BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1322| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 1322 Author: Mitchell (D), et al. Amended: 8/4/16 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 SENATE FLOOR: 28-10, 6/2/16 AYES: Allen, Anderson, Beall, Block, Cannella, De León, Galgiani, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk NOES: Bates, Berryhill, Fuller, Gaines, Glazer, Moorlach, Morrell, Nielsen, Stone, Vidak NO VOTE RECORDED: Nguyen, Runner ASSEMBLY FLOOR: 42-29, 8/18/16 - See last page for vote 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 SB 1322 Page 2 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. Assembly Amendments are chaptering amendments to protect SB 420 (Huff), SB 1129 (Monning), AB 1708 (Gonzalez) AB 1771 (O'Donnell) and this bill. ANALYSIS: Existing law: 1)Provides that engaging in sexual conduct with a minor is a crime. The penalties range from misdemeanors to felonies carrying life terms, depending on the ages of the participants and the circumstances of the offenses (Pen. Code §§ 261.5, 286, 288a and 289) 2)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, 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. SB 1322 Page 3 (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.) 3)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. (Pen. Code § 266k, subd. (a).) 4)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).) 5)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).) 6)States that any person who causes, induces, or persuades a minor to engage in a commercial sex act, or attempts to do so, with the intent to affect or maintain a violation of specified sex crimes is guilty of human trafficking, 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 § 236.1, subd. (c).) SB 1322 Page 4 7)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 imprisonment. 8)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 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. SB 1322 Page 5 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, if the minor was the party who received or agreed to receive money or other consideration in exchange for a sex act. 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 CSEC may be adjudged a dependent child of the juvenile court. 4)Provides that a CSEC may be 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 SB 1322 Page 6 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. 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. Trafficked minors are isolated, controlled by and made dependent on their exploiters, and can even be perversely loyal because of the manufactured dependency. 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 necessities. A significant number of are gay, lesbian and transgender youth who left unsupportive families and communities. Most CSEC were recruited or initiated into survival sex by their peers, with no involvement by pimps. Many CSEC were simply approached on the street by would-be customers, without any solicitation by the CSEC. SB 1322 Page 7 Rachel Aviv's December 2012 profile of homeless young people in the New Yorker documented the lives of homeless young people in New York City. 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 psychiatric disorders are common. Many face chronic homelessness. There has been a growing awareness of the value of special social welfare and court programs for girls involved in commercial sex. It has been argued that treating juveniles engaged in prostitution as criminal offenders does little to address the underlying causes - homelessness, physical and sexual abuse, and drug or alcohol dependency. This bill creates a model for services provided to CSEC through the juvenile dependency and treatment process, rather reliance on the juvenile delinquency court system. 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 SUPPORT: (Verified8/18/16) 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 National Center for Youth Law OPPOSITION: (Verified8/18/16) SB 1322 Page 8 Alameda County District Attorney California District Attorneys Association ASSEMBLY FLOOR: 42-29, 8/18/16 AYES: Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chiu, Chu, Cooley, Dababneh, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Holden, Jones-Sawyer, Lackey, Levine, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon NOES: Travis Allen, Baker, Bigelow, Brough, Chávez, Cooper, Dahle, Dodd, Beth Gaines, Gallagher, Gray, Grove, Hadley, Harper, Irwin, Jones, Kim, Linder, Mathis, Mayes, Melendez, Obernolte, Patterson, Salas, Steinorth, Wagner, Waldron, Wilk, Williams NO VOTE RECORDED: Achadjian, Chang, Chau, Daly, Eggman, Frazier, Roger Hernández, Olsen, Rodriguez Prepared by: Jerome McGuire / PUB. S. / 8/19/16 19:29:36 **** END ****