BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1388 (Lieu) 8
As Introduced February 21, 2014
Hearing date: April 22, 2014
Penal Code
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SOLICITATION OF MINORS FOR PROSTITUTION
HISTORY
Source: Los Angeles County Board of Supervisors; California
Against Slavery
Prior Legislation: AB 90 (Swanson) - Ch. 457, Stats. 2011
AB 17 (Swanson) - Ch. 211, Stats. 2010
Support: Freedom from Exploitation; Soroptomist International of
Vista; Soroptomists Together Against Trafficking;
Laura's House; Community Overcoming Relationship Abuse
(CORA); Journey Community Church; California Narcotic
Officers Association; California Police Chiefs
Association; California Catholic Conference, Inc.
Opposition:California Attorneys for Criminal Justice; California
Public Defenders Association (unless amended)
KEY ISSUES
WHERE A DEFENDANT IS CONVICTED OF PROVIDING A CHILD UNDER THE
AGE OF 16 TO ANOTHER FOR SEXUAL PURPOSES, OR PLACES A MINOR INTO
PROSTITUTION, SHOULD THE COURT HAVE DISCRETION TO IMPOSE A FINE
OF BETWEEN $5,000 AND $20,000 FOR PAYMENT INTO THE VICTIM
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WITNESS FUND FOR CHILD SEXUAL ABUSE COUNSELING AND PREVENTION?
(CONTINUED)
SHOULD THE TERM "PROSTITUTION" BE REPLACED IN THE APPLICABLE CODE
SECTIONS WITH THE TERM "COMMERCIAL SEX ACT," WITH SEPARATE
PROVISIONS FOR PURCHASERS AND PROVIDERS OF COMMERCIAL SEX?
SHOULD ANY PERSON GRANTED PROBATION FOR PURCHASING OR AGREEING TO
PURCHASE A COMMERCIAL SEX ACT BE REQUIRED TO SERVE A JAIL TERM OF AT
LEAST 48 HOURS AND PAY A FINE OF BETWEEN $1,000 AND $50,000, AND
SHOULD A PERSON NOT GRANTED PROBATION BE REQUIRED TO SERVE THE
48-HOUR CONTINUOUS JAIL TERM?
SHOULD FINES COLLECTED IN COMMERCIAL SEX CRIME CASES BE DEPOSITED IN
THE VICTIM WITNESS ASSISTANCE FUND AND DIVIDED EQUALLY BETWEEN
ENTITIES THAT SERVE SEXUALLY EXPLOITED PERSONS AND LAW ENFORCEMENT
FOR SEX COMMERCE PREVENTION PROGRAMS?
SHOULD AN ADULT CONVICTED OF A COMMERCIAL SEX ACT INVOLVING A MINOR
BE SUBJECT TO AN ADDITIONAL FINE OF BETWEEN $1,000 AND $10,000, TO
BE DEPOSITED IN THE COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN
SERVICES FUND, AS CREATED BY THIS BILL?
PURPOSE
The purposes of this bill are to 1) provide that where a
defendant is convicted of furnishing a minor under the age of 16
to another person for sexual conduct, or placing a minor into
prostitution, the court may impose an additional fine of $5,000
and $20,000; 2) replace the term "prostitution" (exchange of
anything of value for a lewd act) with the term "commercial sex"
and define as separate crimes the (a) purchasing or agreeing to
purchase sex; and (b) agreeing to provide or providing sex; 3)
require a person granted probation for purchasing or agreeing to
purchase a commercial sexual act to serve a continuous jail term
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of at least 48 hours and pay a mandatory fine of between $1,000
and $50,000, the proceeds of which shall be paid into the Victim
Witness Assistance Fund, with 50% provided to persons exploited
through commercial sex and 50% to law enforcement programs to
prevent sex purchasing; and 4) create a Commercial Sexual
Exploitation of Children Services Fund (CSECSF) for services to
sexually exploited children, to be funded by a fine of between
$1,000 and $10,000 imposed on any defendant convicted of the
crime of commercial sex with a minor.
Sex Crimes Against or Involving Minors
Existing law defines "unlawful sexual intercourse" as an act of
sexual intercourse accomplished with a person under the age of
18 years, when no other aggravating elements - such as force or
duress - are present. (Pen. Code � 261.5, subd. (a).)
