BILL ANALYSIS
AB 2319
Page 1
Date of Hearing: April 13, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2319 (Swanson) - As Introduced: February 19, 2010
As Proposed to be Amended in Committee
SUMMARY : Includes in the definition of "human trafficking",
as specified, the conduct of any person who causes, induces,
encourages or persuades a minor under the age of 18 to engage in
a commercial sex act, as specified, with the intent to effect
any of the following: pimping; pandering, as specified; sexual
exploitation of a child, enticement, as specified; using a minor
in pornography; extortion, solicitation of prostitution; or a
person who obtains, forced labor or services from a minor, as
specified. "Commercial sex act" is defined as any sexual
conduct, as specified, on account of which anything of value if
given or received from a minor.
EXISTING LAW :
1)Provides that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
felony violation of enticement of a minor into prostitution,
pimping or pandering, abduction of a minor for the purposes of
prostitution, extortion, or to obtain forced labor or
services, is guilty of human trafficking. [Penal Code Section
236.1(a).]
2)States human trafficking of a person over the age of 18 is
punishable by imprisonment in the state prison for three,
four, or five years. If the victim of the trafficking was
under 18 years of age at the time of the commission of the
offense, that offense is punishable by imprisonment in the
state prison for four, six, or eight years. [Penal Code
Section 236.1(b) and (c).]
3)States unlawful deprivation or violation of the personal
liberty of another includes substantial and sustained
restriction of another's liberty accomplished through fraud,
deceit, coercion, violence, duress, menace, or threat of
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unlawful injury to the victim or to another person, under
circumstances where the person receiving or apprehending the
threat reasonably believes that it is likely that the person
making the threat would carry it out. [Penal Code Section
236.1(d).]
4)States any person who solicits or who agrees to engage in or
who engages in any act of prostitution is guilty of
misdemeanor disorderly conduct. 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 California 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. [Penal Code Section 647(b).]
5)States any person who, knowing another person is a prostitute,
lives or derives support or maintenance in whole or in part
from the earnings or proceeds of the person's prostitution, or
from money loaned or advanced to or charged against that
person by any keeper or manager or inmate of a house or other
place where prostitution is practiced or allowed, or who
solicits or receives compensation for soliciting for the
person, is guilty of pimping, a felony, and shall be
punishable by imprisonment in the state prison for three,
four, or six years. [Penal Code Section 266h(a).]
6)States any person who, knowing another person is a prostitute,
lives or derives support or maintenance in whole or in part
from the earnings or proceeds of the person's prostitution, or
from money loaned or advanced to or charged against that
person by any keeper or manager or inmate of a house or other
place where prostitution is practiced or allowed, or who
solicits or receives compensation for soliciting for the
person, when the prostitute is a minor, is guilty of pimping a
minor, a felony, and shall be punishable as follows:
a) If the person engaged in prostitution is a minor over
the age of 16 years, the offense is punishable by
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imprisonment in the state prison for three, four, or six
years.
b) If the person engaged in prostitution is under 16 years
of age, the offense is punishable by imprisonment in the
state prison for three, six, or eight years. [Penal Code
Section 266h(b)(1) and (2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Due to unclear
draftsmanship in our current human trafficking law, the issue
of whether force, fraud, or coercion (FFC) is required, where
the trafficking victim is under 18, is unnecessarily unclear
and somewhat debatable. Because our state trafficking law
refers to federal law, understanding the interplay between
federal and state law in this area is a necessary step in
properly charging and successfully prosecuting a trafficking
case. AB 2319 eliminates the need to rely on federal law when
using our state law to fight one of our nation's least
recognized epidemics. By tidying up the language of Section
236.1 of the Penal Code, and eliminating the unintended
ambiguity it contains, AB 2319 takes the guesswork out of
prosecuting trafficking cases.
"Section 236.1 of the Penal Code does not explicitly state what
it implies. The current law is unclear as to whether or not a
showing of force, fraud, or coercion (FFC) are required when
child victims under 18 years of age are trafficked. AB 2319
eliminates this ambiguity as it pertains to the showing of FFC
when child victims under 18 years of age are trafficked. The
proposed change would make this point as clear as Federal law
is on this issue, which also requires no showing of FFC when
the victim is under 18 years of age.
"Because Section 236.1 of the Penal Code only carries an
eight-year prison sentence, prosecutors do not rely on this
statute to prosecute a trafficker who uses FFC to effectuate
child commercial sexual exploitation. Other statutes, such as
kidnap, rape, etc., which carry a life sentence, are relied
upon where minors are trafficked with FFC. To interpret 236.1
as requiring FFC would render the law redundant, 236.1 has
utility only where a child is trafficked without proof of FFC.
