BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2035 ( Chesbro)
As Amended May 23, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
NR
SUBJECT
Sexually exploited and trafficked minors
DESCRIPTION
Existing law provides that a child may come within the
jurisdiction of the juvenile dependency court when the child is
severely abused, a parent or guardian fails to adequately
supervise or protect the child, as specified, or a parent or
guardian fails to provide the child with adequate food,
clothing, shelter, or medical treatment. This bill would add to
that list that a minor may come within the jurisdiction of the
juvenile dependency court if the minor is a victim of human
trafficking, a victim of sexual exploitation, or receives food
or shelter in exchange for sexual acts, or is paid to perform
sexual acts, and the parent or guardian failed or was unable to
protect the child.
This bill would also require the training for administrators of
group home facilities, licensed foster parents, and relative or
nonrelative extended family member caregivers to include
instruction on cultural competency and sensitivity related to
providing adequate care to a sexually exploited and trafficked
minor.
BACKGROUND
Human trafficking is an estimated $32 billion-a-year global
industry. After drug trafficking, human trafficking is the
world's second most profitable criminal enterprise. The United
States is one of the top destination countries for trafficking
in persons, and California - a populous border state with a
(more)
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significant immigrant population and the world's ninth largest
economy - is one of the nation's top four destination states for
trafficking human beings. (Office of the Attorney General, The
State of Human Trafficking in California, (2012).)
According to the Attorney General, significant new challenges in
combating this crime have emerged in the last five years.
Criminal organizations and street gangs have increasingly turned
to human trafficking because they find it more profitable with
lower risk than drug trafficking. Additionally, new innovations
in technology make it possible for traffickers to recruit
victims and perpetrate their crimes online.
There has been considerable federal and state legislation in
response to human trafficking. In 2005, California passed the
California Trafficking Victims Protection Act, AB 22 (Lieber,
Chapter 240, Statutes of 2005) which established human
trafficking as a felony and provided assistance for victims.
The same year, SB 180 (Kuehl, Chapter 239, Statutes of 2005),
established a statewide taskforce chaired by the Attorney
General. Last year, California voters passed Proposition 35
which increased criminal penalties for traffickers. The
proposition also provided 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.
Heightened penalties, however, only address part of the problem.
Left in the wake of human trafficking are thousands of child
victims. States have attempted to address the issues concerning
sexually exploited children in a variety of ways including the
decriminalization of minor prostitution and the creation of
diversion programs which aim to channel victims into support
services rather than the criminal justice system. (Kate Walker,
Child Welfare Council, Ending the Commercial Sexual Exploitation
of Children: A Call for Multi-System Collaboration in California
(2013).) California, however, provides that minors engaging in
any act of prostitution are guilty of disorderly conduct, a
misdemeanor.
Unlike the juvenile delinquency system which imposes
criminal-like penalties on minors, the juvenile dependency court
seeks to connect minor victims of abuse with services including
housing, healthcare, and mental health support. To address the
issues related to commercially sexually exploited youth, this
bill, which is substantially similar to SB 738 (Yee, 2013),
would authorize the juvenile dependency court to exercise
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jurisdiction over these minors, and would require that foster
parents, group homes, and other caregivers receive training on
sensitivity and best practices related to providing homes to
sexually abused youth.
CHANGES TO EXISTING LAW
Existing law establishes the criteria by which a child who has
suffered, or is at risk of suffering, significant abuse or harm
is within the jurisdiction of the juvenile court, which may
adjudge that person to be a dependent child of the court. (Welf.
& Inst. Code Sec. 300.)
Existing law 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. (Welf. & Inst. Code Sec. 16501.)
Existing law 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.
(Welf. & Inst. Code Sec. 602.)
Existing law provides that a person who engages in or agrees to
engage in any act of prostitution is guilty of disorderly
conduct, a misdemeanor. (Pen. Code Sec. 647.)
Existing law provides that 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. (Pen. Code Sec. 1161.)
Existing law 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. Code Sec.
261.5.)
Existing law establishes the California Child Welfare Council to
serve as an advisory body responsible for improving the
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collaboration and processes of the multiple agencies and the
courts that service the children and youth in the child welfare
and foster care systems. (Welf. & Inst. Code Sec. 16540.)
Existing law requires the California Department of Social
Services (CDSS) to develop and establish a certification program
to ensure that group home administrators have appropriate
training. (Health & Saf. Code Sec. 1522.41)
Existing law 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. (Health & Saf. Code Sec.
