BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1322 Hearing Date: April 19, 2016
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|Author: |Mitchell |
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|Version: |February 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Commercial Sex Acts: Minors
HISTORY
Source: Author
Prior Legislation:None Known
Support: American Civil Liberties Union of California;
California Attorneys for Criminal Justice; California
Alliance; Child Abuse Prevention Center; Children Now;
National Association of Social Workers; National
Center for Youth Law
Opposition:Alameda County District Attorney; California District
Attorneys Association
PURPOSE
The purpose of this bill is to 1) provide that a minor engaged
in commercial sexual activity will not be arrested for a
prostitution offense; 2) direct a law enforcement officer who
comes upon a minor engaged in a commercial sexual act to report
the conduct or situation to county social services as abuse or
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neglect; and 3) provide that a commercially exploited child
(CSEC) may be adjudged a dependent child of the juvenile court
and taken into temporary custody to protect the minor's health
or safety.
Sex Crimes Against Minors
Existing law defines "unlawful sexual intercourse" as an act of
sexual intercourse accomplished with a person under the age of
18 years, when no other aggravating elements - such as force or
duress - are present. (Pen. Code § 261.5, subd. (a).) Existing
law provides the following penalties for unlawful sexual
intercourse:
Where the defendant is not more than three years older
or three years younger than the minor, the offense is a
misdemeanor.
Where the defendant is more than three years older than
the minor, the offense is an alternate felony-misdemeanor,
punishable by a jail term of up to one year, a fine of up
to $1,000, or both, or by a prison term of 16 months, two
years or three years and a fine of up $10,000.
Where the defendant is at least 21 years of age and the
minor is under the age of 16, the offense is an alternate
felony-misdemeanor, punishable by a jail term of up to one
year, a fine of up to $1,000, or both, or by a prison term
of 16 months, two years or three years and a fine of up
$10,000. (Pen. Code § 261.5, subd (b)-(d).)
Existing law provides that in the absence of aggravating
elements each crime of sodomy, oral copulation or penetration
with a foreign or unknown object with a minor is punishable as
follows:
Where the defendant is over 21 and the minor under 16
years of age, the offense is a felony, with a prison term
of 16 months, 2 years or 3 years.
In other cases sodomy with a minor is a wobbler, with a
felony prison term of 16 months, 2 years or 3 years. (Pen.
Code §§ 286, subd. (b), 288a, subd. (b), 289, subd. (h).)
Existing law provides that where each crime of sodomy, oral
copulation or penetration with a foreign or unknown object with
a minor who is under 14 and the perpetrator is more than 10
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years older than the minor, the offense is a felony, punishable
by a prison term of 3, 6 or 8 years. (Pen. Code §§ 286, subd.
(c)(1), 288a, subd. (c)(1), 289, subd. (j).)
Existing law provides that any person who engages in lewd
conduct - any sexually motivated touching or a defined sex act -
with a child under the age of 14 is guilty of a felony,
punishable by a prison term of 3, 6 or 8 years. Where the
offense involves force or coercion, the prison term is 5, 8 or
10 years. (Pen. Code § 288, subd. (b).)
Existing law provides that where any person who engages in lewd
conduct with a child who is 14 or 15 years old, and the person
is at least 10 years older than the child, the person is guilty
of an alternate felony-misdemeanor, punishable by a jail term of
up to one year, a fine of up to $1,000, or both, or by a prison
term of 16 months, two years or three years and a fine of up
$10,000. (Pen. Code § 288, subd. (c)(1).)
Commercial Sex Crimes Involving Minors
Existing law includes numerous crimes concerning sexual
exploitation of minors for commercial purposes. These crimes
include:
Pimping: Deriving income from the earnings of a
prostitute, deriving income from a place of prostitution,
or receiving compensation for soliciting a prostitute.
Where the victim is a minor under the age of 16, the crime
is a punishable by a prison term of three, six or eight
years. (Pen. Code § 266h, subds. (a)-(b).)
Pandering: Procuring another for prostitution, inducing
another to become a prostitute, procuring another person to
be placed in a house of prostitution, persuading a person
to remain in a house of prostitution, procuring another for
prostitution by fraud, duress or abuse of authority, and
commercial exchange for procurement. (Pen. Code § 266i,
subd. (a).)
Procurement: Transporting or providing a child under 16
to another person for purposes of any lewd or lascivious
act. The crime is punishable by a prison term of three,
six, or eight years, and by a fine not to exceed $15,000.
(Pen. Code § 266j.)
Taking a minor from her or his parents or guardian for
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purposes of prostitution. This is a felony punishable by a
prison term of 16 months, two years, or three years and a
fine of up to $2,000. (Pen. Code § 267.)
