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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|Policy |Public Safety |Vote:|6 - 0 |
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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