BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Jim Beall, Chair
BILL NO: AB 2035
A
AUTHOR: Chesbro
B
VERSION: May 23, 2014
HEARING DATE: June 10, 2014
2
FISCAL: Yes
0
3
CONSULTANT: Sara Rogers
5
SUBJECT
Sexually exploited and trafficked minors
SUMMARY
This bill provides that a child who is a victim of human
trafficking, is a victim of sexual exploitation, or is paid
to perform sexual acts, is within the jurisdiction of the
juvenile court. This bill requires that the state-mandated
certification program for administrators of group homes and
training programs for foster parents and relative
caregivers must include instruction on cultural competency,
sensitivity and best practices for providing adequate care
to a sexually exploited and trafficked minor in out-of-home
care.
ABSTRACT
Existing Federal Law:
1.Enacts the Trafficking Victims Protection Act of 2000
which increased penalties for trafficking, provided for
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mandatory restitution for victims and increased funding
for victim services.
2.Enacts a series of Trafficking Victims Protection
Reauthorization Acts in 2003, 2005, 2008, and 2013 which
mandated new information campaigns, required an annual
report from the Attorney General to Congress, created a
new civil cause of action allowing trafficking victims to
sue their traffickers in federal district court, and most
recently enhanced support for state and local efforts to
address victims of human trafficking, especially minor
sex trafficking victims.
3.Establishes the Presidents Interagency Task Force to
Monitor and Combat Trafficking in Persons (PITF), chaired
by the Secretary of State, bringing together federal
departments and agencies to develop a multi-agency
approach to human trafficking.
4.Includes, in defining the term "victim of a severe form
of trafficking in persons," a person who has been
subjected to sex trafficking in which a commercial sex
act is induced by force, fraud, or coercion and in which
the person induced to perform such act has not attained
18 years of age. (USC Section 7102 (8) of Title 22)
Existing State Law:
1.Establishes the criteria by which a child who has
suffered, or is at risk of suffering, significant abuse
or harm shall be within the jurisdiction of the juvenile
court which may adjudge that person to be a dependent
child of the court. (WIC 300)
2.Includes, within the definition of "child welfare
services," public social services that are directed
toward the prevention of exploitation or delinquency of
children as well as services provided on behalf of
children alleged to be the victims of exploitation.
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Additionally includes, within the definitions of various
specific child welfare services provided by counties,
services aimed at the prevention of exploitation. (WIC
16501)
3.Provides that a minor who violates a state, federal, or
local law is within the jurisdiction of the juvenile
court, which may adjudge such person to be a ward of the
court. (WIC 602)
4.Provides that engaging in or agreeing to engage in any
act of prostitution is guilty of disorderly conduct, a
misdemeanor. (PEN 647)
5.Pursuant to Proposition 35 (2012) requires all of the
following:
Any person who causes, induces, or persuades a
minor to engage in a commercial sexual act, as
specified, is guilty of human trafficking to be
punishable by imprisonment in state prison, as
specified. (PEN 236.1 (c))
Consent by a victim of human trafficking who is a
minor, and mistake of fact as to the age of the
victim, is not a defense to criminal prosecution.
