BILL ANALYSIS �
AB 90
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Date of Hearing: May 4, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 90 (Swanson) - As Amended: April 4, 2011
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill expands the definition of "human trafficking" to
include causing or persuading a minor under the age of 18 to
engage in a commercial sex act, as specified, with the intent to
commit pimping, pandering, sexual exploitation of a child,
enticement, use of a minor in pornography, extortion, or
solicitation of prostitution.
(Human trafficking involving a minor under the age of 18 is
punishable by four, six, or eight years in state prison.)
FISCAL EFFECT
Minor to moderate annual GF costs for increased state prison
terms, potentially in excess of $150,000 per year, to the extent
the expanded definition of human trafficking results in
additional commitments. In 2009 and 2010 combined, 13 persons
were committed to state prison under this section. If this bill
results in two additional persons per year receiving the
six-year midterm sentence, in four years the increased cost for
incarceration will exceed $250,000, assuming full sentence
credit and $50,000 per capita.
Though proponents of this bill contend it is merely a consistent
clarification of the intent of current law, if the
clarification is helpful in gaining convictions and state prison
commitments, there will be attendant costs. If there are no
attendant costs, there is arguably no need for the
clarification.
COMMENTS
AB 90
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1)Rationale. The author and sponsor, the Alameda County D.A.'s
Office, contend this bill simply clarifies an ambiguity in
state law, and a discrepancy between state and federal law,
regarding the need to prove force or coercion in the
trafficking of minors.
According to the Alameda County D.A., due to unclear
draftsmanship in current human trafficking law, the issue of
whether proof of force or coercion is required, when a minor
is sold for sex, is unclear. The ambiguity of 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.
Current Penal Code Section 236.1(f) states 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, Section 236.1 does not explicitly state
what it implies.
As a result, according to proponents, the statute may be
misinterpreted, resulting in the misconception that force or
coercion must be proven when trafficking victims are minors.
AB 2319 is intended to remedy what the Alameda D.A. views as a
drafting defect.
2)Current law specifies that depriving or violating the liberty
of another with the intent to commit 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 human
trafficking. Depriving or violating the liberty of another
includes substantial and sustained restriction of another's
liberty via fraud, deceit, coercion, violence, duress, menace,
or threat.
Human trafficking of a person over the age of 18 is punishable
by imprisonment by three, four, or five years. If the victim
is under 18 the offense is punishable by four, six, or eight
years.
3)Federal law defining human trafficking states in part, "The
AB 90
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term 'severe forms of trafficking in persons' means: sex
trafficking in which a commercial sex act 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." Federal law
does not require force, fraud or coercion if the victim is
under 18 years of age.
4)In addition, as minors cannot consent to sexual acts, the
proposed clarification appears consistent with the current
state law . As noted in the Assembly Public Safety analysis,
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 federal provision eliminating the need to
show force, this bill appears consistent with the state Penal
Code.
5)Similar legislation, AB 2319 (Swanson), 2010, was held on this
committee's Suspense File .
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081