BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1761 Hearing Date: June 28, 2016
-----------------------------------------------------------------
|Author: |Weber |
|-----------+-----------------------------------------------------|
|Version: |April 14, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|MK |
| | |
-----------------------------------------------------------------
Subject: Human Trafficking: Victims: Affirmative Defense
HISTORY
Source: Coalition to Abolish Slavery and Trafficking
National Council of Jewish Women
Prior Legislation:AB 1585 (Alejo) - Chapter 708, Stats. 2014,
AB 694 (Bloom) - Chapter 126, Stats. 2013
SB 327 (Yee) failed Assembly Appropriations 2013
AB 785 (Eaves) - Chapter 812, Stats. 1991
Support: 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 Public
Defenders Association; California Women's Law Center;
CAST Survivor Advisory Caucus; City of Los Angeles;
Clergy and Laity for United for Economic Justice;
Housing California; Junior Leagues of California;
Junior League of San Diego; Legal Services for
Prisoners with Children; The Los Angeles Alliance for
a New Economy; Planned Parenthood Affiliates of
California; Religious Action Center of Reform Judaism;
San Diego Urban League for Young Professional
Opposition:California District Attorneys Association; California
AB 1761 (Weber ) Page
2 of ?
State Sheriffs' Association; Los Angeles District
Attorneys Association; Sacramento County District
Attorney's Office
Assembly Floor Vote: 69 - 3
PURPOSE
The purpose of this bill is to create a human trafficking
affirmative defense applicable to non-violent, non-serious,
non-trafficking crimes.
Existing law guarantees a defendant a meaningful opportunity to
present a defense. (U.S. Const., VI Amend., Cal. Const. art. I,
§. 15.)
Existing law 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. (Penal Code § 26.)
Existing law 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),
Evidence Code, § 351.) 4)
Existing law 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. (Evidence Code, § 352.)
Existing law 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. (Evidence Code, § 720.)
Existing law limits expert testimony to a subject that is
sufficiently beyond common experience that the opinion of that
AB 1761 (Weber ) Page
3 of ?
expert would assist the trier of fact to understand the evidence
or determine a fact in issue. (Evidence Code § 801 (a).)
Existing law authorizes expert testimony in criminal cases by
either the 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.
(Evidence Code § 1107 (a).)
This bill 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.
This bill states that this affirmative defense does not apply to
a serious felony, a violent felony, or the offense of human
trafficking, as specified.
This bill establishes the standard of proof for the human
trafficking affirmative defense as the preponderance of evidence
standard.
This bill 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.
This bill 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.
This bill 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,
AB 1761 (Weber ) Page
4 of ?
and loan applications.
This bill 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.
This bill states that the person may not be thereafter charged
with perjury or otherwise giving a false statement based on the
above relief.
This bill 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.
This bill 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.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
AB 1761 (Weber ) Page
5 of ?
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
AB 1761 (Weber ) Page
6 of ?
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Human trafficking victims are often treated as
criminals with respect to the crimes their traffickers
force them to commit. Human Trafficking is a unique
crime in that traffickers often benefit from having
their victims commit illegal acts and may force both
children and adults to commit a diverse range of
crimes. Traffickers also reinforce their power and
control over victims by instilling fear of law
enforcement and the systems designed to protect them so
that victims-both adults and children- often initially
lie to law enforcement about the circumstances of their
trafficking experience or proactively attempt to
protect their traffickers.
Because of the unique nature of the trafficking crime,
California must take proactive steps to protect these
victims and create multiple pathways for them to be
identified as the victims they are so that the real
perpetrators can be prosecuted. We must also enact
measures to ensure that the complexities of trafficking
crimes can be appropriately described to judges and
juries. AB 1761 helps ensure that human trafficking
victims arrested for offenses directly related to their
trafficking are not convicted of crimes their
traffickers forced them to commit.
This provision is consistent with the actions of other
states who have taken this step to better protect
trafficking victims. At least 34 states have enacted
laws making a person's status as a victim of human
trafficking an affirmative defense to certain criminal
charges. In addition, Alaska, New York and Virginia,
three states without such a defense or immunity,
AB 1761 (Weber ) Page
7 of ?
currently have introduced bills in their respective
state legislatures that would create an affirmative
defense for trafficking victims. The 34 states that
have established an affirmative defense are Alabama,
Arizona, Arkansas, Colorado, Connecticut, Delaware,
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Minnesota,
Mississippi, Missouri, Montana, Nebraska, New
Hampshire, New Jersey, North Dakota, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Carolina, South
Dakota, Tennessee, Texas, Washington and Wisconsin.
Finally, similar to the proposed provision The Uniform
Act includes an affirmative defense for an "individual
charged with [prostitution] or [other nonviolent
offenses] committed as a direct result of being a
victim" of human trafficking. See Prevention of and
Remedies for Human Trafficking Section 16, available
at:
http://www.uniformlaws.org/Act.aspx?title=Prevention.
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 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
AB 1761 (Weber ) Page
8 of ?
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. This bill
creates a separate human trafficking affirmative defense.
Under the defense created by this bill, 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 because he
or she was a victim in the past.
This new 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.
AB 1761 (Weber ) Page
9 of ?
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]) This bill applies the same principles to expert testimony
regarding the effects of human trafficking to its victims. It
provides that testimony is admissible by either prosecution or
defense regarding the effects of human trafficking victims
including the nature and effect of physical, emotional, or
mental abuse on the beliefs, perceptions, or behavior of human
trafficking victims.
-- END -