Existing law provides the following penalties for unlawful
sexual intercourse:
Where the defendant is not more than three years older or
three years younger than the minor, the offense is a
misdemeanor.
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 $10,000.
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 $10,000.
(Pen. Code � 261.5, subd (b)-(d).)
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
follows:
Where the defendant is over 21 and the minor under 16 years of
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age, the offense is a felony, with a prison term of 16 months,
2 years or 3 years.
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).)
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 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, two years or three years and a fine of up
$10,000. (Pen. Code � 288, subd. (c)(1).)
Commercial Sex Crimes Involving Minors
Existing law includes numerous crimes concerning sexual
exploitation of minors for commercial purposes. These crimes
include:
Pimping: Deriving income from the earnings of a prostitute,
deriving income from a place of prostitution, or receiving
compensation for soliciting a prostitute. Where the victim is
a minor under the age of 16, the crime is a punishable by a
prison term of three, six or eight years. (Pen. Code � 266h,
subds. (a)-(b).)
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Pandering: Procuring another for prostitution, inducing
another to become a prostitute, procuring another person to be
placed in a house of prostitution, persuading a person to
remain in a house of prostitution, procuring another for
prostitution by fraud, duress or abuse of authority, and
commercial exchange for procurement. (Pen. Code � 266i, subd.
(a).)
Procurement: Transporting or providing a child under 16 to
another person for purposes of any lewd or lascivious act.
The crime is punishable by a prison term of three, six, or
eight years, and by a fine not to exceed $15,000. (Pen. Code
� 266j.)
Taking a minor from her or his parents or guardian for
purposes of prostitution. This is a felony punishable by a
prison term of 16 months, two years, or three years and a fine
of up to $2,000. (Pen. Code � 267.)
Existing law provides that where a person is convicted of
pimping or pandering involving a minor the court may order the
defendant to pay an additional fine of up to $5,000. In setting
the fine, the court shall consider the seriousness and
circumstances of the offense, the illicit gain realized by the
defendant and the harm suffered by the victim. The proceeds of
this fine shall be deposited in the Victim-Witness Assistance
Fund and made available to fund programs for prevention of child
sexual abuse and treatment of victims. (Pen. Code � 266k, subd.
(a).)
Existing law provides that where a defendant is convicted of
taking a minor under the age 16 from his or her parents to
provide to others for prostitution (Pen. Code � 267) or
transporting or providing a child under the age of 16 for
purposes of any lewd or lascivious act (Pen. Code � 266j), the
court may impose an additional fine of up to $20,000. (Pen.
Code � 266k, subd. (b).)
This bill provides that where a defendant is convicted under
Penal Code of taking a minor (under the age of 18) from his or
her parents for purposes of prostitution (Pen. Code � 267), or
transporting or providing a child under the age of 16 for
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purposes of any lewd or lascivious act (266j), the court, if it
decides to impose a specified additional fine, the fine must be
no less than $5,000, but no more than $20,000. (Pen. Code �
266k, subd. (b).)
Prostitution Offenses Generally
Existing law provides that any person who solicits, agrees to
engage in, or engages in an act of prostitution<1> is guilty of
misdemeanor. The 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. (Pen. Code � 647, subd. (b).)
Existing law provides that if the defendant agreed to engage in
an act of prostitution, the person soliciting the act of
prostitution need not specifically intend to engage in an act or
prostitution.<2> (Pen. Code � 647, subd. (b).)
Existing law provides that where any person is convicted of 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).)
This bill substitutes the term "commercial sex act" for "act of
prostitution" in the section and subdivision (Pen. Code � 647,
subd. (b)) setting out the basic definition of a crime involving
an exchange of something of value for sex, or an offer to do so.
---------------------------
<1> Soliciting or engaging in an act of prostitution is a form
of disorderly conduct. (Pen. Code � 647.)
<2> This provision concerns the use of police decoys to solicit
a defendant for an act of prostitution.
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This bill separately defines the crimes of purchasing or
agreeing to purchase a commercial sex act and performing or
agreeing to perform a commercial sex act.
This bill provides that a person convicted of purchasing or
agreeing to purchase a commercial sex act is guilty of a
misdemeanor, punishable by imprisonment in the county jail for
no less than 48 hours of continuous confinement and no more than
six months and a fine of up to $1,000. Where the court grants
the defendant probation, the defendant must serve at least 48
hours of continuous confinement and pay a fine of at least
$1,000 and up to $50,000. The court may not waive the
requirement that a defendant - whether granted probation or not
- serve at least 48 hours of continuous confinement.
