Existing civil law requires every person to abstain from injuring another and makes a person who commits a sexual battery, as defined, upon another liable to that person for specified damages.

This bill would impose civil liability and specific penalties upon a person over the age of majority who, in exchange for property or money, commits an act that would violate certain criminal provisions pertaining to sexual acts upon a child, solicitation of a child, or aiding or abetting in one of these acts. The bill would authorize a victim of the unlawful act, his or her parent or guardian, or guardian ad litem to bring an action for civil penalties, damages, injunctive relief, equitable remedies, and for the cost of the suit and reasonable attorneys fees, as specified. The bill would require, if the victim is under 21 18 years of age, and the action results in a monetary award, for that award to be held in trust for the victim, and used exclusively for the victims benefit in accordance with certain procedures. The bill also would require the court, if the parties seek to settle the action, to either affirm, modify, or reject the settlement, subject to first providing notice of the proposed settlement to the Attorney General within a certain timeframe. The bill would require the victim, victims parent, guardian, or guardian ad litem, if the action is dismissed or subject to final judgment, to submit to the Attorney General a report that includes the results of the action or its final disposition.

The bill would also specify procedures by which the court may issue temporary restraining or protective orders in an action brought pursuant to these provisions.

Existing law requires counties to transmit specific data concerning protective and domestic violence orders electronically through the California Law Enforcement Telecommunications System to the Department of Justice. Under existing law, upon issuance of a protective order, issuance of a temporary restraining order or injunction relating to harassment, unlawful violence, or the threat of violence under specified provisions, the Department of Justice is required to be immediately notified of the contents of the order, including certain information, including the name, race, date of birth, and other personal descriptive information of the respondent and the names of the protected persons.

This bill also would require notification of the issuance of a restraining order pertaining to sexual abuse of a child, as specified.

By imposing new duties on local government agencies and expanding the scope of a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing civil law requires every person to abstain from injuring another and makes a person who commits a sexual battery, as defined, upon another liable to that person for specified damages.

This bill would impose civil liability and specific penalties upon a person over the age of majority who, in exchange for property or money, commits an act that would violate certain criminal provisions pertaining to sexual acts upon a child, solicitation of a child, or aiding or abetting in one of these acts. The bill would authorize a victim of the unlawful act, his or her parent or guardian, or guardian ad litem to bring an action for civil penalties, damages, injunctive relief, equitable remedies, and for the cost of the suit and reasonable attorneys fees, as specified. The bill would require, if the victim is under 21 years of age, and the action results in a monetary award, for that award to be held in trust for the victim, and used exclusively for the victims benefit in accordance with certain procedures. The bill also would require the court, if the parties seek to settle the action, to either affirm, modify, or reject the settlement, subject to first providing notice of the proposed settlement to the Attorney General within a certain timeframe. The bill would require the victim, victims parent, guardian, or guardian ad litem, if the action is dismissed or subject to final judgment, to submit to the Attorney General a report that includes the results of the action or its final disposition.

The bill would authorize a public prosecutor, as defined, to bring an action on behalf of a victim or victims if the victim or his or her parent, guardian, or guardian ad litem has not brought an action, and if specified notice consent provisions and other criteria are satisfied.

The bill would require, in an action brought by the Attorney General, a district attorney, or a city attorney resulting in civil penalties or disgorgement of revenue obtained from the unlawful acts, that restitution be provided to the victim and then that 80% of those penalties or disgorgement be paid into a special fund to be used to provide assistance to minor victims, and the remaining 20% be payable to the prevailing public prosecutors office to be used for monitoring, investigation, and prosecution of the sexual abuse of children. a public prosecutor that results in a monetary award, that the award be provided to the victim, except that the public prosecutor shall receive reasonable attorneys fees.

The bill would also specify procedures by which the court may issue temporary restraining or protective orders in an action brought pursuant to these provisions.

Existing law requires counties to transmit specific data concerning protective and domestic violence orders electronically through the California Law Enforcement Telecommunications System to the Department of Justice. Under existing law, upon issuance of a protective order, issuance of a temporary restraining order or injunction relating to harassment, unlawful violence, or the threat of violence under specified provisions, the Department of Justice is required to be immediately notified of the contents of the order, including certain information, including the name, race, date of birth, and other personal descriptive information of the respondent and the names of the protected persons.

This bill also would require notification of the issuance of a restraining order pertaining to sexual abuse of a child, as specified.

By imposing new duties on local government agencies and expanding the scope of a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing civil law requires every person to abstain from injuring another and makes a person who commits a sexual battery, as defined, upon another liable to that person for specified damages.

This bill would impose civil liability and specific penalties upon a person over the age of majority who, in exchange for property or money, commits an act that would violate certain criminal provisions pertaining to sexual acts upon a child, solicitation of a child, or aiding or abetting in one of these acts. The bill would make such a person liable to any authorize a victim of the violation, unlawful act, his or her parent or guardian, or guardian ad litem, and the Attorney General, a district attorney, or a city attorney of a city with a population of 750,000 or more. The bill would provide for injunctive and other equitable relief, and would establish civil penalties of up to $50,000 but not less than $10,000 per unlawful act, in accordance with certain criteria. The bill would provide for reasonable costs and attorneys fees. litem to bring an action for civil penalties, damages, injunctive relief, equitable remedies, and for the cost of the suit and reasonable attorneys fees, as specified. The bill would require, if the victim is under 21 years of age, and the action results in a monetary award, for that award to be held in trust for the victim, and used exclusively for the victims benefit in accordance with certain procedures. The bill also would require the court, if the parties seek to settle the action, to either affirm, modify, or reject the settlement, subject to first providing notice of the proposed settlement to the Attorney General within a certain timeframe. The bill would require the victim, victims parent, guardian, or guardian ad litem, if the action is dismissed or subject to final judgment, to submit to the Attorney General a report that includes the results of the action or its final disposition.

The bill would require, in an action brought by the Attorney General, a district attorney, or a city attorney resulting in civil penalties or disgorgement of revenue obtained from the unlawful acts, that restitution be provided to the victim and then that 80% of those penalties or disgorgement be paid into a special fund to be used to provide assistance to minor victims, and the remaining 20% be payable to the prevailing public prosecutors office to be used for monitoring, investigation, and prosecution of the sexual abuse of children.

The bill would also specify procedures by which the court may issue temporary restraining or protective orders in an action brought pursuant to these provisions.

Existing law requires counties to transmit specific data concerning protective and domestic violence orders electronically through the California Law Enforcement Telecommunications System to the Department of Justice. Under existing law, upon issuance of a protective order, issuance of a temporary restraining order or injunction relating to harassment, unlawful violence, or the threat of violence under specified provisions, the Department of Justice is required to be immediately notified of the contents of the order, including certain information, including the name, race, date of birth, and other personal descriptive information of the respondent and the names of the protected persons.

This bill also would require notification of the issuance of a restraining order pertaining to sexual abuse of a child, as specified.

By imposing new duties on local government agencies and expanding the scope of a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing civil law requires every person to abstain from injuring another and makes a person who commits a sexual battery, as defined, upon another liable to that person for specified damages.

This bill would impose civil liability and specific penalties upon a person who over the age of majority who, in exchange for property or money, commits an act that would violate certain criminal provisions pertaining to sexual acts upon a child. child, solicitation of a child, or aiding or abetting in one of these acts. The bill would specifically establish liability provisions for injunctive and other equitable relief, based on a petition brought by any victim, or his or her parent or guardian or guardian ad litem, or the Attorney General, a district attorney, or a city attorney, as specified. make such a person liable to any victim of the violation, his or her parent or guardian, or guardian ad litem, and the Attorney General, a district attorney, or a city attorney of a city with a population of 750,000 or more. The bill would provide for injunctive and other equitable relief, and would establish civil penalties of up to $50,000 but not less than $10,000 per unlawful act, in accordance with certain criteria. The bill would entitle a prevailing private or public petitioner to provide for reasonable costs and attorneys fees, and for all other available remedies, except where awards duplicate other specified restitution, damages, or similar relief for the same acts. attorneys fees.

The bill would additionally require, if a victim or a victims parent, guardian, or guardian ad litem obtains civil penalties, is awarded money, that those penalties the money be held in trust for a victim under 21 years of age until the victim is emancipated. in accordance with specified procedures, and would require the court to retain jurisdiction over the trust to monitor compliance with its terms.

The bill would require, in an action brought by the Attorney General, a district attorney, or a city attorney resulting in civil penalties, penalties or disgorgement of revenue obtained from the unlawful acts, that restitution be provided to the victim and then that 80% of those penalties or disgorgement be paid into a special fund maintained by the county in which liability arose, to be used to provide assistance to minor victims, and the remaining 20% of those penalties be payable to the prevailing public prosecutors office to be used for monitoring, investigation, and prosecution of the sexual abuse of children.

By imposing new duties on local government agencies, agencies and expanding the scope of a crime, the bill would impose a state-mandated local program.

Existing civil law requires every person to abstain from injuring another and makes a person who commits a sexual battery, as defined, upon another liable to that person for specified damages.

