BILL ANALYSIS �
SB 244
Page 1
Date of Hearing: June 25, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 244 (Liu) - As Amended: May 7, 2013
SUMMARY : Creates a 90 day mandatory jail term minimum for
solicitation of a minor for prostitution related offenses.
Specifically, this bill :
1)Provides that any adult convicted of a prostitution offense or
soliciting a lewd act in public that involves a minor must
serve a minimum of 90 days in the county jail, regardless of
whether or not the person has been granted probation.
2)Specifies that the court may reduce the minimum jail sentence
in an unusual case, involving a defendant who has not been
previously convicted and where the interests of justice would
best be served, if the court specifies on the record and
enters into the minutes the circumstances indicating that the
interest of justice would best be served by that disposition.
EXISTING LAW :
1)Provides that any person who solicits, agrees to engage in, or
engages in an act of prostitution is guilty of misdemeanor.
This crime does not occur unless the person specifically
intends to engage in an act of prostitution and some act is
done in furtherance of agreed upon act. Prostitution includes
any lewd act between persons for money or other consideration.
[Penal Code Section 647(b).]
2)Provides that any person who solicits another person to engage
in any lewd or dissolute act in a public place is guilty of a
misdemeanor. [Penal Code Section 647(a).]
3)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. [Penal Code Section 647(k).]
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4)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. [Penal Code Section 647(k).]
5)Defines "unlawful sexual intercourse" as an act of sexual
intercourse accomplished with a person under the age of 18
years. [Penal Code Section 261.5(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.
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)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.
[Penal Code Section 288(b).]
8)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. [Penal Code Section 288(c)(1).]
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9)Provides that any person who deprives or violates the personal
liberty of another is guilty of human trafficking if the
person specifically intends one of the following to: 1) effect
or maintain a specified felony prostitution related offense;
2) commit extortion; 3) use a minor to produce or distribute
obscene material or child pornography; or 4) obtain forced
labor or services. [Penal Code Section 236.1(a)-(c).]
10)Provides that if the person trafficked is a minor and the
crime involves a commercial sex act, the offense is punishable
as follows: [Penal Code Section 236.1(c).]
a) Five, 8 or 12 years in prison and a fine of up to
$500,000.
b) 15-years-to-life and a fine of up to $500,000 if the
offense involved force, threats, coercion or deceit, as
specified.
11)Includes these special rules applicable to human trafficking
of a minor: [Penal Code Section 236.1(d)-(f).]
a) Whether or not a minor was caused, induced or persuaded
to engage in a commercial sex act depends on the totality
of circumstances, including the relationship between the
victim and the defendant.
b) Mistake of fact as to the age of the victim is not a
defense.
c) Consent by a minor to an act underlying a human
trafficking charge is not a defense.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : "Mr. Chair and fellow Committee members,
I ask for your aye vote on SB 244. This bill creates a 90-day
minimum jail term for people convicted of soliciting a
sexually exploited juvenile.
"Judges will have the discretion to not impose the full 90-day
sentence, when appropriate.
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"Police and prosecutors in Los Angeles have researched ways to
help combat prostitution, assist youth involved in these
cases, and create more deterrents for johns who prey on child
prostitutes. The Los Angeles City Attorney's Office - the
bill's sponsor - has recommended creating a minimum county
jail term for people convicted of this crime.
"California law allows judges to sentence someone convicted of
soliciting a prostitute to a maximum of six months in county
jail. Second and third-time offenders already face minimum
sentences. However, there is no minimum sentence for a first
offense, and these offenders can be released from custody
after serving little or no time behind bars.
"Those released can include people who solicited sexually
exploited children, who are particularly at risk of being
victimized by adult 'johns,' pimps, street gangs and organized
crime. Many of the prostitutes are homeless teens and other
vulnerable young people.
"The sponsor is here to answer any questions. I ask for your aye
vote."
