BILL ANALYSIS
AB 499
Page 1
Date of Hearing: April 24, 2007
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 499 (Swanson) - As Introduced: February 20, 2007
As Proposed to be Amended in Committee
SUMMARY : Provides for prolonged detention of minors engaged in
specified acts of prostitution and states that they shall not be
criminally prosecuted in order that they may be placed in a
secure facility for treatment as sexually exploited minors.
Specifically this bill :
1)States that minors who are suspected of, or detained for,
prostitution or loitering with the intent to commit
prostitution shall not be subject to any criminal prosecution
or juvenile court proceeding and shall be held as sexually
exploited minors.
2)Requires that officers detain and take any sexually exploited
minor into custody in a secure detention center, local
division facility, or a secure safe house.
3)Mandates that an alleged sexually exploited minor be brought
before a court within 48 hours and the court shall order an
assessment to determine whether the minor is sexually
exploited and in need of protective services, and in order to
establish a safety plan and secure appropriate placement for
the minor.
4)States that the minor may be held in custody for up to 30 days
until the assessment is completed.
5)States that the assessment shall be performed by the
appropriate county agency or court-appointed expert within
those 30 days.
6)Requires that if at the completion of an assessment that if
the court finds the minor is sexually exploited, the court
shall order the minor held in a secure setting for his or her
safety to allow for the participation and completion of a
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sexually exploited minor program, or for the determination of
a secure appropriate placement for the minor.
7)Specifies that repeat offenses shall result in arrest and
criminal prosecution, but the minor shall be permitted to
participate in the programs for sexually exploited minors.
8)States that this section shall not affect any other provision
related to the punishment for pimping and pandering as a
minor, and any minor who pimps and panders or otherwise
sexually exploits another child shall be prosecuted to the
fullest extent of the law.
EXISTING LAW :
1)Defines the following as "disorderly conduct", a misdemeanor
(Penal Code Section 647):
a) Solicitation of any person to engage in or who engages
in lewd or dissolute conduct in any public place or in any
place open to the public or exposed to public view;
b) Solicitation or agreement to engage in or engagement in
any act of prostitution. 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. No agreement to
engage in an act of prostitution shall constitute a
violation of this subdivision unless some act, in addition
to the agreement, is done within this state in furtherance
of the commission of an act of prostitution by the person
agreeing to engage in that act. As used in this
subdivision, "prostitution" includes any lewd act between
persons for money or other consideration;
c) Loitering in or about any toilet open to the public for
the purpose of engaging in or soliciting any lewd or
lascivious or any unlawful act; and,
d) Loitering or wandering upon the streets or from place to
place without apparent reason or business and refusing to
identify himself or herself and to account for his or her
presence when requested by any peace officer so to do if
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the surrounding circumstances would indicate to a
reasonable person that the public safety demands this
identification.
2)Prohibits loitering in any public place with the intent to
commit prostitution. (Penal Code Section 653.22.) Among the
circumstances that may be considered in determining whether a
person loiters with the intent to commit prostitution are that
the person:
a) Repeatedly beckons to, stops, engages in conversations
with, or attempts to stop or engage in conversations with
passersby, indicative of soliciting for prostitution;
b) Repeatedly stops or attempts to stop motor vehicles by
hailing the drivers, waving arms, or making any other
bodily gestures, or engages or attempts to engage the
drivers or passengers of the motor vehicles in
conversation, indicative of soliciting for prostitution;
c) Has been convicted of violating prostitution laws within
five years of the arrest under this section;
d) Circles an area in a motor vehicle and repeatedly
beckons to, contacts, or attempts to contact or stop
pedestrians or other motorists, indicative of soliciting
for prostitution.
e) Has engaged, within six months prior to the arrest under
this section, in any behavior described above, or in any
other behavior indicative of prostitution activity; or,
f) The list of circumstances is not exclusive. Any other
relevant circumstances may be considered in determining
whether a person has the requisite intent. Moreover, no
one circumstance or combination of circumstances is in
itself determinative of intent. Intent must be determined
based on an evaluation of the particular circumstances of
each case.
3)Provides victims of sexual assault the right to have victim
advocates and a support person of the victim's choosing
present at any interview by law enforcement authorities,
district attorneys, or defense attorneys. However, the
support person may be excluded from an interview by law
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enforcement or the district attorney if the law enforcement
authority or the district attorney determines that the
presence of that individual would be detrimental to the
purpose of the interview. As used in this section, "victim
advocate" means a sexual assault counselor. (Penal Code
Section 679.04.)
4)Mandates that when a minor is taken into custody by a peace
officer or probation officer, the minor shall be released
within 48 hours after having been taken into custody unless a
petition to declare the child a dependant of the court has
been filed. [Welfare and Institutions Code (WIC) Section
313.]
