BILL ANALYSIS Ó
AB 2498
Page 1
Date of Hearing: April 5, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2498
(Bonta) - As Amended March 18, 2016
SUBJECT: Human trafficking: confidentiality
KEY ISSUE: Should the names, addresses, and images of victims
of human TRAFFICKING, AND of Their families, be exempted from
disclosure under the Public records Act, and should Law
enforcement agencies be PROHIBITed from discLosing the names,
addresses, and images of victims and their families, except as
specified?
SYNOPSIS
This bill is one of several measures introduced in the current
legislative session that address the problem of human
trafficking, which is generally defined as the use of force,
coercion, or fraud to obtain coerced labor or personal services.
This bill seeks to shield the names, addresses, and images of
human trafficking victims (and of their families) from public
exposure by building upon victim confidentiality provisions in
existing law. For example, existing law already keeps
confidential the address of a victim of certain sexual crimes,
and it allows the victim to request that his or her name also be
kept confidential. However, under this bill, the
confidentiality protections for victims of human trafficking
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would be greater than those afforded to sexual crimes covered
under existing law. For example, whereas existing law protects
addresses and, upon request, the names of crime victims from
public disclosure, this bill protects the names, with or without
a request, addresses, and images of victims from public
disclosure. This added protection applies not only to the
victim, but also to the names, addresses, and images of the
victim's family. In addition, whereas existing law only
withholds the victim's name from a public records request "at
the victim's request," this bill would require human trafficking
victim's name to be kept confidential as a matter of course.
The bill also makes additional and conforming changes to clarify
that a person forced into committing acts of prostitution as a
victim of human trafficking is a victim of a sexual offense, and
it adds human trafficking to the list of criminal actions,
including sexual offenses, that take precedence over other
criminal actions in the trial calendar. This bill is supported
by several different law enforcement groups, the California
Immigrant Policy Center, the California Catholic Conference, and
Planned Parenthood. There is no known opposition to this
measure. The analysis recommends amendments relating to the
application of these confidentiality provisions to "family
members," for reasons explained below.
SUMMARY: Protects the names, addresses, and images of victims
of human trafficking, and of their families, from public
disclosure. Specifically, this bill:
1)Provides that the names, addresses, and images of a victim of
human trafficking, and of the victim's family, shall be
withheld from a public records request and remain
confidential.
2)Prohibits a law enforcement agency from disclosing the names,
addresses, or images of a person who alleges to be a victim of
human trafficking, or of that alleged victim's family, unless
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the disclosure is made to a prosecutor, parole officer of the
Department of Corrections and Rehabilitation, hearing officers
of the parole authority, probation officers of county
probation departments, or other persons or public agencies
where authorized or required by law.
3)Defines "sex offense," for purposes of the Penal Code sections
amended by this bill, to include human trafficking, and makes
conforming changes to clarify that a person who was forced to
commit acts of prostitution because he or she is a victim of
human trafficking is the victim of a sexual offense.
4)Adds criminal actions alleging human trafficking to the list
of criminal cases that take precedence over all other criminal
actions in the trial calendar.
EXISTING LAW:
1)Requires, under the California Public Records Act (CPRA),
state and local agencies to make public records available for
inspection by the public, unless another provision of the CPRA
or another statute expressly exempts the records from the
disclosure requirement. (Government Code Section 6250 et
seq.)
2)Exempts from disclosure under the CPRA any records relating to
an investigation conducted by a state or local law enforcement
agency or any investigatory or security files complied by any
other state or local agency for correctional, law enforcement,
or licensing purposes. Specifies, however, that state and
local law enforcement agencies shall disclose the names and
addresses of persons involved in the incident, including
certain information about the victim, as specified, unless the
disclosure would endanger the successful completion of the
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investigation. (Government Code Section 6254 (f).)
3)Provides, notwithstanding any required disclosure in 2) above,
that the name of a victim of certain sexual crimes, including
a human trafficking, may be withheld from disclosure at the
victim's request, or at the request of the victim's parent or
guardian if the victim is a minor. (Government Code Section
6254 (f) (2).)
4) Requires state and local law enforcement agencies to
disclose, subject to certain restrictions, the current address
of every individual arrested by the agency and the current
address of the victim of a crime, if the requester declares
under penalty of perjury that the request is made for a
scholarly, journalistic, political, or governmental purpose,
or that the request is made for investigation purposes by a
licensed private investigator, as defined. However,
notwithstanding this general disclosure requirement, the
address of the victim of certain sexual crimes, including
human trafficking, shall remain confidential. (Government
Code Section 6254 (f)(3).)