2)Substantial Penalties Already Exist for Sexual Conduct with a
Minor : Sex acts with minors are already prohibited by law and
carry substantial criminal penalties.
a) Unlawful sexual intercourse with a minor carries
significant jail time. When a defendant is more than three
years older than the minor, or the defendant is older than
21 years of age and the minor is under 16 years of age the
offense is a wobbler carrying a maximum of three years and
a fine of up to $10,000.
b) Offenders who engage in lewd conduct with a minor under
the age of 14, when includes any sexually motivated
touching or a specified sex act, faces up to 8 years in
state prison. When the offense involves force or coercion,
they face up to 10 years in prison.
c) Defendants who engage in sex acts with minors who are 14
or 15 years of age and the perpetrator is at least 10 years
older than the minor, the offender faces up to three years
in state prison.
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3)Sex Trafficking of Minors - Estimated Prevalence : There
appears to be general agreement that sex trafficking of
children is increasing and profitable. However, the 2007
Final Report of the California Alliance to Combat Trafficking
and Slavery Task Force noted that California lacks
comprehensive statistics on human trafficking. Thus, many
statistics on human trafficking in general, and sex
trafficking of children in particular, are estimates. The
task force report did cite statistics from various sources,
including a study finding that 80% of documented cases in
California occurred in urban areas and the majority of victims
were non-citizens. Approximately 50% of human trafficking
cases involved prostitution. A U.S. State Department report
of global trafficking estimated that minors constituted 50% of
trafficking victims. (2007 Alliance to Combat Trafficking.
Final Report, pp. 33-39.)
The Federal Bureau of Investigation (FBI) conducts 24 Innocence
Lost child sexual exploitation task forces and working groups
across the country. Through 2007, 365 cases were opened and
281 child victims were located. The Shared Hope International
non-profit organization has reported that approximately
100,000 domestic minors are sexually trafficked each year.
Numerous examples of trafficking cases were summarized in the
California Alliance Report. In 2001, a Berkeley man was
prosecuted for smuggling 15 girls from India for labor and
sexual exploitation. In 2000, a man was prosecuted for
bringing women and girls from Mexico and forcing them to work
as prostitutes in Long Beach. (2007 Alliance to Combat
Trafficking, Final Report, p. 18.)
4)Penalty and Sentencing Considerations - Mandatory Minimum
Terms Absent a Judicial Finding : Setting the penalty, or
range of penalties, for a crime is an inherently legislative
function. The Legislature does have the power to require a
minimum term or other specific sentence. (Keeler v. Superior
Court (1970) 2 Cal.3d 619, 631.)
Sentencing, however, is solely a judicial power. (People v.
Tenorio (1970) 3 Cal.3d 89, 90-93; People v. Superior Court
(Fellman) (1976) 59 Cal.App.3d 270, 275.) California law
effectively directs judges to impose an individualized
sentence that fits the crime and the defendant's background,
attitude and record. (Cal. Rules of Court, rules
4.401-4.425.) This bill limits judicial discretion and
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requires the same minimum penalty to be imposed in each case
regardless of the facts of the case and the defendant's
record. For example, a defendant who repeatedly targets
pre-pubescent or pubescent prostitutes would appear
substantially more culpable than a defendant with no criminal
record who solicited an act of prostitution from a 17-year-old
girl. This bill, however, does provide that a 90-day jail
term shall be imposed unless the court finds reasons to impose
another sentence and states those reasons on the record. The
court could thereby impose a sentence that is appropriate for
each convicted defendant.
Existing penalties for prostitution offenses include mandatory
minimum penalties for recidivists. A person with one prior
conviction must serve a 45-day minimum term. A person with
two prior convictions must serve a 90-day minimum term. As to
each recidivist penalty, the court cannot reduce or stay the
term, including where the defendant is placed on probation.
Background from the author on this bill and material presented
in connection with bills about human trafficking indicate that
prostitution involving minors is a growing problem. If
increasing numbers of defendants are convicted of soliciting
prostitution from minors and given longer sentences, the bill
could have a significant effect on the jail population,
especially in large, urban counties where juvenile
prostitution is relatively common.
5)Potential for County Jail Overcrowding : According to a recent
report by the Public Policy Institute of California titled
Capacity Challenges in California's Jails, California's county
jails are facing increasing adult daily populations (ADP).
Many counties are facing capacity constraints on their
population. Prior to realignment, 17 counties were operating
under court orders limiting the number of inmates in their
jails. In all, 13 counties including some of the biggest
(Los Angeles, Orange, San Diego, and Sacramento) had average
daily populations that were larger than the number of beds
their jails were rated for.
