BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
9
0
AB 90 (Swanson)
As Amended June 27, 2011
Hearing date: July 5, 2011
Penal Code
JM:mc
CRIMINAL ASSET FORFEITURE: SEXUAL EXPLOITATION OF MINORS
FUNDING OF PROGRAMS FOR MINORS USED FOR SEXUAL COMMERCE
HISTORY
Source: Alameda County Board of Supervisors
Prior Legislation: AB 17 (Swanson) - Ch. 211, Stats. 2010
Support: (Received prior to most recent version of the bill):
Los Angeles County District Attorney; California State
Sheriffs' Association; Child Abuse Prevention Center;
Crime Victims United of California; California Catholic
Conference; National Association of Social Workers,
California Chapter; Alameda County District Attorney;
California Nurses Association; California District
Attorneys Association; California Narcotic Officers'
Association; California Police Chiefs Association;
California Coalition for Youth
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
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AB 90 (Swanson)
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KEY ISSUES
SHOULD ANY CRIME IN WHICH THE DEFENDANT ENCOURAGED, INDUCED,
FORCED OR COERCED A MINOR TO ENGAGE IN A COMMERCIAL SEX ACT BE
THE BASIS FOR CRIMINAL PROFITEERING ASSET FORFEITURE, AS
SPECIFIED?
(CONTINUED)
SHOULD THE PROCEEDS OF CRIMINAL PROFITEERING ASSET FORFEITURE IN
SUCH CASES BE USED TO FUND PROGRAMS FOR MINORS WHO ARE SEXUALLY
EXPLOITED OR THE VICTIMS OF HUMAN TRAFFICKING, AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) provide that any crime in
which the defendant persuaded or induced a minor to engage in a
commercial sex act can be the basis of criminal profiteering
asset forfeiture; 2) provide that any crime in which the
defendant coerced or forced a minor to engage in a commercial
sex act can be the basis of criminal profiteering asset
forfeiture; 3) define a commercial sex act as sexual conduct for
which anything of value is given or received by any person; and
4) provide that the proceeds of criminal asset forfeiture in
such cases be used for programs to assist minors who are
sexually exploited or the victims of human trafficking, as
specified.
Existing law includes the criminal profiteering asset forfeiture
law. Criminal profiteering forfeiture applies where the
defendant is convicted of a specified offense and the defendant
has engaged in a pattern of criminal profiteering activity, as
specified. (Pen. Code � 186.3.) The following assets or
property is subject to forfeiture:
Any property interest whether tangible or intangible,
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acquired through a pattern of criminal profiteering
activity.
All proceeds of a pattern of criminal profiteering
activity, which property shall include all things of value
that may have been received in exchange for the proceeds
immediately derived from the pattern of criminal
profiteering activity.
Existing law states that forfeited cash and proceeds of the sale
of forfeited property shall be distributed as follows:
To the bona fide or innocent purchaser, conditional
sales vendor, or holder of a valid lien, mortgage, or
security interest, up to the amount of his or her interest
in the property or proceeds, as specified.
To the Department of General Services or local
governmental entity for all expenditures incurred in
connection with the sale of the forfeited property.
To the State General Fund or the general fund of the
local governmental entity, whichever prosecutes. (Pen.
Code � 186.8), except in the child pornography or recycling
fraud cases.
In a case of fraud involving the state recycling
program, to a special fund designated in the Public
Resources Code.
In the case of child pornography crimes, to the county
children's trust fund or State Children's Trust Fund
In a case involving human trafficking of minors for
purposes of prostitution or lewd conduct, or a case of
procurement of a minor, to the Victim-Witness Assistance
Fund for child sexual exploitation and abuse counseling and
prevention programs. Fifty percent of the funds shall be
granted to community-based organizations that serve minor
victims of human trafficking.
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Existing law includes human trafficking<1> (Pen. Code � 236.1)
in the list of crimes for which a forfeiture of assets can be
sought for criminal profiteering. (Pen. Code � 186.2, subd.
(a)(28).)
Existing law includes abduction or procurement by fraudulent
inducement for prostitution to the list of crimes for which a
forfeiture of assets can be sought for criminal profiteering.
(Pen. Code � 186.2, subd. (a)(31).)
Existing law includes numerous crimes concerning sexual
exploitation of minors for commercial purposes. These crimes
include:
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).)
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).)
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.
(Pen. Code � 266j.)
--------------------------
<1> Human trafficking involves depriving or violating the
personal liberty of another with the intent to effect or
maintain a felony enticement of a minor into prostitution,
pimping or pandering, abduction of a minor for prostitution,
extortion, or to obtain forced labor or services.
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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.)
Child pornography production: Using a minor to assist
in the making of child pornography for commercial purposes
is a felony, with a prison term of 3, 6, or 8 years. (Pen.
Code � 311.4, subd. (b).)
This bill provides that any case in which the defendant
persuaded, induced, coerced or forced a minor to engage in a
commercial sex act sex can be the basis of criminal profiteering
asset forfeiture, as specified.
