BILL ANALYSIS Ó AB 1761 Page 1 Date of Hearing: May 11, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair AB 1761 (Weber) - As Amended April 14, 2016 ----------------------------------------------------------------- |Policy |Public Safety |Vote:|6 - 0 | |Committee: | | | | | | | | | | | | | | ----------------------------------------------------------------- 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. AB 1761 Page 2 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 AB 1761 Page 3 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. AB 1761 Page 4 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." AB 1761 Page 5 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 AB 1761 Page 6 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