BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2498 (Bonta)
Version: April 7, 2016
Hearing Date: June 14, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
Human trafficking
DESCRIPTION
This bill would exempt the names, addresses, and images of
victims of human trafficking and their immediate family, as
specified, from disclosure pursuant to the California Public
Records Act (CPRA).
This bill would additionally prohibit law enforcement agencies
from disclosing the names, addresses, and images of human
trafficking victims and their immediate family, except under
specified circumstances, and would expand the list of criminal
actions that take precedence over all other criminal actions in
the order of trial to include human trafficking, as defined.
BACKGROUND
The California Public Records Act (CPRA) governs the disclosure
of information collected and maintained by public agencies.
Generally, all public records are accessible to the public upon
request, unless the record requested is exempt from public
disclosure. (Gov. Code Sec. 6254 et seq.) There are 30 general
categories of documents or information that are exempt from
disclosure, essentially due to the character of the information,
and unless it is shown that the public's interest in disclosure
outweighs the public's interest in non-disclosure of the
information, the exempt information may be withheld by the
public agency with custody of the information.
A major category of exempted information covers information from
records of complaints and investigations, records of
intelligence information, and security procedures of the
Department of Justice and any state or local law enforcement
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agency. (Gov. Code Sec. 6254(f).) The statute permits the
disclosure of specified information, however, unless disclosure
would endanger the successful completion of the investigation or
endanger the safety of a witness, the victim, or other persons
involved in the investigation. The information permitted to be
disclosed are facts about persons arrested by the agency (e.g.
physical description, date and time of arrest, name and
occupation, all charges filed), facts about complaints or
requests for assistance received by the agency (including
information about the crimes alleged and factual circumstances
about the crime or incident and the injuries sustained by
victims), and, pursuant to a request for information for
scholarly, journalistic, political, or governmental purpose, the
names and addresses of those arrested by the agency and the
victims of specified crimes. (Gov. Code Sec. 6254(f)(1), (f)(2),
and (f)(3).)
Among the information permitted to be disclosed under Sec.
6254(f) are the names of victims of crimes (Gov. Code Sec.
6254(f)(2).) and their addresses (Gov. Code Sec. 6254(f)(3).).
However, where the crime committed is one on a list of sex
offenses (such as rape, unlawful sexual intercourse with a
minor, sodomy, lewd acts on a child) the law enforcement agency
may withhold the victim's name at the victim's request or at the
request of the victim's parent or guardian if the victim is a
minor. This bill would create additional protections for
victims of human trafficking and their families, as specified.
CHANGES TO EXISTING LAW
1.Existing law , the California Constitution, declares the
people's right to transparency in government. ("The people
have the right of access to information concerning the conduct
of the people's business, and therefore, the meetings of
public bodies and the writings of public officials and
agencies shall be open to public scrutiny....") (Cal. Const.,
art. I, Sec. 3.)
Existing law , the California Public Records Act (CPRA),
governs the disclosure of information collected and maintained
by public agencies. (Gov. Code Sec. 6250 et seq.) Generally,
all public records are accessible to the public upon request,
unless the record requested is exempt from public disclosure.
(Gov. Code Sec. 6254.) There are 30 general categories of
documents or information that are exempt from disclosure,
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essentially due to the character of the information, and
unless it is shown that the public's interest in disclosure
outweighs the public's interest in non-disclosure of the
information, the exempt information may be withheld by the
public agency with custody of the information.
Existing law makes certain criminal record information,
including records of complaints to, or investigations
conducted by, or any investigatory or security files compiled
by any other state or local police agency confidential, but
requires state and local law enforcement agencies to make
public specified information, including the full name,
physical description, date and time of arrest, time and date
of booking, and factual circumstances surrounding an arrest,
except to the extent that disclosure of a particular item of
information would endanger the safety of a person involved in
an investigation or would endanger the successful completion
of the investigation or a related investigation. (Gov. Code
Sec. 6254(f).)
Existing law provides, notwithstanding any disclosure required
under the investigatory exemption under the CPRA, that the
name of a victim of certain sexual crimes, including a victim
of 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. (Gov. Code Sec.
6254(f)(2).)
Existing law 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, must remain confidential. (Gov. Code Sec.
6254 (f)(3).)
This bill would provide that the names, addresses, and images
of a victim of human trafficking, and of the victim's
immediate family, other than a family member who is charged
with a criminal offense arising from the same incident, shall
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be withheld from a public records request and remain
confidential.
2.Existing law 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, and additionally provides
that if the victim makes this request then the law enforcement
agency shall not disclose the name of a victim. (Pen. Code
Sec. 293 (a)-(d).)
Existing law 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 as either Jane Doe or John Doe, if the court
finds that such an order is reasonably necessary to protect
the privacy of the person and will not unduly prejudice the
prosecution or the defense. (Pen. Code Sec. 293.5.)
Existing law provides that certain criminal actions,
especially those involving sexual offenses, take precedence
over other criminal actions in the order of the trail
calendar. (Pen. Code Sec. 1048.)
This bill would prohibit 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 immediate family, other than a family member
who is charged with a criminal offense arising from the same
incident, unless 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.
This bill would define "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.
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This bill would add criminal actions alleging human
trafficking to the list of criminal cases that take precedence
over all other criminal actions in the trial calendar.
COMMENT
1.Stated need for the bill
According to the author:
AB 2498 would bring justice to human trafficking victims by
strengthening victim protections and by holding exploiters and
buyers accountable. Under current law, the name and address
of a human trafficking victim becomes public record unless the
victim actively requests that information remain confidential.
This bill would 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, such as the risk of retaliation from an
exploiter or buyer to themselves or their family members.