This bill would impose civil liability and specific penalties upon a person who commits an act that would violate certain criminal provisions pertaining to sexual acts upon a child. The bill would specifically establish liability provisions for injunctive and other equitable relief, based on a petition brought by any victim, or his or her parent or guardian or guardian ad litem, or the Attorney General, a district attorney, or a city attorney, as specified. The bill would establish civil penalties of not less than $10,000 per unlawful act, in accordance with certain criteria. The bill would entitle a prevailing private or public petitioner to reasonable costs and attorneys fees, and for all other available remedies, except where awards duplicate other specified restitution, damages, or similar relief for the same acts.

The bill would additionally require, if a victim or a victims parent, guardian, or guardian ad litem obtains civil penalties, that those penalties be held in trust for a victim under 21 years of age until the victim is emancipated. The bill would require, in an action brought by the Attorney General, a district attorney, or a city attorney resulting in civil penalties, that 80% of those penalties be paid into a special fund maintained by the county in which liability arose, to be used to provide assistance to minor victims, and the remaining 20% of those penalties payable to the prevailing public prosecutors office to be used for monitoring, investigation, and prosecution of the sexual abuse of children.

The bill would also require the petitioner, in any action brought under those provisions by the Attorney General, a district attorney, or city attorney, to investigate and determine the identity of any adults who aided and abetted the violations, inform the court of their identities and provide evidence supporting the petitioners determination, as specified. The bill would further require the court to issue a temporary restraining order prohibiting those persons from engaging in contact with the victim, and would impose a civil penalty of up to $100,000 per violation, or an order of confinement for contempt of court, or both, for violations of the restraining order.

By imposing new duties on local government agencies, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 1495 (Maienschein) - Civil liability: sexual abuse: children

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1495 would create a new cause of action for sexual exploitation of children, as specified, and authorize the issuance of temporary restraining orders, as specified.

Fiscal Impact:

• Costs of $1.7 million annually (General Fund) to the Department of Justice (DOJ) for new personnel due to the increased workload from receiving, processing, and preparing reports and from submitting settlement modifications to the court at least thirty days before the court affirms, modifies, or rejects a settlement.
• Unknown, potentially-major costs in the hundreds of thousands of dollars to the millions of dollars (General Fund) to the Department of Corrections and Rehabilitation (CDCR) to supervise and transport inmates from state facilities to the appropriate courthouses for the civil action. Actual costs would be dependent on the number of individuals whom the department is required to transport.
• Unknown, potentially-major costs (General Fund*) to the courts to process and adjudicate civil actions filed pursuant to the provisions of this bill. Costs would be dependent on the number of individuals who would file a complaint.

*Trial Court Trust Fund

Background:

Existing civil law requires every person to abstain from injuring another and makes a person who commits a sexual battery, as defined, upon another liable to that person for specified damages. Existing law provides that a person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages. The court may award equitable relief, including, but not limited to, an injunction, costs, and any other relief that the court deems proper. Additionally, existing law provides that an adult who engages in an act of sexual intercourse with a minor in violation of the statutory rape law may be liable for civil penalties in the following amounts, which the district attorney is authorized to bring actions to recover:

• an adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty up to $2,000;
• an adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty up to $5,000;
• an adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty up to $10,000;
• an adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty up to $25,000.

Moreover, the court is required to order a person who is convicted of a crime to pay restitution to the victim or victims for the full amount of economic loss, unless the court finds compelling and extraordinary reasons for not doing so and states them on the record. Additionally, existing law requires the restitution order to be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct. When the crime that was committed was a felony incident of lewd and lascivious acts with a minor, as defined, the court is authorized to include in the restitution order noneconomic losses, including, but not limited to, for psychological harm.

Existing law requires counties to transmit specific data concerning protective and domestic violence orders electronically through the California Law Enforcement Telecommunications System to DOJ. Upon issuance of a protective order, temporary restraining order, or injunction relating to harassment, unlawful violence, or the threat of violence under specified provisions, DOJ is required to be immediately notified of the contents of the order, including certain information, including the name, race, date of birth, and other personal descriptive information of the respondent and the names of the protected persons.

Proposed Law:

This bill would:

• Impose civil liability and specific penalties upon a person over the age of majority who, in exchange for property or money, commits an act that would violate certain criminal provisions pertaining to sexual acts upon a child, solicitation of a child, or aiding or abetting in one of these acts.
• Authorize a victim of the unlawful act, his or her parent or guardian, or guardian ad litem to bring an action for civil penalties, damages, injunctive relief, equitable remedies, and for the cost of the suit and reasonable attorney’s fees, as specified.
• Require, if the victim is under 18 years of age, and the action results in a monetary award, for that award to be held in trust for the victim, and used exclusively for the victim’s benefit in accordance with certain procedures.
• Require the court, if the parties seek to settle the action, to affirm, modify, or reject the settlement, subject to first providing notice of the proposed settlement to the Attorney General within a certain timeframe.
• Require the victim, victim’s parent, guardian, or guardian ad litem, if the action is dismissed or subject to final judgment, to submit to the Attorney General a report that includes the results of the action or its final disposition.
• Specify procedures by which the court may issue temporary restraining or protective orders in an action brought pursuant to the provisions of this bill.
• Require notification of the issuance of a restraining order related to sexual abuse of a child, as specified.

Related Legislation:

SB 270 (Atkins, 2017) would have required hotels and motels in the state to train their employees in recognizing the signs of human trafficking and how to report those signs. It also would require DOJ to develop an approved training program. SB 270 was held on the Suspense File of this Committee.

SB 225 (Stern, 2017) would update specified language that is required to be included in notices certain businesses must post related to human trafficking. SB 225 is pending on the Assembly Floor.

SB 597 (Leyva, 2017) would allow victims of human trafficking to participate in the Secretary of State’s Safe at Home program. SB 597 is pending on the Suspense File of the Assembly Committee on Appropriations.

AB 223 (Eggman, 2017) would have established pilot projects aimed at serving youth victims of human trafficking. AB 223 was held on the Suspense File of this Assembly Committee on Appropriations.

AB 229 (Baker, 2017) would award funds to district attorney offices that employ a vertical prosecution methodology for the prosecution of human trafficking crimes and require a report on the results of recipients’ cases. AB 229 is pending on the Suspense File of this Committee.

AB 704 (Grayson, 2017) would provide for the establishment of human trafficking multidisciplinary personnel teams within counties to allow agencies to share confidential information in order to investigate reports of suspected human trafficking. AB 704 is pending in the Assembly Committee on Public Safety.

AB 1227 (Bonta, 2017) would require human trafficking prevention education in schools, amend the term “child abuse and neglect” to include human trafficking, and provide for increases in funding and education around the issue of human trafficking. AB 1127 is pending in this Committee.

Staff Comments:

This bill would produce additional costs to CDCR to transport inmate-defendants to and from court hearings. There are many factors that affect the costs of out-of-institution transportation, including each inmate’s escape risk and in-custody behavior, the distance from an inmate’s housing facility to the courthouse, and the pace at which a court adjudicates the proceedings. Presuming that two correctional officers, one armed and one unarmed, with regular hourly wages would transport one inmate with a total travel and court time of eight hours, this bill would cost the department almost $850 per excursion. If the court and travel time were extended, department costs would rise commensurately. Economies of scale potentially could be realized depending on the number of inmate-defendants taken to court at one time. To provide a snapshot, in 2016 alone, there were 2,865 felony convictions and 2,525 misdemeanor convictions for the offenses that could result in a civil lawsuit against the defendant under this bill. Many of these defendants are serving their sentence in the state prison—some of the misdemeanor convictions for the offenses included in this bill were subordinate counts to felony offenses.

Additionally, DOJ anticipates that this bill would result in increased workload that would necessitate the additional staffing of one Supervising Deputy Attorney General, four Deputy Attorneys General, and a complement of three Legal Secretaries. The salaries and benefits for these positions would be paid out of the General Fund, however, this bill would allow for the recovery of reasonable attorney’s fees. Collection of attorney’s fees ordered by the court to be paid by incarcerated defendants presumably would take a number of years to collect fully, it at all.

Staff notes, as was noted in the analysis of this bill by the Senate Committee on Judiciary, “[e]xisting law provides for a wide array of criminal penalties for those that exploit children through human trafficking, prostitution, or otherwise engage in unlawful sexual conduct with minors. Many of these laws also explicitly provide for civil penalties and fines that serve both punishment and deterrence ends. Additionally, victims can usually bring civil actions to recover damages that result from these acts.”

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 1495 (Author:Maienschein)

Version: May 26, 2017

Hearing Date: July 11, 2017

Fiscal: Yes

Urgency: No

Consultant: CK

SUBJECT

Civil liability: sexual abuse: children

DESCRIPTION

This bill would create a cause of action for child victims of sexual exploitation that provides for civil penalties of anywhere from $10,000 and $50,000 per unlawful act; damages, including medical and counseling expenses; injunctive relief; restitution and disgorgement; and reasonable attorneys’ fees and costs. It would also provide for temporary restraining orders to be issued where appropriate.