5)Requires an employee of a law enforcement agency who
personally received a report from a person alleging that he or
she has been the victim of a sex offense, to inform the person
making the report that his or her name will become a matter of
public record unless he or she requests that it not become a
matter of public record. Provides that if the victim makes
this request then the law enforcement agency shall not
disclose the name of a victim. (Penal Code Section 293
(a)-(d).)
6)Provides that any victim of a sexual crime who has not elected
to exercise his or her right to keep her name confidential may
request to be identified in all court records and proceedings
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as either Jane Doe or John Doe, if the court finds that such
an order is reasonably necessary to the protect the privacy of
the person and will not unduly prejudice the prosecution or
the defense. (Penal Code Section 293.5.)
7)Provides that certain criminal actions, especially those
involving sexual offenses, take precedence over other criminal
actions in the order of the trail calendar. (Penal Code
Section 1048.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill is one of several measures introduced in
the current legislative session that address the problem of
human trafficking, which is generally defined as the use of
force, coercion, or fraud to obtain coerced labor or personal
services. This bill amends provisions in both the California
Public Records Act (CPRA) and the Penal Code in order to better
shield the names, addresses, and images of human trafficking
victims (and of their families) from public disclosure. The
bill does so by building upon victim confidentiality provisions
in existing law.
Existing Confidentiality Provisions for Crime Victims: The CPRA
makes all public records subject to public inspection unless a
specific provision of the CPRA or another statute exempts the
record from disclosure. One type of record exempted under the
CPRA are those relating to a criminal investigation, where the
disclosure might endanger the success of the investigation.
However, this exemption also expressly states that certain
information about both the person arrested for the crime and the
victim of the crime must be disclosed under certain conditions
and to certain persons; most notably law enforcement agencies
are permitted under existing law to disclose information to
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victims and their representatives, other law enforcement
agencies for specified purposes, and to persons requesting the
information for scholarly, journalistic, political, or
governmental uses.
Existing restrictions on the ability of law enforcement or other
public agencies to disclose information about victims is limited
primarily to restrictions on disclosing the names and addresses
of minors and victims of certain enumerated sex-related crimes.
These crimes include prostitution, pimping, solicitation, and
sexual assault, as well as human trafficking.
Existing law treats the name of the victim somewhat differently
than the address of the victim of sexual crimes. The names of
victims of sexual crimes are usually only exempt from disclosure
under the CPRA if the victim has affirmatively requested that
his or her name be exempt. The home addresses of victims of
sexual crimes are kept confidential as a matter of course.
Strengthening Confidentiality for Victims of Human Trafficking:
Under this bill, the confidentiality protections for victims of
human trafficking would be greater than that afforded to victims
of sexual crimes under existing law. For example, whereas
existing law protects the names and addresses of certain
sex-crime victims from public disclosure, this bill protects the
names, addresses, and images of victims from public disclosure.
In addition, this added protection applies not only to the
victim, but also to the names, addresses, and images of the
victim's family. And, as noted above, whereas existing law only
withholds the victim's name from a public records request "at
the victim's request," this bill would require the human
trafficking victim's name to be kept confidential as a matter of
course. According to the author, these added protections for
victims of human trafficking are necessary because their
precarious position and greater vulnerability to retaliation
against them and their families by the perpetrators of human
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trafficking.
Questions that the Author May Consider if the Bill Moves
Forward: While the need and purpose of this proposed
legislation is readily apparent, there are a number of issues
that the author may consider as the bill moves forward. In
general, while protecting human trafficking victims from
unwanted public disclosure, potential predators, or retaliation
is certainly a worthy public policy goal, there is also a
long-standing, and constitutionally mandated, interest in
ensuring access to public records, even when those records may
include names, addresses, and images of crime victims. In
short, the privacy of victims must be reasonably balanced
against the public's right of access to public records. There
are two areas, in particular, where the author may wish to
consider whether this bill may sweep too broadly and tip the
scales too far in the direction of privacy and away from access
to public records. One issue concerns extending the protection
to family members; the other concerns eliminating, for human
trafficking victims alone, the existing requirement that a crime
victim request confidentiality
Is it necessary to shield the names, addresses, and images of
family members? Existing law recognizes the need to keep the
names and addresses of certain crime victims confidential, but
these existing protections only apply to the victim, not to the
victim's family. If the family members are themselves victims
of human trafficking, then they will already be protected by the
law. Whether family members deserve protection depends, in
large measure, upon how one defines the "family" and what role,
if any, the family played in the trafficking. For example, does
"family" mean only the immediate, nuclear family, or does it
include the extended family of uncles, aunts, cousins, and even
second or third cousins or cousins once removed? Indeed,
according to a website maintained by the Office of Victims of
Crime, an office within the U.S. Department of Justice, family
members are sometimes the perpetrators of the crime. (See
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https://www.ovcttac.gov/taskforceguide/eguide/1-understanding-hum
an-trafficking/ ) In response to questions about this concern,
the author's office informed the Committee that it had learned
from the Uniform Law Commission that, in some cases, nuclear
family members are subject to threats and retaliation by
traffickers. If this is the case, then the author may consider
limiting the confidentiality provisions to immediate family
members, and only where there is no evidence that the family
members participated in the commission of the crime. The
analysis recommends amendments below that would easily address
these concerns.