This bill provides that fines collected from a person who has
been convicted of purchasing or offering to purchase a
commercial sex act shall be deposited in the Victim-Witness
Assistance Fund to fund grants to "local programs." Fifty
percent of each fine shall be granted to public agencies and
nonprofit corporations providing exit or recovery services to
persons exploited through commercial sex. Fifty percent of the
fines shall be granted to law enforcement and prosecution
agencies in the jurisdiction of the crime "to fund programs to
prevent sex purchasing."
This bill provides that where an adult defendant is convicted of
purchasing or offering to purchase a commercial sex, or
convicted of performing or agreeing to perform a commercial sex
act, and the crime involves a minor, the court may order the
defendant to pay an additional fine of not less than $1,000 and
not more than $10,000. The proceeds of this fine shall be
deposited in the Commercial Sexual Exploitation of Children
Services Fund (CSECSF), which is created in the State Treasury
by this bill, with the following features:
The fund will be administered by an undesignated agency.
Money in the fund is available, upon legislative
appropriation, for child sexual abuse and exploitation
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counseling centers, as specified, and programs for child
victims of human trafficking, as specified.
Then administrative costs of collecting the fine, not to
exceed 2% of the total paid, may be paid into the county
treasury.
This bill does not designate an agency or entity to house and
manage the Commercial Sexual Exploitation of Children Services
Fund.
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
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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
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.
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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 February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in 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:
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Senate Bill 1388 addresses a few oversights in
California's sexual exploitation law and ensures that
individuals convicted of pimping or soliciting a minor
will face significant financial penalties. This
measure further specifies that funds collected as a
result of these fines go directly to support services
and counseling for child victims of commercial sexual
exploitation. Finally, SB 1388 will require sex
buyers convicted of solicitation or engagement in a
commercial sex act, regardless of the age of the
individual solicited, to face a penalty structure
similar to those convicted of a DUI.
Specifically, SB 1388 sets the minimum fine for
conviction of pimping of a minor at $5,000 and
maintains the maximum fine of $20,000. SB 1388 would
also establish a fine of not less than $1,000 and not
more than $10,000 for any sex buyer convicted of
soliciting a minor. This measure specifies that funds
collected from these fines be directed to a county
Victim Services Fund to provide support services for
child sexual exploitation and child sexual abuse
victim counseling services and programs for child
victims of human sex trafficking. SB 1388 will make a
person who seeks to purchase or who purchases a
commercial sex act guilty of a misdemeanor punishable
in a county jail for at least 48 hours, but not more
than six months and by a fine of at least $1,000 and
not more than $50,000.
2. Non-Prostitution Related Sex Crimes Against Minors
This bill concerns sexual commerce, with particular emphasis on
crimes in which adults purchase or agree to purchase sexual acts
with a minor. Sexual conduct with a minor constitutes a felony
in most instances, regardless of whether anything of value was
offered or exchanged for the sexual acts. Arguably, the
exchange of money could be an aggravating factor in the
underlying sex crime, as it could be seen as an improper attempt
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to normalize the behavior or coerce the victim. If the minor
involved in commercial sex of was under the age of 14, the
defendant has committed the felony of lewd conduct, with a
prison term of three, six or eight years. (Pen. Code � 288,
subd. (a).) The crime is punishable by a term of 5, 8 or 10
years if the defendant used force, threats, duress or coercion.
Solicitation of an act of prostitution from a minor under the
age of 14 could likely be prosecuted as attempted lewd conduct -
the intention to commit the crime and a direct step towards it
commission. The prison or jail term of an attempt is generally
one-half the punishment for the completed crime. Where the
defendant solicited or employed a minor who was14 or 15 years
old, and the defendant was at least 10 years older than the
minor, the defendant has committed an alternate
felony-misdemeanor.
Any defined sex act - sodomy, sexual penetration, oral
copulation or sexual intercourse - with a minor is a crime. The
penalties depend on the relative ages of the defendant and the
minor and whether the crime involved some form of force,
coercion or improper advantage.
