BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1791 (Maienschein) 1
As Amended May 7, 2014
Hearing date: June 24, 2014
Penal Code
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SOLICITING MINORS FOR PROSTITUTION
HISTORY
Source: Conference of California Bar Associations
Prior Legislation: SB 982 (Huff) 2014, Held in Senate
Appropriations
SB 1388 (Lieu) 2013, Pending in Assembly Public
Safety
AB 90 (Swanson) Ch. 457, Stats. 2011
AB 17 (Swanson) Ch. 211, Stats. 2010
Support: Unknown
Opposition:California Attorneys for Criminal Justice; Taxpayers
for Improving Public Safety
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
WHERE A DEFENDANT IS CONVICTED OF A PROSTITUTION OFFENSE, SHOULD THE
PENALTY BE A JAIL TERM OF UP TO ONE YEAR AND A FINE OF UP TO $2,000
IF THE PERSON SOLICITED WAS A MINOR?
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PURPOSE
The purpose of this bill is to provide that where a defendant is
convicted of prostitution in which the person solicited was a
minor, or in which the person who agreed to engage in or engaged
in an act of prostitution was a minor, the offense is punishable
by a misdemeanor jail term of up to one year, a fine of up to
$2,000, or both.
Prostitution Offenses Generally
Existing law provides that prostitution involves any lewd act
between persons for money or other consideration. (Pen. Code �
647, subd. (b); CALCRIM 1154)
Existing decisional law 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.)
Existing law provides that any person who solicits, agrees to
engage in, or engages in an act of prostitution is guilty of a
misdemeanor. The crime includes an element that the defendant
specifically intended to engage in an act of prostitution and
some act was done in furtherance of the agreed upon act. (Pen.
Code � 647, subd. (b).)
Existing law provides that where any person is convicted for a
second prostitution offense, the person shall serve a sentence
of at least 45 days, no part of which can be suspended or
reduced by the court regardless of whether or not the court
grants probation. (Pen. Code � 647, subd. (k).)
Existing law provides that where any person is convicted for a
third prostitution offense, the person shall serve a sentence of
at least 90 days, no part of which can be suspended or reduced
by the court regardless of whether or not the court grants
probation. (Pen. Code � 647, subd. (k).)
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Existing law provides that where a defendant is convicted of a
prostitution offense in which the defendant sought to procure or
procured the "sexual services of a prostitute who was a minor,
the following shall apply:
The defendant shall, in addition to any other fine or penalty,
be ordered to pay up to $25,000; and,
Upon appropriation by the Legislature, the proceeds of the
fine shall "be available to fund programs and services for
commercially sexually exploited minors in the counties" of
conviction. (Pen. Code �� 261.9 and 647, subd. (b).)
Sex Crimes against Minors
Existing law 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.)
Existing law provides that sexual intercourse with a minor where
no aggravating elements are proved is the crime of "unlawful
sexual intercourse," punishable as follows:
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.
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, 2 or 3 years.
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.)
Existing law 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
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follows:
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 or 3 years.
In other cases sodomy with a minor is a wobbler, with a
felony prison term of 16 months, 2 or 3 years. (Pen. Code
�� 286, subd. (b), 288a, subd. (b), 289, subd. (h).)
Existing law 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).)
Existing law specifically 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).)
Existing law 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).)
Existing law 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, 2 or 3 years and a fine of up $10,000. (Pen.
Code � 288, subd. (c)(1).)
This bill provides that where a defendant is convicted of a
prostitution offense and the person the defendant solicited, or
who agreed to engage in an act of prostitution with the
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defendant, is a minor, the misdemeanor offense is punishable by
a jail term of up to one year in the county jail, a fine of up
to$2,000, or both.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
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capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
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out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
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
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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. Soliciting an Act of Prostitution from a Minor or Engaging in
an Act of Prostitution with a Minor Constitutes an Attempted
or Completed Sex Crime
Minors cannot consent to sexual acts. Soliciting sexual
intercourse or other defined sex acts from a minor would
constitute attempted sex crimes.
Any sexually motivated touching of a child under the age of 14
years is a felony, punished by a prison term of three, six or
eight years. Sexually motivated touching of a minor who is 14
or 15 years old by a person at least 10 years older than the
minor is an alternate felony misdemeanor form of lewd conduct,
with a felony prison term of one, two or three years.<1> (Pen.
Code � 288, subd. (c).) Soliciting an act of prostitution from a
minor under the age of 16, as it includes the intent to engage
in sexual conduct and some act toward realizing that intent,
would generally constitute an attempt<2> to commit lewd conduct,
punishable by a prison term of 18 months, three years or four
years. (Pen. Code � 288, subd. (b).)
In cases where a defendant's conduct in seeking out a juvenile
for prostitution constitutes a completed or an attempted sex
crime, the defendant could be convicted of both the attempted or
completed sex crime and a prostitution offense, although he
could not likely be punished for both crimes. A conviction for
both crimes would more accurately reflect the person's conduct
and criminal history.
WHERE A DEFENANT SOLICITED AN ACT OF PROSTITUTION FROM A MINOR
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<1> Generally, the prison "triad" is 16 months, two years or
three years, if a more specific penalty is not stated in the
governing statute.
<2> The punishment for an attempted crime, with certain specific
exceptions, is one-half the punishment for the completed crime.
(Pen. Code � 664.)
