BILL ANALYSIS �
SB 1133
Page 1
Date of Hearing: June 19, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1133 (Leno) - As Amended: May 24, 2012
As Proposed to be Amended in Committee
SUMMARY : Modifies provisions relating to forfeiture of the
property of convicted human traffickers. Specifically, this
bill :
1) Authorizes the forfeiture of vehicles, boats, airplanes,
money, negotiable instruments, securities, real property, or
other things of value used for the purpose of facilitating
human trafficking involving a commercial sex act where the
victim is an individual under 18 years of age at the time of
the commission of the crime and property acquired through
human trafficking or which was received in exchange for the
proceeds of human trafficking of a person under 18 years of
age when the crime involved a commercial sex act.
2)Provides that 50% of the forfeiture proceeds shall be
distributed to the Victim-Witness Assistance Fund for grants
to community organizations serving human trafficking victims
and 50% of the proceeds shall be distributed to the General
Fund of the state or county, depending on whether the Attorney
General or district attorney prosecuted the matter.
EXISTING LAW :
1)Includes numerous crimes concerning sexual exploitation of
minors for commercial purposes. These crimes include:
a) 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 punishable by a prison term of three, six or eight
years. �Penal Code Section 266h(a) and (b).]
b) Pandering: Procuring another for prostitution, inducing
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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. �Penal Code Section
266i(a).]
c) 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.
(Penal Code Section 266j.)
d) 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. (Penal Code Section 267.)
e) 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.
�Penal Code Section 311.4(b).]
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 specified prostitution related offenses,
use of minor in producing or distributing obscene material or
child pornography, extortion, or to obtain forced labor or
services, is guilty of human trafficking. �Penal Code Section
236.1(a).]
3)Provides that a victim of human trafficking may bring a civil
lawsuit for actual damages, compensatory damages, punitive
damages, injunctive relief, any combination of those, or any
other appropriate relief. In such a lawsuit, the plaintiff
may be awarded up to three times his or her actual damages or
$10,000, whichever is greater. In addition, punitive damages
may also be awarded upon proof of the defendant's malice,
oppression, fraud, or duress in committing the act of human
trafficking. (California Civil Code Section 52.5.)
4)Provides that where the victim of human trafficking is an
adult, the offense is punishable by a prison term of 3, 4 or 5
years in prison and a fine of up to $10,000. �Penal Code
Section 236.1(b).]
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5)Provides that if the person trafficked is a minor, the offense
is punishable by 4, 6 or 8 years in prison and a fine of up to
$10,000. Where the minor was trafficked for a commercial sex
act, the maximum fine is $100,000. �Penal Code Section
236.1(g).]
6)Provides that all fines imposed for human trafficking shall be
deposited in the Victim-Witness Assistance to fund services
for human trafficking victims. At least 50% of such fines
shall be granted to community-based organizations. �Penal
Code Section 236.1(h).]
7)Defines "unlawful deprivation of liberty" includes sustained
and substantial restriction of another's liberty accomplished
through fraud, deceit, coercion, violence, duress, menace or a
credible threat of injury to the victim or another person.
�Penal Code Section 186.22(d).]
8)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. (Penal Code Section 186.3.) The following assets
or property is subject to forfeiture:
a) Any property interest whether tangible or intangible,
acquired through a pattern of criminal profiteering
activity.
b) 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.
c) States that forfeited cash and proceeds of the sale of
forfeited property shall be distributed as follows:
i) 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.
ii) To the Department of General Services or local
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governmental entity for all expenditures incurred in
connection with the sale of the forfeited property.
iii) To the State General Fund or the general fund of the
local governmental entity, whichever prosecutes (Penal
Code Section 186.8), except in the child pornography or
recycling fraud cases.
iv) In a case of fraud involving the state recycling
program, to a special fund designated in the Public
Resources Code.
v) In the case of child pornography crimes, to the
county children's trust fund or State Children's Trust
Fund.
vi) 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.
9)Includes human trafficking (Penal Code Section 236.1) in the
list of crimes for which a forfeiture of assets can be sought
for criminal profiteering. �Penal Code Section 186.2(a)(28).]
10)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. �Penal
Code Section 186.2(a)(31).]
11)Provides that any case in which the defendant persuaded,
induced, coerced or forced a minor to engage in a commercial
sex act can be the basis of criminal profiteering asset
forfeiture, as specified. �Penal Code Section 186.2(a)(29).]
