BILL ANALYSIS Ó
SB 1322
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Date of Hearing: June 28, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1322 (Mitchell) - As Amended May 31, 2016
SUMMARY: Decriminalizes prostitution for those under 18 years of
age. Clarifies that a minor may be taken into temporary custody
under limited circumstances. Specifically, this bill:
1)Specifies that the statutes which makes solicitation of
prostitution and loitering with intent to commit prostitution
misdemeanors, does not apply to a child under 18 years of age
who is alleged to have engaged in such conduct to receive
money or other payment.
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2)States that a commercially sexually exploited child may be
taken into temporary custody if the fact that the child is
left unattended poses an immediate threat to the child's
health or safety, or other specified criteria
.
EXISTING LAW:
1)States that any person who solicits or who agrees to engage in
or who engages in any act of prostitution is guilty of a
misdemeanor. (Pen. Code, § 647, subd. (b).)
2)Specifies that a person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or
she manifests an acceptance of an offer or solicitation to so
engage, regardless of whether the offer or solicitation was
made by a person who also possessed the specific intent to
engage in prostitution. (Pen. Code, § 647, subd. (b).)
3)States that "prostitution" includes "any lewd act between
persons for money or other consideration." (Pen. Code, § 647,
subd. (b).)
4)States that it is unlawful for any person to loiter in any
public place with the intent to commit prostitution. (Pen.
Code, § 653.22, subd. (a).)
5)Provides that the intent to loiter to commit prostitution is
evidenced by acting in a manner and under circumstances which
openly demonstrate the purpose of inducing, enticing, or
soliciting prostitution, or procuring another to commit
prostitution. (Pen. Code, § 653.22, subd. (a).)
6)Provides that any person who causes or persuades, or attempts
to cause or persuade, a person who is a minor to engage in a
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commercial sex act, with the intent to effect a violation of
specified sex offenses is guilty of human trafficking. (Pen.
Code § 236.1.)
7)Specifies that any peace officer may, without a warrant, take
into temporary custody a minor when the officer has reasonable
cause for believing that the minor has an immediate need for
medical care, or the minor is in immediate danger of physical
or sexual abuse, or the physical environment or the fact that
the child is left unattended poses an immediate threat to the
child's health or safety, and the minor meets other specified
criteria. (Welf. & Inst. Code, § 305.)
8)Specifies that if a child has suffered, or there is a
substantial risk that the child will suffer, serious physical
harm or illness, as a result of the failure or inability of
his or her parent or guardian to adequately supervise or
protect the child, or the willful or negligent failure of the
child's parent or guardian to adequately supervise or protect
the child from the conduct of the custodian with whom the
child has been left, is within the jurisdiction of the
juvenile court and may be found to be a dependent child of the
court. (Welf. & Inst. Code, § 300, subd. (b)(1).)
9)States that a child who is sexually trafficked, as specified,
or who receives food or shelter in exchange for, or who is
paid to perform, sexual acts as specified, and whose parent or
guardian failed to, or was unable to, protect the child, is
within the jurisdiction of the juvenile court and may be found
to be a dependent child of the court. (Welf. & Inst. Code, §
300, subd. (b)(2).)
10)Establishes the Commercially Sexually Exploited Children
Program, (CSECP) as administered by Department of State Social
Services (DSS), to serve children who have been sexually
exploited. (Welf. & Inst. Code §§ 16524.7.)
11)Requires DSS, in consultation with the County Welfare
Directors Association of California, to develop an allocation
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methodology to distribute funding for the program. (Welf. &
Inst. Code §§ 16524.7.)
12)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.
(Welf. & Inst. Code §§ 16524.7.)
13)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.
(Welf. & Inst. Code §§ 16524.7.)
14)Requires DSS, no later than April 1, 2017, to provide to the
Legislature, information regarding the implementation of the
program. (Welf. & Inst. Code §§ 16524.10.)
15)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. (Welf. & Inst. Code §§ 16524.8.)
16)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. (Welf. & Inst. Code
§§ 16524.8.)
17)States that except as specified, a mandated reporter shall
make a report to an agency, as specified, whenever the
mandated reporter, in his or her professional capacity or
within the scope of his or her employment, has knowledge of or
observes a child whom the mandated reporter knows or
reasonably suspects has been the victim of child abuse or
neglect. (Pen. Code, § 11166, subd. (a).)