(PEN 236.1 (e) and (f))
Evidence that a victim of human trafficking, as
defined, has engaged in any commercial sexual act as a
result of being a victim of human trafficking is
inadmissible to prove the victim's criminal liability
for that activity. (EC 1161)
Law enforcement agencies shall consider specified
indicators of human trafficking when a peace officer
comes into contact with a minor who has engaged in a
commercial sex act. (PEN 236.2)
Law enforcement officers assigned field or
investigative duties shall complete a minimum of two
hours of training pertaining to the handling of
victims of human trafficking by July 2014. (PEN
13519.14)
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1.Defines sexual abuse to include the promotion or
encouragement of a child to engage in an act of
prostitution or posed or performed sexual conduct. (PEN
11165.1)
2.Provides that sexual intercourse with a minor, who is not
the spouse of the perpetrator, is unlawful and punishable
as either a misdemeanor or felony, as specified. (PEN
261.5)
3.Establishes the California Child Welfare Council to serve
as an advisory body responsible for improving the
collaboration and processes of the multiple agencies and
the courts that service the children and youth in the
child welfare and foster care systems. (WIC 16540)
4.Requires the California Department of Social Services
(CDSS) to develop and establish a certification program
to ensure that group home administrators have appropriate
training. (HSC 1522.41)
5.Requires every licensed foster parent to complete a
minimum of 12 hours of foster parent training, prior to
the placement of any foster children and a minimum of
eight hours of foster parent training annually. (HSC
1529.2)
This bill:
1.Provides that a child is within the jurisdiction of the
juvenile court which may adjudge that person to be a
dependent child of the court if he or she is a victim of
human trafficking, as specified, is a victim of sexual
exploitation, as specified, or receives food or shelter
in exchange for, or is paid to perform sexual acts, as
specified, and the parent failed or was unable to protect
the child.
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2.Requires group home administrator certification programs
to include instruction on cultural competency and
sensitivity relating to, and best practices for,
providing adequate care to a sexually exploited and
trafficked minor in out of home care.
3.Requires foster parent training programs, including
post-placement annual training programs, to provide
instruction on cultural competency and sensitivity
relating to, and best practices for, providing adequate
care to a sexually exploited and trafficked minor in out
of home care.
4.Requires community college district foster care education
programs for relative and non-relative extended family
member caregivers to include instruction on cultural
competency and sensitivity relating to, and best
practices for, providing adequate care to a sexually
exploited and trafficked minor in out-of-home care.
FISCAL IMPACT
According to the Assembly Appropriations Committee, there
is an unknown, potential minor net increase in annual child
welfare services costs (General Fund) to the extent
sexually exploited and trafficked minors are placed under
the jurisdiction of the juvenile dependency court.
Additionally, there are one-time costs of $10,000 (General
Fund) to develop new curriculum component to the required
training program for foster care providers and annual costs
of $65,000 to provide training for this new component to
foster caregivers.
BACKGROUND AND DISCUSSION
Purpose of the bill:
According to the author, this bill will provide foster
parents and group home administrators with the competency
and sensitivity relating to, and best practices, for
providing care to a commercially sexually exploited child
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in out-of-home care. Because many of these children were
victims of abuse prior to their exploitation, it's
important that they are in an environment that is sensitive
of their needs and enables them to free themselves away the
abusive lifestyle, the author states. This bill is the
first step in ensuring that these children receive the care
they need and are treated as victims rather than criminals,
according to the author.
The author cites a recent report released by the California
Child Welfare Council which writes that "within the United
States, California has emerged as a magnet for the
commercial sexual exploitation of children (CSEC)." The
report states that the Federal Bureau of Investigation
estimates that more than 100,000 children are trafficked
annually in the United States and as many of 300,000 are at
risk of becoming victims of commercial sexual exploitation.
The FBI has additionally found that three of the FBI's
thirteen highest areas of CSEC are located within
California including San Francisco, Los Angeles, and the
San Diego metropolitan areas.
Commercially Sexually Exploited Children (CSEC)
Commercial sexual exploitation of children is defined as
the sexual exploitation of children at least primarily for
financial or other economic reasons. Under this definition,
the economic exchanges may be either monetary or
non-monetary (i.e., for food, shelter, drugs).<1> Sex
trafficking of minors is defined as the "recruitment,
harboring, transportation, provision, or obtaining of a
person for the purpose of a commercial sex act" where the
person is a U.S. citizen or lawful permanent resident under
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<1> Estes and Weiner. "The Commercial Sexual Exploitation
of Children In the U. S., Canada and Mexico." Univ. of PA,
2002.
