BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2723 (Chávez)
Version: March 18, 2016
Hearing Date: June 21, 2016
Fiscal: No
Urgency: No
NR
SUBJECT
Juvenile dependency: prostitution
DESCRIPTION
Existing law declares that a child is within the dependency
jurisdiction of the juvenile court if the child is a victim of
sexual trafficking, or receives food, shelter, or money in
exchange for specified sexual acts, and whose parent or guardian
failed to, or was unable to protect the child. This bill would
add prostitution to the specified sexual acts in this provision.
BACKGROUND
Human trafficking is an estimated $32 billion-a-year global
industry. After drug trafficking, human trafficking is the
world's second most profitable criminal enterprise. The United
States is one of the top destination countries for trafficking
in persons, and California - a populous border state with a
significant immigrant population and the world's ninth largest
economy - is one of the nation's top four destination states for
trafficking human beings. (Office of the Attorney General, The
State of Human Trafficking in California, (2012).)
According to the Attorney General, significant new challenges in
combating this crime have emerged in the last five years.
Criminal organizations and street gangs have increasingly turned
to human trafficking because they find it more profitable and
lower risk than drug trafficking. Additionally, new innovations
in technology make it possible for traffickers to recruit
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victims and perpetrate their crimes online.
There has been considerable federal and state legislation in
response to human trafficking. In 2005, California passed the
California Trafficking Victims Protection Act, AB 22 (Lieber,
Ch. 240, Stats. 2005) which established human trafficking as a
felony and provided assistance for victims. The same year, SB
180 (Kuehl, Ch. 239, Stats. 2005), established a statewide
taskforce chaired by the Attorney General. In 2013, California
voters passed Proposition 35 which increased criminal penalties
for traffickers. The proposition also provided that consent by a
victim of human trafficking who is a minor, or a mistake of fact
as to the age of the victim, are not defenses to criminal
prosecution.
Heightened penalties, however, only address part of the problem.
Left in the wake of human trafficking are thousands of child
victims. States have attempted to address the issues concerning
sexually exploited children in a variety of ways including the
decriminalization of minor prostitution and the creation of
diversion programs which aim to channel victims into support
services rather than the criminal justice system. (Kate Walker,
Child Welfare Council, Ending the Commercial Sexual Exploitation
of Children: A Call for Multi-System Collaboration in California
(2013).) California, however, provides that minors engaging in
any act of prostitution are guilty of disorderly conduct, a
misdemeanor.
Unlike the juvenile delinquency system which imposes
criminal-like penalties on minors, the juvenile dependency court
seeks to connect minor victims of abuse with services including
housing, healthcare, and mental health support. To address the
issues related to commercially sexually exploited youth, this
bill, would clarify that a minor engaged in prostitution, as
defined in the Penal Code, and whose parents fail to protect the
child, falls within the juvenile court's dependency
jurisdiction.
CHANGES TO EXISTING LAW
Existing law establishes the criteria by which a child who has
suffered, or is at risk of suffering, significant abuse or harm
is within the jurisdiction of the juvenile court, which may
adjudge that person to be a dependent child of the court. (Welf.
& Inst. Code Sec. 300.)
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Existing law includes, within the definition of "child welfare
services," public social services that are directed toward the
prevention of exploitation or delinquency of children as well as
services provided on behalf of children alleged to be the
victims of exploitation. (Welf. & Inst. Code Sec. 16501.)
Existing law defines human trafficking as being the victim of
someone who deprives or violates the personal liberty of another
with the intent to obtain forced labor or services, and defines
a sexually trafficked child as the victim of a person who
causes, induces, or persuades, or attempts to cause, induce, or
persuade a person who is at the time of commission of the
offense to engage in a commercial sex act. (Pen. Code Sec.
236.1(c).)
Existing law declares that a child is within the dependency
jurisdiction of the juvenile court if the child is a victim of
sexual trafficking, or receives food, shelter, or money in
exchange for specified sexual acts, and whose parent or guardian
failed to, or was unable to protect the child. Provides that
this finding is declaratory of existing law. (Welf. & Inst. Code
Sec. 300(b)(2).)
This bill would add to the above provision that a minor who has
engaged in prostitution, as defined in Sections 647(b) and
653.22 of the Penal Code, falls within the dependency
jurisdiction of the juvenile court.
COMMENT
1.Stated need for the bill
According to the author:
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
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guardian has failed to protect the child. AB 2723 would
additionally include a child within the dependency
jurisdiction of the juvenile court if the child solicits or
engages in any act of prostitution or loiters in a public
place with the intent to commit prostitution, and the child's
parent or guardian has failed to protect the child.
2.Clarification of existing law
Welfare & Institutions Code Section 300 provides that the
dependency court may exercise jurisdiction over a child who
comes within a number of descriptions, including a child who has
been "commercially sexually exploited," 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. The
provision does not specifically list "prostitution," despite the
fact that the welfare of children forced into prostitution was
clearly considered by the legislature in enacting the law.
