BILL ANALYSIS �
AB 1791
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Date of Hearing: April 29, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1791 (Maienschein) - As Introduced: February 18, 2014
As Proposed to be Amended in Committee
SUMMARY : Increases the penalty for solicitation of prostitution
when the person being solicited is a minor from six months in
the county jail to one year in the county jail.
EXISTING LAW :
1)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).)
2)States that a person is guilty of disorderly conduct, a
misdemeanor, when a person solicits or agrees to engage in or
engages in any act of prostitution, as defined. No agreement
to engage in an act of prostitution 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. (Pen. Code, � 647, subd. (b).)
3)Requires in any accusatory pleading charging a defendant with
solicitation or prostitution, as specified, if the defendant
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has been once previously convicted of a violation those
provisions, the previous conviction shall be charged in the
accusatory pleading. (Pen. Code, � 647, subd. (k).)
4)Provides the following penalties if the defendant has
previously been convicted of solicitation or prostitution:
a) If it is proven that the defendant has one previous
conviction, the defendant shall be imprisoned in a county
jail for a period of not less than 45 days; or
b) If it is proven that the defendant has two or more of
these previous convictions, the defendant shall be
imprisoned in a county jail for a period of not less than
90 days. (Pen. Code, � 647, subd. (k).)
5)Defines "unlawful sexual intercourse" as an act of sexual
intercourse accomplished with a person under the age of 18
years. (Pen. Code, � 261.5, subd. (a).)
6)Provides the following penalties for unlawful sexual
intercourse with a minor [Penal Code Section 261.5(b)-(d).]:
a) Where the defendant is not more than three years older
or three years younger than the minor, the offense is a
misdemeanor;
b) Where the defendant is more than three years older than
the minor, the offense is an alternate felony-misdemeanor,
punishable by a jail term of up to one year, a fine of up
to $1,000, or both, or by a prison term of 16 months, two
years or three years and a fine of up to $10,000; or
c) Where the defendant is at least 21 years of age and the
minor is under the age of 16, the offense is an alternate
felony-misdemeanor, punishable by a jail term of up to one
year, a fine of up to $1,000, or both, or by a prison term
of 16 months, two years or three years and a fine of up to
$10,000.
7)States that any person convicted of seeking to procure or
procuring the sexual services of a prostitute, if the
prostitute is under 18 years of age, shall be ordered by the
court to pay an additional fine in an amount not to exceed
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$25,000. (Pen. Code, � 261.9, subd. (a).)
8)Provides that any person who engages in lewd conduct - any
sexually motivated touching or a defined sex act - with a
child under the age of 14 is guilty of a felony, punishable by
a prison term of 3, 6 or 8 years. Where the offense involves
force or coercion, the prison term is 5, 8 or 10 years. (Pen.
Code, � 288, subd. (b).)
9)Provides that where any person who engages in lewd conduct
with a child who is 14 or 15 years old, and the person is at
least 10 years older than the child, the person is guilty of
an alternate felony-misdemeanor, punishable by a jail term of
up to one year, a fine of up to $1,000, or both, or by a
prison term of 16 months, two years or three years and a fine
of up to$10,000. (Pen. Code, � 288, subd. (c)(1).)
10)Defines "a lewd act" as touching the genitals, buttocks, or
female breast of either the prostitute or customer with some
part of the other person's body for the purpose of sexual
arousal or gratification. (CALCRIM 1154, citing Pryor v.
Municipal Court (1979) 25 Cal.3d 238, 256; See, Wooten v.
Superior Court (2001) 93 Cal.App.4th 422, pp. 431-433.)
11)Provides that a minor cannot consent to a sexual act,
including sexual intercourse, oral copulation, sodomy, sexual
penetration with a foreign or unknown object, or lewd conduct.
(Pen. Code �� 261.5, 286, 288, 288a, and 289, in relevant
part.)
