BILL ANALYSIS Ó AB 1708 Page 1 Date of Hearing: May 11, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair AB 1708 (Gonzalez) - As Amended April 13, 2016 ----------------------------------------------------------------- |Policy |Public Safety |Vote:|6 - 0 | |Committee: | | | | | | | | | | | | | | ----------------------------------------------------------------- Urgency: No State Mandated Local Program: YesReimbursable: No SUMMARY: This bill imposes mandatory minimum 72 hours in jail for persons convicted of purchasing commercial sex, imposes a one-year sentence enhancement for specified human trafficking offenses, and recasts the crime of prostitution as specified. Specifically, this bill: 1)Defines and divides the crime of prostitution into three separate forms: a) The defendant agreed to receive compensation, AB 1708 Page 2 received compensation, or solicited compensation in exchange for a lewd act; b) The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and c) The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation. 1)Clarifies that a manifestation of acceptance of an offer or solicitation for prostitution is not a violation unless some act, in addition to acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration. 2)Specifies that purchase of commercial sex is punishable as follows: a) A mandatory minimum 72 hours and up to 6 months in county jail; and b) A fine not exceeding $1,000, which shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking. 3)Clarifies that solicitation of a minor can be solicitation of a person posing as a minor if the person engaged in the solicitation had the specific intent to solicit a minor, and increases mandatory minimum jail time for solicitation of a minor from two days to 72 hours. Also, specifies that the AB 1708 Page 3 fine for solicitation of a minor shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking. 4)Removes judicial discretion on imposition of the 72 hour mandatory minimum jail time imposed for solicitation of adults and solicitation of minors. 5)Provides that persons who are convicted of human trafficking of a minor or abduction of a minor for purposes of prostitution within 1,000 feet of a school shall be subject to a one-year state prison enhancement. FISCAL EFFECT: 1)Likely minor fiscal impact to the Department of Corrections and Rehabilitation (CDCR). There are currently two persons in state prison convicted for human trafficking of minors and there are twenty-four persons serving time for pimping or pandering minors. If two persons were convicted per human trafficking of minors near a school and received the one-year state prison enhancement, the annual cost to CDCR would be approximately $58,000, $29,000 per individual per year. 2)Moderate, nonreimbursable costs for incarceration, offset to a degree by increased fine revenue, to the extent the arrest results in incarceration. Also, additional resources to fund services for victims of human trafficking will be available if the offense is solicitation of a minor. 3)Additional penalty assessment funds revenues. The amounts of penalty assessments are spelled out in statute, and they are AB 1708 Page 4 related to the base fine. Assuming a defendant is fined $1,000 under the Penal Code for a felony or misdeameanor, approximately $3,170 in penalty assessments is imposed pursuant to the Government and Penal codes. COMMENTS: 1)Background. The basic crime of prostitution is a misdemeanor offense. Prostitution can be generally defined as "soliciting or agreeing to engage in a lewd act between persons for money or other consideration." Lewd acts include touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification of either person. For the crime of "soliciting a prostitute" the prosecutors must prove that the defendant requested that another person engage in an act of prostitution, and that the defendant intended to engage in an act of prostitution with the other person, and the other person received the communication containing the request. The defendant must do something more than just agree to engage in prostitution. The defendant must do some act in furtherance of the agreement to be convicted. Words alone may be sufficient to prove the act in furtherance of the agreement to commit prostitution For a first offense conviction of prostitution the defendant faces up to 180 days in jail. If a defendant has one prior conviction of prostitution he or she must receive a county jail sentence of not less than 45 days. If the defendant has two or more prior convictions, the minimum sentence is 90 days in the county jail. In addition to the punishment described above, if the defendant has a conviction of prostitution, he or she faces AB 1708 Page 5 fines, probation, possible professional licensing restrictions or revocations, possible immigration consequences, possible asset forfeiture, and possible driving license restrictions. 2)Purpose. Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while "pimps" and "johns" have been the least likely offenders in the commercial sex trade to face jail time. This neglects the fact that many of these criminalized "prostitutes" are actually victims of sex trafficking, punishing the victim with possible jail time and making it more difficult to go back to school or find work, while leaving their exploiters without any incentive to stop their profitable trafficking. "Commercial sex trafficking remains a lucrative business for many, with a high demand leading to more and more youth being exploited. Furthermore, traffickers continue to prey on children at or near their schools to recruit them and traffic them to purchasers, making these spaces that should be a safe place for youth dangerous with few consequences to themselves. "AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking and those making schools an unsafe place for children by trafficking at or near them. We need to make sure that the negative consequences fall on the true criminals, not the victims." This bill separates prostitution into separately defined and charged offenses, different procedures, penalties and other outcomes and goals that can easily be amended into the law. Additionally, the bill imposes mandatory minimum jail sentences on individuals who are convicted of buying or AB 1708 Page 6 attempting to buy commercial sex in the form of prostitution. Imposing mandatory jail time on a person convicted of prostitution can result in the loss of employment and create problems for the offender that may lead to further criminal acts. 3)Support. According to the Alameda County District Attorney's Office, "In order to fully combat the problem of commercial sex trafficking, it is important to combat the demand for these services, and recognize that purchasers of sex are driving this exploitative and dangerous industry of slavery. 4)Opposition. According to the American Civil Liberties Union, "While protecting minors from victimization is an extremely important objective, we believe that lengthening sentences for the offenses referenced in this bill and decreasing judicial discretion in sentencing will not accomplish that goal." They also raise several concerns with the punishments associated with soliciting a minor when the person is not minor. 5)Related Legislation: a) AB 1051 (Maienschein), of this legislative session, changed the definition of "pattern of criminal gang activity" to add the crime of human trafficking and creates a new one-year state prison enhancement for specified crimes committed against a minor on the grounds of, or within 1,000 feet of a school. AB 1051 was held in the Senate Appropriations Committee. b) SB 420 (Huff), of this legislative session, recasts the prostitution section using the exact same language as this bill, dividing buyers, sellers, and buyers of sexual services from minors. SB 420 was held for interim study in AB 1708 Page 7 Assembly Public Safety. Analysis Prepared by:Pedro Reyes / APPR. / (916) 319-2081