BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                    AB 1912


                                                                     Page A


          Date of Hearing:  April 12, 2016
          Counsel:               Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                      1912 (Achadjian) - As Amended  March 15, 2016




          SUMMARY:  SUMMARY:  Requires a person convicted of soliciting a minor,  
          who the person knew or reasonably should have known, was both a  
          minor and a victim of human trafficking to register as a sex  
          offender for a period of five years after a first conviction, 10  
          years after a second conviction, and 20 years after a third or  
          subsequent conviction. 


          EXISTING LAW:  


          1)Requires persons convicted of specified sex offenses to  
            register for life, or reregister if the person has been  
            previously registered, upon release from incarceration,  
            placement, commitment, or release on probation.  States that  
            the registration shall consist of all of the following (Pen.  
            Code, § 290.015, subd. (a).):

             a)   A statement signed in writing by the person, giving  
               information as shall be required by DOJ and giving the name  











                                                                    AB 1912


                                                                     Page B


               and address of the person's employer, and the address of  
               the person's place of employment, if different from the  
               employer's main address;

             b)   Fingerprints and a current photograph taken by the  
               registering official;

             c)   The license plate number of any vehicle owned by,  
               regularly driven by or registered in the name of the  
               registrant;

             d)   Notice to the person that he or she may have a duty to  
               register in any other state where he or she may relocate;  
               and,

             e)   Copies of adequate proof of residence, such as a  
               California driver's license or identification card, recent  
               rent or utility receipt or any other information that the  
               registering official believes is reliable.

          2)States every person who is required to register, as specified,  
            who is living as a transient shall be required to register for  
            the rest of his or her life as follows:

             a)   He or she shall register, or reregister if the person  
               has previously registered, within five working days from  
               release from incarceration, placement or commitment, or  
               release on probation, pursuant to Penal Code Section  
               290(b), except that if the person previously registered as  
               a transient less than 30 days from the date of his or her  
               release from incarceration, he or she does not need to  
               reregister as a transient until his or her next required  
               30-day update of registration.  If a transient is not  
               physically present in any one jurisdiction for five  
               consecutive working days, he or she shall register in the  
               jurisdiction in which he or she is physically present on  
               the fifth working day following release, as specified.   
               Beginning on or before the 30th day following initial  
               registration upon release, a transient shall reregister no  











                                                                    AB 1912


                                                                     Page C


               less than once every 30 days thereafter.  A transient shall  
               register with the chief of police of the city in which he  
               or she is physically present within that 30-day period, or  
               the sheriff of the county if he or she is physically  
               present in an unincorporated area or city that has no  
               police department, and additionally, with the chief of  
               police of a campus of the University of California, the  
               California State University, or community college if he or  
               she is physically present upon the campus or in any of its  
               facilities.  A transient shall reregister no less than once  
               every 30 days regardless of the length of time he or she  
               has been physically present in the particular jurisdiction  
               in which he or she reregisters.  If a transient fails to  
               reregister within any 30-day period, he or she may be  
               prosecuted in any jurisdiction in which he or she is  
               physically present.

             b)   A transient who moves to a residence shall have five  
               working days within which to register at that address, in  
               accordance with Penal Code Section 290(b).  A person  
               registered at a residence address in accordance with that  
               provision who becomes transient shall have five working  
               days within which to reregister as a transient in  
               accordance with existing law.

             c)   Beginning on his or her first birthday following  
               registration, a transient shall register annually, within  
               five working days of his or her birthday, to update his or  
               her registration with the entities described in existing  
               law.  A transient shall register in whichever jurisdiction  
               he or she is physically present on that date. At the 30-day  
               updates and the annual update, a transient shall provide  
               current information as required on the DOJ annual update  
               form, including the information. 

             d)   A transient shall, upon registration and  
               re-registration, provide current information as required on  
               the DOJ registration forms, and shall also list the places  
               where he or she sleeps, eats, works, frequents, and engages  











                                                                    AB 1912


                                                                     Page D


               in leisure activities.  If a transient changes or adds to  
               the places listed on the form during the 30-day period, he  
               or she does not need to report the new place or places  
               until the next required re-registration.  (Pen. Code, §  
               290.011, subds. (a) to (d).)

          3)Provides that willful violation of any part of the  
            registration requirements constitutes a misdemeanor if the  
            offense requiring registration was a misdemeanor, and  
            constitutes a felony of the offense requiring registration was  
            a felony or if the person has a prior conviction of failing to  
            register.  (Pen. Code, § 290.018, subds. (a)&(b).)

          4)Provides that within three days thereafter, the registering  
            law enforcement agency or agencies shall forward the  
            statement, fingerprints, photograph, and vehicle license plate  
            number, if any, to the DOJ.  (Pen. Code § 290.015, subd. (b).)

          5)States that a misdemeanor failure to register shall be  
            punishable by imprisonment in a county jail not exceeding one  
            year, and a felony failure to register shall be punishable in  
            the state prison for 16 months, two or three years.  (Pen.  
            Code, § 290.018, subds. (a)&(b).)

          6)Provides that the DOJ shall make available information  
            concerning persons who are required to register as a sex  
            offender to the public via an internet website.  The DOJ shall  
            update the website on an ongoing basis.  Victim information  
            shall be excluded from the website.  (Pen. Code § 290.46.)   
            The information provided on the website is dependent upon what  
            offenses the person has been convicted of, but generally  
            includes identifying information and a photograph of the  
            registrant.  