(This analysis reflects author’s amendments to be taken in Committee. These amendments remove the provisions of the bill that would have allowed for public prosecutors to bring these actions only with the consent of the victim and insert provisions allowing for public prosecutors to seek restraining orders and protective orders for victims.)

BACKGROUND

Human trafficking is the world’s fastest growing criminal enterprise, bringing in annual profits in the tens of billions of dollars. Human trafficking is generally defined as the use of force, coercion, or fraud to obtain coerced labor or personal services. Existing law provides that any person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services is guilty of the crime of human trafficking. A recent report by the National Institute of Justice found that approximately 20 million people are victims of some form of human trafficking worldwide. The U.S. State Department estimates that 14,500 - 17,500 people are trafficked into the United States annually. However, estimates indicate that there are hundreds of thousands of victims in the United States. Over 80 percent of reported trafficking cases are sex trafficking, rather than labor or other forms. Sex trafficking can and does take place in every community, no matter the cultural makeup, the affluence, or the location of a community.

According to the National Human Trafficking Hotline (NHTH) (previously the National Human Trafficking Resource Center), over 1,300 human trafficking cases were reported in California in 2016 alone, vastly more than any other state. Since 2007, the hotline has received 19,000 calls from California with over 5,000 cases reported. The reported cases nationwide overwhelmingly involved female victims with nearly a third of victims being minors. Traffickers look for people who are susceptible for a variety of reasons, including psychological or emotional vulnerability, economic hardship, lack of a social safety net, natural disasters, or political instability. Human trafficking is a hidden crime as victims rarely come forward to seek help because of language barriers, fear of the traffickers, and/or fear of law enforcement.

This bill would encourage minor victims of human trafficking to bring civil actions against those responsible by creating a cause of action that would include significant civil penalties and expansive damages. It would also allow for a trustee to maintain any monetary awards for a child victim and facilitates the issuance of restraining orders to protect these children.

CHANGES TO EXISTING LAW

Existing law provides that every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights. (Civ. Code Sec. 1708.)

Existing law provides that a person commits a sexual battery by doing any of the following:

• acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results;
• acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results; or
• acts to cause an imminent apprehension of the conduct described above, and a sexually offensive contact with that person directly or indirectly results. (Civ. Code Sec. 1708.5(a).)

Existing law provides that a person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages. The court may award equitable relief, including, but not limited to, an injunction, costs, and any other relief the court deems proper. (Civ. Code Sec. 1708.5(b), (c).)

Existing law provides that unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor (a person under the age of 18 years). Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment. Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment for two, three, or four years. (Pen. Code Sec. 261.5(a)-(d).)

Existing law provides that an adult who engages in an act of sexual intercourse with a minor in violation of Section 261.5 of the Penal Code may be liable for civil penalties in the following amounts:

• an adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000);
• an adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000);
• an adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000);
• an adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000). (Pen. Code Sec. 261.5(e).)

Existing law provides that a district attorney may bring actions to recover civil penalties pursuant to Section 261.5 of the Penal Code for acts of unlawful sexual intercourse. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund. In addition to any other punishment imposed, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates Section 261.5 of the Penal Code, taking into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of the person’s inability to pay the fine. (Pen. Code Sec. 261.5(e).)

Existing law provides that every person who takes any woman unlawfully, against her will, and by force, menace or duress, compels her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment. (Pen. Code Sec. 265.)

Existing law provides that every person who inveigles or entices any unmarried female, of previous chaste character, under the age of 18 years, into any house of ill fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any man; and every person who aids or assists in such inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, is punishable by imprisonment in the state prison, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment. (Pen. Code Sec. 266.)

Existing law provides that any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes, as specified, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. If such act is carried out by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, it shall be deemed a felony and be punished by imprisonment in the state prison for 5, 8, or 10 years. A caretaker committing such act is likewise subject to such punishment. If convicted, perpetrators can have a fine not to exceed $10,000 imposed upon them. If it is proven that the perpetrator personally inflicted bodily harm upon the victim, the perpetrator can be sentenced to life with the possibility of parole.

Existing law provides that an individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with another person who is a minor in exchange for the individual providing compensation, money, or anything of value to the minor is guilty of disorderly conduct, a misdemeanor. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, the individual manifests an acceptance of an offer or solicitation by someone who is a minor to so engage, regardless of whether the offer or solicitation was made by a minor who also possessed the specific intent to engage in an act of prostitution. If the defendant knew or should have known that the person who was solicited was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail for not less than two days and not more than one year, or by a fine not exceeding $10,000, or by both that fine and imprisonment. A court may also suspend such a perpetrator’s license, as specified. (Pen. Code Sec. 647.)

This bill would make it unlawful for any person over the age of majority, in exchange for property or money, to commit any of the following acts:

• violate Section 261.5, 265, or 266 of the Penal Code, pertaining to sexual acts upon a child, including, but not limited to, rape, abduction, carnal abuse, or lewd behavior pursuant to Section 288 of the Penal Code;
• solicit a child for a purpose in violation of paragraph (1), or pursuant to Section 647 of the Penal Code; or
• aid or abet in the commission of acts that would violate the sections above.

This bill would provide that a victim of any of these unlawful acts, or the victim’s parent, guardian, or guardian ad litem, may bring a civil action for civil penalties, damages, injunctive relief, equitable remedies, and for the cost of suit and reasonable attorney’s fees, as follows:

• civil penalties awarded by the court not exceeding fifty thousand dollars $50,000 though not less than $10,000 for each unlawful act;
• damages, including, but not limited to, medical and counseling expenses, lost current and future wages, and reasonable relocation costs to permit the plaintiff to locate a safe environment;
• injunctive relief;
• equitable relief, including, but not limited to, restitution, disgorgement of revenue obtained through the acts in violation of this section; and
• reasonable attorney’s fees and costs.

This bill would provide that if the victim is under 18 years of age, and the action results in a monetary award, the award shall be held in trust for the victim and used exclusively for the benefit and well-being of the victim. The court would be required, with the advice of the victim, to appoint a trustee and would retain jurisdiction over the trust until the victim reaches 18 years of age or is emancipated in order to monitor compliance. The trustee would be prohibited from being compensated from the trust. The trust would expire when the victim reaches 18 years of age or is emancipated and any unspent remainder would be the sole property of the victim.

This bill would provide that if the parties seek to settle the action, the court must either affirm, modify, or reject the settlement. The court would be required to give the Attorney General notice of the proposed settlement at least 30 days before the court affirms, modifies, or rejects the settlement. The Attorney General would be able to object to the proposed settlement on grounds that the settlement is collusive, and request that the settlement be modified upon a court hearing. If the action is dismissed, or is subject to a final judgment, the victim, parent, guardian, or guardian ad litem would be required to submit to the Attorney General a report in the form prescribed by the Attorney General that includes the results of the action or the final disposition of the case.

This bill would provide a presumption that a defendant had knowledge of the victim’s status as a minor, rebuttable by a preponderance of the evidence. If the age of the victim was under 14 years of age, that presumption would need to be rebutted by clear and convincing evidence.

This bill would provide that if testimony of the child victim is required in a civil action brought pursuant to this bill, the child victim shall be permitted to have a support person, pursuant to Section 6303 of the Family Code, and shall be eligible for child victim services relevant to his or her testimony provided by Section 264.2 of the Penal Code. In addition or in the alternative, those witnesses would be subject to the care and protection of Section 1347.1 of the Penal Code in the delivery of their testimony in proceedings pursuant to this section.

This bill would authorize a juvenile court, as specified, to, on its own motion or upon the motion of a public prosecutor, after a good cause showing, issue a temporary restraining order or protective order for the victim pursuant to Section 213.5 of the Welfare and Institutions Code. A court may otherwise issue a temporary restraining order or protective order for the victim, on its own motion or upon the motion of a public prosecutor, pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code. Such temporary restraining orders or protective orders would not require a showing of a qualifying relationship. The alleged victim would need to be permitted to have a support person present at any hearing for the issuance of a restraining order.

This bill would make clear that it does not alter or otherwise affect Section 261.5 of the Penal Code.

This bill would amend Section 6380 of the Family Code to recognize the restraining orders identified above for purposes of the California Law Enforcement Telecommunications System.

COMMENT

1. Stated need for this bill

According to the author:

The purpose of AB 1495 is to reduce or eliminate the number of men who will pay to rape children by exposing those men to a risk of financial ruin from a civil lawsuit if they do so.

The lack of any substantial effective remedies to combat demand is reflected, for example, in arrest statistics. The U.S. Department of Justice reports that in 2010 there were more than 43,000 females arrested for prostitution-related offenses, while just 19,000 males were arrested. These 19,000 men were not limited to Johns; the statistics include Johns, pimps, and male sex-workers.

Johns drive the trade. They are the individuals exploiting the, often coerced, vulnerable, and underage victims. . . .

[A] specific and dramatic civil remedy that would allow private lawsuits . . . would provide a needed compliment to other tools aimed at reducing the number of Johns willing to pay to exploit children sexually.