A defendant charged with a prostitution-related offense
involving a minor could also be charged and convicted of a sex
crime in the same case. Generally, because the defined sex
crime and the sexual commerce offense would involve a single
transaction or act, the defendant could only be punished for one
offense - the offense carrying the greatest penalty. (Pen. Code
� 654.)
DO MOST PROSTITUTION INCIDENTS IN WHICH AN ADULT SOUGHT TO
PURCHASE SEX FROM A MINOR CONSTITUTE ATTEMPTED OR COMPLETED SEX
CRIMES?
3. Fine for Sexual Commerce with a Minor Does not Include an
Element that the Defendant Knew Or Should Have Known that the
Incident Involved a Minor
This bill provides that in a prostitution-commercial sex offense
in which the defendant purchased or offered to purchase sex from
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a minor, the court has discretion to impose a fine of between
$1,000 and $10,000. 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, advocates have noted that a substantial 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.
SHOULD A LAW AUTHORIZING A SPECIAL FINE IN CASES WHERE AN ADULT
COMMITTED A SEXUAL COMMERCE CRIME INVOLVING A MINOR INCLUDE AN
ELEMENT THAT THE ADULT KNEW OR SHOULD HAVE KNOWN THAT THE OTHER
PERSON WAS A MINOR?
4. Incentive to Refuse Probation for Defendants Convicted of
Offering to Purchase or
Purchasing Commercial Sex
This bill provides that where a person convicted of agreeing to
purchase or purchasing a commercial sex act is granted
probation, the defendant must serve a continuous jail term of at
least 48 hours and pay a fine of between $1,000 and $50,000.
The sentencing court cannot decline to impose the jail term. A
person convicted of such a crime who is not granted probation
must serve a continuous jail term of at least 48 hours, but
there is no requirement that the defendant pay a fine. If the
court imposes a fine, the maximum fine is $1,000, the default
maximum misdemeanor fine.
Arguably, subjecting only persons granted probation for
purchasing or agreeing to purchase a commercial sex act to a
mandatory fine of between $1,000 and $50,000 creates a very
strong incentive for defendants to refuse probation. A
defendant who refused probation would serve his jail term and
face no more than a $1,000 fine. A defendant who refuses
probation would not receive supervision after serving his jail
term and could not have his punishment modified, unlike a
probationer. The court has essentially no authority over a
person who refuses probation and has suffered whatever
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punishment the court imposes.
BECAUSE THE BILL INCLUDES A MANDATORY FINE OF BETWEEN $1,000 AND
$50,000 ONLY FOR A DEFENDANT GRANTED PROBATION FOR A COMMERCIAL
SEX ACT CRIME, DOES THIS CREATE AN INCENTIVE FOR DEFENDANTS TO
REFUSE PROBATION?
5. Penalty Structure in this Bill for Purchasing or Agreeing to
Purchase Commercial Sex Act is Modeled on Driving Under the
Influence Penalties
The bill sponsor - California Against Slavery - has noted that
the penalties in the bill for those who purchase or offer to
purchase commercial sex are modeled on the penalty structure for
driving under the influence (DUI) offenses. For example,
similar to DUI penalties, the bill would require 48 hours of
continuous custody and mandatory payment of a fine between
$1,000 and $50,000. However, the fines in this bill for
commercial sex customers are much higher than DUI fines.
California DUI laws have been found<3> to be relatively
effective in reducing the incidence and harms of that offense.
It should be noted that the applicable DUI fines of from $390 to
$1,000 - while significant - appear to be relatively
collectible. Further, a defendant would be motivated to accept
probation and pay fines and comply with other conditions so as
to maintain a restricted driver's license. That is not likely
true as to the fine in this bill of up to $50,000, which is
actually a fine of over $200,000 with penalty assessments. (See
Comment #5.) It is also unclear what would motivate
prostitution probationers to fully comply with special
conditions, such as a sex buyers' program modeled on the
drinking driver programs.
6. Penalty Assessments Effectively Quadruple a Criminal Fine -
Difficulty Collecting Fines
---------------------------
<3>
http://apps.dmv.ca.gov/about/profile/rd/r_d_report/Section_5/S5-2
36.pdf.
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Concerns about Collecting High Fines from Criminal Convictions
It has been often noted that California criminal fines -
especially penalty assessments added to each fine - can be very
difficult and expensive to collect eliminating the value of the
fine.<4> A special fine imposed on commercial sex buyers that
would fund effective programs for persons sexually persons could
be valuable in reducing sex trafficking and the harms it creates
or exacerbates. These harms include poverty, homelessness, drug
dependence and other conditions that are associated with entry
into commercial sex.