          7)Generally prevents the use of the information on the website  
            from being used in relation to the following areas:  (Pen.  
            Code, § 290.46, subd. (l)(2).)  

             a)   Health insurance;











                                                                    AB 1912


                                                                     Page E



             b)   Insurance;

             c)   Loans;

             d)   Credit;

             e)   Employment;

             f)   Education, scholarships, or fellowships;

             g)   Housing or accommodations; and 

             h)   Benefits, privileges, or services provided by any  
               business establishment.

          8)Provides that any person who solicits, agrees to engage in, or  
            engages in an act of prostitution is guilty of a misdemeanor.   
            The crime does not occur unless the person specifically  
            intends to engage in an act of prostitution and some act is  
            done in furtherance of agreed upon act.  Prostitution includes  
            any lewd act between persons for money or other consideration.  
             (Pen. Code, § 647, subd. (b).)  
           
          9)Provides that if the defendant agreed to engage in an act of  
            prostitution, the person soliciting the act of prostitution  
            need not specifically intend to engage in an act or  
            prostitution.  (Pen. Code § 647, subd. (b).)  
           
          10)Provides that where any person is convicted of a second  
            prostitution offense, the person shall serve a sentence of at  
            least 45 days, no part of which can be suspended or reduced by  
            the court regardless of whether or not the court grants  
            probation.  (Pen. Code § 647, subd. (k).)  
           
          11)Provides that where any person is convicted for a third  
            prostitution offense, the person shall serve a sentence of at  
            least 90 days, no part of which can be suspended or reduced by  
            the court regardless of whether or not the court grants  











                                                                    AB 1912


                                                                     Page F


            probation.  (Pen. Code § 647, subd. (k).) 

          12)Defines "unlawful sexual intercourse" as an act of sexual  
            intercourse accomplished with a person under the age of 18  
            years, when no other aggravating elements - such as force or  
            duress - are present.  (Pen. Code § 261.5, subd. (a).)  

           13)Provides the following penalties for unlawful sexual  
            intercourse:  

              a)   Where the defendant is not more than three years older  
               or three years younger than the minor, the offense is a  
               misdemeanor;  

              b)   Where the defendant is more than three years older than  
               the minor, the offense is an alternate felony-misdemeanor,  
               punishable by a jail term of up to one year, a fine of up  
               to $1,000, or both, or by a prison term of 16 months, two  
               years or three years and a fine of up $10,000; or,
              
              c)   Where the defendant is at least 21 years of age and the  
               minor is under the age of 16, the offense is an alternate  
               felony-misdemeanor, punishable by a jail term of up to one  
               year, a fine of up to $1,000, or both, or by a prison term  
               of 16 months, two years or three years and a fine of up  
               $10,000.  (Pen. Code § 261.5, subd (b)-(d).)  

           14)Provides that in the absence of aggravating elements each  
            crime of sodomy, oral copulation or penetration with a foreign  
            or unknown object with a minor is punishable as follows:  

              a)   Where the defendant is over 21 and the minor under 16  
               years of age, the offense is a felony, with a prison term  
               of 16 months, two years or three years.  

              b)   In other cases sodomy with a minor is a wobbler, with a  
               felony prison term of 16 months, two years or three years.   
               (Pen. Code §§ 286, subd. (b), 288a, subd. (b), 289, subd.   
               (h).)  











                                                                    AB 1912


                                                                     Page G



           15)Provides that where each crime of sodomy, oral copulation or  
            penetration with a foreign or unknown object with a minor who  
            is under 14 and the perpetrator is more than 10 years older  
            than the minor, the offense is a felony, punishable by a  
            prison term of 3, 6 or 8 years.  (Pen. Code §§ 286, subd.  
            (c)(1), 288a, subd. (c)(1), 289, subd. (j).)  

           16)Provides that any person who engages in lewd conduct - any  
            sexually motivated touching or a defined sex act - with a  
            child under the age of 14 is guilty of a felony, punishable by  
            a prison term of 3, 6 or 8 years.  Where the offense involves  
            force or coercion, the prison term is 5, 8 or 10 years.  (Pen.  
            Code § 288, subd. (b).)  

           17)Provides that where any person who engages in lewd conduct  
            with a child who is 14 or 15 years old, and the person is at  
            least 10 years older than the child, the person is guilty of  
            an alternate felony-misdemeanor, punishable by a jail term of  
            up to one year, a fine of up to $1,000, or both, or by a  
            prison term of 16 months, two years or three years and a fine  
            of up $10,000.  (Pen. Code § 288, subd. (c)(1).)  

           18)Includes numerous crimes concerning sexual exploitation of  
            minors for commercial purposes.  These crimes include:  

              a)   Pimping:  Deriving income from the earnings of a  
               prostitute, deriving income from a place of prostitution,  
               or receiving compensation for soliciting a prostitute.   
               Where the victim is a minor under the age of 16, the crime  
               is punishable by a prison term of three, six or eight  
               years.  (Pen. Code § 266h, subds. (a)-(b);
              
              b)   Pandering:  Procuring another for prostitution, inducing  
               another to become a prostitute, procuring another person to  
               be placed in a house of prostitution, persuading a person  
               to remain in a house of prostitution, procuring another for  
               prostitution by fraud, duress or abuse of authority, and  
               commercial exchange for procurement.  (Pen. Code § 266i,  











