Existing law requires every person convicted of certain offenses, for the rest of his or her life while residing in California, or while attending school or working in California, as specified, to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within 5 working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and to register thereafter as specified. Existing law makes it a crime for a person who is required to register and fails to do so. Existing law requires the Department of Justice to make available to the public information concerning registered sex offenders on an Internet Web site, as specified.

Existing law requires every person convicted of certain offenses, for the rest of his or her life while residing in California, or while attending school or working in California, as specified, to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within 5 working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and to register thereafter as specified.

This bill would make technical, nonsubstantive changes to these provisions.

Date of Hearing:

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1912

Author:(Achadjian) – As Amended Ver:March 15, 2016

SUMMARY:

SUMMARY: Requires a person convicted of soliciting a minor, who the person knew or reasonably should have known, was both a minor and a victim of human trafficking to register as a sex offender for a period of five years after a first conviction, 10 years after a second conviction, and 20 years after a third or subsequent conviction.

EXISTING LAW:

1. Requires persons convicted of specified sex offenses to register for life, or reregister if the person has been previously registered, upon release from incarceration, placement, commitment, or release on probation. States that the registration shall consist of all of the following (Pen. Code, § 290.015, subd. (a).):
   
   1. A statement signed in writing by the person, giving information as shall be required by DOJ and giving the name and address of the person's employer, and the address of the person's place of employment, if different from the employer's main address;
      
   2. Fingerprints and a current photograph taken by the registering official;
      
   3. The license plate number of any vehicle owned by, regularly driven by or registered in the name of the registrant;
      
   4. Notice to the person that he or she may have a duty to register in any other state where he or she may relocate; and,
      
   5. Copies of adequate proof of residence, such as a California driver's license or identification card, recent rent or utility receipt or any other information that the registering official believes is reliable.
      
2. States every person who is required to register, as specified, who is living as a transient shall be required to register for the rest of his or her life as follows:
   
   1. He or she shall register, or reregister if the person has previously registered, within five working days from release from incarceration, placement or commitment, or release on probation, pursuant to Penal Code Section 290(b), except that if the person previously registered as a transient less than 30 days from the date of his or her release from incarceration, he or she does not need to reregister as a transient until his or her next required 30-day update of registration. If a transient is not physically present in any one jurisdiction for five consecutive working days, he or she shall register in the jurisdiction in which he or she is physically present on the fifth working day following release, as specified. Beginning on or before the 30th day following initial registration upon release, a transient shall reregister no less than once every 30 days thereafter. A transient shall register with the chief of police of the city in which he or she is physically present within that 30-day period, or the sheriff of the county if he or she is physically present in an unincorporated area or city that has no police department, and additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is physically present upon the campus or in any of its facilities. A transient shall reregister no less than once every 30 days regardless of the length of time he or she has been physically present in the particular jurisdiction in which he or she reregisters. If a transient fails to reregister within any 30-day period, he or she may be prosecuted in any jurisdiction in which he or she is physically present.
      
   2. A transient who moves to a residence shall have five working days within which to register at that address, in accordance with Penal Code Section 290(b). A person registered at a residence address in accordance with that provision who becomes transient shall have five working days within which to reregister as a transient in accordance with existing law.
      
   3. Beginning on his or her first birthday following registration, a transient shall register annually, within five working days of his or her birthday, to update his or her registration with the entities described in existing law. A transient shall register in whichever jurisdiction he or she is physically present on that date. At the 30-day updates and the annual update, a transient shall provide current information as required on the DOJ annual update form, including the information.
      
   4. A transient shall, upon registration and re-registration, provide current information as required on the DOJ registration forms, and shall also list the places where he or she sleeps, eats, works, frequents, and engages in leisure activities. If a transient changes or adds to the places listed on the form during the 30-day period, he or she does not need to report the new place or places until the next required re-registration. (Pen. Code, § 290.011, subds. (a) to (d).)
      
3. Provides that willful violation of any part of the registration requirements constitutes a misdemeanor if the offense requiring registration was a misdemeanor, and constitutes a felony of the offense requiring registration was a felony or if the person has a prior conviction of failing to register. (Pen. Code, § 290.018, subds. (a)&(b).)
   
