BILL ANALYSIS �
AB 1791
Page 1
Date of Hearing: April 8, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1791 (Maienschein) - As Introduced: February 18, 2014
SUMMARY : Expands the crime of human trafficking to include
people who recruit, harbor, transport, provide, sell, purchase
or obtain a minor to engage in a commercial sex act.
Specifically, this bill :
1)Applies lifetime sex offender registration to any person who
recruits, harbors, transports, provides, sells, purchases, or
obtains, or attempts to commit the former with a person who is
a minor, to engage in a commercial sex act.
2)Expands human trafficking to include any person who recruits,
harbors, transports, provides, sells, purchases, or obtains,
or attempts to commit the former with a person who is a minor.
a) Increases the penalty for solicitation of a minor for
prostitution from a misdemeanor to a felony punishable with
5, 8, or 12 years in state prison.
b) Increases the penalty for solicitation of a minor for
prostitution from a misdemeanor to a felony punishable with
a 15 to life sentence in state prison if the offense
involves force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury.
EXISTING LAW :
1)Specifies that "commercial sex act" means sexual conduct on
account of which anything of value is given or received by any
person. (Pen. Code � 236.1(h) (2).)
2)Defines "unlawful sexual intercourse" as an act of sexual
intercourse (consensual or nonconsensual) accomplished with a
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person who is not the spouse of the perpetrator, if the person
is a minor. For the purposes of this section, a "minor" is a
person under the age of 18 years and an "adult" is a person 18
years of age or older. (Pen. Code � 261.5(a).)
3)Specifies that it is misdemeanor disorderly conduct when any
person who solicits or who agrees to engage in or who engages
in any act of prostitution. 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
this state 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. (Pen. Code
� 647(b).)
4)Provides that human trafficking is one of the offenses which
is "criminal profiteering activity" subjecting proceeds from
the activity to forfeiture proceedings. (Pen. Code �
186.2(28).)
5)Provides that any person who deprives or violates the personal
liberty of another with the intent to obtain forced labor or
services, is guilty of human trafficking and shall be punished
by imprisonment in the state prison for 5, 8, or 12 years and
a fine of not more than five hundred thousand dollars
($500,000). (Pen. Code � 236.1(a).)
6)States that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
violation of specified sex crimes is guilty of human
trafficking and shall be punished by imprisonment in the state
prison for 8, 14, or 20 years and a fine of not more than five
hundred thousand dollars ($500,000). (Pen. Code � 236.1(b).)
7)Provides that any person who causes, induces, or persuades, or
attempts to cause, induce, or persuade, a person who is a
minor at the time of commission of the offense to engage in a
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commercial sex act, with the intent to effect or maintain a
violation of specified sex crimes is guilty of human
trafficking. A violation of this subdivision is punishable by
imprisonment in the state prison as follows: (Pen. Code �
236.1(c).)
a) Five, 8, or 12 years and a fine of not more than five
hundred thousand dollars ($500,000).
b) Fifteen years to life and a fine of not more than five
hundred thousand dollars ($500,000) when the offense
involves force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury to the victim
or to another person.
8)Provides that in determining whether a minor was caused,
induced, or persuaded to engage in a commercial sex act, the
totality of the circumstances, including the age of the
victim, his or her relationship to the trafficker or agents of
the trafficker, and any handicap or disability of the victim,
shall be considered. (Pen. Code � 236.1(d).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1791 would
amend existing law to include any person who recruits,
harbors, transports, provides, sells, purchases, or obtains a
minor to engage in a commercial sex act, to be found guilty of
human trafficking. By including the actions of the buyer of
commercial sex acts performed by minors, we can successfully
address the demand of this heinous crime. For too long, we
have been unable to utilize human trafficking statutes to
penalize those that both sell and buy the sexual services of
minors. It is time we strengthen existing law to make a
significant impact on the eradication of the sex trafficking
of minors in our state and set an example for the country to
follow."
2)On-Going Concerns of Prison Overcrowding : In January 2010, a
three-judge panel issued a ruling ordering the State of
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California to reduce its prison population to 137.5% of design
capacity because overcrowding was the primary reason that CDCR
was unable to provide inmates with constitutionally adequate
healthcare. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] The United State
Supreme Court upheld the decision, declaring that "without a
reduction in overcrowding, there will be no efficacious remedy
for the unconstitutional care of the sick and mentally ill"
inmates in California's prisons. [Brown v. Plata (2011) 131
S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.]
