human
trafficking, as specified.
3)Establishes the standard of proof for the human trafficking
affirmative defense as the preponderance of evidence standard.
4)States that certifying records from federal, state, tribal, or
local court or government certifying agencies for documents
such as U or T visas, may be presented to establish the
affirmative defense.
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5)Provides that the human trafficking affirmative defense can be
asserted at any time before entry of plea or before the end of
a trial. The defense can also be determined at the
preliminary hearing.
6)Entitles a person who successfully raises the human
trafficking affirmative defense to the following relief:
a) Sealing of all court records in the case;
b) Release from all penalties and disabilities resulting
from the charge, and all actions that led to the charge
shall be deemed not to have occurred; and
c) Permission to attest in all circumstances that he or she
has never been arrested for, or charged with the subject
crime, including in financial aid, housing, employment, and
loan applications.
7)States that, in any juvenile delinquency proceeding, if the
court finds that the alleged offense was committed as a direct
result of being a victim of human trafficking then it shall
dismiss the case and automatically seal the case records.
8)States that the person may not be thereafter charged with
perjury or otherwise giving a false statement based on the
above relief.
9)States that in a juvenile delinquency proceeding, if the court
finds that the offense charged in the proceedings was
committed as a direct result of the minor being a victim of
human trafficking, and the affirmative defense was established
by a preponderance of the evidence, then the court shall
dismiss the proceedings and order automatic record sealing.
10)Provides that in a criminal action expert testimony is
admissible by either the prosecution or defense regarding the
effects of human trafficking on its victims, including, but
not limited to the nature and effect of physical, emotional,
or mental abuse on the beliefs, perceptions, or behavior of
human trafficking victims.
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11)States that the requisite foundation for the introduction of
this expert testimony will be established if the proponent of
the evidence shows its relevance and the proper qualifications
of the expert witness.
EXISTING LAW:
1)Guarantees a defendant a meaningful opportunity to present a
defense. (U.S. Const., VI Amend., Cal. Const. art. I, §. 15.)
2)Provides that all persons are capable of committing crimes
except those belonging to specified classes, including person
who committed the act or made the omission charged under
threats or menaces sufficient to show that they had reasonable
cause to and did believe their lives would be endangered if
they refused. (Pen. Code, § 26.)
3)States that all relevant evidence is admissible unless it is
made inadmissible by some statutory or constitutional
provision. (Cal. Const., art. I, § 28(f)(2), Evid. Code, §
351.)
4)Provides that the court in its discretion may exclude evidence
if its probative value is substantially outweighed by the
probability that its admission will necessitate undue
consumption of time or create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.
(Evid. Code, § 352.)
5)States that a person is qualified to testify as an expert if
he or she has special knowledge, skill, experience, training,
or education sufficient for the court to deem the person
qualified on a subject about which he or she is asked to
express an opinion. (Evid. Code, § 720.)
6)Limits expert testimony to a subject that is sufficiently
beyond common experience that the opinion of that expert would
assist the trier of fact to understand the evidence or
determine a fact in issue. (Evid. Code, § 801, subd. (a).)
7)Authorizes expert testimony in criminal cases by either the
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prosecution or defense regarding intimate partner battering
and its effects, including the nature and effect of physical,
emotional, or mental abuse on the beliefs, perceptions, or
behavior of victims of domestic violence, except when offered
against a defendant to prove the occurrence of the act or acts
of abuse which form the basis of a criminal charge. (Evid.
Code, § 1107, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Too often our
survivors of human trafficking are forced to commit crimes
under threat (directly and indirectly) from their traffickers.
The trauma of being a victim of human trafficking is untold.
In addition to sexual, emotional, and physical abuse, human
trafficking victims are arrested and convicted for crimes they
were forced to take part in by their traffickers. For too
long, we have compounded this trauma by arresting and charging
victims of human trafficking for crimes they committed
directly related to their time spent as a trafficking victim.
These victims are charged with crimes, while their traffickers
are shielded. This bill seeks to remedy this situation and
create avenues for victims to be identified and the
traffickers prosecuted."
2)Affirmative Defense: A victim of trafficking who is charged
with a crime may be able to raise the defense of duress.
Duress is said to excuse criminal conduct where the actor was
under an unlawful threat of imminent death or serious bodily
injury, which threat caused the actor to engage in conduct
violating the literal terms of the criminal law. 'if there
was a reasonable, legal alternative to violating the law, 'a
chance both to refuse to do the criminal act and also to avoid
the threatened harm,' the defenses will fail.' (People v.