6)Possible Deterrent Effect of This Bill : It has been argued
that increased penalties will deter crime. This bill requires
a minimum jail term of 90 days for any person convicted of a
prostitution offense involving a minor. The deterrent value
of the bill is basically dependent on 1) potential
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perpetrators knowing about the minimum jail term required by
this bill, and 2) those persons deciding not to solicit minors
for acts of prostitution because of the minimum sanctions.
Arguably, one can only speculate whether or not potential
perpetrators would learn of the minimum jail term that would
be imposed under this bill. Further, arguably one can only
speculate whether such knowledge would induce the person to
avoid soliciting juvenile prostitutes.
Committee staff is not aware of any data about the deterrent
value of the mandatory minimum penalties for recidivist
prostitution offenders in existing law. Arguably, the
mandatory minimum penalties in existing law serve a mostly
punitive function, since by definition the penalties only
apply to offenders who were not deterred from committing
subsequent prostitution offenses on at least one or two
occasions.
A study in 2002 in the Western Criminology Review of a now
defunct first-offender program in Portland (SEEP) found very
low recidivism rates for all prostitution arrestees regardless
of whether they were referred to SEEP and participated, were
referred to SEEP but did not attend, or were not referred to
the program. The study considered only a two-year period and
a relatively small number of offenders. The researchers
inferred from the data that an arrest, per se, could have
deterred offender, as prostitution offenses involve
significant shame. Prostitution thus may be subject to
specific deterrence. The authors, however, also questioned if
the offenders continued to solicit prostitutes, and simply
learned how to avoid arrest. They could not say whether the
education from the SEEP program would have led the
participants to a avoid prostitution for a substantial time in
the future.
7)Defendants Required to Serve a 90-Day Minimum Jail Term as a
Condition of Probation May be Likely to Refuse Probation :
This bill requires the 90-day minimum jail term to be imposed
regardless of whether or not the defendant was placed on
probation, absent a finding of unusual circumstances by the
judge. Many, if not most, county jails are crowded,
particularly in urban areas. A defendant who is convicted of
a prostitution offense in a county with crowded jail
conditions would very likely refuse probation because he would
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know that he would not serve more than 90 days upon a straight
sentence without probation.
A defendant who is not on probation cannot be monitored by the
probation department or the court. A defendant who is not on
probation cannot be ordered to engage in rehabilitative or
restorative justice programs. Many of these defendants might
continue to solicit juvenile prostitutes. If the odds of
getting caught committing such a crime is low, and that may be
likely, such a person could remain a significant source of
demand for juvenile prostitution.
8)Special Prostitution Diversion and Probation Programs : A
number of cities around the country have adopted special
first-offender prostitution diversion programs that educate
men arrested for soliciting an act of prostitution about the
harms caused by or attendant to the commercial sex trade. The
San Francisco program - First Offender Prostitution Program
(FOPP) - was one of the first of these programs. The program
requires men arrested for the first time for a prostitution
offense to attend a one-day course of the harms caused or
exacerbated by the demand for prostitution. Men who complete
the course are diverted out of the criminal justice system.
A report on the San Francisco FOPP conducted by Abt Associates
concluded that program was well run and effective. The
program educated participants about the risk of harm to
prostitution customers, such as robbery, reinforcement of
sexually compulsive behaviors and sexually transmitted
diseases (STD). The course also examined the negative
consequences for prostitutes, such as drug abuse, STDs and
other health problems, criminal convictions, exploitation by
pimps, rape and other violence and harm to the community. The
Abt report found a sharp drop in recidivism attributable to
the program.
The claims of a sharp drop in recidivism in the Abt report have
been criticized and questioned. One study by researchers from
DePaul University and American University found methodological
flaws in the Abt report. The study from the Western
Criminology Review (noted above) found that recidivism rates
attributable to FOPP programs are difficult to measure, as
johns arrested for prostitution offenses can easily learn how
to avoid arrest. Further, the increasing shift of
prostitution to the Internet makes it difficult to measure
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recidivism.
9)Mandatory 90-Day Term Would Apply Regardless of Whether or not
the Defendant Knew Or Should Have Known that the Prostitute
Involved in the Incident was a Minor : 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 16 or 17-year-old minor acting as a prostitute could
appear to be an adult. In such circumstances, it cannot be
said that the defendant intended to exploit minors or knew
that he was exploiting a minor for sexual services. Further,
representatives of the sponsor have noted that a large
proportion of juveniles placed into prostitution are around 12
or 13 years old. An adult would clearly know that a 12-year
prostitute was not an adult.
