BILL ANALYSIS Ó
AB 2327
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Date of Hearing: March 29, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2327 (Cooley) - As Amended March 28, 2016
SUMMARY: Expands the crime of communicating with a minor with
the intent to commit specified sexual offenses with the minor to
include attempting to contact or communicating with a minor with
the intent to commit human trafficking.
EXISTING LAW:
1)Specifies that every person who contacts or communicates with
a minor, or attempts to contact or communicate with a minor,
who knows or reasonably should know that the person is a
minor, with intent to commit any of the following offenses
involving the minor shall be punished by imprisonment in the
state prison for the term prescribed for an attempt to commit
the intended offense. The offenses included in this section
are listed as follows: (Pen. Code §, 288.3, subd. (a).)
a) Kidnapping;
b) Kidnapping for ransom, reward, extortion, robbery, or
rape;
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c) Rape;
d) Rape by a foreign object;
e) Willful harm or injury to a child;
f) Sodomy;
g) Lewd and lascivious acts with a minor;
h) Oral copulation;
i) Harmful matter sent to minor;
j) Forcible sexual penetration; and
aa) Child pornography.
2)Provides that the punishment for the offense of contacting or
communicating with a minor is the same as an attempt to commit
the crime. (Pen. Code §, 288.3, subd. (a).) California
criminal law dictates that the punishment for attempt is
generally one half the sentence of the completed crime. (Pen.
Code § 664.)
3)Specifies that "contacts or communicates with" shall include
direct and indirect contact or communication that may be
achieved personally or by use of an agent or agency, any print
medium, any postal service, a common carrier or communication
common carrier, any electronic communications system, or any
telecommunications, wire, computer, or radio communications
device or system. (Pen. Code §, 288.3, subd. (b).)
4)Provides that a person convicted of a violation of contacting
or communicating with a minor who has previously been
convicted of a violation the same offense shall be punished by
an additional and consecutive term of imprisonment in the
state prison for five years. (Pen. Code §, 288.3, subd. (c).)
FISCAL EFFECT:
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COMMENTS:
1)Author's Statement: According to the author, "Human
trafficking is a profitable criminal industry. Unlike selling
drugs, buying and selling human beings is a crime that can
repeat itself multiple times. It is estimated that every year
approximately 500,000 American youth are at-risk for being
sold for sex in the United States. Traffickers and exploiters
who prey on children know no boundaries; they are near
schools, shopping malls, parks, foster homes, and online.
Child trafficking criminals are making use of online
resources, using technology to target their audience more
efficiently. AB 2327 helps law enforcement target traffickers
and 'Johns' more efficiently for their participation in this
industry."
2)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
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
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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 from being used
against a victim in court proceedings if that victim engaged
in sexual conduct. Additionally, the proposition lowered the
evidential requirements for showing of force in cases of
minors.
a) 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 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.
b) 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
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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 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.)
3)Argument in Support: According to the Alameda District
Attorney's Office, "Existing law makes it a crime to contact
or communicate with a minor with the intent to commit several
child sexual assault related crimes such as child pornography,
child abuse, and child sexual assault. This bill adds sexual
contact with a minor victim of human trafficking. We have
seen a growing use of the internet to lure children into a
destructive, assaultive situation where the sexual
exploitation and sexual assault can occur. This bill protects
children from those who lure children for the perpetrators own
sexual gratification.
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"The Alameda County District Attorney's Office has been in the
forefront on a state and national level, combating child
sexual abuse and exploitation. Since 2005, we have been
leading the state and national effort to educate and bring
awareness to communities and policy makers that far too many
of children are being trafficked and exploited. Through
H.E.A.T. Watch, and the H.E.A.T. Institute, we have increased
the focus on the purchasers.
"Existing law makes it a crime to contact a minor with the
intent to commit an offense involving that minor including
kidnapping and rape. AB 2327 simply includes human
trafficking to the list of offenses."
4)Argument in Opposition: According to the American Civil
Liberties Union, "given that a person can already be convicted
and punished for engaging in the conduct contemplated in this
bill, and given that our prisons and jails are already
overcrowded and draining precious public safety resources,
this bill appears unwise and unnecessary."
5)Prior Legislation: SB 1128 (Alquist), Chapter 337, Statutes
of 2006, created the "Sex Offender Punishment, Control and
Containment Act of 2006" which makes several changes to the
law relating to sex offenders. These included creating this
section.
REGISTERED SUPPORT / OPPOSITION:
Support
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Alameda County District Attorney's Office (sponsor)
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
California Narcotic Officers Association
California District Attorneys Association
California State Sheriffs Association
Los Angeles Police Protective League
Los Angeles Professional Peace Officers Association
Peace Officers Research Association of California
Riverside Sheriffs Association
Opposition
American Civil Liberties Union, California
California Attorneys for Criminal Justice
Analysis Prepared
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by: Gabriel Caswell / PUB. S. / (916) 319-3744