Heath (1989) 207 Cal.App.3d 892, 899-900, citations omitted.)
"Persons (unless the crime is punishable with death) who
commits the act or made the omission charged under threats or
menace suffices to show that they had reasonable cause to and
did believe their lives would be endangered if they refused"
are not guilty of the crime. (Pen. Code, § 26.) A court has
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a duty to give a duress instruction on its own motion if it is
supported by substantial evidence and is not inconsistent with
the defense theory. (People v. Wilson (2005) 36 Cal.4th 309,
331.)
The defendant acted under duress if, because of threat or
menace, he or she believed that his or her or someone else's
life would be in immediate danger if he or she refused a
demand or request to commit the crime. The demand or request
may have been expressed or implied. The defendant's belief
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 would have believed. CALCRIM 3402.
Duress applies if the defendant has been threatened with
imminent great bodily harm. (See People v. Otis (1959) 174
Cal.App.2d 119, 124; United States v. Bailey (1980) 444 U.S.
394, 409.) Also, although this is not reflected in the
instruction, duress probably applies if the instigator
threatens harm to another person. (See Heath, supra, at p.
898, discussing People v. Pena (1983) 149 Cal.App.3d Supp. 14,
21-25 [a necessity defense due to threats to a third party].)
The sponsors of this bill believe the duress defense is
inadequate for trafficking victims because a victim may not be
able to show his or her life was in immediate danger.
Accordingly, this bill creates a separate human trafficking
affirmative defense.
Under the newly created defense, the person will be required
to show by a preponderance of the evidence, that he or she was
coerced to commit the crime as a direct result of being a
victim of trafficking at the time of the crime, and of
reasonable fear of harm. The coercion requirement will
prevent a trafficking victim from raising the defense when he
or she commits a crime for personal gain, as opposed to at the
behest of his or her trafficker. In addition, the requirement
that the person be a victim of trafficking at the time of the
offense, will preclude a trafficking survivor from using the
defense years later to escape liability for criminal conduct
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because he or she was a victim in the past.
It should be noted that this defense will not apply to all
crimes. A trafficking victim cannot raise the defense when
charged with a serious felony as described in Penal Code
section 1192.7, subdivision (c), a violent felony listed in
Penal Code section 667.5, subdivision (c), or with regard to a
charge of human trafficking. The latter crime is excluded
from application so that a victim of trafficking does not
escape liability for becoming a recruiter for his or her
trafficker.
3)Expert Testimony: Evidence Code section 1107 generally makes
admissible in a criminal action expert testimony regarding
"intimate partner battering and its effects, including the
physical, emotional, or mental effects upon the beliefs,
perceptions, or behavior of victims of domestic violence . . .
." As explained by the California Supreme Court:
Battered women's syndrome "has been defined as 'a series
of common characteristics that appear in women who are
abused physically and psychologically over an extended
period of time by the dominant male figure in their
lives.' (State v. Kelly (1984) 97 N.J. 178, 193 [478
A.2d 364, 371]; see also People v. Aris (1989) 215
Cal.App.3d 1178, 1194 [264 Cal. Rptr. 167] [' "a pattern
of psychological symptoms that develop after somebody has
lived in a battering relationship" ']; Note, Battered
Women Who Kill Their Abusers (1993) 106 Harv.L.Rev.
1574, 1578 ['a "pattern of responses and perceptions
presumed to be characteristic of women who have been
subjected to continuous physical abuse by their mate[s] "
' ].)" (People v. Romero (1994) 8 Cal.4th 728, 735, fn.
1; see also People v. Humphrey (1996) 13 Cal.4th 1073,
1083-84.)
This bill applies the same principles to expert testimony
regarding the effects of human trafficking to its victims.
4)Argument in Support: According to the Coalition to Abolish
Slavery and Trafficking (CAST), the sponsor of this bill,
"1761 creates important protections for trafficking survivors
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to deal with the unique nature of the trafficking crime. In
CAST's experience as a service provider working with hundreds
of trafficking survivors in California, an affirmative defense
will create an additional pathway for trafficking victims to
be identified as the victims they are so that the real
perpetrators can be prosecuted. It also ensures that the
complexities of trafficking crimes can be appropriately
described to judges and juries.?
"Usually a leader in creative approaches to protect trafficking
victims, California is far behind other states in offering an
affirmative defense for trafficking victims. So, far 34
states have passed this legislation to better protect
trafficking victims. It is costly not just to the victims,
but also to the state of California to convict trafficking
victims for crimes their traffickers force them to commit.