5)Allows courts to adjudge that person to be a dependent child
of the court under the following circumstances (WIC Section
300):
a) The child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm inflicted
non-accidentally upon the child by the child's parent or
guardian. For the purposes of this subdivision, a court may
find there is a substantial risk of serious future injury
based on the manner in which a less serious injury was
inflicted, a history of repeated inflictions of injuries on
the child or the child's siblings, or a combination of
these and other actions by the parent or guardian which
indicate the child is at risk of serious physical harm.
For purposes of this subdivision, "serious physical harm"
does not include reasonable and age-appropriate spanking to
the buttocks where there is no evidence of serious physical
injury.
b) The 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, or by the willful or
negligent failure of the parent or guardian to provide the
child with adequate food, clothing, shelter, or medical
treatment, or by the inability of the parent or guardian to
provide regular care for the child due to the parent's or
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guardian's mental illness, developmental disability, or
substance abuse. No child shall be found to be a person
described by this subdivision solely due to the lack of an
emergency shelter for the family. Whenever it is alleged
that a child comes within the jurisdiction of the court on
the basis of the parent's or guardian's willful failure to
provide adequate medical treatment or specific decision to
provide spiritual treatment through prayer, the court shall
give deference to the parent's or guardian's medical
treatment, non-treatment, or spiritual treatment through
prayer alone in accordance with the tenets and practices of
a recognized church or religious denomination, by an
accredited practitioner thereof, and shall not assume
jurisdiction unless necessary to protect the child from
suffering serious physical harm or illness. In making its
determination, the court shall consider: (1) the nature of
the treatment proposed by the parent or guardian; (2) the
risks to the child posed by the course of treatment or
non-treatment proposed by the parent or guardian; (3) the
risk, if any, of the course of treatment being proposed by
the petitioning agency; and, (4) the likely success of the
courses of treatment or non-treatment proposed by the
parent or guardian and agency. The child shall continue to
be a dependent child pursuant to this subdivision only so
long as is necessary to protect the child from risk of
suffering serious physical harm or illness.
c) The child is suffering serious emotional damage, or is
at substantial risk of suffering, serious emotional damage,
evidenced by severe anxiety, depression, withdrawal, or
untoward aggressive behavior toward self or others, as a
result of the conduct of the parent or guardian or who has
no parent or guardian capable of providing appropriate
care. No child shall be found to be a person described by
this subdivision if the willful failure of the parent or
guardian to provide adequate mental health treatment is
based on a sincerely held religious belief and if a less
intrusive judicial intervention is available.
d) The child has been sexually abused, or there is a
substantial risk that the child will be sexually abused, by
his or her parent or guardian or a member of his or her
household; or the parent or guardian has failed to
adequately protect the child from sexual abuse when the
parent or guardian knew or reasonably should have known
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that the child was in danger of sexual abuse.
e) The child is under the age of five years and has
suffered severe physical abuse by a parent, or by any
person known by the parent, if the parent knew or
reasonably should have known that the person was physically
abusing the child. For the purposes of this subdivision,
"severe physical abuse" means any of the following: any
single act of abuse which causes physical trauma of
sufficient severity that, if left untreated, would cause
permanent physical disfigurement, permanent physical
disability, or death; any single act of sexual abuse which
causes significant bleeding, deep bruising, or significant
external or internal swelling; or more than one act of
physical abuse, each of which causes bleeding, deep
bruising, significant external or internal swelling, bone
fracture, or unconsciousness; or the willful, prolonged
failure to provide adequate food. A child may not be
removed from the physical custody of his or her parent or
guardian on the basis of a finding of severe physical abuse
unless the social worker has made an allegation of severe
physical abuse pursuant to Section 332.
f) The child's parent or guardian caused the death of
another child through abuse or neglect.
g) The child has been left without any provision for
support; physical custody of the child has been voluntarily
surrendered and the child has not been reclaimed within 14
days; the child's parent has been incarcerated or
institutionalized and cannot arrange for the care of the
child; or a relative or other adult custodian with whom the
child resides or has been left is unwilling or unable to
provide care or support for the child, the whereabouts of
the parent are unknown, and reasonable efforts to locate
the parent have been unsuccessful.
h) The child has been freed for adoption by one or both
parents for 12 months by either relinquishment or
termination of parental rights or an adoption petition has
not been granted.
i) The child has been subjected to an act or acts of
cruelty by the parent or guardian or a member of his or her
household, or the parent or guardian has failed to
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adequately protect the child from an act or acts of cruelty
when the parent or guardian knew or reasonably should have
known that the child was in danger of being subjected to an
act or acts of cruelty.
j) The child's sibling has been abused or neglected, and
there is a substantial risk that the child will be abused
or neglected, as defined in those subdivisions. The court
shall consider the circumstances surrounding the abuse or
neglect of the sibling, the age and gender of each child,
the nature of the abuse or neglect of the sibling, the
mental condition of the parent or guardian, and any other
factors the court considers probative in determining
whether there is a substantial risk to the child.
