BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1322|
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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
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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.
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(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).)
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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.
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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
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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.
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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)
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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
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