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The minimal eight-year exposure that 236.1 provides is
grossly inadequate to justify a prosecution under 236.1 when
proof of FFC exists in the commercial sexual exploitation of a
child.
2)Human Trafficking : "Human trafficking" is defined as "any
person who deprives or violates the personal liberty of
another person with the intent of effect or maintains a felony
violation of enticement, pimping, pandering, abduction for the
purposes of prostitution, employing a minor in sexually
explicit material, and extortion." [Penal Code Section
236.1(a).] The crime of human trafficking was added to the
Penal Code in 2005. Although all of the crimes listed could
be charged individually, the author stated:
"Human trafficking is one of the most pervasive and damaging,
yet unrecognized problems facing our country and our state.
Human trafficking is present day slavery, involving the
recruitment, transportation, or sale of persons for forced
labor. Through the use of violence, threats, and coercion,
enslaved persons may be forced to work in the sex trade,
domestic labor, factories, hotels or restaurants, agriculture,
peddling, or begging. Members of these vulnerable populations
are actively recruited by traffickers, some of whom are
connected to organized crime. Trafficking recruiters often
mislead victims into believing that the opportunities
recruiters offer will bring the victims and their loved ones a
better life. Traffickers then use techniques such as debt
bondage, isolation from the public, and confiscation of
passports, visas, or pieces of identification to keep victims
enslaved. Women and children comprise the majority of
trafficking victims. The low social status of women in many
parts of the world facilitates a thriving trafficking
industry. Children are not safe from trafficking and
exploitation. Victims of trafficking report children as young
as four years old being sold into slavery, often for sexual
purposes. In 2001, the United States Department of Justice
concluded that between 300,000 and 400,000 American children
are victims of sexual exploitation every year, many as young
as 11 or 12 years of age, some even younger." [Author's
statement, AB 22 (Lieber), Chapter 240, Statutes of 2005.]
3)Federal Definition of Human Trafficking : Federal law states
in relevant part, "The term 'severe forms of trafficking in
persons' means: sex trafficking in which a commercial sex act
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is induced by force, fraud, or coercion, or in which the
person induced to perform such act has not attained 18 years
of age; or the recruitment, harboring, transportation,
provision, or obtaining of a person for labor or services,
through the use of force, fraud, or coercion for the purpose
of subjection to involuntary servitude, peonage, debt bondage,
or slavery." [22 USCS 7102(8)]. Federal law does not require
force, fraud or coercion if the victim is under 18 years of
age. Penal Code Section 236.1(f) states, "Legislation finds
that the definition of human trafficking in this section is
equivalent to the federal definition of a severe form of
trafficking found in Section 7102(8) of Title 22 of the United
States Code." Although there is no indication of such in the
legislative history of AB 22, given that Penal Code Section
236.1(f) directly cross-references that section of federal
law, it is possible that the original statute did contemplate
an exception to the fear, fraud or coercion requirement for
minors.
Moreover, several other states do not require a showing of
force, fraud of coercion in commercial sex trafficking cases
involving minors. Those states include Arizona, Delaware,
Idaho, Illinois, Iowa, Kansas, Kentucky, Minnesota,
Mississippi, Missouri, Nebraska, North Dakota, Tennessee and
Vermont.
According to the California Alliance to Combat Trafficking and
Slavery Task Force, "In October 2000, Congress enacted the
Trafficking Victims Protection Act of 2000 (TVPA), Public Law
106-386, to prosecute traffickers, protect victims and prevent
trafficking from occurring. Prior to that, no comprehensive
federal law existed to protect victims of trafficking or to
prosecute their traffickers. This law made human trafficking
a federal crime with severe penalties; created new law
enforcement tools to strengthen the prosecution and punishment
of traffickers; addressed the means of coercion used by
traffickers, including psychological coercion, trickery and
the seizure of documents; promoted prevention measures; and
made victims of trafficking eligible for benefits and services
under federal or state programs once they become certified by
the U.S. Department of Health and Human Services (DHHS).
"The Trafficking Victims Protection Reauthorization Act of 2003
(TVPRA 2003), Public Law 108192, augmented the legal tools
that can be used against traffickers, including empowering
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victims to bring federal civil suits against traffickers for
actual and punitive damages. It also encouraged the nation's
state and local law enforcement agencies to participate in the
detection and investigation of human trafficking cases.
