BILL ANALYSIS Ó
AB 2723
Page 1
Date of Hearing: May 3, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2723
(Chávez) - As Amended March 18, 2016
SUBJECT: dependency JURISDICTION: prostitution
KEY ISSUE: IN ORDER TO BETTER PROTECT CHILDREN FROM FURTHER
ABUSE, SHOULD dependENcy jurisdiction be CLARIFIED to include
CHILDREN WHO engage in or soliciT FOR PROSTITUTION, OR WHO
LOITER WITH INTENT TO COMMIT PROSTITUTION, AND whose parents are
NOT PROPERLY PROTECTing them?
SYNOPSIS
This bill represents another helpful step in the Legislature's
continuing efforts to battle the tragedy of human trafficking,
particularly involving children. The Attorney General's office
reports that human trafficking is the world's fastest growing
criminal enterprise with a global industry estimated at $32
billion-a-year. California, in particular, is one of the top
four destination states for human trafficking in the United
States. This bill comes to the Legislature at the same time as
multiple other efforts to help children who are victims of
commercial sexual trafficking. The goal of all these bills is
to recognize that children who are involved in prostitution are
crime victims and require services and support to protect them
from further abuse and help them successfully transition to
adulthood.
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Currently some sexually exploited children are specifically
included within the group of abused or neglected children who
can be adjudicated as dependents of the juvenile court.
Specifically included are children who are sexually trafficked
or who receive food or shelter in exchange for, or who are paid
to perform, sexual acts, all as defined, and whose parents or
guardians have failed to protect them. This bill expands that
list to include children who have loitered with the intent to
commit prostitution or who have solicited, agreed to engage, or
engaged in prostitution and whose parents or guardians have
failed to protect them. This provides a clear route through the
child welfare system to protect these children from further
victimization and sexual abuse.
This bill is supported by the Children's Law Center of
California, which argues that this bill eliminates any ambiguity
and ensures that all sexually exploited children have a pathway
into the protections afforded by the child welfare system.
This bill is opposed by the Alameda County District Attorney who
believes the bill "creates ambiguity in the outreach, engagement
and protection of minors who are engaging in commercial sex
conduct," specifically, "how the minor enters the system."
However, this bill does not require that the particular child
victims of sexual exploitation in this bill set forth in the
bill be adjudicated as dependents in the child welfare system.
Instead, the bill merely allows such children to come within the
jurisdiction of the juvenile dependency court. And in counties
that do not provide the exemplary multidisciplinary services
approach that Alameda County does and instead either prosecute
these abused children or, potentially even worse, leave them on
the street to be further abused, this bill clarifies that there
is a third option -- help them within the child welfare system.
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SUMMARY: Provides that a minor who engages in or solicits for,
or who loiters with intent to commit, prostitution may be
adjudged a dependent of the juvenile court. Specifically, this
bill makes legislative findings and declarations that a child
who has loitered with the intent to commit prostitution or who
has solicited, agreed to engage, or engaged in prostitution, as
specified, and whose parent or guardian has failed to, or was
unable to, protect the child, falls under the definition of a
"commercially sexually exploited child" and may be adjudged a
dependent child of the juvenile court.
EXISTING LAW:
1)States that the purpose of the dependency system is the maximum
safety and protection for children who are currently being abused,
neglected, or exploited. Provides that the focus is on the
preservation of the family, as well as the safety, protection, and
physical and emotional well-being of the child. (Welfare &
Institutions Code Section 300.2. Unless stated otherwise, all
further statutory references are to that code.)
2)Provides that children may be adjudged dependent children of
the juvenile court and be removed from their parents or
guardian on the basis of abuse or neglect. (Section 300.)
3)Declares that a child who is sexually trafficked or who
receives food or shelter in exchange for, or who is paid to
perform, sexual acts, all as defined, and whose parent or
guardian has failed to protect him or her, is within the
description of a dependent child of the juvenile court, and
that this finding is declaratory of existing law. Provides
that these children are known as commercially sexually
exploited children. (Section 300 (b)(2).)
4)Specifies the circumstances under which a person who causes,
induces, or persuades, or attempts to cause, induce, or
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persuade, a minor to engage in commercial sex is guilty of
human trafficking. (Penal Code Section 236.1 (c)(1) and (2).)
5)Defines "commercial sex act," "sexual exploitation" and
"commercial sexual exploitation" of a child. (Penal Code
Sections 236.1 (h)(2), 11165.1 (c), (d).)