                                                                    AB 1912


                                                                     Page H


               subd. (a).);  

              c)   Procurement:  Transporting or providing a child under 16  
               to another person for purposes of any lewd or lascivious  
               act.  The crime is punishable by a prison term of three,  
               six, or eight years, and by a fine not to exceed $15,000.   
               (Pen. Code § 266j.)  

              d)   Taking a minor from her or his parents or guardian for  
               purposes of prostitution.  This is a felony punishable by a  
               prison term of 16 months, two years, or three years and a  
               fine of up to $2,000.  (Pen. Code § 267.); and,  

           19)Provides that where a person is convicted of pimping or  
            pandering involving a minor the court may order the defendant  
            to pay an additional fine of up to $5,000.  In setting the  
            fine, the court shall consider the seriousness and  
            circumstances of the offense, the illicit gain realized by the  
            defendant and the harm suffered by the victim.  The proceeds  
            of this fine shall be deposited in the Victim-Witness  
            Assistance Fund and made available to fund programs for  
            prevention of child sexual abuse and treatment of victims.   
            (Pen. Code § 266k, subd. (a).)   

           20)Provides that where a defendant is convicted of taking a  
            minor under the age 16 from his or her parents to provide to  
            others for prostitution (Pen. Code § 267) or transporting or  
            providing a child under the age of 16 for purposes of any lewd  
            or lascivious act (Pen. Code § 266j), the court may impose an  
            additional fine of up to $20,000.  (Pen. Code § 266k, subd.  
            (b).)  

           21)Provides that where a defendant is convicted under the Penal  
            Code of taking a minor (under the age of 18) from his or her  
            parents for purposes of prostitution (Pen. Code § 267), or  
            transporting or providing a child under the age of 16 for  
            purposes of any lewd or lascivious act (266j), the court, if  
            it decides to impose a specified additional fine, the fine  
            must be no less than $5,000, but no more than $20,000.  (Pen.  











                                                                    AB 1912


                                                                     Page I


            Code § 266k, subd. (b).)


          FISCAL EFFECT:  


          COMMENTS: 


          1)Author's Statement:  According to the author, "California is  
            one of the top four destinations in the United States for  
            human trafficking and it is a $32 billion a year global  
            industry.  In order to attempt to contain this industry and  
            try to keep it from growing every year, we need to curb demand  
            of prostitution with human trafficking victims.  One way to do  
            this is to require a limited term sex offender registration  
            for those who are convicted of soliciting prostitution if they  
            knew or reasonably should have known that the other  
            participant was a minor and a victim of human trafficking.   
            While the offenders will be on the sex offender registry and  
            require monitoring for a set amount of time, they won't be on  
            the registry forever and won't require the long-term  
            monitoring expense of others on the registry.  The tiered  
            registration would require five years registration for the  
            first conviction, 10 years registration for the second offense  
            and 20 years registration for the third and subsequent  
            offense."








          2)Heavy Penalties and Registration Requirements Already Exist  
            for Persons who Engage in Sexual Acts with Minors:  Under  
            current law, existing penalties which are almost too numerous  
            to count exist for crimes involving various sexual acts with  











                                                                    AB 1912


                                                                     Page J


            minors.  From various crimes related to lewd and lascivious  
            acts with a child to statutory rape, any individual who is an  
            adult that engages in sexual contact with a minor is punished  
            under California law.  The penalties for these offenses almost  
            universally include long prison sentences, and require sex  
            registration.  


          3)Known or Should Have Known:   This bill requires registration  
            for a person convicted of soliciting a minor who the person  
            knew, or reasonably should have known, was both a minor and a  
            victim of human trafficking.  The bill would cover persons who  
            are targeting minors on purpose, but the provisions leave room  
            for people who do not know that they are soliciting a minor  
            with the "should have known" provision.  Additionally, the  
            bill specifies that the person must know or reasonably should  
            know that the minor solicited is a victim of human  
            trafficking.  It is unclear how this element would be proven.   
            Does this provision require a prosecutor to plead and prove  
            that the victim is actually a victim of another, separate  
            individual who is a human trafficker?  Would the prosecutor  
            have to show, beyond a reasonable doubt, that the separate  
            offender is guilty of human trafficking (Pen. Code § 236.1),  
            and that the minor was indeed their victim?


          4)The Current Sex Offender Registration System and Megan's Law  
            Website has Become too Unwieldy to be Effective for Law  
            Enforcement:  Again, according to California's Sex Offender  
            Management Board, there are a number of problems with the  
            current system as a result of adding too many low-risk sex  
            offenders.  California's system of lifetime registration for  
            all convicted sex offenders has created a registry that is  
            very large and that includes many individuals who do not  
            necessarily pose a risk to the community. The consequences of  
            these realities are that the registry has, in some ways,  
            become counterproductive to improving public safety. When  
            everyone is viewed as posing a significant risk, the ability  
            for law enforcement and the community to differentiate between  











                                                                    AB 1912


                                                                     Page K


            who is truly high risk and more likely to reoffend becomes  
            impossible. There needs to be a way for all persons to  
            distinguish between sex offenders who require increased  
            monitoring, attention and resources and those who are unlikely  
            to reoffend.


            There are many unintended consequences and indirect costs  
            associated with sex offender registration. 

                           Innocent families and children of offenders  
                    (including victims of intra-familial sexual abuse)  
                    also bear the consequences of lifetime registration  
                    since they can often be identified by the public.  
                    Adverse consequences also arise for employers,  
                    landlords, neighbors and others.