"The law was reauthorized again in 2005 (TVPRA 2005), Public Law
109-164, and provided additional anti-trafficking resources,
including grant programs to assist state and local law
enforcement efforts in combating trafficking in persons and to
expand victim assistance programs to U.S. citizens or resident
aliens subjected to trafficking. The number of federal
prosecutions against traffickers has increased significantly
since these laws were enacted. Between 2001 and 2005, U.S.
attorneys investigated 555 suspects for violations of federal
human trafficking statutes; of investigations closed in that
time period, 146 suspects were prosecuted. Yet, the number of
traffickers prosecuted is low considering the 14,500 to 17,500
victims estimated to be trafficked into the United States each
year.
"In order to strengthen the nation's efforts to enforce
trafficking laws, the U.S. Department of Justice has
encouraged state involvement through the development of the
Model State Anti-Trafficking Criminal Statute (2004), designed
to ensure a strong partnership between state and federal
partners in combating trafficking. As of the end of July
2007, 32 states had passed criminal anti-trafficking laws."
[Human Trafficking in California, Final Report (October 2007),
p. 21.]
The California Alliance to Combat Trafficking and Slavery Task
Force made the following recommendations:
"The California Trafficking Victims Protection Act has added
valuable new tools in law enforcement's and prosecutors'
arsenal to investigate and prosecute human traffickers.
However, the Task Force identified some shortcomings in the
law and steps that could strengthen and expand its use as a
prosecutorial tool. These shortcomings include: (1)
California's definition of human trafficking is different than
the federal definition, especially as it relates to
trafficking protections for minors. California's definition
should be changed to mirror the federal definition and
eliminate the elements of force, fraud and coercion if the
trafficking victim is a minor. (2) Penalties for traffickers
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are lower in California's law than those in federal law.
Penalties for traffickers should more closely reflect federal
trafficking penalties and penalties for sex crimes under
existing state law. (3) There is no provision in the law that
allows counties to file charges in cross-jurisdictional human
trafficking cases on behalf of all counties involved, as
California law provides in cases of child abuse and domestic
violence." [Human Trafficking in California, Final Report
(October 2007), p. 65.]
4)Domestic Trafficking is an Increasing Problem : Although Penal
Code Section 236.1 grew out of an increase in women and girls
being shipped into the United States from abroad for purposes
of sexual exploitation or forced labor, those girls now live
in the United States and are being shuttled from city to city
also for sexual exploitation. According to the Polaris
Project, "In 2000, 244,000 American children and youth were
estimated to be at risk of child sexual exploitation including
commercial sexual exploitation.
"Victims of human trafficking in the United States also include
U.S. citizens and residents trafficked within its borders.
Much like the majority of other countries affected by human
trafficking, the U.S. has a large internal or 'domestic'
component of human trafficking for the purposes of both sexual
and labor exploitation. One of the largest forms of domestic
sex trafficking in the U.S. involves traffickers who coerce
women and children to enter the commercial sex industry
through the use of a variety of recruitment and control
mechanisms in strip clubs, street-based prostitution, escort
services, and brothels. Domestic sex traffickers, commonly
referred to as 'pimps', particularly target vulnerable youth,
such as runaway and homeless youth, and reinforce the reality
that the average age of entry into prostitution is 12-13 years
old in the U.S. Recent cases have also demonstrated that
labor trafficking of U.S. citizens occurs in locations such as
restaurants, the agricultural industry, traveling carnivals,
peddling/begging rings, and in traveling sales crews."
(Polaris Project,
http://www.polarisproject.org/content/view/60/8 ).
According to the sponsor of the bill, the Alameda County
District Attorney's Office, Human Exploitation and Trafficking
Unit:
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"The commercial sexual exploitation of children is the most
hidden form of child abuse in North America today. It is the
Nation's least recognized epidemic. (Richard Estes, Univ. of
Pennsylvania School of Social Work Center for Youth Study).
Traffickers target children because of their vulnerability and
gullibility as well as the market demand for young victims.
Viewing the commercial sexual exploitation of children as
prostitution, pimping, and pandering fails to recognize the
epidemic size and abusive nature of this rapidly growing
problem facing our state and country.
"The Commercial sexual exploitation of children is big business.
Sadly, today there is no better return on money than selling
a child for sex. The sale and purchase of children for sex is
the second largest industry in our country and has become a
multi-billion dollar industry that is expected to surpass the
illicit trade in guns and narcotics within ten years."
