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
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|Policy |Public Safety |Vote:|6 - 0 |
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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,
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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
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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
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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
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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
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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
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Assembly Public Safety.
Analysis Prepared by:Pedro Reyes / APPR. / (916)
319-2081