Existing law provides that where a person is convicted of
pimping or pandering involving a minor the court may order the
defendant to pay an additional fine of up to $5,000. In setting
the fine, the court shall consider the seriousness and
circumstances of the offense, the illicit gain realized by the
defendant and the harm suffered by the victim. The proceeds of
this fine shall be deposited in the Victim-Witness Assistance
Fund and made available to fund programs for prevention of child
sexual abuse and treatment of victims. (Pen. Code § 266k, subd.
(a).)
Existing law provides that where a defendant is convicted of
taking a minor under the age 16 from his or her parents to
provide to others for prostitution (Pen. Code § 267) or
transporting or providing a child under the age of 16 for
purposes of any lewd or lascivious act (Pen. Code § 266j), the
court may impose an additional fine of up to $20,000. (Pen.
Code § 266k, subd. (b).)
Existing law provides that where a defendant is convicted of
taking a minor (under the age of 18) from his or her parents for
purposes of prostitution (Pen. Code § 267), or transporting or
providing a child under the age of 16 for purposes of any lewd
or lascivious act (266j), the court, if it decides to impose a
specified additional fine, the fine must be no less than $5,000,
but no more than $20,000. (Pen. Code § 266k, subd. (b).)
Existing law provides that any person who deprives or violates
the personal liberty of another with the intent to obtain forced
labor or services, is guilty of human trafficking and shall be
punished by imprisonment in the state prison for 5, 8, or 12
years and a fine of not more than five hundred thousand dollars
($500,000). (Penal Code Section 236.1, subd. (a).)
Existing law states that any person who causes, induces, or
persuades, or attempts to cause, induce, or persuade, a person
who is a minor at the time of commission of the offense to
engage in a commercial sex act, with the intent to affect or
maintain a violation of specified sex crimes is guilty of human
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trafficking. A violation of this subdivision is punishable by
imprisonment in the state prison for 5, 8, or 12 years and a
fine of not more than five hundred thousand dollars ($500,000)
or fifteen years to life and a fine of not more than five
hundred thousand dollars ($500,000) when the offense involves
force, fear, fraud, deceit, coercion, violence, duress, menace,
or threat of unlawful injury to the victim or to another person.
(Penal Code Section 236.1, subd. (c).)
Existing law provides that in determining whether a minor was
caused, induced, or persuaded to engage in a commercial sex act,
the totality of the circumstances, including the age of the
victim, his or her relationship to the trafficker or agents of
the trafficker, and any handicap or disability of the victim,
shall be considered. (Penal Code § 236.1, subd. (d).)
Existing law provides that if the person solicited in a
prostitution offense was a minor, and the defendant knew or
should have known that the person who was solicited was a minor,
the violation is punishable by imprisonment in a county jail for
not less than two days and not more than one year, or by a fine
not exceeding ten thousand dollars ($10,000), or by both that
fine and imprisonment.
The court may, in unusual cases, when the interests of
justice are best served, reduce or eliminate the mandatory
two days of imprisonment in a county jail required by this
subdivision
If the court reduces or eliminates the mandatory two
days' imprisonment, the court shall specify the reason on
the record. (Pen. Code § 647, subds. (b) and (m)(1)-(2).)
Existing law includes the Commercially Sexually Exploited
Children Program, (CSECP) as administered by DSS, to serve
children who have been sexually exploited. Specifically, CSECP
does the following:
Requires DSS, in consultation with the County Welfare
Directors Association of California, to develop an
allocation methodology to distribute funding for the
program.
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
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victims, or at risk of becoming victims, of commercial
sexual exploitation.
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.
Requires DSS, no later than April 1, 2017, to provide to
the Legislature, information regarding the implementation
of the program.
Require each county, electing to receive funds, to
develop an interagency protocol to be utilized in serving
sexually exploited children who have been adjudged to be a
dependent child of the juvenile court.
Requires the county interagency protocol to be 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. This
bill makes these provisions operative on January 1, 2015.
Specifies that nothing precludes a county from providing
a supplemental rate to serve commercially exploited foster
children.
Provides that, to the extent federal financial
participation is available, federal funds should be
utilized. (Welf. & Inst. Code §§ 16524.6-16524.11.)
This bill provides that a minor who engages in conduct that
would constitute a prostitution offense shall not be arrested
for a criminal offense.
This bill provides that a peace officer who encounters a minor
engaged in a commercial sex act shall report these circumstances
as abuse or neglect of a minor to the county child welfare
agency in accordance with the Commercially Sexually Exploited
Children Program, as defined in Welfare and Institutions Code
Sections 16524.6-16524.11.)
This bill provides that a commercially sexually exploited child
may be adjudged a dependent child of the juvenile court.
