BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1708 Hearing Date: June 21, 2016
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|Author: |Gonzalez |
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|Version: |June 15, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Disorderly Conduct: Prostitution
HISTORY
Source: Author
Prior Legislation: SB 776 (Block) 2015,
held in Assembly Public Safety
SB 420 (Huff) 2015, held in Assembly Public Safety
SB 982 (Huff) - Held in Senate Appropriations, 2014
SB 1388 (Lieu) - Ch. 714, Stats. 2014
SB 244 (Liu) 2013 - 2014 died in the Assembly
Support: Alameda County District Attorney; California District
Attorneys Association; Grossmont Union High School
District; Peace Officers Research Association of
California (PORAC); San Diego County; San Diego County
District Attorney; San Diego School Police Officers
Association; State Coalition of Probation
Organizations (SCOPO)
Opposition:American Civil Liberties Union of California;
California Public Defenders Association; California
State Sheriffs' Association
Assembly Floor Vote: 75 - 1
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PURPOSE
The purposes of this bill are 1) to recast the crime of
prostitution into three parts, one applicable to the person who
agreed to receive, or received compensation in exchange for a
sexual act , one applicable to the person who paid, or agreed to
pay compensation, one applicable to the person who paid, or
agreed to pay compensation to a minor; 2) to impose a mandatory
minimum sentenced term of 72 hours in jail and a set fine of
$,1000 for persons convicted of purchasing commercial sex; 3)
to provide that if the defendant knew or should have known that
the other party was a minor, or the defendant intended to
purchase sex from a minor, the $1,000 fine is the minimum fine,
with a maximum of $10,000; 4) to direct that the fine proceeds
be deposited with the county to fund services for human
trafficking victims; 5) to require any person convicted of
providing compensation, or agreeing to provide compensation for
a sexual act to serve at least a continuous 24 hours in jail
before being eligible for release on any basis - 48 hours if the
defendant intended to engage in prostitution with a minor, or
knew or should have known the other party was a minor; 6) to
require defendants granted probation to serve a continuous 24 or
48 hours in jail as a condition of probation; 7) to impose a
one-year sentence enhancement for human trafficking or abduction
of a minor for prostitution, if the crime occurred on or within
1,000 feet of a school.
Existing law 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: 1) to
effect or maintain a specified felony commercial sex or
prostitution-related offense; 2) commit extortion; 3) specified
child pornography offenses or 4) obtain forced labor or
services. (Pen. Code § 236.1, subd. (a)-(b).)
Existing law provides that human trafficking of a minor does not
include an element of deprivation of the victim's liberty.
Trafficking of a minor is committed through inducing, persuading
or causing a minor to engage commercial sex acts, child
pornography or extortion, or attempting to do so. It is
punishable as follows:
5, 8 or 12 years in prison and a fine of up to $500,000.
15-years-to-life and a fine of up to $500,000 if the
AB 1708 (Gonzalez ) PageC
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offense involved force, threats, coercion, fraud or deceit,
as specified. (Pen. Code § 236.1, subd. (c).)
Existing law includes these special rules applicable to human
trafficking of a minor:
Whether the defendant caused, induced or persuaded a
minor to engage in a commercial sex act depends on the
totality of circumstances, including the relationship
between the victim and the defendant.
Mistake of fact as to the age of the victim is not a
defense.
Consent by a minor to an act underlying a human
trafficking charge is not a defense. (Pen. Code § 236.1,
subd. (d)-(f)
Existing law provides for the following enhancements and special
fines in human trafficking cases:
The court may impose on the defendant an additional fine
of up to $1,000,000. (Pen. Code § 236.4, subd. (a).)
A defendant who inflicts great bodily injury on the
victim of human trafficking shall be punished by a
consecutive prison term enhancement of 5, 7, or 10 years.
(Pen. Code § 236.4, subd. (b).)
A defendant shall receive a consecutive prison
enhancement term of 5 years for each prior human
trafficking conviction.
Existing law provides that taking a minor from her or his
parents or guardian for purposes of prostitution is a felony
punishable by a prison term of 16 months, two years, or three
years and a fine of up to $2,000. The offense can be committed
through inducements, not abduction alone. (Pen. Code § 267.)
Existing law provides that prostitution involves any lewd act
between persons for money or other consideration. (Pen. Code §
647, subd. (b); CALCRIM 1154)
Existing decisional law defines a lewd act as "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." (CALCRIM 1154,
citing Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256; See,
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Wooten v. Superior Court (2001) 93 Cal.App.4th 422, pp.