http://www.sp2.upenn.edu/restes/CSEC_Files/Exec_Sum_020220.p
df
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the age of 18.<2>
The California Child Welfare Council, in a March 2013
report, states that children who fall victim to commercial
sexual exploitation frequently are involved with the child
welfare system. Specifically, the report states that 50 to
80 percent of CSEC are or were involved in the child
welfare system. Recent news reports quote the northern
California FBI task force on trafficked minors as
estimating that 90 percent of recovered trafficked youth in
northern California were involved with the child welfare
system. Additionally, the report states that youth in the
child welfare system are particularly vulnerable to
commercial sexual exploitation. Children who become victims
of such exploitation frequently have a history of suffering
physical and emotional abuse, which led to their contact
with the child welfare system. This abuse and neglect
combined with unstable placements in foster care and a
frequent absence of positive and loving adult relationships
create emotional vulnerabilities that are exploited. On
average, early adolescence is the most common age for
children to fall victim to commercial sexual exploitation -
between ages 11 to 13 for boys and ages 12 to 14 for girls.
The report cites research finding that 68 percent of
victims of CSEC suffered from chronic health problems and
Post-Traumatic Stress Disorder and likened the experience
of victims to experiences of "hostages, prisoners of war,
or concentration camp inmates."
California Child Welfare Council
The California Child Welfare Council was created in statute
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<2> Smith et al. "The National Report on Domestic Minor Sex
Trafficking: America's Prostituted Youth." Shared Hope
Int'l, 2009.
http://sharedhope.org/wp-content/uploads/2012/09/SHI_Nationa
l_Report_on_DMST_2009.pdf
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to serve as a multi-agency advisory body responsible for
improving collaboration and processes among the broad range
of agencies, including the courts that serve children and
youth in the child welfare and foster care systems. The
Council is co-chaired by the Secretary of Health and Human
Services and the designee of the Chief Justice of
California, and is charged with monitoring and reporting
the extent to which child welfare and foster care programs
and the courts are responsive to the needs of children in
their joint care. The Council may issue advisory reports
whenever it deems appropriate, and is required to report at
least annually to the Governor, the Legislature, the
Judicial Council and the public.
The Council has convened a CSEC workgroup comprised of
public and private agency representatives from social
services, mental health, probation, law enforcement, courts
and child advocacy groups. In March 2013, the workgroup
released a report entitled "Ending the Commercial Sexual
Exploitation of Children: A Call for Multi-System
Collaboration in California," which concluded that
"California must develop a comprehensive and collaborative
response to ensure CSE victims are identified and receive
the services they need to overcome trauma and live healthy,
productive lives."
This workgroup's report concluded that "because many CSEC
are involved with child protective services and foster
care, the child welfare system is uniquely positioned to
implement prevention and early intervention services." It
lists ongoing efforts to be undertaken by the CSEC Action
Committee, a creation of the CSEC workgroup that is
recommended by the report to be an ongoing committee.
Criminal Prosecution of Victims of CSEC
Federal law, under the Trafficking Victims Protection Act,
clearly designates minors who have engaged in commercial
sexual acts as victims of commercial sexual exploitation
and sex trafficking. In contrast, California Penal Code and
Welfare and Institutions Code permits minors to be charged
with disorderly conduct, a misdemeanor, or other charges,
and placed in juvenile detention facilities as wards of the
juvenile court.
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A 2009 report published by Shared Hope International,
funded by a U.S. Department of Justice grant, assessed
domestic minor sex trafficking in the United States in
research that partnered with the U.S. Department of
Justice-funded human trafficking task forces. The report
found the "misidentification of the victims to be the
primary barrier to the rescue and response to domestic
minor sex trafficking victims." The report also discussed
the phenomenon of criminalizing victims through
misidentification:
"Those victims who are identified as minors are
frequently charged with a delinquent act either
for prostitution related activities or for a
related offense ... These children are found in
detention facilities across the country, as well
as in juvenile justice rehabilitative programs.