6)States that any person who solicits or agrees to engage in or
who engages in any act of prostitution, as specified, is
guilty of disorderly conduct, a misdemeanor. (Penal Code
Section 647 (b).)
7)States that it is unlawful for any person to loiter in any
public place with the intent to commit prostitution. Provides
that the intent is evidenced by acting in a manner and under
circumstances which openly demonstrate the purpose of
inducing, enticing, or soliciting prostitution. (Penal Code
Section 653.22.)
8)Requires the county welfare and county probation departments,
pursuant to the joint protocol, to make a recommendation to
the court regarding which initial status of a minor who
appears to come within both dependency and delinquency
jurisdiction would best serve the interests of the minor and
the protection of society. (Section 241.1.)
9)Authorizes the probation department and child welfare services
department in any county, in consultation with the presiding
judge of the juvenile court, to jointly create a written
protocol to jointly assess and recommend dual status
designation for the minor. Allows a minor to simultaneously
be designated as a dependent child and a ward of the juvenile
court if the joint protocol has been entered into by both
departments and if the minor meets certain criteria as
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specified in the joint protocol only. (Section 241.1 (e).)
10)Finds and declares that in order to adequately serve children
who have been sexually exploited, it is necessary that
counties develop and utilize a multidisciplinary team approach
to case management, service planning, and provision of
services, and that counties develop and utilize interagency
protocols to ensure services are provided as needed to this
population. (Section 16524.6.)
11)Establishes the Commercially Sexually Exploited Children
Program (CSECP) that is required to be administered by the
State Department of Social Services (DSS), which provides all
of the following:
a) Requires DSS, in consultation with the County Welfare
Directors Association, to develop an allocation methodology
to distribute funding for the program. (Section 16524.7
(a)(2).)
b) Authorizes the use of these funds by counties electing
to participate in the program for prevention and
intervention activities and services to children who are
victims, or at risk of becoming victims, of commercial
sexual exploitation. (Section 16524.7 (a)(3)(A).)
c) Requires DSS to contract for training for county
children's services workers to identify, intervene, and
provide case management services to children who are
victims of commercial sexual exploitation, and for the
training of foster caregivers for the prevention and
identification of potential victims. (Section 16524.7
(a)(3)(B).)
d) Requires DSS, no later than April 1, 2017, to provide to
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the Legislature, information regarding the implementation
of the program. (Section 16524.10.)
e) Requires each county, electing to receive funds, to
develop an interagency protocol, developed by a team led by
a representative of the county human services department
and to include representatives from specified county
agencies and the juvenile court, to be utilized in serving
sexually exploited children who have been adjudged to be a
dependent child of the juvenile court. (Section 16524.8.)
f) Requires DSS, in consultation with the County Welfare
Directors Association, to ensure that the Child Welfare
Services/Case Management System is capable of collecting
data concerning children who are commercially sexually
exploited, and to disseminate any necessary instructions on
data entry to the county child welfare and probation
department staff. (Section 16524.9.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This bill represents another helpful step in the
Legislature's continuing efforts to battle the tragedy of human
trafficking. The Attorney General's office reports that human
trafficking is the world's fastest growing criminal enterprise
with a global industry estimated at $32 billion-a-year.
California, in particular, is one of the top four destination
states for human trafficking in the United States. This bill
comes to the Legislature at the same time as multiple other
efforts to help children who are victims of commercial sexual
trafficking. The goal of all these bills is to recognize that
children who are involved in prostitution are actually victims
of crime and sexual exploitation and require services and
support to protect them from further abuse.
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California's child welfare system is responsible for the
protection and safety of children at risk of abuse, neglect or
abandonment. Currently some sexually exploited children are
specifically referenced within the group of abused or neglected
children who can be adjudicated as dependents of the juvenile
court. Specifically included are children who are sexually
trafficked or who receive food or shelter in exchange for, or
who paid to perform, sexual acts, all as defined, and whose
parents or guardians have failed to protect them. This bill
expands that specified list to include children who have
loitered with the intent to commit prostitution or who have
solicited, agreed to engage, or engaged in prostitution and
whose parents or guardians have failed to protect them. While
this bill is likely a clarification of existing law, it removes
any ambiguity and ensures that sexually exploited children
appropriately come within the jurisdiction of the dependency
court.
In support of the bill, the author writes:
While children that are victims of sexual trafficking can be
adjudged as a dependent of the juvenile court system, there is
a loophole that leaves out children soliciting or engaging in
any act of prostitution or loitering in a public place with
the intent to commit prostitution, and the child's parent or
guardian has failed to protect the child. Law has determined
that being trafficked is not a requirement to be determined
when dealing with minors because they are not able to consent
to have sex, therefore, these children are caught in a
loophole unless being trafficked is specifically determined.
