BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1761


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          Date of Hearing:  May 11, 2016


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                               Lorena Gonzalez, Chair


          AB  
          1761 (Weber) - As Amended April 14, 2016


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          Urgency:  No  State Mandated Local Program:  NoReimbursable:  No


          SUMMARY:


          This bill 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 had reasonable fear of  
            harm.  This defense does not apply to a serious felony, a  
            violent felony, or the offense of human trafficking, as  
            specified.








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          2)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.

          3)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  c)  
            ability to attest in all circumstances that he or she has  
            never been arrested for, or charged with the subject crime. 

          4)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.

          5)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.

          6)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.



          FISCAL EFFECT:


          No cost to the state, and some savings to counties for reduced  
          incarceration, if the defendant prevails in misdemeanor or  








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          non-serious felony charges. 


          


          COMMENTS:


          1)Background/Purpose.  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.  According to  
            case 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.'"


            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.  


            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.  








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             This bill seeks to remedy this situation and create avenues  
            for victims to be identified and the traffickers prosecuted."


          2)Support:  According to the Coalition to Abolish Slavery and  
            Trafficking (CAST), the sponsor of this bill, "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."  


          3)Arguments in Opposition:  

             1)   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.  

             2)   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."













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          1)Related Legislation:  

             a)   AB 1675 (Stone), also on today's calendar,  provides  
               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.  

             b)   AB 1760 (Santiago), also on today's calendar, directs 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..  

             c)   AB 1762 (Campos), also on today's calendar, allows 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.  



          1)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  








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               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 in this committee's Suspense file.

          Analysis Prepared by:Pedro Reyes / APPR. / (916)  
          319-2081