431-433.)
Existing law provides that any person who solicits, agrees to
engage in, or engages in an act of prostitution is guilty of a
misdemeanor. The crime includes an element that the defendant
specifically intended to engage in an act of prostitution and
some act was done in furtherance of the agreed upon act. (Pen.
Code § 647, subd. (b).)
Existing law 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. (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).)
Existing law provides that where a defendant is convicted of a
prostitution offense in which the defendant sought to procure or
procured the "sexual services of a prostitute who was a minor,"
the following shall apply:
a) The defendant shall, in addition to any other fine or
penalty, be ordered to pay up to$25,000; and
b) Upon appropriation by the Legislature, the proceeds of
the fine shall "be available to fund programs and services
for commercially sexually exploited minors in the counties"
of conviction. (Pen. Code §§ 261.9 and 647, subd. (b).
This bill defines and divides the crime of prostitution into
three separate forms:
a) The defendant agreed to receive compensation, 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
AB 1708 (Gonzalez ) PageE
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provide compensation, to a minor in exchange for a lewd
act, regardless of which party made the initial
solicitation.
This bill specifies that a defendant, who purchased or agreed to
purchase commercial sex, is guilty of a misdemeanor, punishable
as follows:
a) A mandatory minimum 72 hours in county jail;
b Up to 6 months in the county jail; and
c) A fine not exceeding $1,000, to 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;
d) A convicted defendant is not eligible for release upon
completion of sentence on parole, on work furlough or work
release, or on any other basis until he or she has served a
period of not less than 24 hours in a county jail;
e) A defendant granted probation must serve a term of 24
continuous hours in jail as a condition or of probation.
This bill specifies that if a defendant who purchased or agreed
to purchase commercial sex knew or should have known that the
provider of the commercial sex act was a minor, or specifically
intended to obtain such services from a minor, the misdemeanor
is punishable as follows:
a) A term of up to one year in a county jail;
b) A mandatory minimum term of 72 hours; and
c) A fine of at least $1,000 (with a maximum of $10,000) to
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;
d) A convicted defendant is not eligible for release upon
completion of sentence on parole, on work furlough or work
release, or on any other basis until he or she has served a
period of not less than 48 hours in a county jail;
e) A defendant granted probation must serve a term of48
continuous hours in jail as a condition or of probation.
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This bill provides that where the defendant purchased, or agreed
to purchase commercial sex and the defendant knew or should have
known that the person to be compensated is a minor, or where the
defendant specifically intended to purchase sex from a minor,
the penalties are as follows must impose a sentence of at least
72 hours in jail; and a defendant must serve a minimum of 48
continuous hours in jail before release on parole, on work
furlough or work release, or on any other basis.
This bill grants the court discretion to allow a defendant to
serve the required 48 continuous hours in jail so as to not
interfere with his work schedule. If 48 continuous hours of
custody would interfere the defendant's work schedule, the court
can allow the defendant to serve that time when he is not
working.
This bill specifies that the 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.
This bill provides that persons who are convicted of human
trafficking of a minor, or taking a minor from his or her
parents or guardian for purposes of prostitution, or within
1,000 feet of a school shall be subject to a one-year state
prison enhancement.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
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On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
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is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
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.
In San Diego County, a recent joint study by
researchers at University of San Diego and Point Loma
Nazarene University found that 42 percent of
first-time prostitution arrests are in fact cases
involving sex trafficking, and that the average age of
entry into child commercial sexual exploitation was 15
years old.
Recently, strides have been made to recognize these
sex trafficking victims as such, particularly in the
case of children. However, a strong demand for the
industry still exists, contributing to more and more
vulnerable youth being exploited. Evidence of this can
be seen as recently as the Super Bowl, in which
hundreds were arrested for attempting to purchase sex.
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There is currently no comprehensive statewide solution
to combat commercial sexual exploitation of children
and to assist those children. We are having the
necessary conversations about the appropriate services
these victims need- from mental health services, to
job training, to stable housing. However, we also have
to recognize that in order to stop this exploitation
from happening in the first place, we need to combat
the demand for commercial sex which incentivizes
trafficking to happen.
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.
2.Sexual Acts with Minors - Regardless of the Payment of
Compensation - Constitutes a Sex Crime
This bill would separately define prostitution in which the
person who provides, or agreed to provide, sexual services is 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. 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, or five, eight or 10 years if
coercion is involved (Pen. Code § 288, subds. (a)-(b).)