. . .
We need to make sure we are protecting our children and
looking out for them every step of the way. If we want the
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children of California to thrive, we have to set them up to
succeed and protect them from a range of potential dangers
like sexual predators to neglectful guardians.
Writing in support, the Children's Law Center of California
(CLC) adds that this bill ensures a pathway into the child
welfare system for child victims of sexual exploitation: "AB
2723 clarifies that children soliciting or engaging in
prostitution, or loitering with the intent to commit
prostitution, fall within the jurisdiction of the dependency
court when the other criteria of WIC 300(b)(2) are met. While
it is the position of CLC that these children should already be
receiving the protections of the child welfare system according
to current law, it is our understanding that this is not
happening consistently throughout the state. Importantly, this
bill would eliminate any ambiguity."
Commercial Sexual Exploitation of Children (CSEC): All too
frequently, across America and throughout California, children are
being sexually exploited for commercial gain:
Every day of the year, thousands of America's children are
coerced into performing sex for hire. Some of these
children are brutally beaten and raped into submission.
Others are literally stolen off the streets, then isolated,
drugged, and starved until they become "willing"
participants. Some children are alternately wooed and
punished, eventually forming trauma bonds with their
exploiters, similar to cases of domestic or intimate
partner violence. Still others are living on the streets
with no way to survive, except by exchanging sex for food,
clothing and shelter. The people who sexually exploit
children have built increasingly sophisticated criminal
enterprises around the sale of vulnerable young boys and
girls. This is a multi-billion dollar commercial industry
that preys on children as young as ten, and it is happening
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to tens of thousands of American children in or near our
own neighborhoods. (California Child Welfare Council,
Ending the Commercial Sexual Exploitation of Children: A
Call for Multi-System Collaboration in California 5.)
According to DSS, approximately 800,000 victims annually are
trafficked across international borders worldwide, and between
14,500-17,500 of those victims are trafficked into the United
States. Nearly 95 percent of CSEC victims in the U.S. are
female, and it is estimated that between 50-80 percent of child
victims of commercial sexual exploitation have been involved
with the child welfare system, according to the National Center
for Youth Law. According to the National Center for Missing and
Exploited Children, it is estimated that one in six endangered
runaways were likely sex trafficking victims in 2014. Many
experts believe, however, that these statistics are
underestimated; challenges arise when identifying victims,
collecting and cross-referencing data, and deciding on common
definitions in order to collect accurate statistics. Many youth
also do not identify as victims or may be reluctant to admit to
victimization due to fears of retaliation from traffickers,
deportation, or incarceration by law enforcement.
Current law provides that children who are "commercially
sexually exploited children" come within the jurisdiction of the
child welfare system. Section 300 provides that a child who
comes within any of a number of descriptions is within the
jurisdiction of the juvenile court which may adjudge that person
to be a dependent child of the court. One of the descriptions
listed in Section 300 is a "commercially sexually exploited"
child, defined as a child who is sexually trafficked or who
receives food or shelter in exchange for, or who is paid to
perform, sexual acts, and whose parent or guardian has failed to
protect the child. (Section 300 (b)(2).) However, this
provision does not currently list another category of
commercially sexually exploited youth: a child who has "engaged
in the conduct described in subdivision (b) of Section 647 or
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Section 653.22 of the Penal Code." This bill would simply add
such youth to Section 300 (b)(2). By doing so, it would allow
the juvenile dependency court to adjudicate such a child a
dependent of the court and bring that child under its
jurisdiction. While this bill may well be a clarification of
existing law, it is important to remove any ambiguity and ensure
that these child victims rightly can be protected in the child
welfare system.
CSEC Victims May Fit the Criteria of Both Probation Youth
(Delinquents) and Welfare Youth (Dependents): It is a crime to
"solicit anyone to engage in or who engages in lewd or dissolute
conduct in any public place or in any place open to the public
or exposed to public view." (Penal Code Section 647 (a).)
Section 602 (a) provides that "any person who is under 18 years
of age when he or she violates any law of this state or of the
United States or any ordinance of any city or county of this
state defining crime . . . is within the jurisdiction of the
juvenile court, which may adjudge such person to be a ward of
the court." Therefore a minor who engages in an act of
prostitution or solicitation is subject to the jurisdiction of
the juvenile court as a "delinquent" pursuant to Section 602.