[Dobrisky, Paula J., U.S. Dept. of State, Ending Modern Day
Slavery: U.S. Efforts to Combat Trafficking in Persons (June
2004).]
5)Consent : As noted above, Penal Code Section 236.1(a) requires
a person to deprive or violate the personal liberty of another
with the intent to commit a specified crime. However, there
is no distinction within the definition of human trafficking
for victims that are under a certain age. Existing law
related to lewd and lascivious acts with a person 14 years of
age or under does not require a showing of force. [Penal Code
Section 288(a); See also Penal Code Section 285 (incest);
Penal Code Section 311.3 (sexual exploitation of a minor for
pornographic purpose); Penal Code Section 311.4 (use of minor
to perform prohibited acts); Penal Code Section 261.5(a)
(statutory rape).] As a general matter, the law presumes
persons under a specified age cannot consent to sexual conduct
[CALJIC No. 10.41]. Consent is not required for several other
offenses involving sexual contact with children. There is
arguably no reason to require force in sexual commercial
trafficking cases involving minors as they are not capable of
consent at any rate. Moreover, given that Penal Code Section
236.1(f) clearly cross-references the specific federal
provision eliminating the need to show force, this bill seems
a consistent clarification and is congruent with the Penal
Code.
6)Pimping and Pandering : Existing law prohibits pimping and
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pandering. Pimping is defined as "any person who, knowing
another person is a prostitute, lives or derives support or
maintenance in whole or in part from the earnings or proceeds
of the person's prostitution, or from money loaned or advanced
to or charged against that person by any keeper or manager or
inmate of a house or other place where prostitution is
practiced or allowed, or who solicits or receives compensation
for soliciting for the person, is guilty of pimping, a felony,
and shall be punishable by imprisonment in the state prison
for three, four, or six years." [Penal Code Section 266h(a).]
A conviction for pimping requires that the victim actually
engage in prostitution and that the alleged "pimp" solicit or
receive compensation. [People vs. James (1969) 274 Cal.App.
2nd 608; CALJIC 10.70.1.]
Pandering is defined as "any person who does any of the
following is guilty of pandering, a felony, and shall be
punishable by imprisonment in the state prison for three,
four, or six years: procures another person for the purpose
of prostitution; by promises, threats, violence, or by any
device or scheme, causes, induces, persuades or encourages
another person to become a prostitute; procures for another
person a place as an inmate in a house of prostitution or as
an inmate of any place in which prostitution is encouraged or
allowed within this state; by promises, threats, violence or
by any device or scheme, causes, induces, persuades or
encourages an inmate of a house of prostitution, or any other
place in which prostitution is encouraged or allowed, to
remain therein as an inmate; by fraud or artifice, or by
duress of person or goods, or by abuse of any position of
confidence or authority, procures another person for the
purpose of prostitution, or to enter any place in which
prostitution is encouraged or allowed within this state, or to
come into this state or leave this state for the purpose of
prostitution, or; receives or gives, or agrees to receive or
give, any money or thing of value for procuring, or attempting
to procure, another person for the purpose of prostitution, or
to come into this state or leave this state for the purpose of
prostitution." [Penal Code Section 266i(b)(1) to (6).]
Pandering requires the specific intent to induce another person
to become a prostitute and subsequently procures that person
for the purpose of becoming a prostitute, by promise, threat,
fraud or compensation. (CALJIC 10.71.) However, in order to
find a defendant guilty of pandering, the alleged victim
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cannot already be engaged in prostitution. [People vs. Wagner
(2009) 170 Cal.App.4th 499, 510-511 ("And because the
undisputed evidence in this case establishes that the young
woman whom [the defendant] was accused of encouraging to
become a prostitute was already engaged in prostitution, the
judgment convicting him of pandering in violation of section
266i, subdivision (b)(1), is reversed").]
Pimping and pandering require proof of elements that are not
often available in domestic trafficking cases involving
underage victims. Traffickers create a psychologically
sophisticated bond with their victims without using violence.
Although the traffickers may become violent, this is often the
case after the victim has engaged in several act of
prostitution. As a result, existing law appears inadequate to
sufficiently punish the type of recruitment most traffickers
use to lure children into sexual commercial acts.
7)Prison Overcrowding : Although this is a serious problem with
inadequate existing remedies, California's overwhelming prison
population and pending federal prisoner release order demands
an examination of any expanded penalty that might increase the
number of offenders sentenced to state prison. A person
convicted of Penal Code Section 236.1 may be sentenced to a
term of three, five or seven years in state prison. Although,
nothing in existing law prohibits a court from granting
probation in this case.
