BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 420| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 420 Author: Huff (R), et al. Amended: 8/11/16 Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/21/15 AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone SENATE FLOOR: 36-0, 5/4/15 AYES: Allen, Anderson, Bates, Beall, Block, Cannella, De León, Fuller, Gaines, Galgiani, Hall, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Roth, Runner, Stone, Vidak, Wieckowski, Wolk NO VOTE RECORDED: Berryhill, Hancock, Pavley ASSEMBLY FLOOR: 79-0, 8/29/16 - See last page for vote SUBJECT: Prostitution SOURCE: Alameda County District Attorney Los Angeles County District Attorney DIGEST: This bill defines and divides the crime of prostitution into three separate forms: 1) the defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act; 2) the defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and 3) the defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation. SB 420 Page 2 Assembly Amendments 1) restore a long-standing provision in existing law - that the defendant must do some act "in furtherance" of the offense, in addition to agreeing to engage in commercial sex - that was inadvertently stricken in this bill; and 2) add chaptering amendments to protect this bill and SB 1129 (Monning), SB 1322 (Mitchell), and AB 1708 (Gonzalez). ANALYSIS: Existing law: 1)Provides that any person who solicits, agrees to engage in, or engages in an act of prostitution is guilty of a misdemeanor. The crime includes an element that the defendant specifically intended to engage in an act of prostitution and some act was done in furtherance of the agreed upon act. (Pen. Code § 647, subd. (b).) 2)Provides that where any person is convicted for a second prostitution offense, the person shall serve a sentence of at least 45 days, no part of which can be suspended or reduced by the court regardless of whether or not the court grants probation. (Pen. Code § 647, subd. (k).) 3)Provides that where any person is convicted for a third prostitution offense, the person shall serve a sentence of at least 90 days, no part of which can be suspended or reduced by the court regardless of whether or not the court grants probation. (Pen. Code § 647, subd. (k).) 4)Provides that where a defendant is convicted of a prostitution offense in which the defendant sought to procure or procured the "sexual services of a prostitute who was a minor," the following shall apply: SB 420 Page 3 a) The defendant shall, in addition to any other fine or penalty, be ordered to pay up to $25,000; and b) Upon appropriation, the proceeds of the fine shall "be available to fund programs and services for commercially sexually exploited minors in the counties" of conviction. (Pen. Code §§ 261.9 and 647, subd. (b).) This bill divides prostitution into three separate crimes. Each crime includes an element that the defendant takes some act beyond manifestation of an agreement to engage in an act of prostitution as follows: 1)One crime is committed by the person who agreed to pay, or paid, or solicited another person to accept payment, in exchange for a lewd act. 2)A separate crime is committed by the person who agreed to receive, received, or solicited another to provide compensation for a lewd act. 3)A third crime is committed by a person who solicits a minor for a lewd act in exchange for compensation, or who accepts an offer by a minor to engage in a lewd act in exchange for compensation paid to the minor. Background: According to the author: Research proves that demand for commercial sex drives the market for exploitation, especially among children. Under current law, any person who offers to engage in or engages in any act of prostitution is guilty of disorderly conduct. It's time we call purchasing of sex acts what it is and separate out the buyers from the sellers, who more often than not - are victims of sex trafficking. SB 420 Page 4 There is now no distinction in law among an adult who is selling sexual acts, from the adult who purchases sexual acts, or from an adult who is purchasing sex from a minor. SB 420 focuses on the demand side of human trafficking, by amending Penal Code Section 647, to separate the buyers and sellers of human trafficking and prostitution. SB 420 is a necessary first step to address the demand side of human trafficking. By making separating the individuals involved in prostitution, we can determine how many children and adults are being purchased for sex. By US Department of State estimates, sex trafficking is a $32 billion industry in this country and 50 percent of trafficking victims are minors. Easy access to the Internet enables human beings to become ensnared and sold across state lines. The FBI has determined that three of the nations' thirteen High Intensity Child Prostitution areas are located here in California. Data generated by SB 420 is essential for crafting solutions to a disturbing public safety enemy in our communities. The narrow or initial purpose of this bill is to allow collection of data to determine how many adults are arrested for and convicted of paying for sexual acts, how many adults are arrested for and convicted of selling sexual acts and how many adults are arrested for and convicted of paying for sexual services from minors. The bill divides the prosecution statute - Penal Code Section 647, subdivision (b) - into three paragraphs reflecting each form of the crime. In order for the data to be valuable and accurate, reporting agencies will need to specifically note the paragraph under which a defendant was arrested and convicted. Representatives from the California Department of Justice explained: "The way [crime reports] appears in the system is entirely dependent on the law enforcement agency or court that enters the offense into the system. One agency may enter PC 647(b)(2) while another may only enter PC 647(b)." Prosecutors will likely record the specific paragraph under which the defendant is convicted - PC 647 (b)(2) for example. SB 420 Page 5 However, police officers and sheriff's deputies might not specifically record the paragraph of arrest unless instructed to do so. Further, it may not be apparent to officers and deputies what specific form of prostitution would be charged by the prosecutor in any particular case. That could cause some confusion and inaccuracy in the data. Another impediment to full and accurate data collection is the fact that sex with a minor is a crime. If a minor and an adult are involved in a prostitution incident, numerous outcomes involving sex crimes and prostitution could occur. For example, the police could arrest both parties for prostitution, but the prosecutor could charge the adult with a sex crime, or prostitution, or both. The prosecutor could charge the minor with no crime, or file a prostitution charge. The adult could be initially charged with a sex crime but plead guilty to a prostitution offense, perhaps if the minor appeared to be an adult. In sum, it may be difficult to determine the extent of prostitution involving minors from arrest and conviction data. Sexual conduct with a minor constitutes a felony in most instances, regardless of whether anything of value was offered or exchanged for the sexual acts. If the minor involved in commercial sex of was under the age of 14, the defendant has committed the felony of lewd conduct, with a prison term of three, six or eight years, or five, eight or 10 years if coercion is involved (Pen. Code § 288, subds. (a)-(b).) Soliciting an act of prostitution from a minor under the age of 14 could likely be prosecuted as attempted lewd conduct. The prison or jail term for an attempt is generally one-half the punishment for the completed crime. Where the defendant solicited or employed a minor who was14 or 15 years old, and the defendant was at least 10 years older than the minor, the defendant has committed an alternate felony-misdemeanor. Any defined sex act - sodomy, sexual penetration, oral copulation or sexual intercourse - with a minor is a crime. The penalties depend on the relative ages of the defendant and the minor and whether the crime involved some form of force, coercion or improper advantage. A defendant charged with a prostitution-related offense involving a minor could also be charged and convicted of a sex crime in the same case. SB 420 Page 6 Generally, because the defined sex crime and the sexual commerce offense would involve a single transaction or act, the defendant could only be punished for one offense - the offense carrying the greatest penalty. (Pen. Code § 654.) FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified8/29/16) Alameda County Board of Supervisors California Against Slavery California District Attorneys Association California Police Chiefs Association Peace Officers Research Association of California Survivors for Solutions OPPOSITION: (Verified8/29/16) California Attorneys for Criminal Justice California Public Defenders Association Erotic Service Providers Union ASSEMBLY FLOOR: 79-0, 8/29/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon NO VOTE RECORDED: Quirk SB 420 Page 7 Prepared by:Jerome McGuire / PUB. S. / 8/30/16 20:24:31 **** END ***