2. Creating another cause of action to punish and deter perpetrators

Existing law provides for a wide array of criminal penalties for those that exploit children through human trafficking, prostitution, or otherwise engage in unlawful sexual conduct with minors. Many of these laws also explicitly provide for civil penalties and fines that serve both punishment and deterrence ends. Additionally, victims can usually bring civil actions to recover damages that result from these acts.

This bill would add to this array of legal options a significant cause of action for victims of sexual exploitation. A child victim would be able to collect up to $50,000 per unlawful act, an amount that could quickly pile up to devastating financial punishment to a perpetrator. A victim of any of the specified unlawful acts, or the victim’s parent, guardian, or guardian ad litem could bring the action for these penalties, as well as damages, injunctive relief, reasonable attorneys’ fees and costs, and a range of equitable relief that includes restitution and disgorgement of revenue obtained through the unlawful acts. Although remedies and causes of action exist for victims to seek justice, this bill would provide another incentive to victims to bring forward claims and brave what is likely a very arduous process.

Writing in support, Dependency Legal Services states that this bill affords victims “a realistic and credible chance to sue child rapists and their adult commercial allies.”

3. Protecting child victims financially and physically

This bill would also allow for any monetary awards to be held in trust for the victim and used exclusively for the benefit and well-being of the child. The trustee would not be permitted to be compensated from the trust and any unspent remainder after the specified term would be the sole property of the victim. This ensures that a child victim is not further taken advantage of when a monetary award is issued. This would take on additional significance with the greatly increased civil penalties available. Further protecting the interests of the minor, notice of any settlement would need to be given to the Attorney General, who may object on grounds of collusion.

This bill would also provide mechanisms for courts and for juvenile courts with jurisdiction over specified minors, to issue temporary restraining orders for the benefit of child victims, on the court’s own motion or upon the motion of a public prosecutor. This facilitates issuance of such an order when needed. Given the nature of the crimes involved, this sort of protection is often likely necessary to ensure the safety of a victim filing claims against a perpetrator.

4. Author amendments

The following author’s amendments are to be taken in Committee.

Author’s amendments:

• On page 4, line 9, delete “21” and insert “18”
• On page 4, line 15, delete “21” and insert “18”
• On page 4, line 18, delete “21” and insert “18”
• On page 4, delete lines 34-39
• On page 5, delete lines 1-14
• On page 6, line 28, delete “or (c)”
• On page 6, line 34, delete “or (c)”
• On page 7, line 6, after “motion,” insert “or upon the motion of a public prosecutor,”
• On page 7, line 14, after “motion,” insert “or upon the motion of a public prosecutor,”
• Make conforming changes

Support: 3Strands Global Foundation; California Alliance of Caregivers; Consumer Attorneys of California; Dependency Legal Services; Bonnie M. Dumanis, San Diego District Attorney; Mara Elliot, San Diego City Attorney; Freedom From Exploitation, Inc.; The H.O.P.E Project; Junior League of San Diego; Junior Leagues of California State Public Affairs Committee; Lynch Foundation for Children; National Association of Missing & Exploited Children; Professional Fiduciary Association of California; Saved in America; Suzi B, Inc.; Sycuan Band of the Kumeyaay Nation; Four individuals

Opposition: American Civil Liberties Union of California

HISTORY

Source: Children’s Advocacy Institute

Related Pending Legislation:

SB 270 (Atkins, 2017) would require hotels and motels in the state to train their employees in recognizing the signs of human trafficking and how to report those signs. It would also require the Department of Justice to develop an approved training program. This bill is currently in the Senate Appropriations Committee.

SB 225 (Stern, 2017) would update language that is required to be included in notices certain businesses must post. It would update the name of one of the hotlines and would include a special textline that can be texted for services and support. This bill is currently in the Assembly Appropriations Committee.

SB 597 (Leyva, 2017) would allow victims of human trafficking to participate in the Secretary of State’s Safe at Home program. This bill is currently in the Assembly Appropriations Committee.

AB 223 (Eggman, 2017) would establish pilot projects aimed at serving youth victims of human trafficking. This bill is currently in the Assembly Appropriations Committee.

AB 229 (Baker, 2017) would award funds to district attorney offices that employ a vertical prosecution methodology for the prosecution of human trafficking crimes and require a report on the results of recipients’ cases. This bill is currently in the Senate Appropriations Committee.

AB 704 (Grayson, 2017) would provide for the establishment of human trafficking multidisciplinary personnel teams within counties to allow agencies to share confidential information in order to investigate reports of suspected human trafficking. This bill is currently in the Assembly Public Safety Committee.

AB 1227 (Bonta, 2017) would require human trafficking prevention education in schools; amend the term “child abuse and neglect” to include human trafficking; and provide for increases in funding and education around the issue of human trafficking. This bill is currently in the Senate Human Services Committee.

Prior Legislation:

AB 1684 (Stone, Ch. 63, Stats. 2016) authorized the Department of Fair Employment and Housing to receive and prosecute a civil action on behalf of a human trafficking victim.

SB 1322 (Mitchell, Ch. 654, Stats. 2016) provided that a minor engaged in commercial sexual activity will not be arrested for a prostitution offense; directed a law enforcement officer who comes upon a minor engaged in a commercial sexual act to report the conduct or situation to county social services as abuse or neglect; and provided that a commercially sexually exploited child may be adjudged a dependent child of the juvenile court and taken into temporary custody to protect the minor’s health or safety.

Prior Vote:

Assembly Floor (Ayes 75, Noes 0)

Assembly Appropriations Committee (Ayes 16, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:

Author:()

As Amended Ver:May 26, 2017

Majority vote

SUMMARY: Creates a new cause of action for child victims of sexual exploitation, and allows for the recovery of civil penalties, damages, and other remedies to provide for the benefit and well-being of the victim and allows the victim's parents, guardians, or guardians ad litem, and public prosecutors to file the cause of action on behalf of the victim upon the consent of the victim. Specifically, this bill:

1. Provides that it is unlawful for any person over the age of majority who, in exchange for property or money, commits any of the following acts:
2. Violates Section 261.5, 265, or 266 of the Penal Code, pertaining to sexual acts upon a child, including, but not limited to, rape, abduction, carnal abuse, or lewd behavior pursuant to Section 288 of the Penal Code.
3. Solicits a child for a purpose in violation of paragraph (1), or pursuant to Section 647 of the Penal Code.
4. Aids or abets in the commission of acts that would violate paragraph (1) or (2).
5. Allows a victim of any unlawful act provided in 1), or his or her parent, guardian, or guardian ad litem, to bring a civil action for civil penalties, damages, injunctive relief, equitable remedies, and for the cost of suit and reasonable attorney's fees, as follows:
6. Civil penalties awarded by the court not exceeding $50,000 though not less than $10,000 for each unlawful act.
7. Damages, including, but not limited to, medical and counseling expenses, lost current and future wages, and reasonable relocation costs to permit the plaintiff to locate to a safe environment.
8. Injunctive relief.
9. Equitable relief including, but not limited to, restitution, disgorgement of revenue obtained through the acts in violation of this section.
10. Reasonable attorney's fees and costs.
11. If the victim prevails in the action described in 2), the following applies:
12. If the victim is under 21 years of age, and the action results in a monetary award, the award shall be held in trust for the victim and used exclusively for the benefit and well-being of the victim.
13. The court shall, with the advice of the victim, appoint a trustee and retain jurisdiction over the trust until the victim reaches 21 years of age or is emancipated in order to monitor compliance with these provisions. The trustee shall not be compensated from the trust.
14. When the victim reaches 21 years of age or is emancipated, the trust shall expire and any unspent remainder shall be the sole property of the victim.
15. Provides if the parties seek to settle the action, the court shall either affirm, modify, or reject the settlement. The court shall not affirm the settlement unless the Attorney General has been given notice of the proposed settlement at least 30 days before the court affirms, modifies, or rejects the settlement. The Attorney General may object to the proposed settlement on grounds that the settlement is collusive, and may request that the settlement be modified upon a court hearing.
16. Provides if the action is dismissed, or is subject to a final judgment, the victim, parent, guardian, or guardian ad litem shall submit to the Attorney General a report in the form prescribed by the Attorney General that includes the results of the action or the final disposition of the case.
17. Allows a public prosecutor to bring an action on behalf of a victim or victims if the victim or his or her parent, guardian, or guardian ad litem provides written consent, as provided. Specifies that in this action, the victim shall not be compelled to testify in the case. Allows the public prosecutor to recover reasonable attorney's fees.
18. Establishes that in these civil actions, knowledge of the victim's status as a minor shall be presumed but may be rebutted by a preponderance of the evidence. If the age of the victim was under 14 years of age, that presumption must be rebutted by clear and convincing evidence.
19. Provides that if testimony of the child victim is required in these civil actions, the child victim shall be permitted to have a support person and shall be eligible for child victim services relevant to his or her testimony as provided. In addition or in the alternative, those witnesses may be subject to the care and protection as provided in the delivery of their testimony in proceedings.
20. Provides that if a victim is the subject of a petition as provided, the juvenile court that retains jurisdiction may, on its own motion, after a good cause showing, issue a temporary restraining order or protective order for the victim as provided.
21. Provides that if a victim is not the subject of a petition as provided, or the juvenile court does not issue a temporary restraining order, the court may, on its own motion, after a good cause showing, issue a temporary restraining order or protective order for the victim as provided. Further provides that certain temporary restraining order or protective order issued under this bill does not require a showing of a qualifying relationship.
22. Requires notification to the Department of Justice upon the issuance of a protective or restraining order pertaining to sexual abuse of a child, as provided.
23. Defines "public prosecutor" to mean the Attorney General, a district attorney, or a city attorney of a city with a population of 750,000 or more.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. GF costs, potentially over $150,000, to the California Department of Corrections and Rehabilitation (CDCR) to transport inmates who are the defendant in a civil case brought forward as a result of this bill. For example, it costs CDCR roughly $850 per day to transport an inmate. If CDCR was required to transport 60 inmates for three days each, the total cost for transportation would be $153,000.
2. Unknown GF costs to the Attorney General (AG)'s office for civil cases where the defendant prevails and the AG is unable to recover its costs, depending on the number of cases brought that are lost.