Penalty Assessments
Mandatory penalty assessments and fees - 310% as of April, 2013
- are assessed on the base fine for a crime. The penalty
assessment structure is extremely complex. As the balance of
this comment demonstrates, the penalty assessments generally
have little or nothing to do with the crime for which the
fine-paying defendant was convicted. Assuming a defendant was
fined $10,000 as the maximum fine, the following penalty
assessments would be imposed pursuant to the Penal Code and the
California Government Code:
Base Fine:
$ 10,000
Penal Code 1464 assessment:
$10,000 ($10 for every $10)
Penal Code 1465.7 surcharge:
2,000 (20% surcharge)
Penal Code 1465.8 assessment:
40 ($40 fee per offense)
Government Code 70372 assessment:
5,000 ($5 for every $10)
Government Code 70373 assessment:
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<4> https://www.library.ca.gov/crb/06/03/06-003.pdf.
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30 ($30 for felony or misd.)
Government Code 76000 assessment:
7,000 ($7 for every $10)
Government Code 76000.5 assessment:
2,000 ($2 for every $10)
Government Code 76104.6 assessment:
1,000 ($1 for every $10)
Government Code 76104.7 assessment
4,000 ($4 for every $10)
Total Fine with Assessments:
$41,070
Distribution of Penalty Assessments:
State penalty of $10 for every $10. 70 % is transmitted
to the state and 30 percent remains with the county. The
state portion of penalty is distributed in specified
percentages among: the Fish and Game Preservation Fund
(0.33 percent); the Restitution Fund (32.02 percent); the
Peace Officers Training Fund (23.99 percent); the Driver
Training Penalty Assessment Fund (25.70 percent); the
Corrections Training Fund (7.88 percent); the Local Public
Prosecutors and Public Defenders Fund (0.78 percent, not to
exceed $850,000 per year); the Victim-Witness Assistance
Fund (8.64 percent); and the Traumatic Brain Injury Fund
(0.66 percent). (Penal Code � 1464.)
County penalty assessment of $7 for every $10 upon every
fine or penalty including all Vehicle Code offense and any
local ordinance adopted pursuant to the Vehicle Code except
parking offenses. The money collected shall be placed in
any of the following funds if established by a County Board
of Supervisors: Courthouse Construction Fund; a Criminal
Justice Facilities Construction Fund; Automated Fingerprint
Identification Fund; Emergency Medical Services Fund; DNA
Identification Fund. (Gov. Code � 76000 et seq.)
State surcharge of 20 % for deposit in the General Fund.
(Pen. Code � 1465.7.)
"State Court Facilities Construction Fund" - up to $5
for every $10. Each county determines the amount - for
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local courthouse construction. (Gov. Code �� 70372,
76100.)
$1 on every $10 for DNA databank implementation. (Gov.
Code � 76104.6)
State-only penalty of $4 for every $10. (Gov. Code �
76104.7.)
$2 on every $10 to support emergency medical services.
(Gov. Code � 76000.5.)
$4 on every Vehicle Code violation or local ordinance
for the Emergency Medical Air Transportation Act Fund.
(Government Code � 76000.10.)
Flat fee of $40 to ensure adequate funding for court
security. (Penal Code � 1465.8.)
7. Payment of Criminal Fines to a Law Enforcement Entity - Bounty
Issues and Precedent for Funding Law Enforcement Activities
through Fines
The payment of criminal fines or fees to a law enforcement
entity or for direct law enforcement purposes raises issues of
an improper bounty - an incentive for law enforcement agencies
to pursue investigations based on financial interest, rather
than public safety. These concerns may be heightened when
government budgets are strained.
Further, designating that criminal fines be paid to a particular
kind of law enforcement program could set a precedent under
which other law enforcement entities could press to receive the
proceeds of criminal fines. Investigations of many crimes -
murders, sexual assaults, financial crimes, construction fraud
and worker's compensation fraud - may be as costly and
complicated as commercial sex crimes. For example, the
Contractors' State License Board uses stings to catch unlicensed
contractors. If criminal fines are used to fund decoy programs
in which law enforcement personnel pretend to be commercial sex
workers, law enforcement officers and prosecutors who handle
other complex cases could well demand that fines be used to
support their operations.