4. Provides that within three days thereafter, the registering law enforcement agency or agencies shall forward the statement, fingerprints, photograph, and vehicle license plate number, if any, to the DOJ. (Pen. Code § 290.015, subd. (b).)
   
5. States that a misdemeanor failure to register shall be punishable by imprisonment in a county jail not exceeding one year, and a felony failure to register shall be punishable in the state prison for 16 months, two or three years. (Pen. Code, § 290.018, subds. (a)&(b).)
   
6. Provides that the DOJ shall make available information concerning persons who are required to register as a sex offender to the public via an internet website. The DOJ shall update the website on an ongoing basis. Victim information shall be excluded from the website. (Pen. Code § 290.46.) The information provided on the website is dependent upon what offenses the person has been convicted of, but generally includes identifying information and a photograph of the registrant.
   
7. Generally prevents the use of the information on the website from being used in relation to the following areas: (Pen. Code, § 290.46, subd. (l)(2).)
   
   1. Health insurance;
      
   2. Insurance;
      
   3. Loans;
      
   4. Credit;
      
   5. Employment;
      
   6. Education, scholarships, or fellowships;
      
   7. Housing or accommodations; and
      
   8. Benefits, privileges, or services provided by any business establishment.
      
8. Provides that any person who solicits, agrees to engage in, or engages in an act of prostitution is guilty of a 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).)
   
9. 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. (Pen. Code § 647, subd. (b).)
   
10. 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).)
    
11. 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).)
    
12. 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).)
    
13. Provides the following penalties for unlawful sexual intercourse:
    
    1. Where the defendant is not more than three years older or three years younger than the minor, the offense is a misdemeanor;
       
    2. 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; or,
       
    3. 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).)
       
14. 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:
    
    1. Where the defendant is over 21 and the minor under 16 years of age, the offense is a felony, with a prison term of 16 months, two years or three years.
       
    2. In other cases sodomy with a minor is a wobbler, with a felony prison term of 16 months, two years or three years. (Pen. Code §§ 286, subd. (b), 288a, subd. (b), 289, subd. (h).)
       
15. 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).)
    
16. 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).)
    
17. 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).)
    
18. Includes numerous crimes concerning sexual exploitation of minors for commercial purposes. These crimes include:
    
    1. 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 punishable by a prison term of three, six or eight years. (Pen. Code § 266h, subds. (a)-(b);
       
    2. 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).);
       
    3. 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.)
       
    4. 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.); and,
       
19. 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).)
    
20. 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).)
    
21. Provides that where a defendant is convicted under the 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 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).)

FISCAL EFFECT:

COMMENTS:

1. Author's Statement: According to the author, "California is one of the top four destinations in the United States for human trafficking and it is a $32 billion a year global industry. In order to attempt to contain this industry and try to keep it from growing every year, we need to curb demand of prostitution with human trafficking victims. One way to do this is to require a limited term sex offender registration for those who are convicted of soliciting prostitution if they knew or reasonably should have known that the other participant was a minor and a victim of human trafficking. While the offenders will be on the sex offender registry and require monitoring for a set amount of time, they won’t be on the registry forever and won’t require the long-term monitoring expense of others on the registry. The tiered registration would require five years registration for the first conviction, 10 years registration for the second offense and 20 years registration for the third and subsequent offense."
2. Heavy Penalties and Registration Requirements Already Exist for Persons who Engage in Sexual Acts with Minors: Under current law, existing penalties which are almost too numerous to count exist for crimes involving various sexual acts with minors. From various crimes related to lewd and lascivious acts with a child to statutory rape, any individual who is an adult that engages in sexual contact with a minor is punished under California law. The penalties for these offenses almost universally include long prison sentences, and require sex registration.
3. Known or Should Have Known: This bill requires registration for a person convicted of soliciting a minor who the person knew, or reasonably should have known, was both a minor and a victim of human trafficking. The bill would cover persons who are targeting minors on purpose, but the provisions leave room for people who do not know that they are soliciting a minor with the "should have known" provision. Additionally, the bill specifies that the person must know or reasonably should know that the minor solicited is a victim of human trafficking. It is unclear how this element would be proven. Does this provision require a prosecutor to plead and prove that the victim is actually a victim of another, separate individual who is a human trafficker? Would the prosecutor have to show, beyond a reasonable doubt, that the separate offender is guilty of human trafficking (Pen. Code § 236.1), and that the minor was indeed their victim?
4. The Current Sex Offender Registration System and Megan's Law Website has Become too Unwieldy to be Effective for Law Enforcement: Again, according to California's Sex Offender Management Board, there are a number of problems with the current system as a result of adding too many low-risk sex offenders. California’s system of lifetime registration for all convicted sex offenders has created a registry that is very large and that includes many individuals who do not necessarily pose a risk to the community. The consequences of these realities are that the registry has, in some ways, become counterproductive to improving public safety. When everyone is viewed as posing a significant risk, the ability for law enforcement and the community to differentiate between who is truly high risk and more likely to reoffend becomes impossible. There needs to be a way for all persons to distinguish between sex offenders who require increased monitoring, attention and resources and those who are unlikely to reoffend.