1529.2.)
This bill would authorize the juvenile court to exercise
jurisdiction over a child who is a victim of human trafficking,
as specified, or who receives food or shelter in exchange for
sexual acts, or is paid to perform sexual acts, and the parent
or guardian failed to or was unable to protect the child.
This bill would require 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.
This bill would require community college district foster care
training programs for relative and non-relative extended family
member caregivers, 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.
COMMENT
1.Stated need for the bill
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According to the author:
Because prostitution is a criminal act, in most counties,
commercially and sexually exploited children (CSEC) are placed
into the delinquency system, which does not provide CSEC with
the needs and resources they need as a victim, but as a
criminal.
AB 2035 provides that a child is within the jurisdiction of
the juvenile court, so that the court may adjudge a person to
be a dependent child of the court if he or she is a victim of
human trafficking. Additionally, AB 2035 will provide foster
parents and group home administers with the competency and
sensitivity relating to, and practices for providing case to a
CSEC in out of home care. Because many of these children were
victims of abuse, even prior to their exploitation, it is
important that they are in an environment that is sensitive of
their needs and enables them to free themselves away from the
abusive lifestyle. This bill is the first step in ensuring
that these children receive the care they need and are treated
as victims rather than criminals.
2.Commercially sexually exploited children under the
jurisdiction of the dependency court
This bill would authorize the juvenile dependency court to
exercise jurisdiction over children who are victims of human
trafficking, or who receive food or shelter in exchange for
sexual acts, or who are paid to perform sexual acts, as
specified. This bill would provide that these children may come
within the court's jurisdiction despite an absence of parental
fault.
In practice, authorizing the court to exercise this jurisdiction
will arguably not dramatically affect the amount of children
within the system. The California Child Welfare Council, in a
March 2013 report, expressed that the majority of children
arrested for prostitution were previously involved with the
child welfare system. However, by adding sexually exploited
children as a category of abuse which would qualify them for the
services of the dependency court, this bill could be an
important step in eliminating the negative stigma which
accompanies minor prostitution, and allow these children to be
seen universally as victims.
In support of this bill, the Children's Law Center (CLC) writes,
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"CLC applauds the step forward in ensuring that youth who have
been commercially sexually exploited or trafficked can gain
access to supports and services through the dependency system.
Currently in the State of California these child victims are
arrested, treated as criminals, and funneled through the
juvenile delinquency system for acts their traffickers forced
them to commit.
a. Function of the dependency system
Overall, the dependency system strives to recognize and
accommodate the fundamental rights of parents and children.
Children have a fundamental interest in belonging to a family
unit, as well as the right to be safe from abuse and neglect.
Parents have the essential and basic right to the care,
custody, management, and companionship of their children. In
achieving these goals, the dependency system also seeks to
serve the needs of abused or neglected children, thereby
reducing the need to remove them from the home, encouraging
speedy reunification of families when safe, and locating
permanent homes for children who cannot return to their
families.
While the dependency system routinely connects abused children
with services, it is not entirely clear that it will
adequately be able to address the special needs of
commercially sexually exploited minors. First, the dependency
system functions largely to reunite families. Arguably,
reunification may not be in the best interest of many of these
youth, either because of abuse they suffered at the hands of
their parents, or because reunification might return the child
back to the neighborhood of his or her exploiter. Second,
sexually exploited youth may require unique services above and
beyond what other children in the dependency system need. In
addition to placement with foster parents who are likely to
have not received special training on the emotional and
psychological needs of trafficked youth, these children are
highly susceptible to relapse, making group homes a risk as
well. "Exploiters often know where foster care group homes
are and they directly recruit girls from these settings-they
prey on the kids they know are the most vulnerable." (Kate
Walker, Child Welfare Council, Ending the Commercial Sexual
Exploitation of Children: A Call for Multi-System
Collaboration in California (2013) p. 20.)
Whether or not the dependency system can adequately address
the needs of commercially and sexually exploited children
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(CSEC) has yet to be evaluated. An earlier version of this
bill and last year's SB 738 (Yee, 2013) called for an
interagency workgroup to develop a plan that included, at a
minimum, an evaluation of juvenile court jurisdiction
pertaining to child trafficking, and the identification of
training needs for child welfare staff, law enforcement, and
probation staff regarding child trafficking response
protocols. Those bills would have required the workgroup to
submit the plan to the Legislature, Judicial Council, and
Governor no later than January 30, 2016. SB 738 died in the
Assembly Human Services Committee, and the provisions
requiring the interagency workgroup and plan were amended out
of this bill. Thus, at this point, no plan is being submitted
to the Legislature for review. Accordingly, the following
amendment would sunset the provisions of this bill related to
the jurisdiction of the dependency court approximately two
years after the plan is due, thus allowing the Legislature to
evaluate whether the dependency system is able to
appropriately serve commercially sexually exploited children.
