BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1322|
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THIRD READING
Bill No: SB 1322
Author: Mitchell (D), et al.
Amended: 4/26/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 4-3, 4/19/16
AYES: Hancock, Leno, Liu, Monning
NOES: Anderson, Glazer, Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/27/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
SUBJECT: Commercial sex acts: minors
SOURCE: Author
DIGEST: This bill (1) provides that a minor engaged in
commercial sexual activity will not be arrested for a
prostitution offense; (2) directs 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
neglect; and (3) provides that a commercially sexually 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.
ANALYSIS:
Existing law:
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1) 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.
2) Provides the following penalties for unlawful sexual
intercourse:
a) Where the defendant is not more than three years older
or three years younger than the minor, the offense is a
misdemeanor.
b) 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.
c) 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).)
3) 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:
a) 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, two years or three years.
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b) In other cases sodomy with a minor is a wobbler, with
a felony prison term of 16 months, two years or three
years. (Pen. Code §§ 286, subd. (b), 288a, subd. (b),
289, subd. (h).)
4) 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 years older
than the minor, the offense is a felony, punishable by a
prison term of three, six or eight years. (Pen. Code §§ 286,
subd. (c)(1), 288a, subd. (c)(1), 289, subd. (j).)
5) 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 three, six or eight years. Where the
offense involves force or coercion, the prison term is five,
eight or 10 years. (Pen. Code § 288, subd. (b).)
6) 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).)
7) Includes numerous crimes concerning sexual exploitation of
minors for commercial purposes. These crimes include:
a) 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).)
b) Pandering: Procuring another for prostitution,
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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).)
c) 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.)
d) Taking a minor from her or his parents or guardian for
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.)
8) 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).)
9) 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).)
10)Provides that where a defendant is convicted of taking a
minor (under the age of 18) from his or her parents for
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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).)
11)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
five, eight, or 12 years and a fine of not more than
$500,000. (Penal Code Section 236.1, subd. (a).)
12)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
trafficking. A violation of this subdivision is punishable by
imprisonment in the state prison for five, eight, or 12 years
and a fine of not more than $500,000 or 15 years to life and
a fine of not more than $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. (Pen. Code Section 236.1, subd. (c).)
13)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. (Pen. Code § 236.1, subd. (d).)
14)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 $10,000, or by both that fine and
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imprisonment.
a) 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.
b) 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).)
15)Includes the Commercially Sexually Exploited Children
Program (CSECP), as administered by the Department of Social
Services (DSS), to serve children who have been sexually
exploited. Specifically, CSECP does the following:
a) Requires DSS, in consultation with the County Welfare
Directors Association of California, to develop an
allocation methodology to distribute funding for the
program.
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.
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.
d) Requires DSS, no later than April 1, 2017, to provide
to the Legislature information regarding the
implementation of the program
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e) Requires 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.
f) 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.
g) Specifies that nothing precludes a county from
providing a supplemental rate to serve commercially
exploited foster children.
h) Provides that, to the extent federal financial
participation is available, federal funds should be
utilized. (Welf. & Inst. Code §§ 16524.6-16524.11.)
This bill:
1) Provides that a minor who engages in conduct that would
constitute a prostitution offense shall not be arrested for a
criminal offense.
2) 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 CSECP, as defined in the
Welfare and Institutions Code Sections 16524.6-16524.11.
3) Provides that a commercially sexually exploited child may be
adjudged a dependent child of the juvenile court.
4) Provides that a commercially sexually exploited child may be
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taken into temporary custody "if the minor has an immediate
need for medical care, or ? is in immediate danger of
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."
Background
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.
Nevertheless, 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.
Sexual conduct with a minor generally constitutes a felony,
regardless of whether anything of value was 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.
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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. 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 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 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.
Rachel Aviv's December 2012 profile of homeless young people in
the New Yorker magazine 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. Aviv showed how difficult it is to live on the streets
and engage in survival sex. The rate of HIV among homeless
youth is triple that of the general population. Hunger, illness
and symptoms of psychiatric disorders are common. Many face the
frightening prospect of becoming chronically or permanently
homeless.
There has been a growing awareness of the value of special
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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.
This bill creates 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. Providing services to sexually exploited minors more
quickly and directly than under current practice may be
effective.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
According to the Senate Appropriations Committee:
Decriminalization of prostitution by a minor: Potential local
agency cost savings (Local Funds) to juvenile detention
facilities, and to county probation departments for services
and administration costs for these minors who otherwise may
have been arrested and potentially adjudicated as juvenile
delinquents or wards of the court. The Department of Justice
(DOJ) statistics indicate 368 arrests in 2013, 267 arrests in
2014, and 235 arrests in 2015 of minors for the prostitution
offenses specified in this measure. DOJ statistics indicate
less than 10 percent of arrests are ultimately adjudicated in
court each year.
CSECP: Potential future cost pressure (General Fund*) to
provide services and grants within the dependency system of
care under the CSECP, which is administered by the DSS, to the
extent services and case management activities are provided by
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participating counties to a greater number of minors, and/or
to the extent additional counties opt into the program in the
future. One-time costs, not including services, for an initial
screening and assessment for CSEC eligibility of 200 minors is
estimated to cost about $125,000 (General Fund*). The Fiscal
Year (FY) 2016-17 Governor's Budget reflects 38 counties
electing to participate in the program, and $14 million
General Fund provided for support of this program.
Additionally, a budget issue to increase CSEC funding by an
additional $19.7 million for participating counties has been
held open in budget subcommittee hearings.
*Proposition 30 (2012): Exempts the state from mandate
reimbursement for realigned responsibilities for "public
safety services" including the provision of child welfare
services to prevent child exploitation, however, legislation
enacted after September 30, 2012, that has an overall effect
of increasing the costs already borne by a local agency for
public safety services apply to local agencies only to the
extent the State provides annual funding for the cost
increase.
Criminal justice system: Potentially significant future cost
savings (General Fund/Local Funds) to numerous state and local
agencies, including but not limited to the courts, state
prisons, local correctional facilities, and human services
agencies to the extent prohibiting these exploited minors from
arrest and providing them with necessary supportive services
results in reductions in future involvement in the criminal
justice system.
SUPPORT: (Verified5/27/16)
American Civil Liberties Union of California
California Alliance
California Attorneys for Criminal Justice
Child Abuse Prevention Center
Children Now
Children's Law Center of California
National Association of Social Workers
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National Center for Youth Law
OPPOSITION: (Verified5/27/16)
Alameda County District Attorney
California District Attorneys Association
Prepared by:Jerome McGuire / PUB. S. /
5/28/16 17:00:35
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