BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 2498 (Bonta) - Human trafficking
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|Version: June 30, 2016 |Policy Vote: JUD. 7 - 0, PUB. |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 1, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 2498 would do the following:
Prohibit law enforcement agencies from disclosing the names,
addresses, and images of human trafficking victims and their
immediate families, except as specified.
Require law enforcement agencies to orally inform, in the
victim's native language, victims of human trafficking of
their right to have their names, addresses, and images, and
that of their immediate families, withheld and kept
confidential.
Exempt the names and images of human trafficking victims and
their immediate families, with exceptions, from disclosure
under the California Public Records Act (CPRA), until the
investigation or subsequent prosecution is complete.
Adds criminal actions alleging human trafficking to the list
of criminal cases that take precedence over all other criminal
actions in the trial court calendar.
Fiscal
Impact:
AB 2498 (Bonta) Page 1 of
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Law enforcement agency mandates : Potentially significant
state-reimbursable costs in the hundreds of thousands of
dollars (General Fund) annually to orally inform alleged
victims, in their native language, of their right to have
their information, and the information of their immediate
family members, kept confidential, as well as to redact
information from police reports regarding the victims and
their families once the investigation or prosecution is
complete (as this information would be exempt from disclosure
under the CPRA during this period, potential state
reimbursement is only projected after the disclosure exemption
under the CPRA has elapsed). The Commission on State Mandates
(CSM) previously determined specified provisions of PC § 293
constituted a reimbursable state mandate (Sex Crime
Confidentiality, 98-TC-21), including but not limited to the
requirement to inform an alleged victim that his or her name
will become a matter of public record unless otherwise
requested, and to redact victim information from public
records.
CPRA exemption : Minor ongoing non-reimbursable local agency
costs (Local Funds) and state agency costs (General Fund) for
additional records exemptions from the CPRA that could incur
new workload for redaction.
Court calendaring : Potential minor ongoing workload impact
(General Fund*) to add human trafficking to the list of types
of criminal cases provided a calendaring preference.
*Trial Court Trust Fund
Background: Existing law provides that an employee of a law enforcement
agency who personally receives a report from a person, alleging
that the person making the report has been the victim of a sex
offense, or was forced to commit an act of prostitution because
he or she is the victim of human trafficking, shall inform that
person 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, as specified. (Penal Code § 293.)
A written report of an alleged sex offense shall indicate that
the alleged victim has been properly informed and shall
memorialize his or her response.
AB 2498 (Bonta) Page 2 of
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A law enforcement agency shall not disclose to a person, except
the prosecutor, parole officers 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,
the address of a person who alleges to be the victim of a sex
offense or who was forced to commit an act of prostitution
because he or she is the victim of human trafficking, as defined
in Section 236.1.
A law enforcement agency shall not disclose to a person, except
the prosecutor,
parole officers 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,
the name of a person who alleges to be the victim of a sex
offense or who was forced to commit an act of prostitution
because he or she is the victim of human trafficking, as defined
in Section 236.1, if that person has elected to exercise his or
her right pursuant to this section and Section 6254 of the
Government Code.
Proposed Law:
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 be
withheld from a public records request and remain confidential.
Additionally, this bill:
Provides that if the victim's native language is not
English any information on his or her rights should be
provided in his or her native language.
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
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
AB 2498 (Bonta) Page 3 of
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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.
Revises the definition of "sex offense," for purposes of
the Penal Code sections amended by this bill, to exclude
human trafficking, as the bill provides for the disclosure
of information in human trafficking cases under a separate
provision.
Adds criminal actions alleging human trafficking to the
list of criminal cases that take precedence over all other
criminal actions in the trial calendar.
Staff
Comments: By requiring law enforcement officers to orally
inform victims of human trafficking of their right to have their
names, addresses, and images, and that of their immediate
families, withheld and kept confidential, this bill creates a
state-mandated local program. Further, the additional
requirement imposed on law enforcement agencies to inform the
victim of this right in the victim's native language if the
victim's native language is not English, could potentially
result in increased costs to local agencies to provide this
service. To the extent local agency expenditures qualify as a
reimbursable state mandate, agencies could claim reimbursement
of these costs (General Fund).