The California Policy Research Center (CPRC) issued a report on
the status of California's prisons. The report stated,
"California has the largest prison population of any state in
the nation, with more than 171,000 inmates in 33 adult
prisons, and the state's annual correctional spending,
including jails and probation, amounts to $8.92 billion.
Despite the high cost of corrections, fewer California
prisoners participate in relevant treatment programs than
comparable states, and its inmate-to-officer ratio is
considerably higher. While the nation's prisons average one
correctional officer to every 4.5 inmates, the average
California officer is responsible for 6.5 inmates. Although
officer salaries are higher than average, their ranks are
spread dangerously thin and there is a severe vacancy rate."
[Petersilia, Understanding California Corrections, CPRC, (May
2006).] California's prison population will likely exceed
180,000 by 2010.
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According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out, (2007) pg. 1, 2.]
On January 12, 2010, the Three Judge Panel issued its final
ruling ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] This order is stayed
pending appeal to the United States Supreme Court.
As noted by the Little Hoover Commission and the California
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Policy Research Center, unconstitutionally overcrowded prisons
are profound byproduct of two decades of arbitrary and
capricious penalty increases with little or no justification.
But one unintended yet equally significant consequence of
haphazard penalty increases is the inability to expand crimes
or increase sentences where it is truly warranted. The nature
of crime and criminal offenders changes over time, the law
must reflect those changes in order to provide a measure of
protection to society.
8)Argument in Support :
a) According to the Alameda County District Attorney's
Office , "Due to unclear draftsmanship in our current human
trafficking law, the issue of whether proof of force or
coercion is required, when a minor is sold for sex, it's
unnecessarily unclear and somewhat debatable. The
ambiguity of our state law places local prosecutors at a
significant disadvantage in the fight to protect vulnerable
minors and hold accountable those who profit from
exploiting them. We cannot afford to let another day pass
without clarifying this ambiguity in our state law.
"Despite the preconception that human trafficking is a third
world phenomenon, it is clear that domestic minor sex
trafficking is a universal crisis occurring in our own
backyard. Several studies have shown that upwards of
244,000 and 325,000 American children and youth are at-risk
each year of becoming victims of sexual exploitation,
including victims of commercial sexual exploitation. It is
well recognized that '[t]he commercial sexual exploitation
of children is the most hidden form of child abuse in North
America today. It is the Nation's least recognized
epidemic.' (Richard Estes, Univ. of Pennsylvania School of
Social Work Center for Youth Study).
"California is a well-known hub of domestic minor sex
trafficking. Trafficking is more prevalent on the West
Coast of the United States than on the East Coast.
[Freedom Denied: Forced Labor in California, Feb.2005,
Human Rights Center, University of California, Berkeley.]
The epidemic nature of the problem facing our state is in
large part driven by the fact that the commercial sexual
exploitation of children is extremely profitable and hard
to prove. Given the rapidly growing size and seriousness
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of this problem, we can no longer afford to guess what the
law means as we struggle to protect our children and send
the message that selling a child for sex in California does
not pay.
"The Polaris Project, a highly respected Washington, DC based
nonprofit working with victims of human trafficking,
conducted an informal analysis in 2005 of a pimp's wages.
With a $500 a night quota, which is common for minors in
Oakland, working 7 days a week, Polaris Project estimated
that the pimp made $632,000 in one year from the four young
women and girls in his stable. Sadly, today there is no
better return on money than selling a child for sex. The
sale and purchase of children for sex is the second largest
industry in our country and has become a multi-billion
dollar industry that is expected to surpass the illicit
trade in guns and narcotics within ten years. [Dobrisky,
Paula J., (June 2004) U.S. Dept. of State, Ending Modern
Day Slavery: U.S. Efforts to Combat Trafficking in
Persons.]
"In order to stand a fighting chance against the traffickers,
and deter them from reaping huge profits in exploiting our
youth, local prosecutors in California need a human
trafficking law free of ambiguity and as effective as
federal law in protecting minors.
"Current Penal Code Section 236.1(f) states that the
'Legislature finds that the definition of human trafficking
in this section is equivalent to the federal definition.'
Despite the fact that the federal definition clearly states
that prosecutors do not have to prove 'force' or 'coercion'
in domestic minor sex trafficking cases, and the language
of our state law seeks to mirror federal law, Section 236.1
of the Penal Code does not explicitly state what it
implies.
"As a result, room for misinterpretation exists sometimes
resulting in the misconception that force or coercion must
be proven when trafficking victims are minors. AB 2319
simply remedies this defect in draftsmanship - no more, no
less.
