BILL ANALYSIS �
AB 2466
Page 1
Date of Hearing: April 10, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2466 (Blumenfield) - As Amended: March 29, 2012
As Proposed to be Amended in Committee
SUMMARY : Permits the freezing of assets in human trafficking
cases prior to the final judgment in the case. Specifically,
this bill :
1)Authorizes prosecuting agencies, at the same time as the
filing of a complaint or indictment charging human
trafficking, to file a petition for protective relief
necessary to preserve property or assets that could be used to
pay for remedies relating to human trafficking, including, but
not limited to, restitution, and fines.
2)Specifies the process by which a preliminary injunction,
temporary restraining order, or sale of property or assets may
be ordered.
EXISTING LAW :
1)Defines "criminal profiteering activity" as any act committed
or attempted or any threat made for financial gain or
advantage, which act or threat may be charged as a crime under
a series of specified criminal acts, including human
trafficking. �Penal Code Section 186.2(28).]
2)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).]
3)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
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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).]
4)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
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).]
5)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).]
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, 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).]
7)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
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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
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, "Human
trafficking is one of the fastest-growing criminal activities
in California. People are being bought, sold and smuggled like
modern-day slaves in an illegal multi-billion-dollar industry.
Victims of human trafficking often are trapped in lives of
misery. Prosecutors currently have the ability to seize
profits and property that were directly connected to the
tragic crime of human trafficking, but only after the
defendant has been convicted. This bill would give prosecutors
another important tool to prevent human traffickers from
further profiting from and exploiting their victims, and help
victims secure the restitution they are due."
2)Author's Amendment : The author has proposed a bond provision
which would permit the posting of a bond of equal value to the
property seized.
3)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
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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.]
4)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
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
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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
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
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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
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.]
5)Domestic Trafficking is an Increasing Problem : Although Penal
Code Section 236.1 was created due to an increase in women and
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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,
).
According to the sponsor of the bill, the Alameda County
District Attorney's Office, Human Exploitation and Trafficking
Unit:
"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.
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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).]
6)Argument in Support : According to the California Attorney
General's Office , "Under current law, there are provisions
that allow prosecutors to seek an order preserving property
they believe is subject to forfeiture under the criminal
profiteering statutes. There are, however, no laws to help
prevent human trafficking defendants from liquidating and
hiding their assets before conviction. So, under existing
law, defendants can render themselves judgment proof, avoid
paying Constitutionally mandated restitution, and thereby
profit from the reprehensible crime of human trafficking. AB
2466 will remedy this problem by amending the Penal Code to
allow a court to order the preservation of assets and property
owned by persons charged with human trafficking."
7)Related Legislation: AB 2212 (Block) clarifies that buildings
or places used for human trafficking can be declared public
nuisance, and specifies that half of any civil penalties
collected therefrom shall be directed to fund grants for human
trafficking victim services and prevention programs. AB 2212
is scheduled to be heard by this Committee today.
8)Prior Legislation :
a) AB 90 (Swanson), Statutes of 2011, Chapter 457, expanded
the definition of "criminal profiteering" to include child
sexual exploitation and requires proceeds from child sexual
exploitation cases to be deposited into the Witness
Assistance Fund for use by certain victim counseling
centers and prevention programs.
b) AB 22 (Lieber), Statutes of 2005, Chapter 240,
established the crime of human trafficking subject to civil
and criminal penalties.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Attorney General's Office
California Catholic Conference
California Narcotics Officers' Association
California Police Chiefs Association
Coalition to Abolish Slavery and Trafficking
District Attorney, City and County of San Francisco
National Association of Social Workers - California Chapter
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744