There are many unintended consequences and indirect costs associated with sex offender registration.

• Innocent families and children of offenders (including victims of intra-familial sexual abuse) also bear the consequences of lifetime registration since they can often be identified by the public. Adverse consequences also arise for employers, landlords, neighbors and others.
• There has been a proliferation of residence restrictions and exclusion zones for registered sex offenders in many jurisdictions in California. Violation of these can lead to criminal charges. The obstacles posed by registration status prevent many individuals from obtaining housing or employment and becoming functioning, contributing, tax-paying members of society.
• There is reason to believe that registration policies, especially lifetime registration, keep some victims, particularly family members of the offender, from disclosing the abuse because they wish to avoid the stigma that will impact their family and their own lives for a very long time.

The presence nearby of one or more registered sex offenders can drive down property values in a neighborhood and make houses difficult to sell. If the current registration system was effective in the ways intended, these might be considered part of the price to pay for the greater good. But, since the current registry does not attain its intended purposes, many of these unintended consequences are without justification.

1. California's Sex Offender Management Board's Background: On September 20, 2006, Governor Arnold Schwarzenegger signed Assembly Bill 1015, which created the California Sex Offender Management Board. AB 1015 had been introduced by Assembly Members Judy Chu and Todd Spitzer and passed the California Legislature with nearly unanimous bipartisan support.
   
   Because California is the most populated state in the Union and has had lifetime registration for its convicted sex offenders since 1947, California has more registered sex offenders than any other state with about 88,000 identified sex offenders (per DOJ, August 2007). Currently, the California Department of Corrections and Rehabilitation (CDCR) supervises about 10,000 of those 88,000 sex offenders, of which about 3,200 have been designated as "high-risk sex offenders". (CDCR Housing Summit, March 2007). Additionally, there are about 22,500 adult sex offenders serving time in one of 32 state prisons operated by CDCR (California Sex Offender Management Task Force Report, July 2007).
   
   While it is commonly believed that most sexual assaults are committed by strangers, the research suggests that the overwhelming majority of sex offenders victimize people known to them; approximately 90% of child victims know their offenders, as do 80% of adult victims [per Kilpatrick, D.G., Edmunds, C.N., & Seymour, A.K. Rape in America: A Report to the Nation (1992). Arlington, VA: National Victim Center.]
2. Sex Offender Registration and the Megan's Law Website: According to a 2014 report by the California Sex Offender Management Board^[1], the intent of registration was to assist law enforcement in tracking and monitoring sex offenders since they were viewed as the group most likely to commit another sex offense. It was thought that having their names and addresses known to law enforcement and with the expansion of community notification also available to the public would dissuade them from committing a new offense, enable members of the public to exercise caution around them, enable law enforcement to monitor them and, if necessary, solve new sex offense cases more readily. Although research suggests that use of a registry may help law enforcement solve sex crimes against children involving strangers more quickly, United States DOJ statistics tell us that most crimes against children (about 93%) are committed not by a stranger but by a person known to the child and his or her family, usually an acquaintance or family member.