This bill provides that a commercially sexually exploited child
may be taken into temporary custody "if the minor has an
immediate need for medical care, or ? is in immediate danger of
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physical or sexual abuse, or the physical environment" or the
child's unattended status "poses an immediate threat to the
child's health or safety."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
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While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
The author states:
In the state of California a person under the age of
18 years old is a minor and cannot legally consent to
sexual intercourse. Any person who engages in sex with
a minor victim, knowingly or not, has committed the
crime of unlawful sexual intercourse."
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California currently allows for criminalization of
Commercial Sexual Exploitation of Children (CSEC)
victims by charging them with crimes committed while
being victimized. Under current law a victim can be
detained in juvenile hall and prosecuted for
prostitution. This is not an effective or ethical
response to this growing epidemic.
SB 1322 will stop the criminalization of CSEC victims
by decriminalizing prostitution charges for minors. If
it is determined that the person suspected of
soliciting prostitution is under the age of 18, law
enforcement shall immediately report any allegation of
commercial sexual exploitation to the county child
welfare department.
2.Sex Crimes Against Minors Related to Prostitution
This bill concerns "CSEC" - sexually exploited children. 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. Arguably, the exchange of money could be
an aggravating factor in the underlying sex crime, as it could
be seen as an improper attempt to normalize the behavior or
coerce the victim. If the minor involved in a 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. (Pen. Code § 288, subd. (a).) The crime is punishable
by a term of 5, 8 or 10 years if the defendant used force,
threats, duress or coercion. Solicitation of an act of
prostitution from a minor under the age of 14 could likely be
prosecuted as attempted lewd conduct - the intention to commit
the crime and a direct step towards it commission. The prison
or jail term of 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
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prostitution-related offense involving a minor could also be
charged and convicted of a sex crime in the same case.
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.)
3.Sex Trafficking of Minors - Estimated Prevalence and Available
Data
General Trafficking Prevalence Estimates and Data; 2007
California Data
There appears to be general agreement that sex trafficking of
children is increasing and profitable. However, the 2007 Final
Report of the California Alliance to Combat Trafficking and
Slavery Task Force noted that California lacked comprehensive
statistics on human trafficking. Thus, many statistics on human
trafficking in general, and sex trafficking of children in
particular, are estimates. The 2007 report did cite statistics
from various sources, including a study finding that 80% of
documented cases in California occurred in urban areas and the
majority of victims were non-citizens. A U.S. State Department
report of global trafficking estimated that minors constituted
50% of trafficking victims. (2007Alliance to Combat
Trafficking, Final Report, pp. 33-39. ) The State Department
also noted that 14,500 to 17,500 persons are trafficked into the
United States from other countries.
The Federal Bureau of Investigation (FBI) conducts 24 Innocence
Lost child sexual exploitation task forces and working groups
across the country. Through 2007, 365 cases were opened and 281
child victims were located. The Shared Hope International
non-profit organization has reported that approximately 100,000
domestic minors are sexually trafficked each year. Numerous
examples of trafficking cases were summarized in the California
Alliance Report. In 2001, a Berkeley man was prosecuted for
smuggling 15 girls from India for labor and sexual exploitation.
In 2000, a man was prosecuted for bringing women and girls from
Mexico and forcing them to work as prostitutes in Long Beach.
(2007 Alliance to Combat Trafficking, Final Report, p. 18.)
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2012 Report of the California Attorney General on Human
Trafficking
The California Attorney General's "Human Trafficking in
California 2012" report stated that human trafficking
investigations and prosecutions have become more comprehensive
and organized. There are nine human trafficking task forces in
California, composed of local, state and federal law enforcement
and prosecutors.
Data on human trafficking has improved, although the data still
does not reflect the actual extent and range of human
trafficking. Data from 2010 through 2012 collected by the
California task forces are set out in the following chart:
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|Investigations |2,552 |
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|Victims Identified |1,277 |
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|Arrests Made |1,798 |
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Trafficking by Category
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|Sex Trafficking |56% |
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|Labor Trafficking |23% |
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|Unclassified or Insufficient |21% |
|Information | |
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4.John Jay College of Criminal Justice Study Found That Most
Commercially Exploited Children in New York City Were
Introduced to Commercial Sex by Peers
Recent years have seen a great increase in awareness of and
concerns about minors - most often girls - engaged in commercial
sex activities. Organized, coerced trafficking has received the
most attention. Sex trafficking has been described as sexual
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slavery. Trafficked minors are isolated, controlled by and made
dependent on their exploiters, and can even be perversely loyal
because of the manufactured dependency.