Soliciting an act of prostitution from a minor under the age of
14 could likely be prosecuted as attempted lewd conduct. The
prison or jail term for an attempt is generally one-half the
punishment for the completed crime. Where the defendant
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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?
If this bill is enacted, a defendant could argue that if he
engaged in acts of prostitution with a minor, he should only be
charged for that offense, not with a sex crime against a minor.
That is because a maxim of statutory construction holds that
where a defendant's conduct can be prosecuted under a general
law and a law that more specifically describes the defendant's
conduct, the Legislature intended that the more specific statute
apply. That is especially true where the specific law is
enacted after the more general law, as the Legislature would be
presumed to have known about the general law at the time the
specific law was passed. To preclude such an argument, it is
recommended that the bill be amended to include a "savings
clause" stating that this bill does not preclude prosecution
under any other provision of law.
SHOULD THE BILL BE AMENDED TO STATE THAT THIS BILL DOES NOT
PRECLUDE PROSECUTION UNDER ANY OTHER PROVISION OF LAW?
3.A Defendant Required to Serve a Minimum Jail Term as a
Condition of Probation may Refuse Probation
It appears that this bill would require a person convicted
of agreeing to provide, or providing compensation in
exchange for a sexual act to serve 24 continuous hours in
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jail. The bill also provides that a person who is not
granted probation, or who refuses probation, and who is
then sentenced to a term of at least 72 hours in jail would
be eligible for release on work furlough, work release or
some other basis after 24 hours. Many, if not most,
county jails are crowded, particularly in urban areas. A
defendant who is convicted of a prostitution offense and
sentenced to serve 72 hours in jail in a county with
crowded jail conditions could well serve no more than the
continuous 24 hours in jail. As such, it is unlikely that
a prostitution defendant would agree to probation, as he
would serve the same jail term as a sentenced inmate. Even
where a sentenced inmate would actually serves up to 72
hours in jail, he may well elect to serve that sentence and
avoid probation supervision. This may be particularly
likely where a defendant can serve his sentence on days
when he is not working.
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. 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 prostitution.
4. Application of the Fine Provisions
The bill provides that the proceeds of a fine imposed on a
defendant who was convicted of seeking or obtaining
commercial sex from a minor, or who intended to obtain
commercial sex from a minor, shall be deposited with the
county to fund services for human trafficking victims. It
is not clear how the fine would be applied. That is, is the
fine exempt from penalty assessments? Generally, every
criminal fine is subject to penalty assessments unless the
section defining the fine specifically exempts it from
penalty assessments. If this fine is not exempt from
penalty assessment, is the intent of the author that the
$1,000 to $10,000 base fine be used for human trafficking
services, not any other local program or expense?
5. Mandatory Penalty Assessments Effectively Quadruple a
Criminal Fine
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Penalty assessments and fees must be assessed on the base fine
for a crime. Assuming a defendant was fined $1,000 as the fine
for a criminal offense, the following penalty assessments would
be imposed pursuant to the Penal Code and the California
Government Code:
Base Fine:
?? $
1,000
Pen. Code § 1464 state penalty on fines:
$1,000 ($10 for
every $10)
Pen. Code § 1465.7 state surcharge:
$ 200 (20%
surcharge)
Pen. Code § 1465.8 court operation assessment:
$40
Gov. Code § 70372 court construction penalty:
$500 ($5 for every
$10)
Gov. Code § 70373 assessment:
$30
Gov. Code § 76000 penalty:
$700 ($7 for every $10)
Gov. § 76000.5 EMS penalty:
?? $200 ($2 for every $10)
Gov.§ Code § 76104.6 DNA fund penalty:
$100 ($1 for every $10)
Gov. § Code § 76104.7 addt'l DNA fund penalty:
$400 ($4 for every $10)
Total Fine with Assessments:
$4,170
It should be noted that this figure does not include
restitution, a mandatory restitution fine, and that other fines
and fees, such as the jail booking fee, attorney fees, OR
release fees, probation department fees, may also be applicable.
6. Limited Distribution of Fines into the Victim Witness Fund
for Sex Trafficking Victims
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The value of special fines to fund services for sexually
exploited persons - particularly juveniles - appears to be quite
limited. A negligible amount of income - $20,000 in 2013-14 is
generated from surplus money investments and penalties on
specific felony convictions.