FISCAL EFFECT : Unknown
COMMENTS :
1)Procedural Due Process Concerns : This bill, as drafted,
requires the minor be subjected to confinement without a
procedure for a hearing before a neutral magistrate. Such
confinement implicates Due Process Concerns under the
Fourteenth Amendment to the United States Constitution.
The Fourteenth Amendment states in part:
"No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny any person
within its jurisdiction the equal protection of the laws."
[Emphasis added.]
The Fourteenth Amendment applies the concept of "fundamental
fairness" through procedural due process upon all of the
states in the Union. Hence, the state government may
accomplish physical restraint (e.g., imprisonment) or physical
intrusion only if appropriate procedures are followed. [See
Ingram v. Wright , (1977) 430 U.S. 651.] In general, an
individual has been deprived of a "liberty interest" for
procedural due process purposes if he or she is the subject of
a government order prohibiting him or her from engaging in
lawful activities. The most common method of satisfying
Procedural Due Process, as required constitutionally, is to
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grant an opportunity for judicial review, as soon as
practicable if not before depriving a person of life, liberty
or property. The executive branch (law enforcement) may not
significantly deprive a person of liberty without permitting
them an opportunity to appear before the judiciary (a
magistrate) to determine if the deprivation of their liberty
interest is warranted.
a) Secure Detention Facility : This bill permits a peace
officer or probation officer to take a minor detained for
prostitution to a "secure detention facility" or a "local
division facility." The minor is not to be charged with a
crime and enjoys no protections provided criminal
defendants. The minor is to be brought before a court
within 48 hours so that the court can order an evaluation
within 30 days. The minor is not provided an attorney. No
mechanism exists for the minor to petition the court to
release he or she from custody at this point. The court is
given no choice but to order the evaluation. During this
30-day period, the minor must remain in a "secure detention
facility" having never been charged with a crime, and
having no representation.
b) Secure Setting : If the court determines that the minor
is sexually exploited following the 30-day evaluation, the
minor is then placed in an undefined "secure setting" so
that he or she may participate and complete a "sexually
exploited minor program." No definition is provided for
where this secure setting is. The secure setting is
presumably confinement, and may in fact be a jail or a
detention facility. No indication is given as to whether
the minor is free to leave. Additionally, no information
is provided as to the contents of the program or how long
the minor must remain in custody to complete the program.
Presently, this bill proposes to permit law enforcement to
place a minor in protective custody for an unspecified period
of time, depriving him or her of the right to freely
participate in society. Though the purposes of this bill may
be to treat minors, an inherent ability to abuse this law
exists. A minor can be placed in a legal limbo for an
unspecified period of time (one month, one year, five years)
prior to placement or resolution of his or her legal matters
and never have an opportunity to petition for freedom.
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A minor could potentially be taken off of the streets for
loitering with the intent to engage in prostitution, yet never
be informed of the allegations used for detention. The minor
would never be permitted to speak with an attorney. The minor
could potentially merely be standing on the street, detained,
and not actually have done anything wrong. A minor could
likewise be detained for prostitution and not actually have
engaged in prostitution. Such a minor would have absolutely
no due process right to request release or plead his or her
innocence before a judge.
2)Stripping of Sixth Amendment Rights for Sexually Exploited
Minors : The Sixth Amendment to the United States
Constitution, as applied to the State of California by the
Fourteenth Amendment of the United States Constitution states:
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial; by an impartial jury . . . and
to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor; and
to have the Assistance of Counsel for his defence."
By detaining these children indefinitely and not charging them
with any crimes, they will naturally not enjoy the benefits
the Sixth Amendment guarantees criminal defendants.
Specifically:
a) Denial of the Right to a Speedy and Public Trial : By
never providing the minor an opportunity to come before a
judge and proclaim his or her innocence of the allegations
for which he or she was "detained", he or she is not
provided a trial. No provision of this bill states a
period of time for which the detention of a minor is
permissible. The minor may be detained indefinitely.
b) Denial of the Right to Instruction and Arraignment on
the Allegations Which Serve As the Basis for Detention : No
provision of this bill provides for the minor to be
informed of the reason or basis for his or her detention.
Therefore, due to the fact that he or she not been charged
with a crime, he or she may never be informed of the basis
for his or her detention.
