BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
AB 336 (Ammiano) - Crimes: prostitution: evidence.
Amended: May 29, 2014 Policy Vote: Public Safety 5-2
Urgency: No Mandate: No
Hearing Date: August 4, 2014
Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 336 would provide for specified procedures to
be followed, potentially including a hearing out of the presence
of the jury, during the prosecution of a prostitution case, if
the prosecution intends to introduce as evidence the possession
of condoms by the defendant.
Fiscal Impact: Potentially significant increase in court
workload to process motions and potentially hold separate
hearings out of the presence of a jury in prostitution cases.
For every 500 motions filed (less than 10 motions per court per
year), costs could range from $250,000 to $750,000 (General
Fund*) assuming one to three additional hours of court time per
case.
*Trial Court Trust Fund
Background: The Human Rights Watch (HRW) report, "Sex Workers at
Risk: Condoms as Evidence of Prostitution in Four U.S. Cities
(July 2012)," documents how law enforcement officers and
prosecutors in the cities of New York, San Francisco, Los
Angeles, and Washington, DC, use condoms to support prostitution
charges. According to the report, "The practice makes sex
workers and transgender women reluctant to carry condoms for
fear of arrest, causes them to engage in sex without protection,
and puts them at risk of HIV and other sexually transmitted
diseases."
HRW interviewed more than 300 people for the report, including
200 current and former sex workers as well as outreach workers,
advocates, prosecutors, public defenders, police, and health
department officials. The report includes testimony from sex
workers and transgender women who said that police harass,
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threaten, and arrest them for carrying condoms. In addition to
specific cases in which possession of condoms was used as
evidence of prostitution, HRW found that the threats of
harassment of sex workers about possessing condoms had resulted
in a prevalent belief that one is risking arrest and prosecution
as a prostitute by having any condoms in one's possession when
approached by law enforcement. As a result, many sex workers
will no longer carry any condoms or a sufficient number of
condoms, thereby creating multiple opportunities for
transmission of HIV to and from the sex worker.
This bill seeks to establish a judicial process in any
prosecution for specified prostitution offenses when the
possession of condoms is to be introduced as evidence, to ensure
the possession of condoms by the defendant is relevant to the
commission of the crime.
Proposed Law: This bill would provide that in any prosecution
for committing an act of disorderly conduct or for loitering in
any public place with the intent to commit prostitution, if the
possession of one or more condoms is to be introduced as
evidence in support of the commission of the crime, the
following procedure shall be followed:
Requires the prosecutor to make a written motion to the
court and to the defendant stating that the prosecution has
an offer of proof of the relevancy of the possession by the
defendant of one or more condoms.
Requires the written motion to be accompanied by an
affidavit, to be filed under seal, as specified, in which
the offer of proof shall be stated.
Requires the court to order a hearing out of the
presence of the jury, if any, if the court finds that the
offer of proof is sufficient, and at the hearing allow
questioning regarding the offer of proof made by the
prosecution.
Provides that at the conclusion of the hearing, if
evidence found to be relevant, as specified, the court may
make an order stating what evidence may be introduced by
the prosecutor.
Provides that an affidavit resealed by the court shall
remain sealed, unless the defendant raises an issue on
appeal or collateral review relating to the offer of proof.
Authorizes the Attorney General and appellate counsel to
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access the sealed affidavit if the defendant raisers that
issue on appeal, and authorizes access to the district
attorney and defendant's counsel if the issue is raiser on
collateral review.
Staff Comments: This bill creates a new process, potentially
requiring a hearing, for consideration of specified evidence
regarding condoms in criminal prosecutions for soliciting
prostitution or for loitering with intent to commit
prostitution. This bill would require the prosecutor to file a
written motion to the court, and for the court to make a
decision on the motion, potentially requiring a hearing, on the
necessity and value of introducing condoms as evidence to prove
the charges.
The Judicial Council estimates this new process could require
one to three additional hours of court time per case. For those
motions filed and upon which no hearing is required, about one
hour of court time to accept, process, review, and prepare a
determination is estimated. For motions filed that require a
hearing, an additional two hours of court time is estimated.
Based on an estimated cost of $4,000 for an eight-hour court
day, an additional one to three hours of court time is estimated
to cost between $500 and $1,500 per case.
It cannot be known with certainty how many motions will be filed
in these cases in any one year statewide, and of the motions
filed, which motions will require a separate hearing. As a
result, as an example of potential costs: for every 500 motions
filed (less than 10 motions per court per year), annual costs
could range from $250,000 to $750,000 annually. To the extent
the actual number of motions filed in these cases is greater or
less than 500, costs would be commensurately higher or lower.