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18)Requires the mandated reporter to make an initial report by
telephone to the agency immediately or as soon as is
practicably possible, and shall prepare and send, fax, or
electronically transmit a written follow-up report within 36
hours of receiving the information concerning the incident.
(Pen. Code, § 11166, subd. (a).)
19)Specifies that POST shall implement by January 1, 2007, a
course or courses of instruction for the training of law
enforcement officers in California in the handling of human
trafficking complaints and also shall develop guidelines for
law enforcement response to human trafficking. (Pen. Code
13519.14, subd. (a).)
20)Requires every law enforcement officer who is assigned field
or investigative duties to complete a minimum of two hours of
training in a course or courses of instruction pertaining to
the handling of human trafficking complaints as described in
subdivision (a) by July 1, 2014, or within six months of being
assigned to that position, whichever is later. (Pen. Code
13519.14, subd. (e).)
21)Requires law enforcement agencies to use due diligence to
identify all victims of human trafficking, regardless of the
citizenship of the person. (Pen. Code, § 236.2.):
22)Specifies that when a peace officer comes into contact with a
person who has been deprived of his or her personal liberty, a
minor who has engaged in a commercial sex act, a person
suspected of violating specified prostitution offenses, or a
victim of a crime of domestic violence or sexual assault, the
peace officer shall consider whether the following indicators
of human trafficking are present (Pen. Code, § 236.2.):
a) Signs of trauma, fatigue, injury, or other evidence of
poor care;
b) The person is withdrawn, afraid to talk, or his or her
communication is censored by another person;
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c) The person does not have freedom of movement;
d) The person lives and works in one place;
e) The person owes a debt to his or her employer;
f) Security measures are used to control who has contact
with the person; and
g) The person does not have control over his or her own
government-issued identification or over his or her worker
immigration documents.
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Under
California law a child who is under the age of 18 cannot
consent to sex. And yet we charge the child victims of
commercial sex trafficking with crimes. Crimes like
prostitution.
"Under current law a victim can be detained in juvenile hall and
prosecuted for prostitution. This is not an appropriate,
effective or ethical response to this growing epidemic.
"In 2014, SB 855, a budget trailer bill, was signed into law by
Governor Brown. This bill creates a clear path to the
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dependency system for CSEC victims while allocating $14
million in ongoing funding for counties and child welfare
agencies for prevention, intervention and services for these
victims.
"Even though SB 855 was directly setup to identify a clear path
to the dependency court system for victims, these CSEC victims
are still being prosecuted through the delinquency court
system when a victim is arrested for prostitution, loitering,
or a similar crime as a result of his/her victimization.
"SB 1322 is in keeping with this shift in policy. This bill 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, as a mandated reporter, shall
immediately report any allegation of commercial sexual
exploitation to the county child welfare department."
2)Decriminalization of Minors Engaged in Prostitution: This bill
would prohibit the arrest or punishment of a minor who has
exchanged or attempted to exchange sex acts in return for
money or other forms of payment. Under current law, minors
committing prostitution can be arrested by law enforcement.
Arrested minors are dealt with through the juvenile justice
system. By decriminalizing prostitution of minors, those
minors could no longer be arrested and would not go through
the juvenile justice system. This bill would instead allow a
temporary detention of the minor and a referral to the child
welfare system (child protective services).
There are tensions between addressing the problem of minors
engaged in prostitution through the juvenile justice system
versus child protective services. The ability to arrest a
minor and go through the juvenile justice system arguably
provides a higher likelihood that the minor will receive
services. There is concern that without a court process that
has the ability to impose sanctions, the minor will simply
return to the situation in which they had been engaging in
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prostitution.
However, there are concerns about arresting minors engaged in
prostitution and processing them through the juvenile justice
system. To the extent that a minor engaged in prostitution is
a victim of crime, arresting them and charging them with a
crime are acts which treat them as a criminal. There is a
concern that if a minor is subject to arrest they will be less
likely to cooperate with law enforcement to seek help
regarding their trafficker. There is also a concern that a
minor would be less likely to seek services because of the
minor is worried about coming in contact with authorities that
might treat them as criminals.
Many district attorney offices throughout the state are choosing
to handle minors involved in prostitution through the juvenile
justice system, but diverting them very early in the process
to programs that can provide the juvenile appropriate
services. Such diversion programs allow the minor to avoid
any juvenile conviction.