                           There has been a proliferation of residence  
                    restrictions and exclusion zones for registered sex  
                    offenders in many jurisdictions in California.  
                    Violation of these can lead to criminal charges. The  
                    obstacles posed by registration status prevent many  
                    individuals from obtaining housing or employment and  
                    becoming functioning, contributing, tax-paying members  
                    of society. 

                           There is reason to believe that registration  
                    policies, especially lifetime registration, keep some  
                    victims, particularly family members of the offender,  
                    from disclosing the abuse because they wish to avoid  
                    the stigma that will impact their family and their own  
                    lives for a very long time. 

            The presence nearby of one or more registered sex offenders  
            can drive down property values in a neighborhood and make  
            houses difficult to sell.  If the current registration system  
            was effective in the ways intended, these might be considered  
            part of the price to pay for the greater good. But, since the  
            current registry does not attain its intended purposes, many  











                                                                    AB 1912


                                                                     Page L


            of these unintended consequences are without justification.


          1)California's Sex Offender Management Board's Background:  On  
            September 20, 2006, Governor Arnold Schwarzenegger signed  
            Assembly Bill 1015, which created the California Sex Offender  
            Management Board.  AB 1015 had been introduced by Assembly  
            Members Judy Chu and Todd Spitzer and passed the California  
            Legislature with nearly unanimous bipartisan support.



          Because California is the most populated state in the Union and  
            has had lifetime registration for its convicted sex offenders  
            since 1947, California has more registered sex offenders than  
            any other state with about 88,000 identified sex offenders  
            (per DOJ, August 2007). Currently, the California Department  
            of Corrections and Rehabilitation (CDCR) supervises about  
            10,000 of those 88,000 sex offenders, of which about 3,200  
            have been designated as "high-risk sex offenders".  (CDCR  
            Housing Summit, March 2007).  Additionally, there are about  
            22,500 adult sex offenders serving time in one of 32 state  
            prisons operated by CDCR (California Sex Offender Management  
            Task Force Report, July 2007).
                                                   
          While it is commonly believed that most sexual assaults are  
            committed by strangers, the research suggests that the  
            overwhelming majority of sex offenders victimize people known  
            to them; approximately 90% of child victims know their  
            offenders, as do 80% of adult victims [per Kilpatrick, D.G.,  
            Edmunds, C.N., & Seymour, A.K.  Rape in America:  A Report to  
            the Nation (1992).  Arlington, VA:  National Victim Center.]
          2)Sex Offender Registration and the Megan's Law Website:   
            According to a 2014 report by the California Sex Offender  
            Management Board<1>, the intent of registration was to assist  
            law enforcement in tracking and monitoring sex offenders since  

          ---------------------------


          <1>  
          http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Backgroun 
          d%20Paper%20FINAL%20FINAL%204-2-14.pdf








                                                                    AB 1912


                                                                     Page M


            they were viewed as the group most likely to commit another  
            sex offense. It was thought that having their names and  
            addresses known to law enforcement and with the expansion of  
            community notification also available to the public would  
            dissuade them from committing a new offense, enable members of  
            the public to exercise caution around them, enable law  
            enforcement to monitor them and, if necessary, solve new sex  
            offense cases more readily. Although research suggests that  
            use of a registry may help law enforcement solve sex crimes  
            against children involving strangers more quickly, United  
            States DOJ statistics tell us that most crimes against  
            children (about 93%) are committed not by a stranger but by a  
            person known to the child and his or her family, usually an  
            acquaintance or family member.


            
            Since 1947, earlier by far than any other state, California  
            has required "universal lifetime" registration for persons  
            convicted of most sex crimes. (Pen. Code, § 290.) Though every  
            other state has instituted some form of registration since  
            then, California is among only four states which require  
            lifetime registration for every convicted sex offender, no  
            matter the nature of the crime or the level of risk for  
            reoffending. Almost all other states use some version of a  
            "tiering" or "level" system which: 1. recognizes that not all  
            sex offenders are the same, 2. provides meaningful  
            distinctions between different types of offenders and 3.  
            requires registration at varying levels and for various  
            periods of time.  There are nearly 100,000 registrants today  
            in California, a number accumulated over the past 66 years  
            since the Registry was created in 1947. In 2004 California  
            began to provide pictures and other identifying information on  
            the Megan's Law website for about 80% of registrants.  
            (  www.meganslaw.ca.gov  )

            There are about 98,000 registered sex offenders on  
            California's registry. About 76,000 live in California  
            communities and the other 22,000 are currently in custody. Of  











                                                                    AB 1912


                                                                     Page N


            these offenders, 80% are posted on the state's Megan's Law web  
            site with their full address or ZIP Code and other  
            information, depending upon the offense they committed.  About  
            20% are not posted or are excluded from posting on the web  
            site by law, again depending on the conviction offense.  
            Posting on the web site does not take into account years in  
            the community without reoffending, the offender's risk level  
            for committing a new sexual or violent crime, or successful  
            completion of treatment.  About one-third of registered  
            offenders are considered "moderate to high risk" while the  
            remaining two-thirds are "moderate to low risk" or "low risk."  
            Local police departments and sheriff's offices are charged  
            with managing the registration process. Registered sex  
            offenders must re-register annually on their birthdays as well  
            as every time they have a change of address.  Transient sex  
            offenders re-register every 30 days and sexually violent  
            predators every 90 days. Registration information collected by  
            law enforcement is sent to the California Department of  
            Justice (DOJ) and stored in the California Sex and Arson  
            Registry.  If an offender's information is posted online and  
            he fails to register or re-register on time, he will be shown  
            as "in violation" on the Megan's Law web site. When proof is  
            provided by local law enforcement to DOJ of a registrant's  
            death, he or she is removed from the registry.  Every ten  
            years since the Registry was first established has been marked  
            by a dramatic increase in the number of registrants.