12)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. �Penal Code Section 186.2(a)(30).]
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13)Defines a commercial sex act as sexual conduct for which
anything of value is given or received by any person. �Penal
Code Section 186.2(a)(29) and (30).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 1133 creates
a new forfeiture statute that will give prosecutors a powerful
tool to ensure that criminals convicted of sex trafficking
minors are not able to retain any financial benefits from
their participation in this horrendous crime. The bill not
only expands the list of assets subject to forfeiture, thereby
ensuring that these resources are not used in future crimes,
but also includes a formula to redirect those resources to
organizations that provide treatment and victim services for
this vulnerable population.
"According to the U.S. Department of Justice, human
trafficking and sexual exploitation is the fastest growing and
second largest criminal enterprise in the world. Data
gathered by the California Department of Justice states that
195,644 children ran away from home in 2009 and 2010.
Scholars estimate that, within 48 hours one-third of those
children would be lured or recruited into the underground
world of prostitution and pornography. Even with an estimated
65,000 children lured into the sex trade in California in 2009
and 2010, only thirteen individuals were sent to prison in
California for human trafficking during that time."
2)Background : According to information provided by the author,
"SB 1133 creates a new forfeiture statute that will give
prosecutors an additional legal sanction designed to dismantle
the criminal enterprises of those trafficking minors for the
purposes of commercial sex. The bill expands the list of
assets subject to forfeiture, thereby ensuring that these
resources are not used in future crimes, but also includes a
formula to redirect those resources to organizations that
provide treatment and victim services for this vulnerable
population.
"According to the U.S. Department of Justice, human
trafficking and sexual exploitation is the fastest growing and
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second largest criminal enterprise in the world. Data gathered
by the California Department of Justice states that 195,644
children ran away from home in 2009 and 2010. Scholars
estimate that, within 48 hours one-third of those children
would be lured or recruited into the underground world of
prostitution and pornography. Even with an estimated 65,000
children lured into the sex trade in California in 2009 and
2010, only thirteen individuals were sent to prison in
California for human trafficking during that time.
"Many experts believe the infrequency of human trafficking
investigation and prosecution is attributable to the lack of
resources available to victims and their inability to come
forward.
This bill is intended to provide resources to victims of human
trafficking, and their support groups, to enhance the
reporting of this crime.
"SB 1133 would enact the following reforms involving
prosecutions for the sex trafficking of minors:
"(1) Under current law, forfeiture of property is authorized
only if at least two instances of criminal profiteering are
proven. SB 1133 would make forfeiture available upon proof of
only one instance of sex trafficking of a minor.
"(2) SB 1133 would expand the scope of property subject to
forfeiture to include 'any interest in a vehicle, boat,
airplane, money, negotiable instrument, securities, real
property, or other thing of value substantially used for the
purpose of facilitating the trafficking an individual under 18
years of age under 236.1.'
"(3) SB 1133 would provide for 50% of forfeited funds to be
dispersed directly to the Victim-Witness Assistance fund for
use by community-based organizations that serve victims of
human trafficking."
3)Difference Between this Bill and Current Forfeiture Law :
Under the existing criminal asset forfeiture law, forfeiture
is ordered after the defendant is convicted of a specified
crime and the prosecution establishes that the defendant has
been engaged in a pattern of criminal profiteering. The
proceeds of criminal profiteering, the ill-gotten gains of the
organized crime, are forfeited to the state. The California
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law is modeled on or derived from federal racketeering laws -
Racketeer Influenced and Corrupt Organization Act (RICO).
This bill allows forfeiture where only a single human
trafficking crime is established. The prosecutor need not
establish a pattern of human trafficking to allow forfeiture.
Without a pattern of forfeiture, relatively little money or
property would be forfeited as the proceeds or profits of
human trafficking. That is, a single crime or two would not
produce much profit. However, and most important, this bill
allows forfeiture of not just the profits of crime, but also
the instrumentalities of the crime - the property used to
commit the crime. Property is subject to forfeiture as an
instrumentality if a substantial purpose of the use of the
property was to facilitate sex trafficking of minors. This is
true even where the prosecutor cannot trace a defendant's
assets to trafficking profits. In discussions about the bill,
the author argued that property used to facilitate sex
trafficking of minors must be forfeited in order to reduce the
ability of the perpetrator to commit additional crimes.