The original deadline to reach the required prison population
reduction was June 2013. In January 2013, the State moved to
vacate or to modify the population reduction order, arguing
that the reductions made were sufficient. But in April 2013,
the three judge panel denied the Governor's motion to vacate
or modify the court's population reduction order. The court
ordered the state to take all necessary steps to reduce the
prison population to 137.5% by December 31, 2013.
In September 2013, the State submitted a report to the court
advising that the current overcrowding level was 147.1% of
design capacity. The State asked the court for a three-year
extension to comply with the deadline to reduce crowding to
the mandated level. The State also stated that if no
extension was granted, it would comply with the cap by moving
prisoners to private prisons and county jails. Meanwhile,
state officials also filed an appeal to the United States
Supreme Court.
In December 2013, the United States Supreme Court refused to
consider the State's appeal. Additionally, in December the
three-judge panel extended the deadline to reduce the prison
population until April 18, 2014, but ruled that no more
extensions will be granted absent extraordinary circumstances.
The parties are currently in negotiations to find a long-term
solution to the prison litigation. The ongoing litigation
indicates that prison capacity remains a concern.
3)Increases Penalties that are Currently Misdemeanors to
Felonies with Heavy State Prison Sentences : Under current law
a person who solicits the services of a prostitute (commonly
referred to as a "John") who is a minor is guilty of a
misdemeanor. Under this bill, the John would be guilty of
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human trafficking and face 5 to 12 years in state prison.
Additionally, if fraud, deceit or coercion is involved, the
John faces a 15 years to life sentence.
This bill makes the assumption that every John that solicits a
prostitute who is a minor is engaged in human trafficking. To
the contrary, human trafficking (as discussed below) deals
with the forced labor or sexual trade of victims. Recent laws
tend to blur the lines between prostitution offenses and human
trafficking. The committee must determine whether it is good
policy to treat prostitution offenses as human trafficking, or
protect the validity of human trafficking as a more serious
offense than prostitution.
4)No Knowledge Requirement : There is no requirement that an
offender who solicits a minor know that the person engaged in
prostitution is a minor. (Pen. Code � 236.1 subd. (f).)
5)Human Trafficking : Human trafficking involves the
recruitment, transportation or sale of people for forced
labor. Through violence, threats and coercion, victims are
forced to work in, among other things, the sex trade, domestic
labor, factories, hotels and agriculture. According to the
January 2005 United States Department of State's Human
Smuggling and Trafficking Center report, "Fact Sheet:
Distinctions Between Human Smuggling and Human Trafficking",
there is an estimated 600,000 to 800,000 men, women and
children trafficked across international borders each year.
Of these, approximately 80% are women and girls and up to 50%
are minors. A recent report by the Human Rights Center at the
University of California, Berkeley cited 57 cases of forced
labor in California between 1998 and 2003, with over 500
victims. The report, "Freedom Denied", notes most of the
victims in California were from Thailand, Mexico, and Russia
and had been forced to work as prostitutes, domestic slaves,
farm laborers or sweatshop employees. [University of
California, Berkeley Human Rights Center, "Freedom Denied:
Forced Labor in California" (February, 2005).] According to
the author:
"While the clandestine nature of human trafficking makes it
enormously difficult to accurately track how many people are
affected, the United States government estimates that about
17,000 to 20,000 women, men and children are trafficked into
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the United States each year, meaning there may be as many as
100,000 to 200,000 people in the United States working as
modern slaves in homes, sweatshops, brothels, agricultural
fields, construction projects and restaurants."
In 2012, Californians voted to pass Proposition 35, which
modified many provisions of California's already tough human
trafficking laws. The proposition increased criminal
penalties for human trafficking, including prison sentences up
to 15-years-to-life and fines up to $1,500,000. Additionally,
the proposition specified that the fines collected are to be
used for victim services and law enforcement. Proposition 35
requires persons convicted of trafficking to register as sex
offenders. Proposition 35 prohibits evidence that victim
engaged in sexual conduct from being used against victim in
court proceedings. Additionally, the proposition lowered the
evidential requirements for showing of force in cases of
minors.