            As noted above, the original goal of registration was to  
            assist law enforcement in tracking and monitoring sex  
            offenders.  Over time, registration was expanded to include  
            community notification and also began to encompass a wider  
            variety of crimes and behaviors.  Due to these changes,  
            research has focused on exploring the changes in sex 4 CASOMB  
            "Tiering Background Paper" offender registration laws and this  
            has resulted in a constantly growing body of research that has  
            altered the perspective on sex offender registration. This  
            research has made it clear that:

                     The sexual recidivism rate of identified sex  











                                                                    AB 1912


                                                                     Page O


                 offenders is lower than the recidivism rate of  
                 individuals who have committed any other type of crime  
                 except for murder. 

                     Not all sex offenders are at equal risk to reoffend.  
                 Low risk offenders reoffend at low rates, high risk  
                 offenders at much higher rates. 

                     It is possible to use well-researched actuarial risk  
                 assessment instruments to assign offenders to groups  
                 according to risk level. (i.e. Low, Medium, High.) 

                     Risk of a new sex offense drops each year the  
                 offender remains offense-free in the community.  
                 Eventually, for many offenders, the risk becomes so low  
                 as to be meaningless and the identification of these  
                 individuals through a registry becomes unhelpful due to  
                 the sheer numbers on the registry. Research has  
                 identified differing time frames of decreased risk for  
                 the various categories of offenders (i.e. low, medium,  
                 high). 

                     Research on both general and sexual offenders has  
                 consistently indicated that focusing on higher risk  
                 offenders delivers the greatest return on efforts to  
                 reduce reoffending. 

                     Completing a properly designed and delivered  
                 specialized sex offender treatment program delivered  
                 within the context of effective supervision reduces  
                 recidivism risk even further. In California, all  
                 registered sex offenders on parole or probation are now  
                 required by state law to enter and complete such a  
                 program.

            This bill would add more low-risk sex (misdemeanor) offenders  
            to the registry, making the monitoring of the existing  
            high-risk sex offenders even more difficult than it already  
            is.  











                                                                    AB 1912


                                                                     Page P




          1)Prostitution and Human Trafficking, Though Related, are not  
            Always the Same Thing:  A growing number of policy discussions  
            are equating prostitution offenses with human trafficking  
            offenses.  There is no doubt that the crimes are related,  
            however, they are not the same crime.  A number of proposals  
            seek to treat all prostitution offenses more severely because  
            of the grave threat and nature of human trafficking.  Human  
            trafficking is a very serious crime, involving forced  
            servitude, with very serious penalties.  Most prostitution  
            offenses between a person who is soliciting a prostitute and  
            the prostitute themselves are misdemeanor crimes.  Some of  
            these offenses are related to human trafficking, but many are  
            not.  Additionally, pimps and panderers generally are treated  
            more severely by the law, with much more serious consequences  
            than the prostitute or the "john."  Unlike the crimes of  
            pimping and pandering, human trafficking is a crime that  
            generally involves some form of force or coercion.  



          California has existing strict laws for the treatment of pimps  
            and panderers, as well as human traffickers.  However, those  
            crimes are not the same criminal offenses.  Furthermore, not  
            every person who solicits a prostitute is engaged in the crime  
            of human trafficking.  Blurring the lines between the less  
            severe crimes related to prostitution, and the more severe  
            crimes related to human trafficking, weakens the severity of  
            human trafficking offenses.  For instance, this committee has  
            approved bills to add human trafficking to the list of serious  
            felonies.  However, if we continue to expand the definition of  
            human trafficking to include more minor prostitution-related  
            offenses the committee would have to re-evaluate in the future  
            whether it would still consider human trafficking a serious  
            felony.  
            According to the Polaris Project, "Human trafficking is a form  
            of modern-day slavery where people profit from the control and  
            exploitation of others.  As defined under U.S. federal law,  











                                                                    AB 1912


                                                                     Page Q


            victims of human trafficking include children involved in the  
            sex trade, adults age 18 or over who are coerced or deceived  
            into commercial sex acts, and anyone forced into different  
            forms of 'labor or services,' such as domestic workers held in  
            a home, or farm-workers forced to labor against their will.   
            The factors that each of these situations have in common are  
            elements of force, fraud, or coercion that are used to control  
            people."   
            (<  http://www.polarisproject.org/human-trafficking/overview  >.)   




            Pimping under California law means receiving compensation from  
            the solicitation of a known prostitute.  (Pen. Code, § 266h.)   
            Whereas pandering means procuring another person for the  
            purpose of prostitution by intentionally encouraging or  
            persuading that person to become or continue being a  
            prostitute.  (Pen. Code, § 266i.)  Oftentimes, pimps use  
            mental, emotional, and physical abuse to keep their  
            prostitutes generating money.  Consequently, there has been a  
            paradigm shift where pimping and pandering is now viewed as  
            possible human trafficking.