To avoid creation of an incentive for law enforcement to pursue
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certain crimes for financial purposes, not solely law
enforcement purposes, and to avoid a precedent for funding law
enforcement through criminal fines, it is suggested that the
bill could be amended to deposit special fines in commercial sex
cases into victim services.
In this bill, another concern is that the law enforcement
funding is designated for prevention programs. As the name
states, law enforcement entities enforce the criminal law by
arresting subjects and collecting evidence for the prosecutor.
Law enforcement agencies conduct prostitution "stings" in which
a law enforcement decoy pretends to be a prostitute in order to
arrest a person for solicitation of prostitution. While this
can be said to prevent a prostitution offense on the night of
arrest, it cannot be determined if the arrested person would
seek out prostitutes at a later time. Further, the person might
learn from the arrest how to avoid decoys and arrests on other
occasions. Further, law enforcement entities generally do not
have programs to turn prostitutes away from sexual commerce and
toward different employment and social contacts and conducting
stings to arrest sex purchasers would not directly affect sex
workers.
WOULD DIRECT DISTRIBUTION OF SPECIAL FINES FROM COMMERCIAL SEX
CRIME CONVICTIONS RAISE CONCERNS THAT INVESTIGATION AND
PROSECUTION OF SUCH CRIMES COULD BE BASED ON FINANCIAL
INCENTIVES, RATHER THAN SOLELY FOR LAW ENFORCEMENT PURPOSES?
8. Limited Distribution of Fines into the Victim Witness Fund for
Sex Trafficking Victims
The Victim Witness Assistance Fund is largely funded by a small
portion of the penalty assessments imposed on each criminal
fine, except parking offenses and specifically exempt fines.
Local victim-witness assistance programs also receive federal
Victims of Crime Act and Violence Against Women Act funding. A
negligible amount of income - $20,000 in 2013-14 is generated
from surplus money investments and penalties on specific felony
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convictions<5>. In 2013-14, the fund is projected to have a
negative balance of $83,000. In 2014-15, the fund is projected
to have a balance of $5.8 million due to a $10.1 million General
Fund loan repayment from 2011. Each county designates an agency
to operate a victim witness assistance program. The district
attorney is the designated agency in all but seven counties
(three in probation departments and one in a county sheriff's
office).
Only eight community-based agencies received money from the fund
in fiscal year 2012-2013 for child sexual abuse and exploited
homeless youth. These agencies received $978,000 from the fund,
with $256,500 going to the Child Sexual Abuse Treatment Program
and $721,500 to the Homeless Youth and Exploitation Program.
The Homeless Youth program also received $356,000 General Fund
money in fiscal year 2012.
There appear to be a great unmet need for funding of
community-based agencies that provide services to sex
trafficking victims and homeless minors who could become
involved in commercial sex. Only eight community-based agencies
received money from the fund in fiscal year 2012-2013 for
services to child sexual abuse victims and exploited homeless
youth. These agencies received $978,000 from the fund, with
$256,500 going to the Child Sexual Abuse Treatment Program and
$721,500 to the Homeless Youth and Exploitation Program. The
Homeless Youth program also received $356,000 General Fund money
in fiscal year 2012.
COULD FINES IN ADULT PROSTITUTION CASES BE USED TO FUND
COLLABORATIVE COURTS FOR MINORS INVOLVED IN SEXUAL COMMERCE?
WOULD DISTRIBUTION OF FINE PROCEEDS TO COLLABORATIVE COURTS BY
THE JUDICIAL COUNCIL REDUCE CONCERNS ABOUT SELF-DEALING BY A
PARTICULAR COUNTY'S COURT SYSTEM?
---------------------------
<5> This entire amount is $5,000 less than the maximum amount of
a single special fine authorized by Penal Code � 261.9 to be
imposed on purchasers of sex from a minor.
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9. Recidivism Studies on Persons Convicted of Purchasing Sex -
Effects of Special Programs
A study<6> 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 offenders, as prostitution offenses
involve significant shame. The authors, however, also
questioned if the offenders continued to solicit prostitutes but
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.
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.<7>
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
---------------------------
<6> http://wcr.sonoma.edu/v3n2/monto.html.
<7> http://sagesf.org/first-offender-prostitution-program-fopp.