Since 1947, earlier by far than any other state, California has required “universal lifetime” registration for persons convicted of most sex crimes. (Pen. Code, § 290.) Though every other state has instituted some form of registration since then, California is among only four states which require lifetime registration for every convicted sex offender, no matter the nature of the crime or the level of risk for reoffending. Almost all other states use some version of a “tiering” or “level” system which: 1. recognizes that not all sex offenders are the same, 2. provides meaningful distinctions between different types of offenders and 3. requires registration at varying levels and for various periods of time. There are nearly 100,000 registrants today in California, a number accumulated over the past 66 years since the Registry was created in 1947. In 2004 California began to provide pictures and other identifying information on the Megan’s Law website for about 80% of registrants. (www.meganslaw.ca.gov)

There are about 98,000 registered sex offenders on California’s registry. About 76,000 live in California communities and the other 22,000 are currently in custody. Of these offenders, 80% are posted on the state’s Megan’s Law web site with their full address or ZIP Code and other information, depending upon the offense they committed. About 20% are not posted or are excluded from posting on the web site by law, again depending on the conviction offense. Posting on the web site does not take into account years in the community without reoffending, the offender’s risk level for committing a new sexual or violent crime, or successful completion of treatment. About one-third of registered offenders are considered “moderate to high risk” while the remaining two-thirds are “moderate to low risk” or “low risk.” Local police departments and sheriff’s offices are charged with managing the registration process. Registered sex offenders must re-register annually on their birthdays as well as every time they have a change of address. Transient sex offenders re-register every 30 days and sexually violent predators every 90 days. Registration information collected by law enforcement is sent to the California Department of Justice (DOJ) and stored in the California Sex and Arson Registry. If an offender’s information is posted online and he fails to register or re-register on time, he will be shown as “in violation” on the Megan’s Law web site. When proof is provided by local law enforcement to DOJ of a registrant’s death, he or she is removed from the registry. Every ten years since the Registry was first established has been marked by a dramatic increase in the number of registrants.

As noted above, the original goal of registration was to assist law enforcement in tracking and monitoring sex offenders. Over time, registration was expanded to include community notification and also began to encompass a wider variety of crimes and behaviors. Due to these changes, research has focused on exploring the changes in sex 4 CASOMB “Tiering Background Paper” offender registration laws and this has resulted in a constantly growing body of research that has altered the perspective on sex offender registration. This research has made it clear that:

• The sexual recidivism rate of identified sex offenders is lower than the recidivism rate of individuals who have committed any other type of crime except for murder.
• Not all sex offenders are at equal risk to reoffend. Low risk offenders reoffend at low rates, high risk offenders at much higher rates.
• It is possible to use well-researched actuarial risk assessment instruments to assign offenders to groups according to risk level. (i.e. Low, Medium, High.)
• Risk of a new sex offense drops each year the offender remains offense-free in the community. Eventually, for many offenders, the risk becomes so low as to be meaningless and the identification of these individuals through a registry becomes unhelpful due to the sheer numbers on the registry. Research has identified differing time frames of decreased risk for the various categories of offenders (i.e. low, medium, high).
• Research on both general and sexual offenders has consistently indicated that focusing on higher risk offenders delivers the greatest return on efforts to reduce reoffending.
• Completing a properly designed and delivered specialized sex offender treatment program delivered within the context of effective supervision reduces recidivism risk even further. In California, all registered sex offenders on parole or probation are now required by state law to enter and complete such a program.
  

This bill would add more low-risk sex (misdemeanor) offenders to the registry, making the monitoring of the existing high-risk sex offenders even more difficult than it already is.

1. Prostitution and Human Trafficking, Though Related, are not Always the Same Thing: A growing number of policy discussions are equating prostitution offenses with human trafficking offenses. There is no doubt that the crimes are related, however, they are not the same crime. A number of proposals seek to treat all prostitution offenses more severely because of the grave threat and nature of human trafficking. Human trafficking is a very serious crime, involving forced servitude, with very serious penalties. Most prostitution offenses between a person who is soliciting a prostitute and the prostitute themselves are misdemeanor crimes. Some of these offenses are related to human trafficking, but many are not. Additionally, pimps and panderers generally are treated more severely by the law, with much more serious consequences than the prostitute or the "john." Unlike the crimes of pimping and pandering, human trafficking is a crime that generally involves some form of force or coercion.
   