12)Provides that sexual intercourse with a minor where no
aggravating elements are proved is the crime of "unlawful
sexual intercourse," punishable as follows:
a) Where the person having intercourse with the minor is no
more than three years older or younger than the minor, the
offense is a misdemeanor, with a maximum jail term of 6
months;
b) Where the person is at least three years older than the
minor, the offense is an alternate felony-misdemeanor
(wobbler), with a maximum misdemeanor term of one year and
a felony jail term of 16 months, two years or three years;
or
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c) Where the person is at least 21 and the minor under 16
years of age, the offense is a wobbler, with a felony jail
term of 2, 3 or 4 years. (Pen. Code, � 261.5.)
13)Provides that in the absence of aggravating elements each
crime of sodomy, oral copulation or penetration with a foreign
or unknown object with a minor is punishable as follows:
a) Where the defendant is over 21 and the minor under 16
years of age, the offense is a felony, with a prison term
of 16 months, 2 years or 3 years.
b) In other cases sodomy with a minor is a wobbler, with a
felony prison term of 16 months, 2 years or 3 years. (Pen.
Code, �� 286, subd. (b), 288a, subd. (b), 289, subd. (h).)
14)Provides that where each crime of sodomy, oral copulation or
penetration with a foreign or unknown object with a minor who
is under 14 and the perpetrator is more than 10 years older
than the minor, the offense is a felony, punishable by a
prison term of 3, 6 or 8 years. (Pen. Code, �� 286, subd.
(c)(1), 288a, subd. (c)(1), 289, subd. (j).)
15)Provides that sexual intercourse is rape "[w]here a person is
incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is
known or reasonably should be known to the" perpetrator.
(Pen. Code, � 261, subd. (a)(1).)
16)Provides that any person who engages in lewd conduct - any
sexually motivated touching or a defined sex act - with a
child under the age of 14 is guilty of a felony, punishable by
a prison term of 3, 6 or 8 years. Where the offense involves
force or coercion, the prison term is 5, 8 or 10 years. (Pen.
Code, � 288, subd. (b).)
17)Provides that where any person who engages in lewd conduct
with a child who is 14 or 15 years old, and the person is at
least 10 years older than the child, the person is guilty of
an alternate felony-misdemeanor, punishable by a jail term of
up to one year, a fine of up to $1,000, or both, or by a
prison term of 16 months, two years or three years and a fine
of up $10,000. (Pen. Code � 288, subd. (c)(1).)
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, " Increasing the
maximum sentence to 12 months for soliciting or engaging in an
act of prostitution with a minor will be making important
progress towards addressing the demand for young girls and
boys who are often victims of human trafficking. As many may
be aware, human trafficking is a growing problem across the
United States, including right here in California. The
trafficking of minors is appalling and must be addressed in
any way possible to positively affect all aspects of this
terrible practice. We hope to provide a deterrent with this
increased sentence that may prevent some desire and demand for
these young victims of human trafficking and stop the often
forced prostitution of our vulnerable youth."
2)Existing Punishments for Sex with Minors : Under existing law,
sexual activities with minors, whether forcible or not, are
punished very severely. As detailed in the existing law
section above, any sexual contact with a minor is punishable
and the vast majority of incidents require registration as a
sex offender. This bill would cover incidents where the minor
is solicited, but no sexual or illicit touching occurs.
Otherwise, much the much more severe penalties outlined above
would apply to the defendant.
3)No Knowledge Requirement : This bill states that where the
defendant is convicted engaging in or offering to engage in an
act of prostitution with a minor, the defendant is guilty of
an alternate felony-misdemeanor. The crime is a straight
felony in repeated convictions.
The bill does not appear to require that the defendant knew,
or should have known, that the prostitute involved in the
incident was a minor. A defendant who was not intending to
purchase sex specifically from a minor could engage with a 16
or 17-year-old minor who appeared to be an adult. In such
circumstances, a defendant would not have intended to exploit
minors or known that he was exploiting a minor for sexual
services.
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4)Solicitation of a Minor : Under current law solicitation of a
minor for the purposes of prostitution is not distinguished
from solicitation of a minor who is not under the age of
consent. In California, the age of consent is 18 years of
age. California punishes solicitation for prostitution with a
punishment of up to six months in the county jail.