At the same time, children cannot consent to engage in sex.
Children who are forced to work in prostitution are truly CSEC
victims who need services and support to escape and heal from
their abusers, rather than prosecution. Legislation containing
protective provisions for trafficked children is sometimes
called "safe harbor" laws. Safe harbor laws can take different
approaches including providing immunity from prosecution for
certain offenses by minors, creating an affirmative defense to
criminal charges for trafficked victims, providing for the
pretrial diversion of trafficked youth, and creating procedures
to clear trafficking related criminal convictions from victim's
records. Common goals identified in safe harbor legislation
include that trafficked children be treated as victims and not
prosecuted as prostitutes and that trafficked children be
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diverted from the justice system and placed in appropriate
services.
This bill does not divert children from the juvenile delinquency
system. Instead, this bill allows children who engage in
prostitution or who are soliciting for or loitering with intent
to commit prostitution to be brought into the child welfare
system and made dependents of the juvenile court in order to
protect them from further abuse. This clarifies that the
juvenile court has the ability to serve these children directly
through the child welfare system, without any involvement of the
delinquency system.
At Least One County Prefers to Treat CSEC Victims Outside of the
Foster Care System and Fears This Bill Prevents or Interferes
With Such Programs. Some counties have policies that
acknowledge that minors engaging in sex work are victims of
sexual exploitation who need services to reintegrate into
law-abiding society, but utilize the juvenile delinquency system
to facilitate those services. Alameda County appears to be such
a county. According to Alameda County District Attorney Nancy
O'Malley:
The Alameda County District Attorney's Office is recognized
as a statewide and national leader in combatting human
trafficking, particularly when minors are involved. In
terms of services, we make no distinction between a minor
who is a victim of human trafficking and a minor engaging
in conduct described in Penal Code Sections 647 (a) and (b)
and 653.22. . . .We have created a Diversion Program for
CSEC, called the Young Women's Saturday Program and a
weekly multi-disciplinary working group called SafetyNet.
This is the first true Multi-disciplinary Team (MDT) to
address CSEC in a collaborative and comprehensive manner.
SafetyNet consists of representatives from more than 20
agencies and/or disciplines, who meet weekly to discuss
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between 15-18 minors who are CSEC or are at risk for CSEC.
D.A. O'Malley opposes the bill because it, in her opinion,
"creates ambiguity in the outreach, engagement and protection of
minors who are engaging in commercial sex conduct,"
specifically, "how the minor enters the system." D.A. O'Malley
seems to believe that the bill will interfere with programs such
as Alameda County's, writing "We are opposed to AB 2723 because
we believe the programs that we have set up for CSEC in our
county are working and we do not want to undue all the work that
has been done."
In fact, as stated above, the bill does not require CSEC victims
be adjudicated as dependents in the child welfare system.
Instead, the bill merely allows such children to come within the
jurisdiction of the juvenile dependency court. And in counties
that do not provide the successful, multidisciplinary services
approach that the Alameda County district attorney offers and
instead either prosecute these abused children or, potentially
even worse, leave them on the street to be further abused, this
bill clarifies that there is a third option -- help them within
the child welfare system.
Pending Related Legislation: More than two dozen measures
regarding human trafficking have been introduced this year,
including the following:
AB 1675 (Stone), 2016, requires, in a case in which a minor is
alleged to have committed a prostitution-related offense, the
probation officer to delineate a specific program of supervision
for the minor in lieu of requesting that the prosecuting
attorney file a petition to have the minor declared a ward of
the juvenile court.
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AB 1730 (Atkins), 2016, authorizes the chief probation officer
of a county to create a program to provide services to youth
within the county that address needs relating to the commercial
sexual exploitation of youth.
AB 1760 (Santiago), 2016, expands, among other things,
legislative findings and declarations regarding the inclusion of
commercially sexually exploited children within the jurisdiction
of the juvenile court to also encompass children who are human
trafficking victims, as specified.
SB 1322 (Mitchell), 2016, provides that a child who engages in
commercial sexual activity may not be arrested for prostitution
or solicitation, requires a peace officer who comes into contact
with a minor engaged in a commercial sex act to report the abuse
or neglect to the county welfare agency, and states the child
may be adjudged a dependent child of the court.
REGISTERED SUPPORT / OPPOSITION:
Support
Children's Law Center of California
Opposition
Alameda County District Attorney Nancy O'Malley
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Analysis Prepared by:Alison Merrilees and Leora Gershenzon /
JUD. / (916) 319-2334