Should Human Trafficking Victims be expected to Request
Confidentiality, as is the Case with Sexual Crime Victims?
Existing law withholds the name of a sexual crime victim from a
public record request only if confidentiality is requested by
the victim. Many of the supporters of this bill argue that an
important advantage of this bill is that it automatically keeps
the victim's name and address confidential, rather than, as the
California Immigrant Policy Center put it, "expecting a victim
to opt-out of having their identities revealed," a potentially
onerous burden where the victim might not understand the
American legal system or the consequences of having his or her
status as a victim of human trafficking a matter of public
record. The author's office also added in a communication to
the Committee that the existing system requires law enforcement
to notify victims of sexual offenses of their right to have
their names shielded from a public records request, but,
unfortunately, language barriers often make this required notice
less effective in the case of human trafficking victims. This
is a fair point, but it suggests that a more significant factor
as to whether the victim should have to request confidentiality
depends not so much upon the nature of the crime, but on the
language barriers faced by the victim. A victim of rape or
sexual assault may also be a non-English speaker who does not
fully understand the option of keeping his or her address
confidential, yet this victim would be required to request
confidentiality while an English-speaking victim of human
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trafficking would not. Although the Committee is not prepared
to offer specific amendments on this issue at this time, the
Committee strongly encourages the author to consider this issue
should the bill move forward.
Proposed Committee Amendments: In light of the concerns raised
above, the Committee believes that confidentiality protections
should only apply to the members of the victim's immediate
family, and that the confidentiality protection should not apply
to any family that has engaged in the human trafficking.
Therefore, the Committee requests that the author take the
following amendments:
- On page 6 line 5 after "victim's" insert: immediate
- On page 6 line 5 after "family" insert: other than a
family member who is charged as a defendant in a criminal
offense arising from the same incident
- On page 6 line 6 after the period insert: For purposes
of this subdivision, "immediate family shall have the same
meaning as that provided in paragraph (3) of subdivision
(b) of Section 422.4 of the Penal Code.
- On page 16 line 26 after "victim's' insert: immediate
- On page 16 line 26 after "family" insert: other than a
family member who is charged as a defendant in a criminal
offense arising from the same incident
- On page 16 line 26 after the period insert: For purposes
of this subdivision, "immediate family shall have the same
meaning as that provided in paragraph (3) of subdivision
(b) of Section 422.4 of the Penal Code.
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ARGUMENTS IN SUPPORT: According to the author, "AB 2498 would
bring justice to human trafficking victims by strengthening
victim protections and by holding exploiters and buyers
accountable." The author points out that under existing law,
"the name and address of a human trafficking victim becomes
public record unless the victim actively requests that
information remain confidential." This bill, the author
believes, will "protect victims by ensuring that the burden of
opting-out is not placed on the victim, who may or may not
comprehend the court process or the potential outcomes of
identifying oneself." Additionally, the author notes that the
provisions related to trial order preference will allow courts
to hear "time-sensitive trafficking cases quickly by expanding
the list of criminal actions that take precedence over all other
criminal actions."
The California Catholic Conference (CCC) supports this bill
because it will "help support the security and safety of
trafficking victims by ensuring that their identities are kept
confidential at the outset, instead of expecting a victim to
opt-out of having their identities revealed." CCC also contends
that by allowing human trafficking actions to take precedence
over other criminal actions, this bill will help relieve "the
historic backlog of unheard cases" that has resulted from "the
increase in reported human trafficking cases."
The California State Sheriffs' Association (CSSA) notes that
while existing law allows victims of sexual assault and human
trafficking to request that their names be withheld from public
records, "this protection is not without security faults because
victims may still be identified by their picture, family ties,
or address."
REGISTERED SUPPORT / OPPOSITION:
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Support
Alameda County District Attorney's Office
Association of Orange County Deputy Sheriffs
California Catholic Conference
California Immigrant Policy Center
California State Sheriffs Association
California Statewide Law Enforcement Association
Crime Victims United of California
Fraternal Order of Police
Long Beach Police Officers Association
Peace Officers Research Association of California (PORAC)
Planned Parenthood Affiliates of California
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Sacramento County Deputy Sheriffs' Association
Opposition
None on file
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334