   California has existing strict laws for the treatment of pimps and panderers, as well as human traffickers. However, those crimes are not the same criminal offenses. Furthermore, not every person who solicits a prostitute is engaged in the crime of human trafficking. Blurring the lines between the less severe crimes related to prostitution, and the more severe crimes related to human trafficking, weakens the severity of human trafficking offenses. For instance, this committee has approved bills to add human trafficking to the list of serious felonies. However, if we continue to expand the definition of human trafficking to include more minor prostitution-related offenses the committee would have to re-evaluate in the future whether it would still consider human trafficking a serious felony.

According to the Polaris Project, "Human trafficking is a form of modern-day slavery where people profit from the control and exploitation of others.  As defined under U.S. federal law, victims of human trafficking include children involved in the sex trade, adults age 18 or over who are coerced or deceived into commercial sex acts, and anyone forced into different forms of 'labor or services,' such as domestic workers held in a home, or farm-workers forced to labor against their will.  The factors that each of these situations have in common are elements of force, fraud, or coercion that are used to control people."  (<http://www.polarisproject.org/human-trafficking/overview>.) 

Pimping under California law means receiving compensation from the solicitation of a known prostitute.  (Pen. Code, § 266h.)  Whereas pandering means procuring another person for the purpose of prostitution by intentionally encouraging or persuading that person to become or continue being a prostitute.  (Pen. Code, § 266i.)  Oftentimes, pimps use mental, emotional, and physical abuse to keep their prostitutes generating money.  Consequently, there has been a paradigm shift where pimping and pandering is now viewed as possible human trafficking.

This new approach has been criticized by some because it blurs the line between human trafficking and prostitution.  Sex workers say it discounts their ability to willingly work in the sex industry.  (See Nevada Movement Draws the Line on Human Trafficking by Tom Ragan, Las Vegas Review Journal, May 26, 2013, < http://www.reviewjournal.com/news/las-vegas/nevada-movement-draws-line-human-trafficking>.) 

• 1. Prostitution Generally: The basic crime of prostitution is a misdemeanor offense. (Pen. Code § 647(b).) 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.

To implicate a person for prostitution themselves, the prosecutor must prove that the defendant "solicited" or "agreed" to "engage" in prostitution. A person agrees to engage in prostitution when the person accepts an offer to commit prostitution with specific intent to accept the offer, whether or not the offerer has the same intent.

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

Violation of Pen. Code § 647(b) is a misdemeanor. 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 is conviction of prostitution, he or she faces fines, probation, possible professional licensing restrictions or revocations, possible immigration consequences, possible asset forfeiture, and possible driving license restrictions.

Closely associated crimes to prostitution include: abduction of a minor for prostitution (Pen. Code § 267); seduction for prostitution (Pen. Code § 266); keeping a house of prostitution (Pen. Code § 315); leasing a house for prostitution (Pen. Code § 318); sending a minor to a house of prostitution (Pen. Code 273e); taking a person against that person's will for prostitution (Pen. Code § 266 (a)); compelling a person to live in an illicit relationship (Pen. Code § 266 (b)); placing or leaving one's wife in a house of prostitution (Pen. Code § 266 (g)); loitering for prostitution (Pen. Code § 653.22 subd. (a)); pimping ( Pen. Code § 266 (h)); or, pandering ( Pen. Code § 266 (i)). Most of these crimes are punished much more severely than the underlying prostitution offense, particularly the crimes of pimping, pandering, and procurement.

• 1. Human Trafficking Generally: Human trafficking involves the recruitment, transportation or sale of people for forced labor. Through violence, threats and coercion, victims are forced to work in, among other things, the sex trade, domestic labor, factories, hotels and agriculture. According to the January 2005 United States Department of State's Human Smuggling and Trafficking Center report, "Fact Sheet: Distinctions Between Human Smuggling and Human Trafficking", there is an estimated 600,000 to 800,000 men, women and children trafficked across international borders each year. Of these, approximately 80% are women and girls and up to 50% are minors. A recent report by the Human Rights Center at the University of California, Berkeley cited 57 cases of forced labor in California between 1998 and 2003, with over 500 victims. The report, "Freedom Denied", notes most of the victims in California were from Thailand, Mexico, and Russia and had been forced to work as prostitutes, domestic slaves, farm laborers or sweatshop employees. [University of California, Berkeley Human Rights Center, "Freedom Denied: Forced Labor in California" (February, 2005).] According to the author:
     
     "While the clandestine nature of human trafficking makes it enormously difficult to accurately track how many people are affected, the United States government estimates that about 17,000 to 20,000 women, men and children are trafficked into the United States each year, meaning there may be as many as 100,000 to 200,000 people in the United States working as modern slaves in homes, sweatshops, brothels, agricultural fields, construction projects and restaurants."
     