This bill clarifies that officers have the power to take
temporary custody of minor's in danger of commercial sexual
exploitation for the purposes of their safety and getting the
minor to social services. (Welf. & Inst. Code, §§, 300, 305.)
3)Commercially Sexually Exploited Children Program (CSECP): In
June 2014, California Governor Jerry Brown signed SB 855 into
law. SB 855 established a state-funded Commercially Sexually
Exploited Children (CSEC) Program with an allocation of $5
million in 2014-15 and $14 million annually thereafter to fund
prevention, intervention, training, and services for
trafficked children. SB 855 also clarified that a child who is
sexually trafficked and whose parent or guardian has failed or
is unable to protect him or her, can be served through child
welfare as a victim of abuse and neglect. Children engaged in
"survival sex" can also be served through the child dependency
system. ( http://youthlaw.org/policy/california-csec-program/)
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The Commercially Sexually Exploited Children Program is
administered by the State Department of Social Services and is
intended to serve children who have been sexually exploited.
The State Department of Social Services authorizes the use of
funds by counties electing to participate in the program for
certain prevention and intervention activities and services to
children who are victims, or at risk of becoming victims, of
commercial sexual exploitation. The State Department of Social
Services provides 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 the training of foster caregivers for the
prevention and identification of potential victims, as
specified. The bill would also require the department to
ensure that the Child Welfare Services/Case Management System
is capable of collecting data concerning children who are
commercially sexually exploited, as specified. SB 855 requires
each county electing to receive funds pursuant to the
provisions described above 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.
The Commercially Sexually Exploited Children Program reflects a
legislative commitment to provide funding and resources to
county social services to help commercially sexually exploited
youth. By decriminalizing minors engaged in prostitution,
this bill would be directing those individuals away from the
juvenile criminal justice system and toward the juvenile
social services system.
4)Peace Officers are Already Mandated Reporters of Child Abuse
or Neglect: The California Child Abuse Neglect Reporting Act
(CANRA) requires mandatory reporting when certain individuals
suspect that a child has been abused or neglected. Law
enforcement officers are one of the groups which have
mandatory reporting responsibilities.
A mandated reporter must make a report whenever, in his/her
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professional capacity or within the scope of his/her
employment, he/she has knowledge of, or observes a child (a
person under 18) whom the mandated reporter knows or
reasonably suspects has been the victim of child abuse or
neglect. Abuse includes the sexual exploitation of a child.
When law enforcement suspects abuse or neglect they inform child
protective services and the district attorney's office of the
suspected abuse.
5)Argument in Support: According to The Coalition to Abolish
Slavery & Trafficking, "In 2014, SB 855, a budget trailer bill
was signed into law by Governor Brown. This bill allocates
$14 million in funding split between CSEC training for county
workers and foster care workers and launching and continuing
the 'Commercially Sexually Exploited Children Program' which
provides counties with funds for prevention, intervention and
services for CSEC victims.
"Even though SB 855 was directly setup to identify a clear path
to the dependency court system for victims, these CSEC victims
are still being prosecuted through the delinquency court
system when a victim is arrest for prostitution, loitering, or
a similar crime as a result of his/her victimization.
Currently, there is little guidance about when and how the
decision is made regarding which system will serve the victim.
SB 1322 will stop the criminalization of CSEC victims by
ensuring minors are not charged with prostitution. 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."
6)Argument in Opposition: According to The California District
Attorneys Association, "While we understand that minors
engaged in prostitution are often the victims of human
trafficking, and share your desire to protect this vulnerable
population from criminal prosecution, we do not believe that
decriminalization of prostitution for minors is in the public
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interest, or the interest of the victim.
"The solution proposed by this bill, wherein law enforcement
would notify child protective services and take the minor into
custody as a dependent under Welfare & Institutions Code
section 300, could actually serve to create new victims and
undermine law enforcement's ability to address those
exploiting such minors.
"Juveniles who come under WIC section 300 dependency
jurisdiction are not placed in secure facilities, and in
unsecured facilities actually have access to recruit other
potential victims.
"Additionally, this bill would allow an aider and abettor to
juvenile prostitution, who is also a minor, to avoid
punishment. It is our experience as prosecutors that most
CSEC victims will not turn over their pimp. Under the
language of SB 1322, if the operation uses a minor as the pimp
or lookout, he would also avoid prosecution."