This bill provides that the proceeds of criminal profiteering in
cases of commercial sexual exploitation of minors, as specified,
shall be distributed to the Victim-Witness Assistance Fund for
child sexual exploitation and abuse counseling and prevention
programs. Fifty percent of the funds shall be granted to
community-based organizations that serve minor victims of human
trafficking.
This bill defines a commercial sex act as sexual conduct for
which anything of value is given or received by any person.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
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state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
We are facing a modern day slave trade in our cities
across this state and across the nation. Countless
children, from foster youth to runaways from more
affluent neighborhoods are being trapped, sold and
mercilessly abused for profit. Studies show that more
than 300,000 children are being bought and sold into
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sexual slavery each year. And those numbers are on
the rise due to the state of our economy, decreased
prison rehabilitation efforts, and the resulting trend
of drug dealers turning to pimping as a more
profitable business with less risk of conviction. It
is time that we treat the young victims of sexual
exploitation that we find wandering the streets of
Broadway with the same care, sensitivity, and legal
protection that we provide a young victim found in a
classroom in the suburbs. AB 90 moves our state and
its law toward this important goal by
re-characterizing laws relating to modern day slavery,
properly categorizing the predators, and providing
resources to the victims.
2. Sex Trafficking of Minors - Estimated Prevalence
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<2> noted that California lacks comprehensive
statistics on human trafficking. Thus, many statistics on human
trafficking in general, and sex trafficking of children in
particular, are estimates. The task force report did cite
statistics from various sources, including a study finding that
80 percent of documented cases in California occurred in urban
areas and the majority of victims were non-citizens.
Approximately 50 percent of human trafficking cases involved
prostitution. A U.S. State Department report of global
trafficking estimated that minors constituted 50 percent of
trafficking victims. (2007 Alliance to Combat Trafficking.
Final Report, pp. 33-39.<3>)
The Federal Bureau of Investigation (FBI) conducts 24 Innocence
---------------------------
<2> The task force was administered by the California Attorney
General's Office.
<3>
http://ag.ca.gov/publications/Human_Trafficking_Final_Report.pdf .
The report includes citations to the each of the studies
quoted in the report.
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Lost child sexual exploitation task forces and working groups
across the country. Through 2007, 365 cases were opened and 281
child victims were located. The Shared Hope International
non-profit organization has reported that approximately 100,000
domestic minors are sexually trafficked each year.<4>
Numerous examples of trafficking cases were summarized in
California Alliance Report. In 2001, a Berkeley man was
prosecuted for smuggling 15 girls from India for labor and
sexual exploitation. In 2000, a man was prosecuted for bringing
women and girls from Mexico and forcing them to work as
prostitutes in Long Beach. Traffickers in Los Angeles and San
Francisco were prosecuted for forcibly taking 100 women from
Korea to be sex workers in massage businesses. (2007 Alliance
to Combat Trafficking, Final Report, p. 18.)
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<4>
http://www.sharedhope.org/Portals/0/Documents/SHI_National_Report
_on_DMST_2009.pdf
3. Criminal Profiteering Asset Forfeiture Law
Procedure
Criminal profiteering asset forfeiture is a criminal proceeding
held in conjunction with the trial of the underlying criminal
offense. Often, the same jury that heard the criminal charges
determines whether the defendant's assets were the ill-gotten
gains of criminal profiteering.
Proceeds
Under existing law the forfeited proceeds of criminal
profiteering are usually placed in the county general fund with
no directions for use. There are exceptions for forfeiture in
child pornography cases, fraud against the state recycling
program, human trafficking of minors for prostitution, and
procurement of minors for prostitution. In child pornography
cases, the money is deposited in the county's children's trust
fund or the State Children's Trust Fund for child abuse and
neglect prevention and intervention. Recycling forfeiture
proceeds are deposited in a special account created under the
Public Resources Code. (Pen. Code � 186.8; Welf. Inst. Code ��
18966 and 18969.)
The proceeds of forfeiture in cases of human trafficking of
minors for prostitution and procurement of minors for
prostitution are distributed to the Victim-Witness Assistance
Fund for child sexual exploitation and abuse counseling and
prevention programs. Fifty percent of the funds shall be
granted to community-based organizations that serve minor
victims of human trafficking.
Forfeiture Proceeds Under This Bill
This bill significantly expands the use of criminal asset
forfeiture proceeds to fund programs for preventing child sexual
exploitation and for helping victims of such crimes. The bill
does this by essentially providing that any crime in which the
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defendant sexually exploited a minor for commercial purposes can
be the basis for criminal profiteering asset forfeiture,
regardless of the specific statute violated by the defendant.
That is, the defendant's conduct controls, not his or her crime
of conviction. And, the bill provides that the forfeited assets
shall be used for preventing child sexual exploitation and
assisting child sexual exploitation victims.
AB 17 (Swanson) Chapter 211, Statutes of 2010, sets a precedent
for the use of asset forfeiture to fund programs to address
sexual exploitation and trafficking of minors. This bill
expands the policy set in AB 17 and likely makes it easier for
prosecutors to use criminal asset forfeiture in cases involving
the growing problem of commercial, sexual exploitation of
minors.
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