COMMENTS: This bill creates a new cause of action for child victims of sexual exploitation, and allows for the recovery of civil penalties, damages, and other remedies to provide for the benefit and well-being of the victim. Under this bill, civil liability would be imposed on an adult who – in exchange for money – commits any of the following crimes on a child: 1) rape; 2) solicits; or 3) lewd or lascivious acts. Civil liability would also be imposed on those who aid or abet the listed crimes.

This bill provides significant civil penalties. For each violation, there is a minimum $10,000 and a maximum $50,000 civil penalty for each violation. The bill also allows the child victim to recover certain damages like medical and counsel expenses, lost current and future wages, and reasonable relocation costs. Additionally, this bill allows the award of equitable relief (e.g., restitution and disgorgement), and reasonable attorney's fees and costs. Given that extensive damages that may be awarded to the child victim, this bill provides that if the victim is a child, any monetary award will be held in trust and used exclusively for the benefit and well-being of the child. To prevent against abuse of the trust assets, this bill reasonably requires the court to appoint the trustee (with the advice of the child) and to retain jurisdiction over the trust until the child reaches the age of 21 years. This bill also prudently prohibits the trustee from being compensated from the trust. Once the child victim reaches the age of 21 years, or becomes emancipated, the trust expires and the remainder of the trust assets goes to the victim.

This bill also allows the child victim to seek injunctive relief, similar to a temporary restraining order or a protective order provided under existing law. In the event that the child victim is a dependent or ward of the state, this bill allows the juvenile court with jurisdiction over the child to issue the protective order. Since the juvenile court is more likely to be familiar with the minor, it is in the best interest of the minor to allow the juvenile court to be the first to decide whether it is appropriate to issue the protective order. If it is not appropriate, the court where the civil action was filed may still issue a civil harassment or protective order upon its discretion.

In addition to allowing the victim's parent, guardian, or guardian ad litem to file the action, this bill also allows a public prosecutor – the Attorney General, a district attorney, or a city attorney with a population of 750,000 or more – to bring the action on the victim's behalf if the prosecutor obtains written consent from the victim. This bill specifies that any award from the public prosecutor's action shall flow to the victim but allows the public prosecutor to recover reasonable attorney's fees. However, the victim cannot be compelled to testify in the action brought by a public prosecutor.

This bill considers situations where the testimony of the child victim is needed, and ensures that the victim has a support person as defined under existing law, or that the victim can testify out of the immediate presence of the judge, jury, and defendant. This bill provides that if the child victim must testify, the child victim shall be permitted to have a support person. Under existing law, a support person helps the victim feel more confident that he or she will not be injured or threatened by the other parties in the proceeding. Additionally, if the court determines that it is appropriate, this bill allows the court to allow a minor witness to testify by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television upon specific court findings, consistent with existing law.

To prevent against collusive settlements, this bill requires the court to review potential settlements and give the Attorney General the opportunity to review the terms of the settlement. This bill provides that if the parties seek to settle the action, the court shall either affirm, modify, or reject the settlement. Additionally, notice must be given to the Attorney General to review the proposed settlement at least 30 days before the court affirms, modifies, or rejects the settlement. The Attorney General may object to the proposed settlement on grounds that the settlement is collusive, and may request that the settlement be modified upon a court hearing.

To help with data collection, this bill requires the parties to submit a report to the Attorney General upon final judgment or if the action is dismissed. This bill provides that if the action is dismissed, or is subject to a final judgment, the victim, parent, guardian, or guardian ad litem shall submit to the Attorney General the results of the action or the final disposition of the case. To that end, this bill requires the court to provide the Department of Justice information about protective orders the court grants under this bill.

It is not unprecedented to create civil liability for certain victims of crimes. For example, existing law provides for a tort of domestic violence. Although domestic violence is a crime, the Legislature created a specific tort for victims of domestic violence to give "victims and the courts a clear statement of the rights and remedies." (Assembly Judiciary Committee analysis of AB 1933; March 18, 2002; See Civil Code Section 1708.6.) Additionally, existing law allows a victim of human trafficking to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. Under that human trafficking statute, a plaintiff could be awarded up to three times his or her actual damages or $10,000, whichever is greater, and punitive damages upon proof of the defendant's malice, oppression, fraud, or duress in committing the act of human trafficking. (Civil Code Section 52.5)

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0000856

Date of Hearing: May 3, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 1495

Author:(Maienschein) – As Amended Ver:April 20, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill creates a new cause of action for child victims of sexual exploitation, and allows for the recovery of civil penalties, damages, and other remedies. This bill also allows the victim’s parents, guardians, or guardians ad litem, and public prosecutors to file the cause of. Specifically, this bill:

1. Allows a victim of child sexual exploitation or his or her parent, guardian, or guardian ad litem, to bring a civil action for civil penalties (between $10,000 and $50,000 for each unlawful act), damages, injunctive relief, equitable remedies, and for the cost of suit and reasonable attorney’s fees. If the victim prevails in a civil action, a monetary award must be held in trust for the victim until he or she reaches 21 years of age.
2. Allows a public prosecutor to bring an action on behalf of a victim or victims if the victim or his or her parent, guardian, or guardian ad litem has not brought an action, if certain conditions apply. This bill specifies the same civil penalties (between $10,000 and $50,000) apply if the case is brought by a public prosecutor. If a public prosecutor brings an action and prevails, any restitution that was sought as part of the civil case must be paid to the victim. All other monetary awards received will be distributed with 80 percent to a special fund maintained by the public prosecutor in order to provide assistance to minor victims in general. The remaining 20 percent of the monetary penalties will be distributed to the public prosecutor to be used for the monitoring, investigation, and prosecution of other cases of the sexual abuse of children.
3. Provides that if a public prosecutor has brought an action, a victim, or his or her parent, guardian, or guardian ad litem, cannot file an action until after the public prosecutor’s action has been settled or been subject to a final judgment. However, such an action may not seek relief already sought in the action brought by the public prosecutor.
4. Provides that if testimony of the child victim is required in these civil actions, the child victim must be permitted to have a support person and must be eligible for child victim services relevant to his or her testimony as provided. In addition or in the alternative, those witnesses may be subject to the care and protection as provided in the delivery of their testimony in proceedings.

FISCAL EFFECT:

1. GF costs, potentially over $150,000, to the California Department of Corrections and Rehabilitation (CDCR) to transport inmates who are the defendant in a civil case brought forward as a result of this bill. For example, it costs CDCR roughly $850 per day to transport an inmate. If CDCR was required to transport 60 inmates for three days each, the total cost for transportation would be $153,000.
2. Unknown potential state costs related to re-traumatizing victims as an unintended consequence of this bill. This is because, as discussed in the comments below, victims who are compelled to testify in a civil case brought by a public prosecutor could be re-traumatized, but would not receive the benefit of the monetary award to offset their potentially higher costs for increased psychological care.
3. Unknown GF costs to the Attorney General (AG)’s office for civil cases where the defendant prevails and the AG is unable to recover its costs, depending on the number of cases brought that are lost.

COMMENTS:

1. Background. While exact numbers are not known, it is estimated that there are thousands or tens of thousands of victims of childhood sexual exploitation in California. Under existing law, a public prosecutor can bring a criminal case against a defendant alleged to have sexually exploited a child. However, a public prosecutor is not authorized to bring a civil case, seeking a monetary award, against a defendant in a child sexual exploitation allegation. Similarly, victims of child sexual exploitation and their parents or guardians do not have a specifically authorized path in current law for bringing a civil case against their alleged perpetrator, although there are certain other pathways available to them to bring a civil case.
2. Purpose. According to the author, “The purpose of this bill is to reduce or eliminate the number of men (known as ‘Johns’) who pay to rape children by exposing those men to a risk of financial ruin from a civil lawsuit if they do so. Only by reducing the number of Johns willing to pay for sex with children will we reduce the number of minors being sexually exploited for money.”
3. Unintended Consequences Could Result in Increased Costs. While the author’s stated goal is to reduce the number of child sexual exploitation victims by creating a financial disincentive for perpetrators, the bill may result in some unintended consequences.