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OR ENGAGED IN AN ACT OF PROSTITUTION WITH A MINOR - AN EXCHANGE
OF MONEY OR OTHER THING OF VALUE FOR A SEXUAL ACT - HAS THE
DEFENDANT COMMITTED AN ATTEMPTED OR COMPLETED SEX CRIME?
Where two statutes define a defendant's conduct as a crime, the
more specific offense is presumed to apply, particularly where
the more specific offense statute is enacted after the more
general statute. The Legislature is deemed to be aware of the
general statute, such that the Legislature intended only for the
more specific statute to apply if that statute describes the
defendant's conduct. While the rule that a specific statute
prevails over a more general statute does not apply where the
two statutes can be reconciled or harmonized, the rule is
applied on a case-by-case basis. (In re Greg F. (2012 ) 55
Cal.4th 393, 407-408.) It appears that a defendant would argue
that he should only prosecuted for a prostitution offense, not a
sex crime against a minor, because the minor's conduct in the
prostitution incident was also unlawful and the Legislature
intended that only prostitution charges could be fine under such
circumstances. To avoid an argument that a defendant who is
charged with a sex crime or an attempted sex crime against a
minor and prostitution involving a minor may only be prosecuted
and punished under the prostitution offense, it is suggested
that the bill be amended to provide that prosecution under this
bill does not preclude prosecution under any other provision of
law.
SHOULD THIS BILL BE AMENDED TO PROVIDE THAT A DEFENDANT
PROSECUTED FOR PROSTITUTION INVOLVING A MINOR CAN BE PROSECUTED
UNDER ANY OTHER PROVISION OF LAW?
3. Studies and Profiles of Commercially Sexually Exploited Youth
This bill raises the penalties for defendants who seek
commercial sex from a minor. The author's statement states that
the bill is intended to deter and limit human trafficking and
the sexual exploitation of minors. 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
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isolated, controlled by and made dependent on their exploiters,
and can even be perversely loyal because of the manufactured
dependency.<3>
A 2008 study by the John Jay College of Criminal Justice<4> and
the Center for Court Innovation<5> 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
commercially sexually exploited children (CSEC) 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 in New York City.
Rachel Aviv's December 2012<6> 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.
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<3> Rachel Lloyd, Girls Like Us, pp.153-159, Harper Collins,
2011.)
<4> https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf , pp.
48-49. 32-102.
<5> http://www.courtinnovation.org/ - The New York Court System
research agency, with national and international consulting
project.
<6>
http://www.newyorker.com/reporting/2012/12/10/121210fa_fact_aviv?
currentPage=all&pink=HhM7xT
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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
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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."
4. Girls Courts and other Programs for Minors Engaged in
Prostitution
The New Yorker profile noted above described a patchwork of
services that are not coordinated or comprehensive. As the CSEC
told Aviv, they are constantly in danger of becoming "lifers" on
the street, with the attendant harms of that life. The John Jay
study may not reflect the populations of CSEC in cities and
areas other than New York. However, the study does indicate
that relying on enforcement of laws against human trafficking
and pimping to address CSEC problems will still leave
substantial numbers of minors on the street and exploited for
sexual commerce.
Collaborative Courts
There has been a growing awareness of the value of special
juvenile courts for the girls found to be involved in commercial
sex.<7> These courts have been implemented in Alameda County
and Los Angeles is expanding a pilot program. It has been
argued that treating juvenile prostitution as a crime problem
does little or nothing to address the underlying circumstances
that bring minors to engage in commercial sex.
Special collaborative courts can organize and monitor
supervision and treatment of CSEC girls. Special STAR
(Succeeding through Achievement and Resilience) courts have been
implemented in Los Angeles as a pilot project that is reportedly
being expanded.<8> Alameda County has established an extensive
Girls Court. New York has created a network of 11 Human
Trafficking Intervention Courts for juveniles who are at least
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<7>
http://www.nytimes.com/2014/01/29/us/a-courts-all-hands-approach-
aids-girls-most-at-risk.html?_r=0
<8> http://file.lacounty.gov/bos/supdocs/70403.pdf
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16 years old.<9>
It appears that collaborative courts for minors caught up in
sexual commerce have focused almost exclusively on girls.
However, the John Jay study and the New Yorker investigative
article indicate that there are a substantial number of boys and
transgender youth who are CSEC.
Arguably, collaborative courts should be organized or designed
to handle whatever populations of CSEC are present in the
community of the court or courts.
Comprehensive Programs for Commercially Sexually Exploited Youth
The Center for Court Innovation participated in a project and
study for addressing and ameliorating the problems of homeless
and exploited youth. The project encountered setbacks and
limitations and identified effective strategies.<10>
Effective strategies were identified and implemented:
o Consistent, coordinated and adequately funded
prosecution strategies targeting exploiters;
o Comprehensive and coordinated and funded
programs for CSEC, especially housing and appropriate
counseling and intervention; and,
o Sustained prevention programs, including a
need for research on effective programs.
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<9>
http://www.nytimes.com/2014/01/29/us/a-courts-all-hands-approach-
aids-girls-most-at-risk.html?_r=0
<10>
http://www.courtinnovation.org/sites/default/files/CSEC_NYC_Volum
e2.pdf
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Setbacks and limitations:
o inconsistent leadership;
o insufficient data; and,
o outside pressures pulling participating
agencies away.
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