2.Protects the confidentiality of human trafficking victims and
their families
Human trafficking, the world's fastest growing criminal
enterprise and an estimated $32 billion-a-year global industry,
is generally defined as the use of force, coercion, or fraud to
obtain coerced labor or personal services. The U.S. State
Department estimates that 14,500 - 17,500 people are trafficked
annually, and that the vast majority of human trafficking
victims in the United States are American-born. Over 80 percent
of reported trafficking cases are sex trafficking, rather than
labor, with the average age of entry for girls into being 12-14
years. (http://www.heatwatch.org/resources/institute [as of June
2, 2016].)
While the California Public Records Act (CPRA) generally
provides that all records held by a government agency are
accessible to the public upon request, the information related
to victims of certain crimes are protected from disclosure.
Along with victims of other sexual crimes, existing law protects
a human trafficking victim's name, upon request, and address
from public disclosure. This bill would: (1) eliminate the need
of a victim to request that his or her information be kept
confidential; (2) prohibit the sharing of images related to the
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crime; and (3) extend these protections to the victim's
immediate family members, with the exception of a family member
who is charged with a criminal offense arising from the same
incident.
According to the author, these added protections for victims of
human trafficking are necessary because of their precarious
position and increased vulnerability of retaliation against them
and their families by the perpetrators of human trafficking. The
California State Sheriffs Association, in support, argues that
this bill will ensure greater protection for victims of human
trafficking because 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." This bill correctly
recognizes, however, that family members may very well be the
perpetrator of the crime, and would therefore exempt a family
member, who is charged with a criminal offense arising from
human trafficking, from the protections of this bill.
This bill would additionally protect images associated with the
crime of human trafficking from public disclosure. Given that
many victims of human trafficking have been forced to
participate in pornography or have otherwise been "advertised"
by their traffickers, allowing that victim to exercise control
over images of herself is arguably appropriate. In support,
Planned Parenthood Affiliates of California (PPAC) writes:
Traffickers use force, fraud, and mental and physical coercion
to compel victims to engage in commercial acts of sex or labor
services against their will. According to the National Human
Trafficking Resource Center, in California there were 912
human trafficking cases reported in 2014 and of those, 75
percent were sex trafficking cases. [?]. PPAC supports
policies that will prevent human exploitation and that will
protect the identity of those who fall victim to these crimes.
3.Provides human trafficking victims greater protection than
other 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. For example, records
relating to a criminal investigation, where disclosure might
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endanger the success of the investigation, are specifically
exempted from the disclosure requirements of the CPRA. However,
this exemption expressly states that certain information about
both the person arrested for the crime and the victim must be
disclosed to victims and their representatives, other law
enforcement agencies for specified purposes, and to persons
requesting the information for scholarly, journalistic,
political, or governmental uses.
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 kept confidential, but the
home addresses of victims of sexual crimes are kept confidential
as a matter of course. This bill creates stronger
confidentiality protections for victims of human trafficking
than those afforded to other sexual crime victims by protecting
specified family members and protecting the images of the
victims, but also by offering these protections automatically
instead of requiring the victim to "opt in."
The California Immigrant Policy Center, in support, argues that
this advantage is necessary because for many victims of human
trafficking, requesting that one's name be kept confidential is
"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." This argument may apply equally to
victims of sexual crimes as well, who may not be fluent in
English or lack the sophistication to understand the
complexities of the justice system. While there appear to be
adequate justifications for extending protections to the
families of trafficked victims and to images related to the
crime (see Comment 2 above), there is arguably not sufficient
justification to automatically exempt victims of human
trafficking from the disclosure requirements of the CPRA while
requiring victims of other sexual crimes to take an affirmative
action. To ensure that victims of sex crimes and victims of
human trafficking are treated with congruity, the following
amendment would provide that the names and images of victims of
human trafficking and specified family members would be exempt
from disclosure under the CPRA if so requested.
Suggested amendments:
Page 6, strike lines 5 - 12 and insert: "Subject to the
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restrictions imposed by Section 841.5 of the Penal Code, the
names and images of a victim of human trafficking, as defined
in Section 236.1 of the Penal Code, and of that victim's
immediate family, other than a family member who is charged
with a criminal offense arising from the same incident, may be
withheld at the victim's request until the investigation or
any subsequent prosecution is complete. 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."
4. Double referral to Senate Committee on Public Safety
In addition to protecting the confidentiality of human
trafficking victims under the CPRA, this bill would add similar
protections for victims in criminal actions based on allegations
of human trafficking in the Penal Code. Those protections would
prohibit 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 immediate family,
as specified, unless 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,
and would make other related changes.
This bill has been double-referred to the Senate Committee on
Public Safety for further review of the above provisions.
Support : Alameda County District Attorney; 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;
Junior Leagues of California State Public Affairs Committee;
Long Beach Police Officers Association; Peace Officers Research
Association of California; Planned Parenthood Affiliates of
California; Sacramento County Deputy Sheriffs' Association;
WestCoast Children's Clinic
Opposition : None Known
HISTORY
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Source : Author
Related Pending Legislation :
AB 2611 (Low) would exempt from disclosure, pursuant to the
CPRA, audio and video recordings that depict death or serious
bodily injury in a morbid, sensational, and offensive manner, or
that show a peace officer being killed in the line of duty when
those recordings are within law enforcement investigative files.
AB 2843 (Chau) would extend an existing provision of the CPRA
that exempts from disclosure the home addresses and home phone
numbers of state employees and employees of a school district or
county office of education to include the employee's personal
cell phone number and personal email address.
AB 2853 (Gatto) would authorize a public agency to post public
records on its Internet Web site and to direct a person
requesting such a record to that Web site, as specified.
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Privacy and Consumer Protection Committee (Ayes 11,
Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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