Specifically, allowing a public prosecutor to bring a civil action and compel the victim to testify would not be consistent with trauma-informed best practices and could re-traumatize the victim. For example, guidance issued by the U.S. Department of Health and Human Services Administration for Children, Youth, and Families highlights the importance of using a trauma-informed approach with children who are victims of trafficking. Specifically, that guidance states “Coordinated efforts should emphasize victim-centered and trauma-informed approaches that avoid further stigmatizing trafficked young people.”

The guidance also cites statistics regarding child victims having a higher risk of engaging in illegal activity in the future. Specifically, it notes that children who experience sexual abuse are 28 times more likely to be arrested for prostitution at some point in their lives. Similarly, according to a study by the National Bureau of Economic Research, children who suffer abuse are twice as likely to engage in criminal activity later in their childhood or adulthood. The furthering of a victim’s trauma by being forced to testify in a civil case could further increase the risk that they self-medicate with illegal drugs, or engage in other potentially illegal activities as a result of their trauma. Over time this could increase costs to the state if the victim ends up committing a crime or requiring medical or psychological services provided by the state.

In addition, because the bill specifies that a victim cannot seek relief already sought in an action brought by a public prosecutor, victims would essentially be prohibited from pursuing a meaningful civil case unless they happen to file their case before the public prosecutor files one. This could further the trauma suffered by victims and significantly limits their ability to pursue a monetary award, thereby potentially increasing their need for and reliance on trauma recovery services provided by state and local governments.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: April 18, 2017

ASSEMBLY COMMITTEE ON

, Chair

ABPCA Bill Id:

Author:() – As Ver:

As Proposed to be Amended

SUBJECT:

KEY ISSUES:

1. SHOULD CHILD VICTIMS OF SEXUAL EXPLOITATION BE ABLE TO RECOVER DAMAGES FROM THEIR ABUSERS THROUGH A NEW CAUSE OF ACTION?
2. SHOULD PUBLIC PROSECUTORS BE ABLE TO SEEK, ON BEHALF OF CHILD VICTIMS OF SEXUAL EXPLOITATION, DAMAGES AGAINST ABUSERS OF CHILD SEXUAL EXPLOITATION?

SYNOPSIS

Last year, the Legislature enacted a series of measures aimed at curbing human trafficking. For example, this Committee heard and reported out AB 1684 (Stone, Chap. 63, Stats. 2016) which authorized the Department of Fair Employment and Housing (DFEH) to receive and prosecute a civil action on behalf of a human trafficking victim. In the analysis, this Committee noted that authorizing DFEH to pursue the action was appropriate because “despite the relatively strong damages available to a victim, . . . a trafficked victim's right to civil relief is not well known and, therefore, is often not addressed.”

Consistent with similar measures to combat exploitation, this bill, as proposed to be amended, creates a new cause of action for child victims of sexual exploitation, and allows for the recovery of civil penalties, damages, and other remedies to provide for the benefit and well-being of the victim. Although the potential remedies under this bill are extensive (between $10,000 to $50,000 for each violation), this bill enables child victims to fully benefit from potential judgments by requiring that the monetary award be placed into a trust supervised by the court. Naturally, this bill allows the victim’s parents, guardian, or guardian ad litem to file the cause of action on behalf of the victim. If the victim or victim’s parents, guardian, or guardian ad litem does not file the action, a public prosecutor may file the cause of action on the victim’s behalf. To provide a slight incentive to the public prosecutor to pursue the claim, this bill apportions a part of the civil penalties to the public prosecutor for continued prosecution of cases involving the sexual abuse of children. Assuredly, this bill’s incentive to the public prosecutor is fair when considering the award that will go to the child victim for ongoing care and services.

The Children’s Advocacy Institute, the sponsor of this bill, believe that this bill will change the risk-benefit calculation for persons who commit acts of sexual exploitation. It enjoys support from the Consumer Attorneys of California, Dependency Legal Services, the San Diego District Attorney, the San Diego City Attorney, and various individuals. The ACLU opposes this bill, however, arguing that allowing public prosecutors to pursue these types of civil actions undermines the criminal justice system and a defendant’s constitutional rights.

SUMMARY: Creates a new cause of action for child victims of sexual exploitation, and allows for the recovery of civil penalties, damages, and other remedies to provide for the benefit and well-being of the victim and allows the victim’s parents, guardians, or guardians ad litem, and public prosecutors to file the cause of action on behalf of the victim. Specifically, this bill:

1. Provides that it is unlawful for any person over the age of majority who, in exchange for property or money, commits any of the following acts:
2. Violates Section 261.5, 265, or 266 of the Penal Code, pertaining to sexual acts upon a child, including, but not limited to, rape, abduction, carnal abuse, or lewd behavior pursuant to Section 288 of the Penal Code.
3. Solicits a child for a purpose in violation of paragraph (1), or pursuant to Section 647 of the Penal Code.
4. Aids or abets in the commission of acts that would violate paragraph (1) or (2).
5. Allows a victim of any unlawful act provided in 1), or his or her parent, guardian, or guardian ad litem, to bring a civil action for civil penalties, damages, injunctive relief, equitable remedies, and for the cost of suit and reasonable attorney’s fees, as follows:
6. Civil penalties awarded by the court not exceeding fifty thousand dollars ($50,000) though not less than ten thousand dollars ($10,000) for each unlawful act.
7. Damages, including, but not limited to, medical and counseling expenses, lost current and future wages, and reasonable relocation costs to permit the plaintiff to locate to a safe environment.
8. Injunctive relief.
9. Equitable relief including, but not limited to, restitution, disgorgement of revenue obtained through the acts in violation of this section.
10. Reasonable attorney’s fees and costs.
11. If the victim prevails in the action described in 2), the following applies:
12. If the victim is under 21 years of age, and the action results in a monetary award, the award shall be held in trust for the victim and used exclusively for the benefit and well-being of the victim.
13. The court shall, with the advice of the victim, appoint a trustee and retain jurisdiction over the trust until the victim reaches 21 years of age or is emancipated in order to monitor compliance with these provisions. The trustee shall not be compensated from the trust.
14. When the victim reaches 21 years of age or is emancipated, the trust shall expire and any unspent remainder shall be the sole property of the victim.
15. Provides if the parties seek to settle the action, the court shall either affirm, modify, or reject the settlement. The court shall not affirm the settlement unless the Attorney General has been given notice of the proposed settlement at least 30 days before the court affirms, modifies, or rejects the settlement. The Attorney General may object to the proposed settlement on grounds that the settlement is collusive, and may request that the settlement be modified upon a court hearing.
16. Provides if the action is dismissed, or is subject to a final judgment, the victim, parent, guardian, or guardian ad litem shall submit to the Attorney General a report in the form prescribed by the Attorney General that includes the results of the action or the final disposition of the case.
17. Allows a public prosecutor to bring an action on behalf of a victim or victims if the victim or his or her parent, guardian, or guardian ad litem has not brought an action, if the following applies:
18. The public prosecutor has notified or attempted to notify the victim, or his or her parent, guardian, or guardian ad litem of the public prosecutor’s intent to file the action.
19. The action brought by the public prosecutor does not seek to obtain relief already being sought or obtained in the action brought by the victim or his or her parent, guardian, or guardian ad litem, as provided.
20. Another public prosecutor has not already brought the action.
21. Provides that if the public prosecutor brings the action and prevails that results in a monetary award, the award shall be distributed as follows:
22. Restitution, if any, shall be allocated to the victim or victims and shall be disbursed to the victim or victims, as provided in 3).
23. Eighty percent of civil penalties or disgorgement collected by the public prosecutor shall be paid into a special fund maintained by the public prosecutor that shall be used exclusively to provide assistance to minor victims who would be eligible to bring an action pursuant to this section, and with priority funding for programs providing a safe and secure location that is not a juvenile detention center where victims will be separated from those who may have facilitated their commercial sexual exploitation. Moneys deposited in the special fund pursuant to this paragraph shall not be used to supplant existing federal, state, or county funds, and shall be supplemental to existing appropriations and benefits otherwise applicable.
24. The remaining 20 percent of the civil penalties or disgorgement shall be payable to the public prosecutor to be used for the monitoring, investigation, and prosecution of the sexual abuse of children.
25. Provides that if a public prosecutor has brought an action, a victim, or his or her parent, guardian, or guardian ad litem, shall not file an action until after the public prosecutor’s action has been settled or been subject to a final judgment. However, such an action may not seek relief already sought in the action brought by the public prosecutor.
26. Establishes, however, that a victim, his or her parent, guardian, or guardian ad litem may intervene in the action brought by the public prosecutor, provided that the remedies will be distributed according to either 7) or 8).
27. Establishes that in these civil actions, knowledge of the victim’s status as a minor shall be presumed but may be rebutted by a preponderance of the evidence. If the age of the victim was under 14 years of age, that presumption must be rebutted by clear and convincing evidence.
28. Provides that if testimony of the child victim is required in these civil actions, the child victim shall be permitted to have a support person and shall be eligible for child victim services relevant to his or her testimony as provided. In addition or in the alternative, those witnesses may be subject to the care and protection as provided in the delivery of their testimony in proceedings.
29. Provides that if a victim is the subject of a petition as provided, the juvenile court that retains jurisdiction may, on its own motion, after a good cause showing, issue a temporary restraining order or protective order for the victim as provided.
30. Provides that if a victim is not the subject of a petition as provided, or the juvenile court does not issue a temporary restraining order, the court may, on its own motion, after a good cause showing, issue a temporary restraining order or protective order for the victim as provided. Further provides that certain temporary restraining order or protective order issued under this bill does not require a showing of a qualifying relationship.
31. Requires notification to the Department of Justice upon the issuance of a protective or restraining order pertaining to sexual abuse of a child, as provided.
32. Defines “public prosecutor” to mean the Attorney General, a district attorney, or a city attorney of a city with a population of 750,000 or more.