6)Trafficking Victims Protection Act of 2000 (22 USC Sections
7101 et seq.) : In October 2000, the Trafficking Victims
Protection Act of 2000 (TVPA) was enacted and is
comprehensive, addressing the various ways of combating
trafficking, including prevention, protection and prosecution.
The prevention measures include the authorization of
educational and public awareness programs. Protection and
assistance for victims of trafficking include making housing,
educational, health-care, job training and other federally
funded social service programs available to assist victims in
rebuilding their lives. Finally, the TVPA provides law
enforcement with tools to strengthen the prosecution and
punishment of traffickers, making human trafficking a federal
crime.
7)Recent Update to Human Trafficking Laws : In 2012,
Californians voted to pass Proposition 35, which modified many
provisions of California's already tough human trafficking
laws. Specifically, Proposition 35 increased criminal
penalties for human trafficking offenses, including prison
sentences up to 15-years-to-life and fines up to $1.5 million.
The proposition specified that the fines collected are to be
used for victim services and law enforcement. In criminal
trials, the proposition prohibits the use of evidence that a
person was involved in criminal sexual conduct (such as
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prostitution) to prosecute that person for that crime if the
conduct was a result of being a victim of human trafficking,
and makes evidence of sexual conduct by a victim of human
trafficking inadmissible for the purposes of attacking the
victim's credibility or character in court. The proposition
lowered the evidentiary requirements for showing of force in
cases of minors.
Proposition 35 also requires persons convicted of human
trafficking to register as sex offenders and expanded
registration requirements by requiring registered sex
offenders to provide the names of their internet providers and
identifiers, such as e-mail addresses, user names, and screen
names, to local police or sheriff's departments. After
passage of Proposition 35, plaintiffs American Civil Liberties
Union and Electronic Frontier Foundation filed a law suit
claiming that these provisions unconstitutionally restricts
the First Amendment rights of registered sex offenders in the
states. A United States District Court judge granted a
preliminary injunction prohibiting the implementation or
enforcement of Proposition 35's provisions that require
registered sex offenders to provide certain information
concerning their Internet use to law enforcement. [Doe v.
Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013 LEXIS
5428.]
8)Human Trafficking Studies: The Family Violence Prevention
Fund study, in the Executive Summary of "Turning Pain into
Power: Trafficking Survivors' Perspectives on Early
Intervention Strategies", states the following:
"This study was undertaken to examine the hypothesis that the
health care system might be an ideal place to focus education
and intervention efforts on victims of slavery. Human
trafficking is without question a health care issue: victims
of trafficking suffer a host of health-related problems and
are at high risk of injury, illness and even death from the
circumstances of their forced employment. . . . Is health
care a missed opportunity to intervene on behalf of trafficked
women and children? . . . If health care providers do
interact with this population unknowingly, what steps could be
taken to enable practitioners to recognize trafficking victims
and understand their special needs?"
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A February 2005 report by the Human Rights Center at the
University of California, Berkeley discussed the legislative
response to the human trafficking problem. This report found
that the California State Legislature must address several
critical areas including criminal prosecution and civil
remedies; training for law enforcement to better help them
recognize forced labor cases; the provisions of social
services, including medical care, shelter, witness protection
and other benefits; and the creation of a task force to
examine, propose and coordinate ongoing efforts to combat
trafficking and forced labor.
9)Argument in Support : According to the Conference of
California Bar Associations, "AB 1791 would extend
California's Human Trafficking statute, Penal Code �236.1, to
any individual who 'recruits, harbors, transports, provides,
sells, purchases, (or) obtains' a minor to engage in a
commercial sex act, in intentional violation of California's
anti-prostitution laws. This would make California law
consistent with Federal law (15 USC �1591) in this area, and
by doing so would make the Human Trafficking statute
applicable to individuals who solicit and/or pay for sex with
minors, along with those who aid the "pimps" by harboring and
transporting minors for commercial sex, instead of focusing
only on those who feed this demand.
"Human trafficking does not exist solely because people are
vulnerable to exploitation, it is driven by demand - in this
case demand for commercial sex acts with young girls and boys.