While costs could vary widely, for context, the Commission on
State Mandates' statewide cost estimate for Sex Crime
Confidentiality (98-TC-21), which found provisions of PC § 293
to constitute a reimbursable state-mandate, reflects eligible
reimbursement of nearly $670,000 annually for about 25 percent
of local agencies reporting. In its statement of decision and
subsequent parameters and guidelines, the CSM stated the
following one-time and ongoing activities were eligible for
reimbursement: (1) informing the alleged victim that his or her
name will become a matter of public record unless he or she
request that it does not; (2) indicating on written reports that
the victim has been properly informed of his or her right; (3)
redacting a victim's name and address from all public records,
except as provided; (4) developing policies and procedures to
implement the reimbursable activities; and, (5) training
employees that perform the reimbursable activities of the
AB 2498 (Bonta) Page 4 of
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parameters and guidelines herein.
Staff notes mandate reimbursement in the amount of over $2.1
million was paid out over six years (FYs 1997-98 through
2002-03) but has since been suspended annually in the Budget
Act. Because the provisions of this bill do not add onto
existing provisions of law within PC § 293 (subdivisions (a)
through (d)) that were previously determined to be reimbursable
activities, in which case the activities may have been
considered as adding on to a previously suspended mandate and
ineligible for state reimbursement due to the suspended status
of the mandate, but instead, establish a new, separate provision
(PC § 293, subdivision (e)), this bill potentially creates a
new, potentially state-reimbursable mandate.
By prohibiting a law enforcement agency from disclosing to a
person, with specified exceptions, the personal information of a
victim and the victim's immediate family, this bill creates a
mandate on law enforcement agencies to redact the personal
information of victims and their immediate family members from
public documents. As noted above, this activity has previously
been determined to be a reimbursable state mandate. However,
this bill additionally revises the CPRA to add an exemption from
disclosure of this information while the investigation is
pending or until prosecution is complete. As a result, during
the investigation and prosecution period (when the CPRA
disclosure exemption is valid), the mandated activity of
redacting personal information is not projected to constitute a
reimbursable state mandate, as due to the passage of Proposition
42 (2014), the CSM concluded the CPRA program no longer
constitutes a reimbursable state-mandated program beginning June
4, 2014. Therefore, only those activities involving the
redaction of personal information for victims and their families
after the investigation and prosecution are complete may
potentially be considered for state reimbursement.
The Judicial Council has indicated that adding victims of human
trafficking to the list of sensitive persons for whom expedited
trials are used to encourage defendant/witness participation and
accelerate findings against accused persons is not projected to
result in a significant workload impact.
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Recommended
Amendments: This bill amends the definition of "sex offense"
pursuant to PC § 293 to exclude the crime of human trafficking
and instead creates a separate provision describing the process
for information disclosure in cases of human trafficking. Staff
notes that by amending the definition of "sex offense" in PC §
293 to exclude human trafficking (PC § 236.1), the provisions
under existing law that allow a court to order the identity of
an alleged victim to be Jane Doe or John Doe pursuant to PC §
293.5 no longer includes victims of human trafficking. To the
extent this is inconsistent with the intent, staff recommends a
technical amendment to PC § 293.5 to add a reference to the
offense of human trafficking, as follows:
On page 31, in line 1:
293.5. (a) Except as provided in Chapter 10 (commencing line 39
with Section 1054) of Part 2 of Title 7, or for cases in which
the alleged victim of a sex offense, as specified in subdivision
(f) of Section 293, or the alleged victim of human trafficking,
as defined in Section 236.1, has not elected to exercise his or
her right pursuant to Section 6254 of the Government Code, the
court, at the request of the alleged victim, may order the
identity of the alleged victim in all records and during all
proceedings to be either Jane Doe or John Doe, if the court
finds that such an order is reasonably line 6 necessary to
protect the privacy of the person and will not unduly prejudice
the prosecution or the defense.
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