Finally, as noted above, under existing law, all forfeited
proceeds of sex trafficking of minors are distributed to the
Victim-Witness Assistance Fund, with 50% available for grants
to community-based organizations. Where forfeiture is done
pursuant to this bill, 50% of the proceeds shall be
distributed to the General Fund of the state or county,
whichever jurisdiction or entity prosecuted the case. These
funds can be used by the state or county for any purpose.
In discussions on prior bills, advocates noted that human
trafficking victims are often reluctant to report the crimes
against them because they are afraid of reprisals and because
they are often in the control of traffickers. In order to
provide more resources and support for victims, the
Legislature directed that all proceeds of human trafficking of
minors for commercial sex acts shall be used for programs
benefiting victims, including directions that 50% of the money
shall be provided to community-based organizations. (AB 90
(Swanson), Chapter 457, Statutes of 2011.)
However, the Attorney General (sponsor) has noted that
investigating and prosecuting human trafficking cases are
costly. This bill would provide some financial relief to the
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county or the state without providing a direct payment of
"bounty" to the district attorney or the Attorney General,
depending on which office prosecuted the case. That is, the
decision to pursue forfeiture would not lead to a direct
financial benefit to the prosecutor's office. Rather, 50% of
the forfeiture proceeds would be deposited in the General Fund
of the overall government entity. The Legislature or the
board of supervisors could make deliberative decisions as to
the use of forfeiture proceeds.
Essentially, the Attorney General is arguing that in
distributing forfeiture proceeds in these cases, a balance
should be struck between victims' programs and resources for
the state. Such a distribution could be mutually beneficial
to victims and prosecutors, helping victims come forward and
helping the state investigate and prosecute the cases.
4)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, Assembly Member Lieber (2005) 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
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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.]
5)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
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
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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
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:
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"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.]
6)Domestic Trafficking is an Increasing Problem : Although Penal
Code Section 236.1 was created due to 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
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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.
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).]
7)Argument in Support : According to the Attorney General of the
State of California, "This is an important bill that will give
prosecutors a powerful tool to endure that criminals convicted
of sex trafficking minors are not able to retain any financial
benefits from their participation in this horrendous crime.
Specifically, AB 1133 would create a new forfeiture statute
that would: (1) allow for forfeiture for once instance of sex
trafficking of a minor, rather than having to show a pattern,
(2) expand the property subject to forfeiture; and, (3)
provide that 50% of forfeited funds are provided to the
Victims-Witness Assistance Fund for use by community-based
organizations that serve victims of human trafficking.
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8)Argument in Opposition : According to the American Civil
Liberties Union (ACLU) , "The ACLU believes that civil
forfeiture laws raise serious civil liberties concerns
including the right to be free from punishment that is
disproportionate to the offense. Even courts that have upheld
forfeiture laws have recognized that they are "the hardest of
all our laws respecting ownership of private property", Nasir
v. Sacramento County Office of the District Attorney, 11
Cal.App 4th 976, 985 (1992).
"We appreciate the author's willingness to address many of our
concerns and incorporate various due process protections for
property owners in this legislation. However, expansion of
civil asset laws beyond the very limited circumstances
currently authorized by statute - primarily for serious drug
felonies involving large amounts of drugs - remains troubling.
It sets an unnecessary precedent for expansion of asset
forfeiture for additional crimes and is a doubtful remedy in
stemming these crimes against young women."
9)Related Legislation :
a) AB 90 (Swanson), Chapter 457, Statutes of. 2011,
includes, within the definition of criminal profiteering
activity, any crime in which the perpetrator induces,
encourages, or persuades, or causes through force, fear,
coercion, deceit, violence, duress, menace, or threat of
unlawful injury to the victim or to another person, a
person under 18 years of age to engage in a commercial sex
act, and specifies that the proceeds shall be deposited in
a Victim-Witness Fund as specified.
b) AB 12 (Swanson), Chapter 75, Statutes of 2011, requires
the court to impose a special fine of up to $25,000 in a
case where a defendant is convicted of prostitution
involving a minor; and provides that the proceeds of such
funds be available, upon legislative appropriation, to fund
programs and services for sexually exploited minors in the
county of conviction.
REGISTERED SUPPORT / OPPOSITION :
Support
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Association for Los Angeles Deputy Sheriffs
California Attorney General
California Catholic Conference
California Coalition Against Sexual Assault
Coalition to Abolish Slavery and Trafficking
Los Angeles County Probation Officer's Union
Riverside Sheriff's Association
Opposition
American Civil Liberties Union
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744