7)Related Legislation:
a) AB 1675 (Stone), would specify that a minor who commits
those crimes is not subject to criminal charges in the
juvenile court, but he or she may be adjudged a dependent
child of the child welfare court. AB 1675 is pending
hearing in the Senate Public Safety Committee.
b) AB 1760 (Santiago), would have provided immunity from
arrest and prosecution for minors that exchange sex acts
for payment, and would have required police officers to
make an effort to determine if a minor arrestee is victim
of human trafficking or has engaged in a commercial sex
act. AB 1760 was amended in the Assembly Public Safety
Committee to remove the immunity provisions for minors
engaged in sex for payment. AB 1760 was held in the
Assembly Appropriations Committee.
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8)Prior Legislation:
a) AB 1585 (Alejo), Chapter, 708, Statutes of 2014,
provides that a defendant who has been convicted of
solicitation or prostitution may petition the court to set
aside the conviction if the defendant can establish by
clear and convincing evidence that the conviction was the
result of his or her status as a victim of human
trafficking.
b) SB 855 (Budget Committee), Chapter 29, Statutes of 2014,
established the Commercially Sexually Exploited Children
Program to be administered by the State Department of
Social Services in order to adequately serve children who
have been sexually exploited.
c) AB 2040 (Swanson), Chapter 197, Statutes of 2012,
provides that a person who was adjudicated a ward of the
court for the commission of a violation of specified
provisions prohibiting prostitution may petition a court to
have his or her records sealed as these records pertain to
the prostitution offenses without showing that he or she
has not been subsequently convicted of a felony or
misdemeanor involving moral turpitude, or that
rehabilitation has been attained.
d) AB 1940 (Hill), of the 2011-12 Legislative Session,
would have authorized a court to seal a record of
conviction for prostitution based on a finding that the
petitioner is a victim of human trafficking, that the
offense is the result of the petitioner's status as a
victim of that crime, and that the petitioner is therefore
factually innocent. AB 1940 was held on the Assembly
Committee on Appropriations' Suspense File.
e) AB 702 (Swanson), of the 2011-12 Legislative Session,
would have allowed a person adjudicated a ward of the court
or a person convicted of prostitution to have his or her
record sealed or conviction expunged without showing that
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he or she has not been subsequently convicted or that he or
she has been rehabilitated. AB 702 was never heard by this
Committee and was returned to the Chief Clerk.
f) AB 22 (Lieber), Chapter 240, Statutes of 2005, created
the California Trafficking Victims Protection Act, which
established civil and criminal penalties for human
trafficking and allowed for forfeiture of assets derived
from human trafficking. In addition, the Act required law
enforcement agencies to provide Law Enforcement Agency
Endorsement to trafficking victims, providing trafficking
victims with protection from deportation and created the
human trafficking task force.
REGISTERED SUPPORT / OPPOSITION:
Support
ACT for Women and Girls
American Civil Liberties Union of California
Alliance for Children's Rights
Aviva Family and Children's Services
Bay Area Youth Center
Black Women for Wellness
California Attorneys for Criminal Justice
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Children Now
Child Abuse Prevention Center
Children's Law Center of California
Coalition to Abolish Slavery & Trafficking
Courage Campaign
County of Los Angeles
County Welfare Directors of California
Crittenton Services for Children and Families
David and Margaret Youth and Family Services
District Attorney of Alameda County, Nancy O'Malley
Family Assistance Program
Girls Incorporated of Alameda County
Hathaway Sycamores Child and Family Services
John Burton Foundation
Legal Services for Prisoners with Children
Maryvale
National Association of Social Workers
National Center for Youth Law
New Way of Life Re-Entry Project
Pacific Juvenile Defender Center
Rights4Girls
San Francisco Department on the Status of Women
San Francisco Women's Political Committee
Shared Hope
Summitview Child & Family Services
Triad Family Services
Trinity Youth Services
Westcoast Children's Clinic
Opposition
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California District Attorneys Association
California State Sheriffs' Association
Los Angeles County District Attorney's Office
Sacramento County District Attorney's Office
San Diego County District Attorney's Office
Analysis Prepared by:David Billingsley / PUB. S. / (916)
319-3744