"Because our state trafficking law refers to federal law,
understanding the interplay between federal and state law
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in this area is a necessary step in properly charging and
successfully prosecuting a trafficking case. AB 2319
streamlines prosecution efforts by eliminating the need to
research and rely on federal law when using our state law
to fight an epidemic plaguing our state. By tidying up the
language of Section 236.1 of the Penal Code, and
eliminating the unintended ambiguity it contains, AB 2319
takes the guesswork out of prosecuting trafficking cases.
The proposed change would make our state law as clear as
federal law is on this issue, which also requires no
showing of force when the victim is under 18 years of age.
"It bears brief mention that because 236.1 only carries an
8-year prison top, prosecutors do not rely on this human
trafficking statute to prosecute traffickers who use force
or coercion to effectuate child commercial sexual
exploitation. Other statutes, such as kidnap, rape and
extortion, which carry a life top, are relied upon where
minors are forcibly trafficked. To interpret 236.1 as
requiring proof of force would render the law redundant.
236.1 has utility only where a minor is trafficked without
proof of force or coercion. The minimal 8-year exposure
that 236.1 provides is grossly inadequate to justify a
prosecution under 236.1 when the use of force exists in
connection with the commercial sexual exploitation of a
minor.
"AB 2319 does not seek to provide minors with any greater
protection than they are afforded under federal law or
other existing state law. To the contrary, AB 2319 only
seeks to ensure that minors receive what the Constitution
entitles them to - equal protection under the law - equal
protection under both federal and state law.
Significantly, AB 2319 only seeks to mirror federal law on
the very narrow issue of whether proof of force must be
shown when a minor is trafficked.
"Domestic trafficking is no less serious simply because a
minor is trafficked across county or state lines rather
than national borders. The harm to and exploitation of the
child is the same whether she is from China or California.
By removing any ambiguity from Penal Code Section 236.1 to
mirror federal law, AB 2319 accurately reflects the
'victimology' and dynamic of how minors are in fact
domestically trafficked for commercial sex purposes.
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"In California, a minor is defined by law as someone under
the age of 18. A minor is legally incapable of consenting
to sex in California. Our laws are designed to protect
minors based on the recognition that children under the age
of 18 are not fully developed and lack mature judgment,
despite their belief to the contrary.
"In addition to the market demand for young victims,
traffickers target minors because they of their
vulnerability and gullibility. The victimology of
commercially sexually exploited youth makes clear, however,
that these minors are even more vulnerable than their
peers.
"In Alameda County, a 2007 study found that about 75% of Bay
Area youth, who were being sexually exploited, were
dependents of the Juvenile System and placed in group homes
or foster care homes. [MISSEY Inc, SACEY Assessment
Report, 2007. Approximately 70% of the youth seen in the
course of this study had lived in a group home at some
point in their life. 88% of the participants in the study
had run away from home one or more times. 75% of minors
reported being raped one or more times in their life. 70%
of them report being assaulted at least once while being
exploited. (Ibid.)]
"Because of past or current circumstances, minors who are sex
trafficked suffer from significant physical and mental
health problems, including post-traumatic stress disorder,
depression, and anxiety disorders resulting from being
displaced and abused. [Ashley, J., (2008) The Commercial
Sexual Exploitation of Children and Youth in Illinois,
Illinois Criminal Justice Information Authority].
"As a result, they suffer from arrested development and
heightened vulnerability and gullibility. When you add to
this mix the fact that they are looking for love in all the
wrong places, because they do not know what love looks
like, and they also experience trauma bonding like many
traditional victims profiled in the media, it becomes clear
why they make perfect prey and need the protection of our
laws even more than most other minors. AB 2319 seeks to
ensure that these at-risk youth receive at least the same
protection as minors in the federal system.
AB 2319
Page 16
"Any attempt to limit the protection of AB 2319 to children
16 years of age or younger would not only violate the
mandate of 236.1(f), and the equal protection clause of our
Constitution, but would also codify a baseless stereotype.
There are no sound justifications for the stereotype that
older children, who have been more sexually activity, are
somehow more sly, savvy, or able to object to their
exploitation. Quite to the contrary, a longer period of
abuse is often associated with decreased self-esteem and
increased dysfunctionality and vulnerability.
"Until California changes the age of consent to something
other then 18, all children who are subjected to sex with
adults must be viewed as victims of child sexual abuse.