            This new approach has been criticized by some because it blurs  
            the line between human trafficking and prostitution.  Sex  
            workers say it discounts their ability to willingly work in  
            the sex industry.  (See Nevada Movement Draws the Line on  
            Human Trafficking by Tom Ragan, Las Vegas Review Journal, May  
            26, 2013, <  
            http://www.reviewjournal.com/news/las-vegas/nevada-movement-dra 
            ws-line-human-trafficking  >.)  
             a)   Prostitution Generally:  The basic crime of prostitution  
               is a misdemeanor offense.  (Pen. Code § 647(b).)   
               Prostitution can be generally defined as "soliciting or  
               agreeing to engage in a lewd act between persons for money  
               or other consideration."  Lewd acts include touching the  
               genitals, buttocks, or female breast of either the  
               prostitute or customer with some part of the other person's  











                                                                    AB 1912


                                                                     Page R


               body for the purpose of sexual arousal or gratification of  
               either person.  

               To implicate a person for prostitution themselves, the  
               prosecutor must prove that the defendant "solicited" or  
               "agreed" to "engage" in prostitution.  A person agrees to  
               engage in prostitution when the person accepts an offer to  
               commit prostitution with specific intent to accept the  
               offer, whether or not the offerer has the same intent.


               For the crime of "soliciting a prostitute" the prosecutors  
               must prove that the defendant requested that another person  
               engage in an act of prostitution, and that the defendant  
               intended to engage in an act of prostitution with the other  
               person, and the other person received the communication  
               containing the request.  The defendant must do something  
               more than just agree to engage in prostitution.  The  
               defendant must do some act in furtherance of the agreement  
               to be convicted.  Words alone may be sufficient to prove  
               the act in furtherance of the agreement to commit  
               prostitution 


               Violation of  Pen.  Code § 647(b) is a misdemeanor.  For a  
               first offense conviction of prostitution the defendant  
               faces up to 180 days in jail.  If a defendant has one prior  
               conviction of prostitution he or she must receive a county  
               jail sentence of not less than 45 days.  If the defendant  
               has two or more prior convictions, the minimum sentence is  
               90 days in the county jail. 


               In addition to the punishment described above, if the  
               defendant is conviction of prostitution, he or she faces  
               fines, probation, possible professional licensing  
               restrictions or revocations, possible immigration  
               consequences, possible asset forfeiture, and possible  
               driving license restrictions.  











                                                                    AB 1912


                                                                     Page S




               Closely associated crimes to prostitution include:   
               abduction of a minor for prostitution (Pen. Code § 267);  
               seduction for prostitution (Pen. Code  § 266); keeping a  
               house of prostitution (Pen. Code §  315); leasing a house  
               for prostitution (Pen. Code § 318); sending a minor to a  
               house of prostitution (Pen. Code 273e); taking a person  
               against that person's will for prostitution (Pen. Code §  
               266 (a)); compelling a person to live in an illicit  
               relationship (Pen. Code §  266 (b)); placing or leaving  
               one's wife in a house of prostitution (Pen. Code § 266  
               (g));  loitering for prostitution  (  Pen. Code  § 653.22 subd.  
               (a)  );  pimping   ( Pen. Code § 266 (h))  ; or,  pandering   ( Pen.  
               Code § 266 (i))  .  Most of these crimes are punished much  
               more severely than the underlying prostitution offense,  
               particularly the crimes of pimping, pandering, and  
               procurement.  


             b)   Human Trafficking Generally:  Human trafficking involves  
               the recruitment, transportation or sale of people for  
               forced labor.  Through violence, threats and coercion,  
               victims are forced to work in, among other things, the sex  
               trade, domestic labor, factories, hotels and agriculture.   
               According to the January 2005 United States Department of  
               State's Human Smuggling and Trafficking Center report,  
               "Fact Sheet:  Distinctions Between Human Smuggling and  
               Human Trafficking", there is an estimated 600,000 to  
               800,000 men, women and children trafficked across  
               international borders each year.  Of these, approximately  
               80% are women and girls and up to 50% are minors.  A recent  
               report by the Human Rights Center at the University of  
               California, Berkeley cited 57 cases of forced labor in  
               California between 1998 and 2003, with over 500 victims.   
               The report, "Freedom Denied", notes most of the victims in  
               California were from Thailand, Mexico, and Russia and had  
               been forced to work as prostitutes, domestic slaves, farm  
               laborers or sweatshop employees.  [University of  











                                                                    AB 1912


                                                                     Page T


               California, Berkeley Human Rights Center, "Freedom Denied:   
               Forced Labor in California" (February, 2005).]  According  
               to the author: 

             "While the clandestine nature of human trafficking makes it  
               enormously difficult to accurately track how many people  
               are affected, the United States government estimates that  
               about 17,000 to 20,000 women, men and children are  
               trafficked into the United States each year, meaning there  
               may be as many as 100,000 to 200,000 people in the United  
               States working as modern slaves in homes, sweatshops,  
               brothels, agricultural fields, construction projects and  
               restaurants."