However, a detailed 2008 study by the Center for Court
Innovation and John Jay College of Criminal Justice found that
most of the minors engaging in commercial sex in New York City
are homeless, runaway minors who engage in "survival sex" to
obtain small amounts of money for food and other necessities. A
significant number of these CSEC - commercially sexually
exploited children - are gay, lesbian and transgender youth who
left unsupportive families and communities. The study authors
were surprised to find that most CSEC were recruited or
initiated into survival sex by their peers, with no involvement
by adult pimps. The John Jay study also reported that many CSEC
were simply approached on the street by would-be customers,
without any solicitation by the CSEC. Also surprising, there
were as many male CSEC as female CSEC in New York City.
Rachel Aviv's December 2012 profile of homeless young people in
the New Yorker magazine noted the results of the John Jay study
and then carefully documented the daily lives of a number of
homeless young people on the New York City streets. They often
formed informal communities or street families for support.
They sometimes shared repeat customers and money earned from
commercial sex, technically acting as pimps for each other.
Adults who purchase sex from CSEC are certainly aware that they
are taking advantage of these children. Some men use violence
against the homeless young people.
Aviv's profile documented that living on the streets and
engaging in survival sex is extremely perilous. The rate of HIV
among homeless youth is triple that of the general population.
Hunger and illness are common and many show symptoms of
psychiatric disorders. Many face the frightening prospect of
becoming chronically or permanently homeless. Aviv wrote:
"Samantha and Ryan were both terrified of becoming 'lifers.'
They saw the signs in their friends, who stopped trying to get
job interviews, missed appointments with caseworkers, and cycled
in and out of psychiatric hospitals or rehab centers, becoming
accustomed to people telling them what to do and when."
5. Programs for Minors Engaged in Prostitution
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The New Yorker profile noted above described a patchwork of
services that are not coordinated or comprehensive. As the CSEC
understood, they are constantly in danger of becoming lifers on
the street, with the attendant harms of that life. The John Jay
study may not reflect the populations of CSEC in cities and
areas other than New York. However, the study does indicate
that approaches that rely mostly on enforcement of criminal laws
against human trafficking and pimping will not likely solve many
of the problems of young people who are exploited for commercial
sex.
There has been a growing awareness of the value of special
social welfare and juvenile court programs for girls found to be
involved in commercial sex. It has been argued that treating
juvenile's engaged in prostitution as criminal offenders does
little or nothing to address the underlying circumstances -
homelessness, physical and sexual abuse, and drug and alcohol
dependency - that bring minors to engage in commercial sex.
Special collaborative courts can organize and monitor
supervision and treatment of CSEC girls. Special STAR
(Succeeding through Achievement and Resilience) courts have been
implemented in Los Angeles as a pilot project that is reportedly
being expanded. Alameda County has an established a Girls
Court. New York has created a network of 11 Human Trafficking
Intervention Courts for juveniles who are at least 16 years old.
This bill would create a model for more direct services provided
to CSEC through the juvenile dependency and treatment process,
rather than relying on the juvenile delinquency court system to
intervene. SB 1110 (Hancock) would create three projects of Law
Enforcement Assisted Diversion (LEAD) in which police take low
level drug and prostitution offenders directly to a case manager
for services and treatment. LEAD completely bypasses the
criminal court system. Charges are not deferred or placed aside
while the LEAD participant or client engages in the program. In
Seattle, LEAD has been remarkably successful on multiple fronts.
Recidivism over three years' time was nearly 60% lower for leas
participants than for similar persons in the criminal justice
system. The lives of LEAD participants are more stable and
productive and LEAD areas safer. Providing services to sexually
exploited minors more quickly and directly than under current
practice may be effective.
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6. Related Legislation Pending in the Assembly
There are two related bills pending in the Assembly - AB 1675
(Stone) and AB 1760 (Santiago). Hearing of AB 1760 in Assembly
Public Health was postponed at the request of the author. AB
1675 was approved in Assembly Public Safety and has been
referred to Assembly Appropriations.
The Assembly Public Safety Committee analysis of AB 1675
summarizes the bill as follows:
Requires a probation officer, in a case in which a
minor is alleged to have committed the crime of
solicitation, prostitution, or loitering with the
intent to commit prostitution, to provide informal
supervision for the minor, instead of requesting that
the prosecutor file a petition declaring the minor to
be a ward of the juvenile court.
Requires the probation officer to delineate a specific
program of supervision for the minor.
The Assembly Public Safety Committee analysis of AB 1760
summarizes the bill as follows:
Directs a peace officer who determines that a minor
is a victim of human trafficking to report such abuse,
consult with a child welfare worker about a safe
placement for the minor, and transport the minor to
such placement, unless the minor is otherwise
arrested. Specifies that the officer should provide
information that the minor has committed crimes as a
direct result of being a human trafficking victim to
the district attorney's office for independent
evaluation.
-- END -
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