Additionally, the penalty increases to a year in the county
jail for persons who solicit for prostitution with a prior
offense. This bill would put the crime of solicitation of a
minor on par with solicitation with a prior offense.
5)Recent Studies: Recent years have seen a great increase in
concerns about minors - generally girls - engaged in
commercial sex activities. Organized, coerced trafficking has
received the most attention. Sex trafficking has been
described as sexual slavery. Trafficked minors are isolated,
controlled by and made dependent on their exploiters, and can
even be perversely loyal because of the manufactured
dependency.<1>
However, a 2008 study by the John Jay College of Criminal
Justice<2> and the Center for Court Innovation<3> found that
most of the minors engaging in commercial sex in New York City
are homeless or runaway minors who engage in "survival sex" to
obtain small amounts of money for food and other necessities.
Many of these CSEC - commercially sexually exploited children
- are gay, lesbian and transgender youth who left unsupportive
families and communities. The study authors were surprised to
find that most of CSEC were recruited or initiated into
survival sex by their peers, with no involvement by adult
pimps. The John Jay study reported that many CSEC were simply
approached on the street by would-be customers, without any
solicitation by the CSEC. Also surprising, there were as many
male CSEC as female CSEC in New York City.
--------------------------
<1> Rachel Lloyd, Girls Like Us, pp.153-159, Harper Collins,
2011.)
<2> https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf , pp.
48-49. 32-102.
<3> http://www.courtinnovation.org/ - The New York Court System
research agency, with national and international consulting
project.
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Rachel Aviv's December 2012<4> profile of homeless young
people in the New Yorker magazine noted the results of the
John Jay study and then carefully documented the daily lives
of a number of homeless young people on the New York City
streets. They often form loose communities for support.
They sometimes shared repeat sex customers and money earned
from commercial sex, technically acting as pimps for each
other. Adults who purchase sex from CSEC are certainly aware
that they are taking advantage of these children. Some men
use violence against the homeless young people.
Aviv's profile documented that living on the streets and
engaging in survival sex is perilous. The rate of HIV among
homeless youth is triple that of the general population.
Hunger and illness are common and many show symptoms of
psychiatric disorders. And there is the prospect of becoming
chronically or permanently homeless. Aviv wrote: "Samantha
and Ryan were both terrified of becoming 'lifers.' They saw
the signs in their friends, who stopped trying to get job
interviews, missed appointments with caseworkers, and cycled
in and out of psychiatric hospitals or rehab centers, becoming
accustomed to people telling them what to do and when."
6)Related Legislation :
a) SB 1388 (Lieu) would make a person who seeks to purchase
or purchases a commercial sex act guilty of a misdemeanor,
punishable by imprisonment in the county jail for at least
48 hours, but not more than 6 months, and by a fine of at
least $1,000, and, if probation is granted, by a fine of at
least $1,000, but not more than $50,000, to be deposited in
the Victim-Witness Assistance Fund to fund grants to local
programs. SB 1388 is pending hearing by the Senate
Appropriations Committee.
b) SB 982 (Huff) would make it either a misdemeanor,
punishable by not more than one year in a county jail, or a
felony, punishable in a county jail for 16 months or 2 or 3
years, the first time a person seeks to procure the sexual
services of a prostitute if the prostitute is under 18
years of age and the defendant knows or should know that
the prostitute is under 18 years of age. The bill would
--------------------------
<4>
http://www.newyorker.com/reporting/2012/12/10/121210fa_fact_aviv?
currentPage=all&pink=HhM7xT
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make a second or subsequent violation of that offense a
felony, punishable as felony in a county jail for 16 months
or 2 or 3 years. SB 982 is pending hearing by the Senate
Committee on Public Safety.
c) SB 244 (Liu) would have created a 90-day mandatory jail
term minimum for solicitation of a minor for prostitution
related offenses. SB 244 was pulled by the author and
never heard by this Committee.
7)Prior Legislation : 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
California Catholic Conference
California Police Chiefs Association
Conference of California Bar Associations
The Child Abuse Prevention Center
Crime Victims United of California
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
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