               In 2012, Californians voted to pass Proposition 35, which  
               modified many provisions of California's already tough  
               human trafficking laws.  The proposition increased criminal  
               penalties for human trafficking, including prison sentences  
               up to 15-years-to-life and fines up to $1,500,000.   
               Additionally, the proposition specified that the fines  
               collected are to be used for victim services and law  
               enforcement.  Proposition 35 requires persons convicted of  
               trafficking to register as sex offenders.  Proposition 35  
               prohibits evidence that victim engaged in sexual conduct  
               from being used against victims in court proceedings.   
               Additionally, the proposition lowered the evidential  
               requirements for showing of force in cases of minors.  


               i)     Trafficking Victims Protection Act of 2000 (22 USC  
                 Sections 7101 et seq.):  In October 2000, the Trafficking  
                 Victims Protection Act of 2000 (TVPA) was enacted and is  
                 comprehensive, addressing the various ways of combating  
                 trafficking, including prevention, protection and  
                 prosecution.  The prevention measures include the  
                 authorization of educational and public awareness  
                 programs.  Protection and assistance for victims of  
                 trafficking include making housing, educational,  
                 health-care, job training and other federally funded  











                                                                    AB 1912


                                                                     Page U


                 social service programs available to assist victims in  
                 rebuilding their lives.  Finally, the TVPA provides law  
                 enforcement with tools to strengthen the prosecution and  
                 punishment of traffickers, making human trafficking a  
                 federal crime.

               ii)    Recent Update to Human Trafficking Laws:  In 2012,  
                 Californians voted to pass Proposition 35, which modified  
                 many provisions of California's already tough human  
                 trafficking laws.  Specifically, Proposition 35 increased  
                 criminal penalties for human trafficking offenses,  
                 including prison sentences up to 15-years-to-life and  
                 fines up to $1.5 million.  The proposition specified that  
                 the fines collected are to be used for victim services  
                 and law enforcement.  In criminal trials, the proposition  
                 prohibits the use of evidence that a person was involved  
                 in criminal sexual conduct (such as prostitution) to  
                 prosecute that person for that crime if the conduct was a  
                 result of being a victim of human trafficking, and makes  
                 evidence of sexual conduct by a victim of human  
                 trafficking inadmissible for the purposes of attacking  
                 the victim's credibility or character in court.  The  
                 proposition lowered the evidentiary requirements for  
                 showing of force in cases of minors. 

               Proposition 35 also requires persons convicted of human  
                 trafficking to register as sex offenders and expanded  
                 registration requirements by requiring registered sex  
                 offenders to provide the names of their internet  
                 providers and identifiers, such as e-mail addresses, user  
                 names, and screen names, to local police or sheriff's  
                 departments.  After passage of Proposition 35, plaintiffs  
                 American Civil Liberties Union and Electronic Frontier  
                 Foundation filed a law suit claiming that these  
                 provisions unconstitutionally restricts the First  
                 Amendment rights of registered sex offenders in the  
                 states.  A United States District Court judge granted a  
                 preliminary injunction prohibiting the implementation or  
                 enforcement of Proposition 35's provisions that require  











                                                                    AB 1912


                                                                     Page V


                 registered sex offenders to provide certain information  
                 concerning their Internet use to law enforcement.  (Doe  
                 v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013  
                 LEXIS 5428.)  
                
               iii)California Attorney General's Report on Human  
                 Trafficking:  The California Attorney General's Human  
                 Trafficking in California 2012 report stated that human  
                 trafficking investigations and prosecutions have become  
                 more comprehensive and organized.  There are nine human  
                 trafficking task forces in California, composed of local,  
                 state and federal law enforcement and prosecutors.

                 Data on human trafficking has improved, although the data  
                 still does not reflect the actual extent and range of  
                 human trafficking.  Data from 2010 through 2012 collected  
                 by the California task forces are set out in the  
                 following chart:


                    California Human Trafficking Task Forces Data  
          2010-2012


                  --------------------------------------------------------- 
                 |Investigations                  |2,552                   |
                 |                                |                        |
                 |                                |                        |
                 |--------------------------------+------------------------|
                 |Victims Identified              |1,277                   |
                 |                                |                        |
                 |                                |                        |
                 |--------------------------------+------------------------|
                 |Arrests Made                    |1,798                   |
                 |                                |                        |
                 |                                |                        |
                  --------------------------------------------------------- 
                            












                                                                    AB 1912


                                                                     Page W



                   Trafficking by Category


                 ---------------------------------------------------------- 
                |Sex Trafficking                 |56%                      |
                |                                |                         |
                |                                |                         |
                |--------------------------------+-------------------------|
                |Labor Trafficking               |23%                      |
                |                                |                         |
                |                                |                         |
                |--------------------------------+-------------------------|
                |Unclassified or Insufficient    |21%                      |
                |Information                     |                         |
                |                                |                         |
                |                                |                         |
                |                                |                         |
                |                                |                         |
                 ---------------------------------------------------------- 

          2)Argument in Support:  According to The San Luis Obispo  
            District Attorney, "This bill targets a small, but extremely  
            harmful, universe of sex buyers who prey upon children who  
            have been forced into sexual slavery.  It will go far in  
            reducing the demand for trafficked children by using sex  
            offender registration as a deterrent.  According to a 2015  
            study entitled "Comparing Sex Buyers With Men Who Do Not Buy  
            Sex: New Data on Prostitution and Trafficking", published in  
            the Journal Interpersonal Violence, "Both SB [sex buyers]  
            (91%) and NSB [non sex buyers] (88%) agreed that the most  
            effective deterrent to buying sex would be to list sex buyers  
            on a sex offender registry."  


          3)Argument in Opposition:  According to The American Civil  
            Liberties Union of California,  "We respectfully oppose AB  
            1912 which seeks to add to California's sex offender registry  
            the crime of soliciting a minor to engage in prostitution if  











                                                                    AB 1912


                                                                     Page X


            the offender knew or should have known the person solicited  
            was a minor. Adding additional low-level offenses in which no  
            sexual activity occurred to the list of offenses requiring  
            registration will only further impede the effectiveness of  
            Californian's registry law. 


