BILL ANALYSIS �
AB 1940
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Date of Hearing: May 16, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 1940 (Hill) - As Amended: March 29, 2012
Policy Committee: Public
SafetyVote: 6-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill authorizes a court to seal a record of conviction for
prostitution based on a finding that the petitioner is a victim
of human trafficking, that the offense is the result of the
petitioner's status as a victim of that crime, and that the
petitioner is therefore factually innocent. Specifically, this
bill:
1)States that if the court finds the petitioner to be factually
innocent of the charges of which he or she was convicted, the
court shall set aside the conviction and grant the
petitioner's request to seal and subsequently destroy his or
her record.
2)Declares that a convicted person is factually innocent in any
case in which that person's participation in an offense
relating to prostitution was a result of having been a victim
of human trafficking under state or federal law, as specified.
3)Makes a finding that a petitioner is factually innocent as a
result of having been a victim of human trafficking admissible
as evidence in a civil action brought by the petitioner.
FISCAL EFFECT
Unknown annual state trial court costs, potentially in excess of
$150,000. Based on about 9,000 misdemeanor adult dispositions
for prostitution statewide, if just 1% pursued such a petition,
with an average of five hours of court time per case, the annual
GF cost to the state trial courts would exceed $200,000.
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COMMENTS
1)Rationale . The author and proponents contend current law
relating to record-sealing and expungement does not
sufficiently address the special circumstances of human
trafficking, and that prostitution related to human
trafficking merits a special statute.
According to the author, "When victims come in contact with
law enforcement, they are often identified as delinquents,
habitual runaways, drug dealers, and prostitutes and it is an
assertion that is not contested. Often times victims of sex
trafficking do not self-identify as victims. Many times the
denial results from fear of physical and psychological abuse
inflicted by the trafficker and/or the trauma bond that is
developed through the victimization process. Victims are
often coached to lie to authorities and due to the trauma bond
will often return to the person who is exploiting them. This
makes it very difficult for law enforcement to see the person
as a victim. Instead the victim is seen as criminal, which
leads to a criminal record that will have lasting effects on
the victim's life."
2)Should persons convicted of a crime be declared factually
innocent? Statute governing sealing and destruction of
records and determination of factual innocence is for the
benefit of defendants who have not committed a crime. The
statute applies only to persons who have not been convicted of
crime, on the rationale that people who have not committed a
crime should be entitled to a judicial remedy to make up for
putting the person through criminal proceedings.
Recognizing the horrible circumstances of human trafficking,
perhaps a separate statute should be considered for these
circumstances.
3)Is there a need for a special record-sealing procedure for
prostitution? Current law provides sealing and expungement
relief to juveniles adjudicated for most offenses and adults
convicted of most misdemeanors, including prostitution. For
offenses committed as a juvenile, the petitioner may have his
or her record sealed upon reaching 18 years of age if he or
she has not been subsequently convicted of a felony or a
misdemeanor involving moral turpitude, and if the court is
satisfied that the petitioner has been rehabilitated. In
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addition, an offender may file a petition any time before
reaching the age of 21 to dismiss the petition if the court
finds the interests of justice and the welfare of the minor
require such dismissal, or if it finds that the minor is not
in need of treatment or rehabilitation.
For misdemeanor offenses committed as an adult, the offender
may have his or her conviction set aside or dismissed upon a
showing the petitioner has completed probation, is not serving
a sentence for any other offense, is not on probation for any
other offense, and is not being charged with any other
offense.
Is there a need to create a special sealing procedure for
prostitution offenses when relief is already available under
existing law? Is it good policy to grant a petitioner relief
without requiring a showing of rehabilitation, completion of
probation, or that the petitioner is not continuing to engage
in acts of prostitution or other criminal acts?
4)Support . According to the Polaris Project, a national
anti-human trafficking organization, "Victims of sex
trafficking are unwilling participants in sexual activity that
financially benefits their traffickers. They are carefully
groomed by their traffickers to look and act like willing
prostitutes in order to appeal to customers, often under the
threat of extreme physical or sexual violence if they try to
escape or otherwise refuse to comply. As a result, these
victims are routinely mistaken for criminals. They are
arrested for and often convicted of crimes, when in fact it is
they who are the victims.
5)Related Legislation . AB 2040 (Swanson) allows a person
convicted of prostitution to have his or her record sealed or
conviction expunged without showing that he or she has not
been subsequently convicted or that he or she has been
rehabilitated. AB 2040 is currently on this committee's
Suspense File.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081
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