Due to the unique trauma bonding that occurs
between a victim and her trafficker, these
children often go from juvenile facility right
back to the person that exploited them."
The report further found that law enforcement noted that
officers are often compelled to use the "stop-gap measure"
of charging a victim with a delinquency offense in order to
detain the victim in a locked facility to keep her safe
from the trafficker and the trauma-driven response of
flight.
The debate surrounding decriminalization of children
engaged in commercial sexual acts typically centers around
the question of how best to protect the safety and
well-being of the child given the frequency with which an
exploited child may return to the trafficker. Some law
enforcement agencies believe that absent a criminal charge
associated with a minor engaging in this activity they
would have no ability to detain an exploited minor.
Additionally, in response to the relationship between law
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enforcement and exploited minors, specialized programs and
resources have been largely developed under the delinquency
jurisdiction, rather than through the child welfare system.
This bill does not remove the ability of law enforcement to
charge a minor with a crime under the Penal Code, but
rather permits child welfare to respond to reports of CSEC
and to develop specialized services through the child
welfare system. Given the changing nature of the crime due
to increased use of online solicitation, it's reported to
be increasingly difficult for law enforcement to locate and
detain youth who are being exploited.
Other States
The state of New York was the first to pass a "Safe Harbor
law" which created a presumption that a minor arrested for
prostitution is a victim of trafficking as provided under
federal law. New York's law mandates that first-time
victims be treated as status offenders rather than
delinquents, and thus provides that victims receive
services through the Department of Social Services rather
than being detained. Washington State subsequently passed a
substantially similar law. Second-time offenders may be
prosecuted under the juvenile court. The outcomes for this
program are mixed, and experts note that negative outcomes
may be the result of the lack of additional funding and
specialized services for victims of commercial sexual
exploitation under child welfare jurisdiction.
Illinois has passed a Safe Harbor law that prohibits the
prosecution of minors for prostitution and requires victims
be placed into protective custody. The law provides that
law enforcement may take a minor into temporary custody if
there is a reasonable belief that the youth is a victim of
sex trafficking, and such custody may involve placement in
secure facilities. Minnesota has passed a law requiring
that, as of August of 2014, a youth under the age of 16 who
has no previous adjudication for prostitution, cannot be
prosecuted for prostitution or related charges. Meanwhile,
the states of Connecticut, Florida, Illinois and Oregon
have passed laws to include sexual exploitation or sex
trafficking as a reportable form of maltreatment under the
mandated reporting guidelines which enables child welfare
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agencies to engage in the case.
California Legislation and Proposition 35
In 2005, California passed the California Trafficking
Victims Protection Act, AB 22 (Lieber) which established
human trafficking as a felony and provided victims
assistance. The same year, SB 180 (Kuehl) established a
statewide taskforce chaired by the Attorney General. As
required, the taskforce produced a report to the
Legislature and Governor in 2007, and though the statutory
mandate for the taskforce was sunset in 2008, the Attorney
General reconvened the taskforce and produced a new report
in 2012.
The findings of that report centered on the role of law
enforcement in addressing sex trafficking and made several
recommendations including cross-unit law enforcement
training and coordination, the development of specialized
expertise, and effective leveraging of technology to combat
trafficking. The report recommended a "victim-centered
approach" which includes appropriate training for health
care providers and victim services providers, mandatory
reporting law changes, and the development of long-term
shelters for victims.
In 2012, California voters passed Proposition 35 which
increased criminal penalties for traffickers. The
proposition establishes that consent by a victim of human
trafficking who is a minor, or a mistake of fact as to the
age of the victim are not defenses to criminal prosecution.
It also prohibited as evidence that that a victim of human
trafficking is inadmissible to prove the victim's criminal
liability for that activity.