EXISTING LAW:

1. Requires every person to abstain from injuring the person or property of another, or infringing upon any of his or her rights. (Civil Code Section 1708.)
2. Provides that a person commits a sexual battery if he or she does any of the following:
3. Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.
4. Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results.
5. Acts to cause an imminent apprehension of the conduct described in 2a) or 2b), and a sexually offensive contact with that person directly or indirectly results. (Civil Code Section 1708 (a).)
6. Establishes that a person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages. The court in an action for sexual battery may award equitable relief, including, but not limited to, an injunction, costs, and any other relief the court deems proper. (Civil Code Section 1708.5 (b)-(c).)
7. Establishes that a person is liable for the tort of domestic violence, as provided. A person who commits an act of domestic violence upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages, as provided. The court, in an action for a tort of domestic violence may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any other relief that the court deems proper, including reasonable attorney’s fees. (Civil Code Section 1708.6 (a)-(c).)
8. Provides that any person who deprives or violates the personal liberty of another with the intent to effect or maintain prostitution, child pornography, extortion, or to obtain forced labor or services is guilty of human trafficking. (Penal Code Sec. 236.1.)
9. Provides for mandatory restitution and allows trafficking victims to bring a civil action against his or her trafficker. (Civil Code Sec. 52.5.)
10. Specifies that the crime of unlawful sexual intercourse is an act of sexual intercourse accomplished with a minor under the age 18 years of age, as provided. Further provides the following civil penalties and procedures:
11. An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
12. An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
13. An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
14. An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
15. The district attorney may bring actions to recover civil penalties, as provided. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
16. The judge may additionally assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used for county acquired immune deficiency syndrome education (AIDS) program, as provided. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (Penal Code Section 261.5 (a), (e).)
17. Specifies every person who takes any woman unlawfully, against her will, and by force, menace or duress, compels her to marry him, or to marry any other person, or to be defiled, is punishable as a crime as provided. (Penal Code Section 265.)
18. Specifies that every person who inveigles or entices any unmarried female, of previous chaste character, under the age of 18 years, into any house of ill fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any man; and every person who aids or assists in such inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, is punishable by imprisonment in the state prison, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment. (Penal Code Section 266.)
19. Specifies that any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. (Penal Code Section 266h (a).)
20. Specifies that any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years:
21. Procures another person for the purpose of prostitution.
22. By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute.
23. Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state.
24. By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate.
25. By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution.
26. Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. (Penal Code Section 266i (a).)
27. Provides that upon the conviction of any person for a violation of 10) or 11), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed five thousand dollars ($5,000). In setting the amount of the fine, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, whether the defendant derived any economic gain as the result of the crime, and the extent to which the victim suffered losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs as provided. (Penal Code Section 266k (a).)
28. Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years, and by a fine not to exceed fifteen thousand dollars ($15,000). (Penal Code Section 266j.)
29. Provides that upon a conviction under 13), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed twenty-five thousand dollars ($25,000). Fifty percent of the fines collected, as described, shall be granted to community-based organizations that serve minor victims of human trafficking. (Penal Code Section 266k (b)-(c).)
30. Specifies that any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (Penal Code Section 288 (a).)
31. Specifies that any person who commits an act described in 15) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years. (Penal Code Section 288 (b).)
32. Provides that upon the conviction under 15) or 16), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs, as provided. (Penal Code Section 288 (e).)
33. Specifies that an individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with another person who is a minor in exchange for the individual providing compensation, money, or anything of value to the minor, is guilty of a crime, as provided. (Penal Code Section 647 (b)(3).)
34. Requires that upon the issuance of a protective order or temporary restraining order, as provided, the Department of Justice shall be immediately notified of the contents of the order, as specified. (Family Code Section 6380.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: According to a recent report by the California Attorney General's Office, human trafficking is a $32 billion-a-year global industry, and California is one of the top destinations for trafficking victims. Human trafficking is generally defined as the use of force, fraud, or coercion to exploit another person for forced labor or sexual services, or both. It is, in short, the modern form of slavery, in which persons are forced into labor or services, including prostitution, domestic service, sweatshop labor, or other forms of debt bondage. In 2012, the Attorney General convened a working group to reassess human trafficking in our state. The working group's final report noted in “just two years of reporting, California's nine regional anti-trafficking task forces initiated over 2,500 investigations, identified almost 1,300 victims of human trafficking, and arrested almost 1,800 individuals.” Despite these actions, the report concluded that human trafficking continues to be “a substantial problem facing California” and, in some ways, has become worse due to the increasing role played by transnational and domestic criminal networks.

Last year, the Legislature enacted a series of measures aimed at curbing human trafficking. For example, this Committee heard and reported out AB 1684 (Stone, Chap. 63, Stats. 2016) which authorized the Department of Fair Employment and Housing (DFEH) to receive and prosecute a civil action on behalf of a human trafficking victim. Under then-existing law, a victim of human trafficking could bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. (Civil Code Section 52.5.) In the analysis, this Committee noted that authorizing DFEH to pursue the action was appropriate because “despite the relatively strong damages available to a victim, … a trafficked victim's right to civil relief is not well known and, therefore, is often not addressed.” (Assembly Judiciary Committee analysis of AB 1684; January 20, 2016.)

While there are differences between human trafficking and child sexual exploitation, child victims of sexual exploitation include child victims of human sex trafficking. According to the Institute of Medicine and National Research Council, “[c]ommercial sexual exploitation of children (CSEC) is closely related to sex trafficking and involves 'crimes of a sexual nature committed against juvenile victims for financial or other economic reasons.' These crimes include trafficking for sexual purposes, prostitution, sex tourism, mail-order bride trade, early marriage, pornography, stripping, and performing in sexual venues such as peep shows or clubs.” (Confronting Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States, The National Academies Press (2013).) Indeed, tragically, many child victims of sexual exploitation perform sexual acts in order to have shelter, food, or money. (Greenbaum & Crawford-Jakubiak, Child Sex Trafficking and Commercial Sexual Exploitation: Health Care Needs of Victims, American Academy of Pediatrics (March 2015).)

Summary of this bill. This bill, as proposed to be amended, creates a new cause of action for child victims of sexual exploitation, and allows for the recovery of civil penalties, damages, and other remedies to provide for the benefit and well-being of the victim. This bill also allows the victim’s parent, guardian, or guardian ad litem, or a public prosecutor to file the cause of action on behalf of the victim.

Author’s statement. In support of the bill, the author states:

California has been a leader in recognizing that commercially sexually exploited children are victims, rather than offenders, and should be treated accordingly under the law. However, many reforms have not reduced the number of children that are sexually exploited commercially because those measures do not stem the demand.

The purpose of this bill is to reduce or eliminate the number of men (known as “Johns”) who pay to rape children by exposing those men to a risk of financial ruin from a civil lawsuit if they do so. Only by reducing the number of Johns willing to pay for sex with children will we reduce the number of minors being sexually exploited for money.

The cause of action under this bill. Under this bill, civil liability would be imposed on an adult who—in exchange for money—commits any of the following crimes on a child: (1) rape; (2) solicits; or (3) lewd or lascivious acts. Civil liability would also be imposed on those who aid or abet the listed crimes. Unsurprisingly, this bill allows victims of these sexually exploitive acts to pursue the civil action. If the victim of the child sexual exploitation is still a minor, however, this bill reasonably allows a parent, guardian, or guardian ad litem to bring the civil action on the victim’s behalf.

Although the potential remedies under this bill are extensive, this bill enables child victims to fully benefit from potential judgments by requiring that the monetary award be placed into a trust supervised by the court. As for civil remedies, this bill provides significant civil penalties (between $10,000-50,000 for each violation), and provides damages like medical and counsel expenses, lost current and future wages, and reasonable relocation costs. Additionally, this bill allows the award of equitable relief (e.g., restitution and disgorgement), and reasonable attorney’s fees and costs. Given that extensive damages that may be awarded to the child victim, this bill provides that if the victim is a child, any monetary award will be held in trust and used exclusively for the benefit and well-being of the child. To prevent against abuse of the trust assets, this bill reasonably requires the court to appoint the trustee (with the advice of the child) and to retain jurisdiction over the trust until the child reaches the age of 21 years. This bill also prudently prohibits the trustee from being compensated from the trust. Once the child victim reaches the age of 21 years, or becomes emancipated, the trust expires and the remainder of the trust assets goes to the victim.