Perhaps the word "prostitution" was left out of the statute in
an effort to couch the conversation in terms of these children
as victims, not as criminals. Children cannot consent to engage
in sex, and children who are forced to work in prostitution are
truly victims of commercial sexual abuse who need services and
support to escape their abusers and heal, rather than
prosecution and judgment.
This bill would, in the provision which brings commercially
sexually exploited children under the dependency court's
jurisdiction, add a reference to two Penal Code sections
defining acts of prostitution, thereby ensuring that the
dependency court may connect these youth with the supportive
services they need instead of directing them into the juvenile
delinquency system.
3.Opposition's concerns
A number of counties provide services to victims of child
commercial sexual exploitation through the juvenile delinquency
system instead of the dependency system. Alameda County
District Attorney Nancy O'Malley argues that, for those
counties, this bill will create ambiguity in the outreach,
engagement and protection of minors who are engaging in
commercial sex conduct, specifically, how a minor enters the
system. Ms. O'Malley opposes the bill because, in her opinion,
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the programs Alameda County has set up for commercially sexually
exploited youth are working and this bill might "undue all the
work that has been done." Ms. O'Malley writes:
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 commercially
sexually exploited children, called the Young Women's
Saturday Program and a weekly multi-disciplinary working
group called SafetyNet. This is the first true
Multi-disciplinary Team to address commercially sexually
exploited children in a collaborative and comprehensive
manner. SafetyNet consists of representatives from more than
20 agencies and/or disciplines, who meet weekly to discuss
between 15-18 minors who are [sexually exploited] or are at
risk for [sexual exploitation].
Existing law, and this bill, do not require the dependency court
to exercise jurisdiction over a commercially sexually exploited
youth. Instead, the statute provides that the court may extend
jurisdiction over these youth. Minors who violate any state,
federal, or local law may also be subject to the juvenile
delinquency court's jurisdiction. (See Welf. & Inst. Code Sec.
602.) In fact, youth who simultaneously fall under the
jurisdiction of the dependency and delinquency court are so
common that the county welfare and probation departments are
required to make a recommendation to the court regarding which
initial status would best serve the interests of the minor.
(Welf. & Inst. Code Sec. 241.1.)
Despite the concerns of the opposition, this bill would not
require commercially sexually exploited youth to be adjudicated
as dependents of the child welfare system. Instead, the bill
would allow such children to come within the jurisdiction of the
dependency court. Thus, Alameda should be able to continue
offering the successful, multidisciplinary services approach
that it has developed through the juvenile delinquency system
for minor victims of commercial sexual exploitation.
Support : LIUNA Locals 777 & 792; County Welfare Directors
Association of California
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Opposition : Alameda County District Attorney
HISTORY
Source : Children's Law Center of California
Related Pending Legislation : None Known
Prior Legislation :
AB 2035 (Chesbro, 2014) would have provided that a minor is
within the jurisdiction of the juvenile court and a dependent
child of the court if the minor is a victim of human
trafficking, and the parent or guardian failed or was unable to
protect the child. This bill was vetoed by Governor Brown.
SB 114 (Pavley, Ch. 42, Stats. 2013) extended the sunset date
to January 1, 2017, for a discretionary pilot project related to
commercially sexually exploited minors established pursuant to
SB 1279 (Pavley, Ch. 116, Stats. 2010) and extended the sunset
date for the District Attorney of Los Angeles to submit a report
to the Legislature to April 1, 2016.
AB 799 (Swanson, Ch. 51, Stats. 2011) extended the sunset of a
authorizing the Alameda County District Attorney to create a
pilot project, contingent upon local funding, for the purposes
of developing a comprehensive, replicative, multidisciplinary
model to address the needs and effective treatment of
commercially sexually exploited minors.
SB 1279 (Pavley, Ch. 116, Stats. 2010) authorized, until
January 1, 2014, a discretionary pilot project in Los Angeles
County to encourage the development of a comprehensive,
multidisciplinary model reflecting the best practices for the
response of law enforcement and the criminal and juvenile
justice systems to identify, assess, and address the needs of
commercially sexually exploited children who have been arrested
or detained by local law enforcement for prostitution crimes.
AB 499 (Swanson, Ch. 359, Stats. 2008) authorized a
discretionary pilot project in Alameda County to encourage the
development of a comprehensive, replicative, and
multidisciplinary model reflecting the best practices for the
response of law enforcement and the criminal and juvenile
justice systems to identify, assess and address the needs of
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commercially sexually exploited children who have been arrested,
as specified.
SB 180 (Kuehl, Ch. 239, Stats. 2005) established the California
Alliance to Combat Trafficking and Slavery Task Force to be
chaired by the California Attorney General and set forth its
course of action and physical make-up.
AB 22 (Lieber, Ch. 240, Stats. 2005) established civil and
criminal penalties for trafficking in human beings, allowed for
forfeiture of assets derived from human trafficking, made
legislative findings and required law enforcement agencies to
provide Law Enforcement Agency Endorsement to trafficking
victims, created the California Alliance to Combat Trafficking
Task Force, and provided restitution to victims.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Human Services Committee (Ayes 6, Noes 0)
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