            "AB 1912 would require that a person convicted of soliciting a  
            prostitute, in violation of Penal Code section 647(b), in  
            cases where the convicted person knew or should have known  
            that the person solicited was a minor, to register as a sex  
            offender. The bill provides that the duty to register would  
            last for five years for a first offense, ten years for a  
            second offense, and twenty years for a third or subsequent  
            offense. The bill further requires posting this information  
            online. 


            "Effectively, AB 1912 seeks to equate the crime of soliciting  
            a minor to engage in prostitution with the crime of actually  
            having sex with a minor. This is inappropriate. There is a  
            wide gap between those crimes in terms of the harm caused and  
            the likely risk posed by the person convicted. This is  
            especially true given that the crime of soliciting a minor  
            applies to someone who did not know that the person solicited  
            was a minor but 'should have known.' A person who solicits an  
            individual that he or she 'should have known' is a minor may  
            well stop the encounter upon learning that the individual  
            solicited is in fact a minor. Simply put, individuals who  
            actually engage in sex with a minor should face higher  
            penalties than those who do not, and pose a greater risk to  
            the community. 


            "AB 1912 will also make it more difficult to effectively  
            manage true sex offenders. California already requires a vast  
            number of people to register as sex offenders for life,  
            imposing residency and other restrictions. California's Sex  
            Offender Management Board (CASOMB) has strongly criticized the  











                                                                    AB 1912


                                                                     Page Y


            vast scope of the current registration system: 


               "Under the current system, many local registering agencies  
               are challenged just keeping up with registration paperwork.  
               It takes an hour or more to process each registrant, the  
               majority of whom are low risk offenders. As a result, law  
               enforcement cannot monitor higher risk offenders more  
               intensively in the community due to the sheer numbers now
               in the registry. Some of the consequences of lengthy and  
               unnecessary registration requirements actually destabilize  
               the lives of registrants and those - such as families -  
               whose lives are often substantially impacted. Such  
               consequences are thought to raise levels of known risk  
               factors while providing no discernible benefit in terms of  
               community safety.

               "CASOMB has become convinced that California policy makers  
               need to rethink the registration laws and the time has  
               come, after nearly 70 years of use, to make some major  
               changes in the state's registration system.<2>

            "Adding an additional low-level offense without any actual  
            sexual activity to the already vast list of offenses requiring  
            registration will only further clog the system and impede  
            effective management of high risk offenders. 

            "Moreover, AB 1912 is unnecessary. Courts already have the  
            discretion to order anyone who commits any offense to register  
            as a sex offender under Penal Code section 290.006." 

          4)Related Legislation:
          
             a)   AB 733 (Chavez), would have required sex offender  
               registration, placement on the Megan's Law Website, and  
             --------------------------


          <2> California's Sex Offender Management Board Year End Report  
          2014 (February 2015), at pp. 12-13; available at  
          http://www.cce.csus.edu/portal/admin/handouts/CASOMB_End_of_Year_ 
          Report_to_Legislature_2014.pdf.








                                                                    AB 1912


                                                                     Page Z


               mandates a minimum $3,000 fine ($12,370 with penalties and  
               assessments) for solicitation of a minor.  AB 733 failed  
               passage in this committee.  


             b)   AB 201 (Brough), would have eliminated the state  
               preemption which prohibits a local agency from enacting  
               local ordinances that restrict a sex offender from residing  
               or being present in specific locations, and authorize local  
               agencies to enact ordinances that are more restrictive than  
               state law.  AB 201 failed passage in this committee.    


          5)Prior Legislation:


             a)   AB 90 (Swanson) , Chapter 457, Statutes of 2011,  
               included, within the definition of criminal profiteering  
               activity, any crime in which the perpetrator induces,  
               encourages, or persuades, or causes through force, fear,  
               coercion, deceit, violence, duress, menace, or threat of  
               unlawful injury to the victim or to another person, a  
               person under 18 years of age to engage in a commercial sex  
               act, and specifies that the proceeds shall be deposited in  
               a Victim-Witness Fund, as specified.


             b)   AB 17 (Swanson), Chapter 211, Statutes of 2010, added  
               abduction or procurement for prostitution to the criminal  
               profiteering asset forfeiture law; provided that the court  
               may impose a fine of up to $20,000, in addition to any  
               other fines and penalties, where the defendant has been  
               convicted of abduction of a minor for purposes of  
               prostitution or procurement of a minor under the age of 16  
               for lewd conduct; and provided that 50 percent of the  
               additional fine shall be deposited in the Victim-Witness  
               Assistance Fund for purposes of grants to community-based  
               organizations that serve minor victims of human  
               trafficking.











                                                                    AB 1912


                                                                     Page A




             c)   AB 22 (Lieber), Chapter 240, Statutes of 2005, created  
               the California Trafficking Victims Protection Act, which  
               established civil and criminal penalties for human  
               trafficking and allowed for forfeiture of assets derived  
               from human trafficking.  In addition, the Act required law  
               enforcement agencies to provide Law Enforcement Agency  
               Endorsement to trafficking victims, providing trafficking  
               victims with protection from deportation and created the  
               Human Trafficking Task Force.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          San Luis Obispo District Attorney's Office (Sponsor)


          California District Attorneys Association 




          1 private individual 




          Opposition


          American Civil Liberties Union 












                                                                    AB 1912


                                                                     Page B



          California Attorneys for Criminal Justice 


          California Public Defenders Association 


          Legal Services for Prisoners of Children


          
          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744