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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