These funds could be better spent prosecuting traffickers.
"AB 1761 creates an affirmative defense against a charge of a
non-violent crime that was committed as a direct result of
being a human trafficking victim. ? As a special protection
for minor sex trafficking victims, AB 1761 requires the court
to dismiss any charges arising from a commercial sex
trafficking act against a person who was under 18 years of
age, whether or not the defendant asserts the affirmative
defense. Finally, AB 1761 grants trafficking victims who
prevail on the affirmative defense the right to have all
records in the case sealed and ensures they do not suffer
long-term consequences from their arrest.
"In recognition of the complex dynamics of trafficking crimes,
AB 1761 also creates a presumption that expert testimony is
admissible by either the prosecution or the defense regarding
the effects of human trafficking on human trafficking
victims."
5)Arguments in Opposition:
a) The California District Attorneys Association writes,
"[w]e do not need a new rule of evidence to allow parties
to call an expert witness to educate the trier of fact on
issues relating to human trafficking. California law has
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long provided that 'any person who has special knowledge,
skill or experience in any occupation, trade or craft may
be qualified as an expert in his field.' (People v. King
(1968) 266 Cal.App.2d 437, 445.) California courts allow
experts to help explain a wide variety of human behaviors
and to explain why people respond in strange ways to
traumatic events such as rape trauma, child abuse
accommodation syndrome, post-traumatic stress, gang
culture, domestic violence, and battered women's syndrome,
just to name a few."
b) The California State Sheriffs' Association states,
"Duress is an existing defense and prosecutors often
decline to pursue criminal charges against the persons
contemplated by this bill, especially when it can help
bring human traffickers to justice. As such, this bill
represents an unnecessary tilting of the playing field by
effectively absolving certain persons of criminal
liability."
6)Related Legislation:
a) AB 1675 (Stone) would provide that a minor who commits
the crimes of solicitation, prostitution, or loitering with
the intent to commit prostitution, is subject to the
jurisdiction of the juvenile dependency court rather than
delinquency court. AB 1675 is pending in the Assembly
Judiciary Committee.
b) AB 1760 (Santiago) would direct a peace officer who
determines that a minor is a victim of human trafficking to
report such abuse, consult with a child welfare worker
about a safe placement for the minor, and transport the
minor to such placement, unless the minor is otherwise
arrested.. AB 1760 will be heard in this Committee today.
c) AB 1762 (Campos) would allow a person convicted of a
nonviolent crime while he or she was human trafficking
victim to apply to vacate the conviction at any time after
it was entered. AB 1762 is pending in the Assembly
Appropriations Committee.
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7)Prior Legislation:
a) AB 1585 (Alejo), Chapter 708, Statutes of 2014,
provides that a defendant who has been convicted of
solicitation or prostitution, as specified, may petition
the court to set aside the conviction, and allows the court
to set it aside if the defendant can show that the
conviction was the result of his/her status as a victim of
human trafficking.
b) AB 694 (Bloom), Chapter 126, Statutes of 2013, clarified
that evidence that a victim of human trafficking has
engaged in a commercial sex act cannot be used to prosecute
that victim for the commercial sex act.
c) SB 327 (Yee), of the 2013-2014 Legislative Session,
would have allowed a writ of habeas corpus to be prosecuted
when competent and substantial expert testimony relating to
human trafficking was not presented at trial for a crime in
which the defendant was a victim of human trafficking. SB
327 was held on the Assembly Appropriations Committee
Suspense File.
d) AB 785 (Eaves), Chapter 812, Statutes of 1991, made
expert testimony regarding battered women's syndrome
admissible in court under specified conditions.
REGISTERED SUPPORT / OPPOSITION:
Support
Coalition to Abolish Slavery and Trafficking (Co-sponsor)
National Council of Jewish Women- California (Co-sponsor)
Act for Women and Girls
American Academy of Pediatrics
American Association of University Women, Long Beach
American Civil Liberties Union
California Council of Churches Impact
California Partnership to End Domestic Violence
California Public Defenders Association
California Women's Law Center
Clergy and Laity United for Economic Justice
Coalition to Abolish Slavery and Trafficking Survivor Advisory
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Council
Housing California
Jewish Public Affairs Committee of California
Junior Leagues of California
Legal Services for Prisoners with Children
Los Angeles Alliance for a New Economy
Opening Doors
Religious Action Center of Reform Judaism
Opposition
Alameda County District Attorney
California District Attorneys Association
California State Sheriffs' Association
Sacramento County District Attorney
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744