Suggested amendment:
Sunset provision in this bill related to commercially
sexually exploited children coming under the jurisdiction
of the juvenile dependency court on January 1, 2017,
pursuant to Welf. & Inst. Code Sec 300.
3.Sensitivity and best practices training
This bill would require that specified caregivers receive
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. Caregivers
required to receive this training would include: (1)
administrators of group home facilities; (2) foster parents
prior to placement of a foster child in his or her home; and (3)
foster parents in post placement annual training. Consistent
with existing law which requires community college districts
with a foster care education program to make specified training
available to foster parents, this bill would require that these
community college districts make competency and sensitivity
training related to commercially sexually exploited youth, as
specified, available as well.
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Training caretakers as to what behavior to anticipate from
trafficked minors, and how to treat these vulnerable youths with
consistency and respect is crucial. The vast majority of these
children were victims of serious abuse prior to sexual
exploitation, and are highly susceptible to relapse. For many
children the process may involve 20 relapses before she is able
to permanently free herself of her exploiter. A recent report
on sexually exploited children describes the situation many
girls find themselves in.
The hold that pimps and street culture have over prostituted
youth is too powerful to be displaced by traditional social
services or brief interventions. There is no curriculum that
can provide an abused and frightened fourteen-year-old girl
with the cognitive ability and refusal skills to outthink a
twenty-six-year-old offering love, money, and to take care of
her. (Kate Walker, Child Welfare Council, Ending the
Commercial Sexual Exploitation of Children: A Call for
Multi-System Collaboration in California (2013) p. 26.)
Thus, simply expanding jurisdiction in order to bring these
children within the child welfare system does not necessarily
address the rehabilitative needs of these children. Arguably,
training for group home staff, foster parents, and relatives
will educate these caretakers about the sensitive needs of this
unique population and may enhance the efforts of the system to
provide proper care and services.
Support : Children's Advocacy Institute; California Alliance of
Child and Family Services; California Coalition for Youth;
California Youth Connection; Children Now; Children's Defense
Fund of California; Children's Law Center; City and County of
San Francisco; International Justice Mission; Equality
California; Junior League of Long Beach; Junior League of Los
Angeles; Junior League of Monterey, Inc.; Junior League of
Napa-Sonoma; Junior League of Riverside, Inc.; Junior League of
San Diego; Junior League of San Francisco, Inc.; Junior League
of San Jose; Junior League of Oakland-East Bay; National Council
of Jewish Women-California; Red Window Project; San Francisco
Department on the Status of Women; Service Employees
International Union Local 1000; West Coast Children's Clinic; a
number of individuals
Opposition : None Known
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HISTORY
Source : Coalition to Abolish Slavery; Junior League of
California
Related Pending Legislation : SB 738 (Yee, 2013) was
substantially similar to this bill. SB 738 is currently in the
Assembly Human Services Committee.
Prior Legislation :
SB 114 (Pavley, Chapter 42, Statutes of 2013) extended the
sunset date to January 1, 2017, for a discretionary pilot
project related to commercially sexually exploited minors
established pursuant to SB 1279 (Pavley, Chapter 116 , Statutes
of 2010) and extended 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, replicative,
multidisciplinary model to address the needs and effective
treatment of commercially sexually exploited minors.
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 comprehensive,
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 for prostitution crimes.
AB 499 (Swanson, Chapter 359, Statutes of 2008) authorized a
discretionary pilot project in Alameda County to encourage the
development of a comprehensive, replicative, and
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,
as specified.
SB 180 (Kuehl, Chapter 239, Statutes of 2005) established the
California Alliance to Combat Trafficking and Slavery Task Force
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to be chaired by the California Attorney General and set 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, allowed
for forfeiture of assets derived from human trafficking, made
legislative findings and required law enforcement agencies to
provide Law Enforcement Agency Endorsement to trafficking
victims, created the California Alliance to Combat Trafficking
Task Force, and provided restitution to victims.
Prior Vote :
Senate Human Services Committee (Ayes 4, Noes 0)
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Human Services Committee (Ayes 6, Noes 0)
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