To solve the problem of human trafficking, it is essential to
address the demand issue, and to change the overall market
incentives. A failure to make the actions of the buyer a crime
under a serious, specific criminal statute guarantees that the
investigation and prosecution of these crimes will not rise in
priority status, as they continue to be viewed as a mere
"vice" crime or "quality of life" crime, rather than what it
really is - the sexual abuse of a child.
"In many, many cases, California's statutes seek to accomplish
their purpose by penalizing or punishing demand. We tax and
impose restrictions on the use of legal products (e.g.,
tobacco and alcohol), and we punish the possession or use of
illegal products with fines or incarceration (e.g., drugs).
Yet in the area of human trafficking in children for sex, our
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statutes are virtually silent - even though, unlike the
anti-drug statutes, one cannot even make the argument that
these are victimless crimes.
"The only code sections directly addressing the issue of
demand for commercial sex are Penal Code �647(b) (Disorderly
conduct, a misdemeanor), Penal Code �266e (Acquiring
prostitute, a minor felony), and �261.9 (Rape, Abduction,
Carnal Abuse of Children, and Seduction, which adds a fine to
be imposed for any violation of �647(b) if the prostitute is
under the age of 18). Only the last of these statutes
distinguishes in any way between obtaining commercial sex with
an adult, a minor, even a child, and the effectiveness of that
statute is diminished by the fact that the underlying crime is
punishable only as a misdemeanor.
"AB 1791 provides this necessary distinction and makes it
clear that soliciting or purchasing sex with minors is a
serious crime. This will bring California in line with a
growing number of states that have realized the need to
address the demand side of the human trafficking problem. By
doing so, it will take a significant step towards protecting
the youngest and most vulnerable victims of human
trafficking."
10)Argument in Opposition: According to the California Public
Defenders Association, "under existing law human sex
trafficking of a minor is punishable by 8, 14 or 20 years in
state prison and a maximum $500,000 fine. If done with
threat, force or violence human sex trafficking of a minor is
punishable by 15 years to life in state prison and a maximum
$500,000. (Pen. Code � 236.1.) Disorderly conduct,
prostitution is a 6 month misdemeanor. (Pen. Code � 647(b).)
"This bill would amend Pen. Code � 236.1 to expand the means
by which an individual could commit human sex trafficking to a
person who recruits, harbors, transports, provides, sells,
purchases, obtains or attempts to recruit, harbor, transport,
provide, sell, purchase, obtain a minor to engage in
commercial sex acts. It would also expand the prohibited
activities to soliciting a prostitute (Pen. Code � 647(b).)
"Conviction of soliciting an underage prostitute would be
human sex trafficking, a felony punishable by 8, 14 or 20
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years in state prison and lifetime sex offender registration.
Mistake of age would not be a defense. (Pen. Code �
236.1(f).)
"In an effort to address human sex trafficking this bill casts
too wide a net. The language is so vague and overbroad that it
would potentially ensnare the actual underage victims. Many
teenage prostitutes are runaways from horrific living
situations, escaping physically and sexually abusive
environments. The words "recruit," "harbor" and "transport"
in this bill could be used to apply to more established (yet
no less victimized) teenage runaways who are forced to
prostitute themselves to survive, and who advise new teenage
runaways how to get by.
"If two teenagers run away together and one drives her car,
when they both become prostitutes, has one "transported" the
other? If a church or youth shelter provides housing to minor
runaway prostitutes have they "harbored" them?
"Amending Pen. Code � 647(b) soliciting a minor prostitute
from a six month misdemeanor to a felony punishable
potentially with decades in prison and lifetime sex offender
registration is bad public policy.
"Independent of the abhorrence of human sex trafficking,
teenage runaways and resulting teenage prostitution are
symptoms of serious problems that deserve resources to address
the underlying issues - housing, education, stable families,
not more laws further criminalizing this behavior."
11)Prior Legislation : AB 22 (Lieber), Chapter 240, Statutes of
2005, created the California Trafficking Victims Protection
Act, which established civil and criminal penalties for human
trafficking and allowed for forfeiture of assets derived from
human trafficking. In addition, the Act required law
enforcement agencies to provide Law Enforcement Agency
Endorsement to trafficking victims, providing trafficking
victims with protection from deportation and created the human
trafficking task force.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Catholic Conference
California Police Chiefs Association
Conference of California Bar Associations
Junior Leagues of California
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744