In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. The proposition increased criminal penalties for human trafficking, including prison sentences up to 15-years-to-life and fines up to $1,500,000. Additionally, the proposition specified that the fines collected are to be used for victim services and law enforcement. Proposition 35 requires persons convicted of trafficking to register as sex offenders. Proposition 35 prohibits evidence that victim engaged in sexual conduct from being used against victims in court proceedings. Additionally, the proposition lowered the evidential requirements for showing of force in cases of minors.

• • 1. Trafficking Victims Protection Act of 2000 (22 USC Sections 7101 et seq.): In October 2000, the Trafficking Victims Protection Act of 2000 (TVPA) was enacted and is comprehensive, addressing the various ways of combating trafficking, including prevention, protection and prosecution. The prevention measures include the authorization of educational and public awareness programs. Protection and assistance for victims of trafficking include making housing, educational, health-care, job training and other federally funded social service programs available to assist victims in rebuilding their lives. Finally, the TVPA provides law enforcement with tools to strengthen the prosecution and punishment of traffickers, making human trafficking a federal crime.
       
    2. Recent Update to Human Trafficking Laws: In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. Specifically, Proposition 35 increased criminal penalties for human trafficking offenses, including prison sentences up to 15-years-to-life and fines up to $1.5 million. The proposition specified that the fines collected are to be used for victim services and law enforcement. In criminal trials, the proposition prohibits the use of evidence that a person was involved in criminal sexual conduct (such as prostitution) to prosecute that person for that crime if the conduct was a result of being a victim of human trafficking, and makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim’s credibility or character in court. The proposition lowered the evidentiary requirements for showing of force in cases of minors.
       
       Proposition 35 also requires persons convicted of human trafficking to register as sex offenders and expanded registration requirements by requiring registered sex offenders to provide the names of their internet providers and identifiers, such as e-mail addresses, user names, and screen names, to local police or sheriff’s departments. After passage of Proposition 35, plaintiffs American Civil Liberties Union and Electronic Frontier Foundation filed a law suit claiming that these provisions unconstitutionally restricts the First Amendment rights of registered sex offenders in the states. A United States District Court judge granted a preliminary injunction prohibiting the implementation or enforcement of Proposition 35's provisions that require registered sex offenders to provide certain information concerning their Internet use to law enforcement. (Doe v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013 LEXIS 5428.)
       
    3. California Attorney General's Report on Human Trafficking: The California Attorney General’s Human Trafficking in California 2012 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. 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

Trafficking by Category

1. Argument in Support: According to The San Luis Obispo District Attorney, "This bill targets a small, but extremely harmful, universe of sex buyers who prey upon children who have been forced into sexual slavery. It will go far in reducing the demand for trafficked children by using sex offender registration as a deterrent. According to a 2015 study entitled "Comparing Sex Buyers With Men Who Do Not Buy Sex: New Data on Prostitution and Trafficking", published in the Journal Interpersonal Violence, "Both SB [sex buyers] (91%) and NSB [non sex buyers] (88%) agreed that the most effective deterrent to buying sex would be to list sex buyers on a sex offender registry."
2. Argument in Opposition: According to The American Civil Liberties Union of California, "We respectfully oppose AB 1912 which seeks to add to California’s sex offender registry the crime of soliciting a minor to engage in prostitution if the offender knew or should have known the person solicited was a minor. Adding additional low-level offenses in which no sexual activity occurred to the list of offenses requiring registration will only further impede the effectiveness of Californian’s registry law.

"AB 1912 would require that a person convicted of soliciting a prostitute, in violation of Penal Code section 647(b), in cases where the convicted person knew or should have known that the person solicited was a minor, to register as a sex offender. The bill provides that the duty to register would last for five years for a first offense, ten years for a second offense, and twenty years for a third or subsequent offense. The bill further requires posting this information online.