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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.<8>
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.<9> 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 recidivism.10
DOES RESEARCH INDICATE THAT AN ARREST, PER SE, MAY BE A
SUBSTANTIAL DETERRENT FOR MEN WHO SOLICIT PROSTITUTES?
10. Limited Studies of the Demographics of Prostitution
Customers
According to a John Jay College study of commercially, sexually
exploited homeless youth in New York often sought out customers.
(See Comment #12.) Particularly in Manhattan, or through the
Internet, CSEC sought older white customers who were perceived
to have more money. However, the range of customers was
relatively wide.
A draft University of Chicago study by Steven Levitt and Sudhir
Alladi Venkatesh (Freakonomics) conducted a detailed study of
street-level prostitution in certain Chicago neighborhoods known
for prostitution, including a neighborhood where prostitution
was controlled by pimps and a neighborhood where prostitutes
---------------------------
<8> https://www.ncjrs.gov/pdffiles1/nij/grants/222451.pdf.
<9>
http://rightswork.org/wp-content/uploads/2012/09/John-Schools.Lov
ell.Jordan.7.12.pdf.
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were independent.<10> Levitt estimated that there were 1,200
acts of prostitution per arrest, indicating that even
street-level prostitution customers generally need not fear
arrest. The Chicago study noted that more upscale prostitution
occurred over the Internet and through escort services, where
the likelihood of arrest was low. Freakonomics publications
later noted that the cost of prostitution had declined in recent
decades, likely indicating that customers were spread across
economic classes.<11>
Levitt found "many men making a few visits and a small number of
men making very frequent visits." He found 25 johns arrested
twice and 2,969 johns who were arrested once. As in the Western
Criminology Review study, Leavitt speculated that some men may
have learned from one arrest how to avoid another. However,
some johns may have been arrested multiple times because they
were not good at distinguishing between an actual prostitute and
a police decoy.
A 2008 review in the Electronic Journal of Human Sexuality<12>
of studies from cities across the country found wide variance in
education, income and ethnicity among prostitution customers.
There were some regional differences, such as lower levels of
education in Indianapolis, likely marginally higher income in
Portland, Oregon and similar street level and off-street
(massage parlors, escort service, bars) customers in Colorado
Springs. However, the Colorado Springs study was conducted
between 1988 and 1992, largely before sex commerce became widely
available on the Internet.
11. Sex Trafficking of Minors - Estimated Prevalence and
Available Data
General Trafficking Prevalence Estimates and Data; 2007
California Data
---------------------------
<10>
http://economics.uchicago.edu/pdf/Prostitution%205.pdf?q=venkates
h . Levitt noted that the data was preliminary and cautioned
those who would cite the report, the study has been widely read
and cited.
<11>
http://freakonomics.com/books/superfreakonomics/chapter-excerpts/
chapter-1/.
<12> http://www.ejhs.org/volume11/brewer.htm.
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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<13> noted that California lacked
comprehensive statistics on human trafficking. Thus, many
statistics on human trafficking in general, and sex trafficking
of children in particular, are estimates. The 2007 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. 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.<14>) The State
Department also noted that 14,500 to 17,500 persons are
trafficked into the United States from other countries.<15>
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.<16> 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.)
---------------------------
<13> The task force was administered by the California Attorney
General's Office.
<14>
http://ag.ca.gov/publications/Human_Trafficking_Final_Report.pdf .
The report includes citations to the each of the studies
quoted in the report.
<15> http://oag.ca.gov/human-trafficking/2012 , Ch. 3 p. 48.
<16>
http://www.sharedhope.org/Portals/0/Documents/SHI_National_Report
_on_DMST_2009.pdf.
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2012 Report of the California Attorney General on Human
Trafficking
The California Attorney General's Human Trafficking in
California 2012<17> report stated that human trafficking
investigations and prosecutions have become more comprehensive
and organized. There are nine human trafficking task forces in
California, composed of local, state and federal law enforcement
and prosecutors.