The Victim Witness Assistance Fund is largely funded by a small
portion of the penalty assessments imposed on each criminal
fine. Local victim-witness assistance programs also receive
federal Victims of Crime Act and Violence Against Women Act
funding. In 2013-14, the fund was projected to have a negative
balance of $83,000. In 2014-15, the fund was projected to have
a balance (reserve) of $5.8 million due to a $10.1 million
General Fund loan repayment from 2011. The fund balance for
2015-2016 is projected to be approximately $900,000, arguably
not a substantial sum in light of the need for assistance to
victims. 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).
There appears to be a great unmet need for funding
community-based agencies that provide services to sex
trafficking victims and commercially sexually exploited persons.
The fund created by this bill could raise funds that individual
counties could disburse to address specific problems in their
areas.
7.Study of Homeless Young People Engaged in Survival-Sex
Prostitution in New York City
A 2008 John Jay College study<1> of commercially, sexually
exploited homeless youth in New York city found that these
young people often sought out customers and found customers
for each other. As many young men and boys were engaged in
survival sex as young women and girls in the study. (This
finding is consistent with a 2004 study published by US
DOJ.) Sexually exploited youth sought older white
customers who were perceived to have more money, although
the actual range of customers was relatively wide. A 2012
New Yorker article reported that these young people in
lived in harsh conditions and risked becoming "lifers" on
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<1> https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf, pp
48-49,. 32-102.
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the street. Programs and services for them were scarce and
typically short-term.<2>
8.Limited Studies of the Demographics of Prostitution
Customers
A draft University of Chicago study by Steven Levitt and
Sudhir Alladi Venkatesh (Freakonomics) examined
street-level prostitution in certain Chicago neighborhoods
known for prostitution, including a neighborhood where
prostitution was controlled by pimps and a neighborhood
where prostitutes were independent. 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.
Levitt found "many men making a few visits and a small
number of men making very frequent visits." He found that
25 johns were arrested twice and 2,969 johns were arrested
once. As in the Western Criminology Review study discussed
in Comment # 6, Leavitt concluded 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
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, marginally higher income in Portland, Oregon.
9.Recidivism Studies on Persons Convicted of Purchasing Sex
- Effects of Special Programs
A study in 2002 in the Western Criminology Review of a now
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<2> http://www.newyorker.com/magazine/2012/12/10/netherland
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defunct first-offender program in Portland, Oregon (SEEP)
found very low recidivism rates for all prostitution
arrestees, regardless of whether they participated in SEEP,
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 other cities adopted special first-offender
prostitution diversion programs that educate "johns" 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 required 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 completed the course were 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 claims of a sharp
drop in recidivism in the Abt report have been harshly
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 recidivism.
DOES RESEARCH INDICATE THAT AN ARREST, PER SE, MAY BE A
SUBSTANTIAL DETERRENT FOR MEN WHO SOLICIT PROSTITUTES?
IS THERE DATA ABOUT THE EFFECT OF MANDATORY MINIMUM
PENALTIES IN EXISTING LAW FOR REPEAT PROSTITUTION
OFFENDERS?
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10. Jail Space is a Limited Commodity
This bill requires minimum jail terms for defendants
sentenced for prostitution offenses and requires 24 or 48
jail terms as a condition of probation in such cases.
County jails in California, especially in urban areas, have
been chronically overcrowded for some time.
Realignment required many defendants to serve their felony
sentences in jail, thereby straining already crowded jails.
Proposition 47 made many drug possession and specified
theft crimes misdemeanors, easing some of the pressure.
Nevertheless, it has been reported that many Prop. 47
inmates do not spend significant portions of their
misdemeanor sentences because there is not enough room in
the jails. Judges in drug courts and cases arising under
the Substance Abuse and Crime Prevention Act of 2000
(Proposition 36) have argued that defendants are refusing
to accept probation and treatment because they are likely
to serve only a small portion of any misdemeanor drug
possession sentence.
This bill requires minimum terms in prostitution cases,
essentially creating a legislative priority for
incarcerating these defendants over others where jail space
is limited. The relatively short mandatory minimum terms
can be a burden to jails because it can take many hours to
process a defendant into jail and then out. Deputies who
operate jail would need to expend significant resources to
process the cases covered by this bill.
11. Enhancement for Human Trafficking, or Taking a Minor from
his or her Parents, for Prostitution on the Grounds of, or
within 1,000 feet of a School
The basic human trafficking law was enacted by AB 22 (Lieber)
Ch. 240, Stats. 2005. AB 22 provided that the essence of human
trafficking is the deprivation of the victim's liberty in order
to place the person in sexual commerce or obtain labor. The
human trafficking law was amended by Proposition 35 in 2012.