"Effectively, AB 1912 seeks to equate the crime of soliciting a minor to engage in prostitution with the crime of actually having sex with a minor. This is inappropriate. There is a wide gap between those crimes in terms of the harm caused and the likely risk posed by the person convicted. This is especially true given that the crime of soliciting a minor applies to someone who did not know that the person solicited was a minor but 'should have known.' A person who solicits an individual that he or she 'should have known' is a minor may well stop the encounter upon learning that the individual solicited is in fact a minor. Simply put, individuals who actually engage in sex with a minor should face higher penalties than those who do not, and pose a greater risk to the community.

"AB 1912 will also make it more difficult to effectively manage true sex offenders. California already requires a vast number of people to register as sex offenders for life, imposing residency and other restrictions. California’s Sex Offender Management Board (CASOMB) has strongly criticized the vast scope of the current registration system:

"Under the current system, many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result, law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers now

in the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the lives of registrants and those – such as families – whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety.

"CASOMB has become convinced that California policy makers need to rethink the registration laws and the time has come, after nearly 70 years of use, to make some major changes in the state’s registration system.^[2]

"Adding an additional low-level offense without any actual sexual activity to the already vast list of offenses requiring registration will only further clog the system and impede effective management of high risk offenders.

"Moreover, AB 1912 is unnecessary. Courts already have the discretion to order anyone who commits any offense to register as a sex offender under Penal Code section 290.006."

1. Related Legislation:
   
   1. AB 733 (Chavez), would have required sex offender registration, placement on the Megan's Law Website, and mandates a minimum $3,000 fine ($12,370 with penalties and assessments) for solicitation of a minor. AB 733 failed passage in this committee.
   2. AB 201 (Brough), would have eliminated the state preemption which prohibits a local agency from enacting local ordinances that restrict a sex offender from residing or being present in specific locations, and authorize local agencies to enact ordinances that are more restrictive than state law. AB 201 failed passage in this committee.
2. Prior Legislation:
   1. AB 90 (Swanson) , Chapter 457, Statutes of 2011, included, within the definition of criminal profiteering activity, any crime in which the perpetrator induces, encourages, or persuades, or causes through force, fear, coercion, deceit, violence, duress, menace, or threat of unlawful injury to the victim or to another person, a person under 18 years of age to engage in a commercial sex act, and specifies that the proceeds shall be deposited in a Victim-Witness Fund, as specified.
   2. AB 17 (Swanson), Chapter 211, Statutes of 2010, added abduction or procurement for prostitution to the criminal profiteering asset forfeiture law; provided that the court may impose a fine of up to $20,000, in addition to any other fines and penalties, where the defendant has been convicted of abduction of a minor for purposes of prostitution or procurement of a minor under the age of 16 for lewd conduct; and provided that 50 percent of the additional fine shall be deposited in the Victim-Witness Assistance Fund for purposes of grants to community-based organizations that serve minor victims of human trafficking.
   3. AB 22 (Lieber), Chapter 240, Statutes of 2005, created the California Trafficking Victims Protection Act, which established civil and criminal penalties for human trafficking and allowed for forfeiture of assets derived from human trafficking. In addition, the Act required law enforcement agencies to provide Law Enforcement Agency Endorsement to trafficking victims, providing trafficking victims with protection from deportation and created the Human Trafficking Task Force.

REGISTERED SUPPORT / OPPOSITION:

Support

San Luis Obispo District Attorney's Office (Sponsor)

California District Attorneys Association

1 private individual

Opposition

American Civil Liberties Union

California Attorneys for Criminal Justice

California Public Defenders Association

Legal Services for Prisoners of Children

Analysis Prepared by:

Gabriel Caswell / PUB. S. / (916) 319-3744

1. http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Background%20Paper%20FINAL%20FINAL%204-2-14.pdf ↑

2. California’s Sex Offender Management Board Year End Report 2014 (February 2015), at pp. 12-13; available at http://www.cce.csus.edu/portal/admin/handouts/CASOMB_End_of_Year_Report_to_Legislature_2014.pdf. ↑