BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1761|
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THIRD READING
Bill No: AB 1761
Author: Weber (D), et al.
Amended: 4/14/16 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 6-1, 6/28/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 69-3, 5/19/16 - See last page for vote
SUBJECT: Human trafficking: victims: affirmative defense
SOURCE: Coalition to Abolish Slavery and Trafficking
National Council of Jewish Women
DIGEST: This bill creates a human trafficking affirmative
defense applicable to non-violent, non-serious, non-trafficking
crimes.
ANALYSIS:
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
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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.)
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), Evidence Code, §
351.) 4)
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. (Evidence 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. (Evidence 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. (Evidence Code, § 801 (a).)
7) 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:
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
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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.
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
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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.
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.
Background
1)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. (Penal 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 or request to commit the crime. The demand or request
may have been expressed or implied. The defendant's belief
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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.
2)Expert Testimony
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified8/2/16)
Coalition to Abolish Slavery and Trafficking (co-source)
National Council of Jewish Women (co-source)
ACT for Women and Girls
American Academy of Pediatrics
American Association of University Women Long Beach
American Civil Liberties Union
California Council of Churches
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
IMPACT
Junior League of San Diego
Junior Leagues of California
Legal Services for Prisoners with Children
Planned Parenthood Affiliates of California
Religious Action Center of Reform Judaism
San Diego Urban League for Young Professional
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The Los Angeles Alliance for a New Economy
OPPOSITION: (Verified8/2/16)
California District Attorneys Association
California State Sheriffs' Association
Los Angeles District Attorneys Association
Sacramento County District Attorney's Office
ARGUMENTS IN SUPPORT: 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
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addition, Alaska, New York and Virginia, three states
without such a defense or immunity, 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.
ARGUMENTS IN OPPOSITION: According to the Los Angeles County
District Attorney's Office:
Our office does not believe it is good public policy to begin
carving out new defenses for such a small number of potential
criminal defendants when there are laws in place which
adequately address the issue raised in AB 1761. The
affirmative defense of duress (Cal Crim 3402) and necessity
(Cal Crim 3403) already exists and is available to all
defendants, including those who are victims of human
trafficking.
ASSEMBLY FLOOR: 69-3, 5/19/16
AYES: Achadjian, Alejo, Arambula, Atkins, Baker, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo
Garcia, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley,
Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim,
Lackey, Levine, Linder, Lopez, Low, Maienschein, Medina,
Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson,
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Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth,
Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk,
Wood, Rendon
NOES: Travis Allen, Gatto, Melendez
NO VOTE RECORDED: Bigelow, Chang, Beth Gaines, Harper, Mathis,
Mayes, McCarty, Williams
Prepared by:Mary Kennedy / PUB. S. /
8/3/16 19:20:47
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