The initiative greatly increased penalties, set special
procedures and rules of evidence and eliminated the element of
deprivation of liberty if the victim is a minor. The penalties
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established by the initiative are especially comprehensive and
arguably cover the full range of circumstances in human
trafficking. Human trafficking of minors can be done through
inducements, persuasion and the like. The use of coercion,
fraud, force or duress against a minor does, however, subjects
as defendant to especially severe penalties, including life
terms.
This bill would direct the court to impose a sentence
enhancement of one year if the defendant has been convicted of
human trafficking and the crime occurred on the grounds of a
school, or within 1,000 feet of a school. The enhancement also
applies to taking a minor from his or her parents for purposes
of prostitution (§ 267), a felony with a determinate term
sentence of 16 months, two years or three years. It appears,
however, that many, if not most, cases of taking a minor for
prostitution could be charged as human trafficking, as Section
267 is specifically included as a target offense in human
trafficking.
Human trafficking of a minor includes a relatively long list of
crimes involving commercial sex, including prostitution and
child pornography. If the minor is brought into such activities
through "force, fear, fraud, deceit, coercion, violence, duress,
menace, or threat of unlawful injury to the victim or to another
person," the penalty is a term of 15-years-to-life in prison and
a fine of up to $500,000. With mandatory penalty assessments, a
fine of $500,000 is actually a fine of over $2,000,000. It is
hard to imagine that a trafficker could lure a minor into
commercial sex trade without at least deceit or fraud. That is,
if the trafficker misrepresented what the minor would be doing
or the conditions under which they would be done, that would
clearly appear to be fraud and deceit.
It would appear that if very severe felony penalties would not
deter a potential human trafficker, an additional year in prison
would be of little consequence. Further, many, if not all,
cases where a minor under the age of 14 is abducted for purposes
of prostitution would constitute kidnapping for purposes of
engaging in sexual conduct. That form of kidnapping if
punishable by a prison term of 5, 8 or 11 years if the minor is
under the age of 14. Kidnapping per se - taking a person by
fore or fear - is punishable by a prison term of 3, 5 of 8
years. (Pen. Code §§ 207-208.) If kidnapping for a sex offense
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increases the danger of harm to a victim beyond that inherent in
the offense, it is punishable by a life term.
The punishment for human trafficking of a minor, when the crime
does not involve some sort of deceit, coercion or force, is
still relatively severe - 5, 8 or 12 years and a fine of up to
$500,000 (again over $2,000,000 with mandatory penalty
assessments). If this bill is enacted, the prison term could
perhaps be 13 years instead of 12 in a determinate sentence.
For a life term, the defendant would be eligible for parole in
16 years, not 15. Again, it is doubtful that a possible
additional year in prison would change a perpetrator's decision
to engage in human trafficking of a minor in light of the severe
existing penalties.
California sentencing law is so complex that an enhancement for
committing human trafficking on or near a school may not
necessarily result in additional punishment. In some cases,
imposition of the enhancement could result in a lower penalty.
The imposition of the prison term for a crime and enhancements
attached to that term require the court to make a series of
inter-related decision. The process becomes particularly
elaborate when the defendant was convicted of multiple crimes
and numerous enhancements apply.
For this bill, the most important sentencing rule is the
prohibition on "dual use of facts" - the use of one fact to
impose more than one punishment. A close reading of many
enhancements would reveal that they could also be used as
factors in aggravation of the base term - the stated penalty
"triad." The sentencing triad for the less egregious form of
human trafficking of a minor is 5, 8 or 12 years.
12. Vetoes of Related or Similar Bills
Governor Brown has recently vetoed bills that included what were
essentially crimes and penalties that are largely redundant of
existing law. Last session (2013-2014), the governor vetoed SB
473 (Block), which proposed to add human trafficking to the gang
laws. (Any crime committed for the benefit of a gang is
punished by an enhancement or a life term. SB 473 would have
added human trafficking to a list of crimes establish the
existence of a gang, per se. Prosecutors seldom have any
trouble proving the existence of a gang under existing law.)
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Similar observations can be made about this bill that were made
about SB 473 Governor Brown stated:
I am returning Senate Bill 473 without my signature.
Under current law, human trafficking convictions
impose substantial punishment, up to 20 years for sex
trafficking offenses and 15 years-to-life for certain
crimes involving children. These sentences are more
than three times the punishment that existed two years
ago. SB 473 would add yet another set of enhancements,
the third in nine years. No evidence has been
presented to support these new penalties
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