Though statutory rape laws provide lesser penalties for
engaging in sex with older children, it must not be
forgotten that these laws are on the books to deter sexual
relationships with minors - with emphasis on the word
relationship. To compare the high school junior who has
sex with her college boyfriend to the vulnerable runaway
who is targeted as prey and sold by her pimp is to compare
apples to oranges. If that same college boyfriend
exploited and profited from the sale of his high school
girlfriend for sex, it would no longer be a statutory rape
case. Similarly, if that college boyfriend took
pornographic pictures of his 17 year old girlfriend, and
placed them on the internet, he would be facing child
pornography charges with an 8 year prison exposure.
"Any dialogue about limiting the protection of our state
human trafficking law, based on the age of the child,
misses the mark and falls into the abyss of myth and
misconception. This is where the traffickers hope and
expect us to go. But we cannot protect our children from
such a dark place. Only traffickers profit from
stereotypes such as these. Labeling sexually exploited
minors as fast and loose, or as prostitutes, criminalizes
the children and unjustifiably shifts responsibility away
from the traffickers where it rightfully belongs. Whether
a child is lured, tricked, and sold for sex at the age of
14 or 17, the harm and risk to that child is the same. The
end result is also the same - child abuse and modern day
slavery.
AB 2319
Page 17
"The internet has radically changed the nature and scope of
traditional pimping and pandering. Pimps were previously
limited by geography and tied to offering 1 or 2 girls on
street corners. Now with the push of a button on his
laptop or cell phone, and the aid of Craigslist, he can
market and sell children all over the country from the
comfort of his living room. The commercial sexual
exploitation of children is by everyone's account very big
and very easy money. As a result, many are now entering
the field from drug dealers to gangs and organized crime.
The label of pimping and pandering fails to accurately
describe the epidemic size and pervasive nature of this
rapidly growing problem facing our state and country.
"Our state's pimping and pandering law was written before the
advent of the internet. As a result, it does not
adequately address the current dynamic and method of sex
trafficking in America. For example, if on any prior
occasion a child had engaged in any act of prostitution,
prosecutors are barred by Penal Code section 266i(a)(2)
from charging a pimp with soliciting or encouraging that
child to prostitute for him.
"That traditional pimping and pandering law is outdated is
perhaps best illustrated by the language utilized in
sections 266h and 266i where every other word is either
prostitute or pimp. We have already discussed why the term
pimp fails to adequately describe the sophisticated and
obscenely profitable multi-billion dollar industry that
domestic trafficking has become.
"What must be revisited, however, is the issue that calling a
child a prostitute suggests an element of voluntariness and
implies that the child consented to the sexual activity.
In California, however, minors under the age of 18 are
legally incapable of giving consent. This label also
suggests that the child is a willing participant in the
activity. Many victims of child commercial sexual
exploitation, however, are often tricked into prostitution
and controlled through psychological pressure or physical
violence. Whether or not force is used, or children
realize they are victims of exploitation, the commercial
sexual exploitation of minors is child abuse and modern day
slavery.
AB 2319
Page 18
"In addition, the term 'prostitute' is often associated with
criminal wrongdoing and 'child prostitutes' are typically
arrested and treated as criminals. In reality, however,
these children are victims of trickery and abuse, who need
our help. Finally, referring to these children as
commercially sexually exploited youth, as opposed to
prostitutes, acknowledges their victimization and shifts
responsibility where it rightfully belongs - to the pimps
and facilitators - the traffickers who profit from
exploiting our children.
"Our state human trafficking law, and the clarification
contained within AB 2319, takes this dialogue into the 21st
century where we must stage our fight with our eyes wide
open to the reality and severity of this epidemic.
"Prosecution under 266h and 266i, our state's traditional
pimping and pandering law, often result in jury trial
because these statutes mandate the imposition of a prison
sentence upon conviction. Though pimping and pandering
convictions require a prison sentence, significantly under
our state's human trafficking law prison is discretionary,
not mandatory. Unlike section 266h and 266i, probation is
an acceptable disposition under section 236.1. Pimps who
would otherwise be mandated to serve time in state prison,
under traditional pimping and pandering laws, could instead
receive probation where appropriate under the human
trafficking law.
"Given our State's budgetary issues, it makes financial sense
to clarify any ambiguity in the statute so that it will be
relied upon by prosecutors in lieu of outdated and costly
pimping and pandering statutes.
"AB 2319 will not change the number of traffickers subject to
prosecution because AB 2319 neither contains any additional
crimes nor does it subject additional people to prosecution
for trafficking crimes. AB 2319 merely explicitly states
what 236.1(f) already implies. AB 2319 will decrease the
number of jury trials, promote early resolution of cases
short of trial, and reduce the number of individuals
incarcerated for trafficking.