10)Argument in Support : According to High Road L.A., "The
trafficking of children in the sex industry is widespread in
the United States. It is estimated that between 200,000 and
300,000 U.S. children are involved. Los Angeles, San
Francisco, and San Diego have all been classified by the FBI
as high intensity child sex trafficking areas. The market
demand for these girls is increasing and the number of
children being trafficked is rising. The average age of entry
into the sex industry is 13-14, and some begin as young as
9-years old. The mandatory 90 day imprisonment for offenses
involving minors is appropriate and will serve as a deterrent.
"SB 244 is important in the fight against human trafficking. It
is critical that we protect vulnerable minors and children who
are held against their will and forced into prostitution for
the financial gain of human traffickers."
11)Argument in Opposition: According to California Attorneys
for Criminal Justice (CACJ) , "SB 244 would impose a mandatory
minimum sentence of 90 days for violation of Penal Code 647
(a) whenever the target of the solicitation or lewd conduct is
a minor. CACJ is concerned that such an innovation would be
unnecessary since Section 647.6 (child molestation) and
Section 272 (contributing to the delinquency of a minor), and
the various permutations of Section 288 cover and amply punish
all conceivable possibilities of sexual conduct involving
minors included in SB 244.
"However, given the statewide misuse of Section 647 (a) and like
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statues by way of discriminatory law enforcement against
persons interested in same sex, CACJ respectfully proposes
that now is a good time to revamp Section 647 (a) and Section
647 (d) to make them comply with Pryor v. Municipal Court , 25
Cal.3rd 238 and People v. Superior Court ( Caswell ) 46
Cal.3rd381, as follows:
"Proposed Penal Code Section 647 (a) (engaging in lewd conduct)
'Every person with the specific intent to sexually arouse
gratify, annoy or offend, engages in conduct which involves
the touching of the genitals, buttocks, or female breast, in
any public place, a place open to the public, or one exposed
to public view, and knows or should know that there is an
observer to the conduct who is likely to be offended is guilty
of misdemeanor. (*See Pryor , supra, People v. Adult world
Bookstore , 108 Cal. App. 3rd 404.)
"Proposed Penal Code Section 647 (a) (solicitating lewd conduct)
'Every person with the specific intent to sexually arouse,
gratify, annoy or offend, solicits conducts which involves the
touching of the genitals, buttocks, or female breast,
intending to perform it in any public place, a place open to
the public, or one exposed to public view, and knows or should
know that there will be third persons present who will see the
proposed conduct and who are likely to be offended is guilty
of misdemeanor. (*See People v. Lake , 156 Cal.App. 4th,
Supp.1)
"As for the Section 647 (d), CACJ urges that this should be
eliminated as was PC 647 (e) loitering. Both are completely
unconstitutional. (See Kolender v. Lawson, 461 U.S. 352). If
there is any perceived difficulty in eliminating Section 647
(d) then CACJ urges that the statute be rewritten to comply
with constitutional requirements, by having these sections
preceded by: 'Every person who loiters in or around a toilet
with the specific intent to?'
"By adopting these proposed measures into SB 244, the
Legislature can bring about long overdue reform that will
prevent many false arrests for crimes that were not committed.
(In the same vein, CACJ notes the related and widespread
misuse of mandatory Section 290 registration that attends
Section 314, subd.1, as ripe for removal from Section 290).
"The prevention of false arrests and discriminatory enforcement
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of the laws of this state would be among the highest purpose
for any legislation that CACJ can envision. We hope that you
will give this proposal every consideration, and feel free to
call our Legislative Advocate, Ignacio Hernandez, if you wish
to know more about the ubiquitous and discriminatory aspects
of allowing these statutes to remain as they are now engrafted
into the Penal Code. Furthermore, CACJ can provide expert
testimony on the consent and ubiquitous misuse of these laws
individually and collectively upon any reasonable notice."
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
High Road L.A.
Los Angeles City Attorney
Los Angeles Police Protective League
Riverside Sheriffs' Association
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