Katie A. Settlement
In 2011, the state settled Katie A. v Bonta, a lawsuit
filed on behalf of California children in foster care, or
at imminent risk of foster care placement, who have a
documented mental health need, and who need certain
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individualized mental health services to treat or
ameliorate their illness or condition. In response, the
state of California has agreed to establish three new
Medi-Cal specialized mental health services aimed at
meeting the needs of the youth who are covered under the
settlement.<3>
In fulfilling the obligations of the settlement, DHCS and
CDSS have drafted a Core Practice Model (CPM) to provide
practice guidance and establish a standard of care for
county child welfare and mental health agencies, and other
service providers that provide services to covered youth.
Additionally, the departments have jointly released a new
Medi-Cal Manual to provide guidelines for delivering and
billing for Intensive Care Coordination (ICC) and Intensive
Home Based Services (IHBS).
Supporters of AB 2035 state that the development of these
new services presents an opportunity to develop specialized
treatment services for victims of CSEC who are also foster
youth and whose needs meet the criteria of the Katie A.
sub-class.
Prior Legislation:
SB 114 (Pavley), 2013, Extends the sunset date to January
1, 2017, for the discretionary pilot project related to
commercially sexually exploited minors established pursuant
to SB 1279 (Pavley, 2010) and extends the sunset date for
the District Attorney of Los Angeles to submit a report to
the Legislature to April 1, 2016.
AB 799 (Swanson), Chapter 51, Statutes of 2011, extended
the sunset of a authorizing the Alameda County District
Attorney to create a pilot project, contingent upon local
funding, for the purposes of developing a comprehensive,
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<3> "Medi-Cal Manual for Intensive Care Coordination (ICC),
Intensive Home Based Services (IHBS) and Therapeutic Foster
Care (TFC) for Katie A. Subclass Members." DHCS and CDSS.
2013.
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replicative, multidisciplinary model to address the needs
and effective treatment of commercially sexually exploited
minors, as specified. Requires the Alameda County District
Attorney to provide a report to the Legislature on the
pilot contingent upon local funding and operation of the
pilot.
SB 1279 (Pavley), Chapter 116, Statutes of 2010,
authorized, until January 1, 2014, a discretionary pilot
project in Los Angeles County to encourage the development
of a best practices model for law enforcement and the
criminal and juvenile justice systems to identify, assess
and address needs of CSEC who have been arrested for
prostitution.
AB 499 (Swanson), Chapter 359, Statutes of 2008, authorized
a discretionary pilot project in Alameda County to
encourage the development of a comprehensive, replicative,
multidisciplinary model reflecting the best practices for
the response of law enforcement and the criminal and
juvenile justice systems to identify, assess and address
the needs of commercially sexually exploited children who
have been arrested or detained by local law enforcement, as
specified.
SB 180 (Kuehl), Chapter 239, Statutes of 2005, established
the California Alliance to Combat Trafficking and Slavery
Task Force to be chaired by the California Attorney General
and sets forth its course of action and physical make-up.
AB 22 (Lieber), Chapter 240, Statutes of 2005, established
civil and criminal penalties for trafficking in human
beings, allows for forfeiture of assets derived from human
trafficking, makes legislative findings and requires law
enforcement agencies to provide Law Enforcement Agency
Endorsement (LEAE) to trafficking victims, creates the
California Alliance to Combat Trafficking and (California
ACTS) Task Force, and provides restitution to victims.
PRIOR VOTES
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Assembly Floor 78 - 0
Assembly Appropriations 17 - 0
Assembly Human Services 6 - 0
COMMENTS
1.This bill does not remove the potential jurisdiction of
the juvenile delinquency court for youth determined to be
wards of the juvenile court under WIC 602. Instead it
will clarify that child welfare may act if a victim of
commercial sexual exploitation is identified independent
of the juvenile justice system, or if counties determine
that child welfare would be a more appropriate
jurisdiction for such youth.
2.This bill has policy overlap with a budget proposal
currently under consideration that would provide funding
to $20.3 million to county child welfare departments to
serve victims of human trafficking and for prevention
activities and would implement the policy changes
contained in this bill.
POSITIONS
Support: None received.
Oppose: None received.
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