"AB 2319 also allows prosecutors to implement AB 17 fines and
forfeiture provisions, thereby providing an influx of much
AB 2319
Page 19
needed funding to community based organizations supporting
sexually exploited minors. In order to access AB 17 human
trafficking fund fines and forfeiture provisions, a
trafficking, pimping, or pandering conviction is first
required. With incarceration off the table, traffickers
are more likely to resolve their cases short of trial for a
probation disposition, and agree to forfeiture proceedings
and imposition of AB 17 fines. Because 236.1 allows for a
probation disposition and imposition of AB 17 financial
penalties, AB 2319 will reduce the prison population and
also have a direct, positive fiscal impact.
b) According to the Children's Advocacy Institute , "In our
20 years working with children in the juvenile court system
we are extremely aware of the impact commercial sexual
exploitation has on the children in our community. This
bill is vital to bringing California law in line with the
federal definition of human trafficking, recognizing anyone
who trafficks a child for commercial sex is a human
trafficker. Current Penal Code Section 236.1 states that
the 'Legislature finds that the definition of human
trafficking in this section is equivalent to the federal
definition.' Despite the fact that the federal definition
clearly states that prosecutors do not have to prove
'force' or coercion' when the victims are children, the
ambiguity in the state law may result in the misconception
that force or coercion must be proven when trafficking
victims are under 18.
"This bill would not only give prosecutors the ability to try
these perpetrators under the human trafficking statute but
it would also open the door to civil remedies for the
children who suffer the worst form of exploitation at their
hands. These funds can be used to provide much needed
education, counseling, health care and mentoring of these
child victims. Sexual exploitation of children for money
is one of the worst crimes an adult can commit. We should
give prosecutors as many tools as possible to prosecute
these perpetrators and provide services to their victims.
9)Related Legislation :
a) AB 16 (Swanson) would have added human trafficking to
the list of "serious" and "violent" felonies for purposes
of sentencing pursuant to the "Three Strikes" Law. AB 16
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Page 20
was held on the Assembly Committee on Appropriations'
Suspense File.
b) AB 17 (Swanson), Chapter 211, Statutes of 2009 specified
that in any case involving human trafficking of minors for
purposes of prostitution or lewd conduct, or in any case
involving abduction or procurement by fraudulent inducement
for prostitution, in lieu of the distribution procedure
described above, the proceeds shall be deposited in the
Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child
sexual abuse victim counseling centers and prevention
programs.
c) AB 559 (Swanson) would have included in the definition
of "human trafficking", as specified, the conduct of any
person who causes, induces or persuades or who attempts to
cause, induce or persuade a minor at the time of the
commission of the act, to engage in any of the following:
pimping; pandering; enticement, as specified; using a minor
in pornography; extortion, solicitation of prostitution and
loitering with the intent to commit prostitution; or a
person who obtains, or attempts to obtain, forced labor or
services from a minor, as specified. AB 559 was never
heard by this Committee.
10)Prior Legislation :
a) AB 1278, Chapter 258 (Lieber) Statutes of 2007, modified
the definition of a "perpetrator of an offense of human
trafficking of a minor" to be any person who causes,
induces, or persuades, or attempts to cause, induce or
persuade, a child to engage in a commercial sex act as
described in specified offenses or who obtains forced labor
or services from such a child, is guilty of human
trafficking. AB 1278 was significantly amended in the
Senate Committee on Public Safety and later chaptered
without the original provisions of AB 1278 (Ma).
b) AB 22 (Lieber), Chapter 240, Statutes of 2005,
established the California Trafficking Victims Protection
Act. This Act established civil and criminal penalties for
human trafficking and allowed for forfeiture of assets
derived from human trafficking. In addition, this Act
required law enforcement agencies to provide Law
AB 2319
Page 21
Enforcement Agency Endorsement to trafficking victims,
providing trafficking victims with protection from
deportation and created the human trafficking task force.
REGISTERED SUPPORT / OPPOSITION :
Support
California Narcotics Officers Association
California Peace Officers Association
California Police Chiefs Association
Children's Advocacy Unit
Coalition to Abolish Slavery and Trafficking
Oakland Police Department
Concerned Women for America
Crime Victims United
Los Angeles County District Attorneys Office
Office of the District Attorney, Alameda County
Orange County Human Trafficking Task Force
Shared Hope International
4 private individuals
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744