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c) Denial of the Right to Confront and Compel Witnesses to
Testify : Every criminal defendant has the right to
confront and examine the witnesses who serve as the basis
for the charges against him or her. This right affords the
defendant with the opportunity to bring these witnesses
before a judge or jury so that the arbiter of facts may
determine the credibility of the allegations. By not
charging the minor with a crime, the minor does not have
the right to test the credibility of his or her detention.
d) Denial of the Right to an Attorney : Perhaps the most
fundamental right in the criminal justice system is the
right to competent representation, especially in the realm
of children. To expect a minor to adequately defend
himself or herself through the process of detention and
look after his or her own rights is unreasonable.
3)Fewer Rights than Mentally Disordered Offenders and Sexually
Violent Predators : The law provides individuals who are
civilly committed in quasi-criminal proceedings with the
opportunity to petition for release and the right to counsel.
These individuals are permitted the ability to challenge the
reasons set forth requiring their commitment and lack of
liberty with an attorney, before a jury or a judge. All of
these rights are granted statutorily. Minors affected by this
bill would not be afforded these rights.
4)What is a Sexually Exploited Minor ? This bill does not define
the standard a court should use when determining what a
sexually exploited minor is. A minor who is arrested for
prostitution or loitering with the intent to prostitute is to
be detained for a determination as to whether he or she a
sexually exploited minor. During his or her detention, the
court must order a 30-day evaluation to assess whether he or
she a sexually exploited minor, but this bill does not set
forth what the requirements are for making the determination.
5)What Happens When a Court Decides that a Child is Not a
Sexually Exploited Minor ? This bill provides for what happens
when a minor is deemed to be a sexually exploited minor, he or
she is detained in a "secure setting" to complete a program.
However, this bill does not provide for what happens to the
minor who is not deemed "sexually exploited." Is the minor
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criminally prosecuted for prostitution or loitering with the
intent to prostitute? If so, the minor has been assessed and
potentially made incriminating statements that can now be used
against him or her. The minor may have been held in custody
for 32 days without an opportunity to speak with an attorney
or petition for release. Witnesses who could testify in their
defense may be permanently lost and unavailable. The right of
the minor to adequately defend himself or herself from
prostitution claims following a 32-day detention with no
charges filed would be severely prejudiced.
6)What is an "Appropriate County Agency" for Evaluation
Purposes ? This bill permits "appropriate county agencies" to
conduct an evaluation as to whether the minor is sexually
exploited. An "appropriate county agency" may be either the
police or probation department. This evaluation would
presumably be completed without representation for the minor.
As a result, the minor could incriminate himself or herself.
7)Arguments in Support :
a) According to the American College of Obstetricians and
Gynecologists , "Teens arrested for participating in acts of
prostitution should be treated as sexually exploited
victims. These girls often have been pulled into a life of
prostitution after being molested or groomed for
prostitution by an adult. There is a window of opportunity
for these young women to be rescued from their situation,
given an opportunity to be treated for their abuse, and
started down a path of reintegration into society.
Lifelong health problems begin from childhood abuse and
traumas. Failure to intervene in a way that will break the
cycle of abuse will sentence these young women to a
lifetime of abusive and criminal behavior, physical and
mental illness."
b) According to Planned Parenthood , "Teen prostitution is a
growing problem across the nation. A study by University
of Pennsylvania researchers says that 'child exploitation
is the most hidden form of child abuse in the United States
and North America today. It is the nation's least
recognized epidemic.' The study results say that tens of
thousands of United States, Mexican and Canadian children
and youths become victims of juvenile pornography,
prostitution, and trafficking each year.
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"The study estimates that in the United States, 325,000
children a year are subjected to sexual exploitation.
Among the sexually exploited children in the United States,
the study estimated that 121,911 ran away from home; 6,793
fled mental hospitals, foster homes or other institutions;
and 51,602 were thrown out of their homes by parents or
guardians. Other groups of commercially sexually exploited
children in the United States include girls in gangs;
transgender street youths; foreign children brought into
the United States illegally, especially from Africa, Asia,
Eastern Europe and elsewhere in the Americas; and United
States youth who are trafficked nationally and
internationally as part of organized sex crime rings.
"According to the study, in the United States, child sexual
exploitation affects as many boys as girls, but boys are
less well served by human-service and law enforcement
systems because of widespread belief that boys are better
able than girls to fend for themselves. Given the high
levels of emotional dysfunctions, drug abuse and violence
that exist for boys living on America's streets, however,
this is not true. In time, many boys shift from being
victims of sexual abuse to victimizing other boys and girls
as pimps and traffickers.
"The study, and many other law enforcement, judicial, and
social service and child advocacy organizations recommend
that providing protection and services to the sexually
exploited minors is a top priority. Planned Parenthood
believes this bill takes this first step."
8)Arguments in Opposition : None submitted.
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
American College of Obstetricians and Gynecologists
Planned Parenthood Affiliates of California
State of California Commission on the Status of Women
Opposition
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None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744