Data on human trafficking has improved, although the data still
does not reflect the actual extent and range of human
trafficking. <18>Data from 2010 through 2012 collected by the
California task forces are set out in the following chart:
California Human Trafficking Task Forces Data 2010-2012
-----------------------------------------------------------------
|Investigations |2,552 |
|--------------------------------+--------------------------------|
|Victims Identified |1,277 |
|--------------------------------+--------------------------------|
|Arrests Made |1,798 |
-----------------------------------------------------------------
Trafficking by Category
-----------------------------------------------------------------
|Sex Trafficking |56% |
|--------------------------------+--------------------------------|
|Labor Trafficking |23% |
|--------------------------------+--------------------------------|
|Unclassified or Insufficient |21% |
|Information | |
---------------------------
<17> http://oag.ca.gov/human-trafficking/2012.
<18> http://oag.ca.gov/human-trafficking/2012 , Ch. 3, pp. 47-53.
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-----------------------------------------------------------------
Insufficient Reporting of Labor Trafficking
As labor trafficking is greatly under-identified and
under-reported, the task force data does not reflect the true
extent of labor trafficking. The report noted: "The Work
Group's concerns [about under-reporting of labor trafficking]
are further supported by ILO (International Labor Organization),
which indicate that the majority of global trafficking is labor,
rather than sex, trafficking."<19>
12.
Detailed John Jay College of Criminal Justice Study on
Commercially Exploited
Children (CSEC) found that most CSEC were introduced to
Commercial Sex By Peers
Recent years have seen a great increase in awareness of and
concerns about minors - most often girls - engaged in commercial
sex activities. Organized, coerced trafficking has received the
most attention. Sex trafficking of 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.<20>
However, a detailed 2008 study by the Center for Court
Innovation and John Jay College of Criminal Justice 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. A
significant number 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 CSEC were recruited or
initiated into survival sex by their peers, with no involvement
by adult pimps. The John Jay study also reported that many CSEC
---------------------------
<19> http://oag.ca.gov/human-trafficking/2012, Ch. 3, pp. 52-53.
<20> Rachel Lloyd, Girls Like Us, pp.153-159 Harper Collins,
2011.
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were simply approached on the street by would-be customers,
without any solicitation by the CSEC. <21> Also surprising,
there were as many male CSEC as female in New York City.
Rachel Aviv's December 2012<22> 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 formed informal communities or street families for support.
They sometimes shared repeat customers and money earned from
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---------------------------
<21> https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf , pp
48-49,. 32-102.
<22>
http://www.newyorker.com/reporting/2012/12/10/121210fa_fact_aviv?
currentPage=all&pink=HhM7xT.
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. Many face the frightening 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."
13. Girls Collaborative Court Programs for Minors Engaged in
Prostitution
Special Court Process
The New Yorker profile noted above described a patchwork of
services that are not coordinated or comprehensive. As the CSEC
understood, 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 approaches that rely mostly on enforcement of criminal laws
against human trafficking and pimping will not likely solve many
of the problems of young people who are exploited for commercial
sex.
There has been a growing awareness of the value of special
juvenile courts for the girls found to be involved in commercial
sex. 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
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(Succeeding through Achievement and Resilience) courts have been
implemented in Los Angeles as a pilot project that is reportedly
being expanded.<23> Alameda County has an established an
extensive Girls Court. New York has created a network of 11
Human Trafficking Intervention Courts for juveniles who are at
least 16 years old.<24>
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. In New York, the John Jay study
found that as many boys as girls were involved in sexual
commerce. Arguably, collaborative courts should be organized or
designed to handle whatever populations of CSEC are present in
the community of the court or courts.
Possible Funding of Girls Courts by Prostitution Fines
Collaborative girls courts have only been implemented on a
limited basis, likely because the court system and probation
departments have limited funds. A successful girls' court or
other collaborative court for minors involved in prostitution
could move a minor out of the world of sexual exploitation,
limiting the extent of juvenile prostitution and the need for
arresting offenders.
Perhaps the author would consider using some of the fines
collected from defendants who purchase or offer to purchase
sexual services. The concerns of creating a court bounty would
be limited by the fact that adult criminal courts would impose
fines on prostitution defendants. The proceeds of the fines
would be disbursed to the juvenile court - a separate branch of
a county superior court system. However, to limit concerns
about self-dealing by the superior court in any particular
county, perhaps the Judicial Council could distribute the money
---------------------------
<23> http://file.lacounty.gov/bos/supdocs/70403.pdf.
<24>
http://www.nytimes.com/2014/01/29/us/a-courts-all-hands-approach-
aids-girls-most-at-risk.html?_r=0.
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to collaborative courts that apply for funding through grants or
another funding method.
***************