Given the possibility that many CSEC may also be in the dependency system, this bill envisions a role for the juvenile court in issuing protective orders. As proposed to be amended, this bill also allows the child victim to seek injunctive relief, similar to a temporary restraining order or a protective order provided under existing law. In the event that the child victim is a dependent or ward of the state, this bill as proposed to be amended allows the juvenile court with jurisdiction over the child to issue the protective order. According to the sponsor—Children’s Advocacy Institute—the successful enactment of SB 1322 (Mitchell, Chap. 654, Stats. 2016) has moved CSEC minors to the dependency system under the jurisdiction of a juvenile court. Since the juvenile court is more likely to be familiar with the minor, it is in the best interest of the minor to allow the juvenile court to be the first to decide whether it is appropriate to issue the protective order. If it is not appropriate, the court where the civil action was filed may still issue a civil harassment or protective order upon its discretion.

If the victim or victim’s parents, guardians, or guardians ad litem does not file the action, a public prosecutor may file the cause of action on the victim’s behalf. In addition to allowing the victim’s parent, guardian, or guardian ad litem to file the action, this bill also allows a public prosecutor—the Attorney General, a district attorney, or a city attorney with a population of 750,000 or more—to bring the action on the victim’s behalf. However, the public prosecutor must take a series of steps before filing the suit, and the remedies recovered may be more limited for both the public prosecutor and the victim. For example, as proposed to be amended, this bill requires the public prosecutor to notify or attempt to notify the victim or victim’s family before filing the suit. Additionally, if the victim or victim’s family has already filed the suit, this bill prohibits the public prosecutor from pursuing the same remedies as the victim or victim’s family. Accordingly—and very appropriately—it seem that if a victim pursued all of the remedies available under the cause of action under this bill, the public prosecutor would probably not rely on the same cause of action.

As proposed to be amended, this bill appears to strike a balance between creating an incentive for a public prosecutor to pursue a civil action on the victim’s behalf and awarding sufficient funds to the victim for ongoing care and services. Since most civil actions are intended to compensate a victim for his or her injuries, it is appropriate that this bill as proposed to be amended requires the public prosecutor to notify the victim and the victim’s family before filing the cause of action. After all, the civil right provided under this bill belongs to the child victim. Presumably, however, there will be instances when a victim does not want to pursue a civil action, or is unable to do so. To provide a slight incentive to the public prosecutor to pursue the action provided under this bill, this bill structures the remedies differently if the public prosecutor files the suit on behalf of the victim. Under the bill, if the action is filed by the public prosecutor, 80% of the civil penalties and disgorgement collected from a judgment would be paid into a special fund to be used exclusively to assist child victims of sexual exploitation—victims who would have the right to pursue a civil action under this bill. To help victims with relocation, this bill provides funding priority to programs that provide safe and secure locations for victims. The remaining 20% of the civil penalties would be paid to the public prosecutor for the monitoring, investigation, and prosecutions of sexual abuse of children.

A race to the courthouse? It’s possible, but does not seem likely. Under the bill, if the public prosecutor has filed the action, the victim or the victim’s parent, guardian, or guardian ad litem may not pursue the action until after the public prosecutor’s action has been settled or has been subject to a final action. Even then, the victim’s remedies would be limited to what was not pursued by the public prosecutor. To address this Committee staff’s concerns about a potential race to the courthouse between the victim and the public prosecutor, this bill, as proposed to be amended rightly allows the victim to intervene in the public prosecutor’s case, but limits the public prosecutor from intervening in the victim’s case. To maintain the public prosecution incentive, remedies provided under this type of joinder suit would continue to be structured under the 80/20% plan described above.

This bill considers situations where the testimony of the child victim is needed, and ensures that the victim has a support person as defined under existing law, or that the victim can testify out of the immediate presence of the judge, jury, and defendant. This bill, as proposed to be amended, provides that if the child victim must testify, the child victim shall be permitted to have a support person. Under existing law, a support person helps the victim feel more confident that he or she will not be injured or threatened by the other parties in the proceeding. Additionally, if the court determines that it is appropriate, this bill allows the court to allow a minor witness to testify by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television upon specific court findings, consistent with existing law.

To prevent against collusive settlements, this bill requires the court to review potential settlements and give the Attorney General the opportunity to review the terms of the settlement. This bill, as proposed to be amended, provides that if the parties seek to settle the action, the court shall either affirm, modify, or reject the settlement. Additionally, notice must be given to the Attorney General to review the proposed settlement at least 30 days before the court affirms, modifies, or rejects the settlement. The Attorney General may object to the proposed settlement on grounds that the settlement is collusive, and may request that the settlement be modified upon a court hearing.

To help with data collection, this bill requires the parties to submit a report to the Attorney General upon final judgment or if the action is dismissed. This bill provides that if the action is dismissed, or is subject to a final judgment, the victim, parent, guardian, or guardian ad litem shall submit to the Attorney General the results of the action or the final disposition of the case. To that end, this bill requires the court to provide the Department of Justice information about protective orders the court grants under this bill.

It is not unprecedented to create civil liability for certain victims of crimes. For example, existing law provides for a tort of domestic violence. Although domestic violence is a crime, the Legislature created a specific tort for victims of domestic violence to give “victims and the courts a clear statement of the rights and remedies.” (Assembly Judiciary Committee analysis of AB 1933; March 18, 2002; See Civil Code Section 1708.6.) Additionally, as previously stated, existing law allows a victim of human trafficking to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. Under that human trafficking statute, a plaintiff could be awarded up to three times his or her actual damages or ten thousand dollars ($10,000), whichever is greater, and punitive damages upon proof of the defendant’s malice, oppression, fraud, or duress in committing the act of human trafficking. (Civil Code Section 52.5.)

Could child victims of sexual exploitation rely on other existing civil liability schemes? Some, but probably not all. A child victim of sexual exploitation is likely to find a cause of action under existing law. For example, a child victim who has suffered from a harmful or offensive contact would likely be able to recover under a civil battery or sexual battery statute. However, it is unclear whether existing civil liability would extend to victims who have been solicited since, presumably, there has been no “harmful or offensive contact.” Additionally, since this bill is intended to deter Johns and pimps from even reaching the children, it appears that existing civil tort or battery law would not deter this level of conduct.

ARGUMENTS IN SUPPORT: The Children’s Advocacy Institute, the sponsor of this bill, believe that this bill will change the “risk-benefit” calculation for Johns and pimps. In its letter, it writes:

A specific and dramatic civil remedy will change the risk-benefit calculation for child rapists and traffickers and will help reduce demand. AB 1495 (Maienschein) will explicitly allow child victims, the Attorney General, district attorneys, and certain city attorneys to sue and obtain large sums from men who pay to rape children and their child trafficking enablers. The bill allows public prosecutors the options long available for commercial unfair competition. These include civil remedies that I have personally helped to sponsor and employ as a public prosecutor over the years. There is no reason why a commercial enterprise that sexually enslaves children should escape the remedies that have some efficacy in policing commercial fraud. This measure will allow the discovery and sanctions long employed for other commercial offenses to apply here as an option. And it will include civil restraining order protection for these children whose pimps and johns commonly recontact prior victims.

Sex trafficking is an $810 million a year industry. Faced with such vast profits, criminal sanctions aren’t enough. For these reasons, the moral outrage of vast wealth being generated by offering the opportunity to rape children cannot end unless the demand is eliminated. AB 1495 is an important first-step toward that end, and the protection of some of our most vulnerable children.

ARGUMENTS IN OPPOSITION: The ACLU opposes this bill because it believes that allowing public prosecutors to pursue this type of action in the civil justice system undermines the criminal justice system and a defendant’s rights. In its letter, the ACLU states:

The proposed changes [under AB 1495] would allow harsh monetary penalties to be imposed on individuals who had not been convicted of any crime, and would encourage prosecutors to bring these civil actions by giving the prosecutor’s office a kickback in the form of a percentage of the civil penalties recovered.

The behavior addressed under AB 1495 is already subject to criminal penalties, and could also be the basis for a civil suit for damages by the victim. Perpetrators already face criminal penalties, and potential civil liability, for their actions. It is unclear what is gained by creating the anomalous system proposed in AB 1495, where prosecutors could bring civil suit against persons accused of criminal acts.

However, the dangers of creating this system are clear. Persons accused of crimes are accorded vital constitutional protections, including the right to counsel, the right to confront the witnesses against them, and the requirement that the charges against them be proved beyond a reasonable doubt. AB 1495 would allow prosecutors to seek the imposition of severe monetary and injunctive penalties on persons accused of having engaged in criminal behavior, without having to meet the standards for convicting someone of a crime. Indeed, by providing that the prosecutor’s office would retain a significant portion of any civil penalties or disgorgement awarded, AB 1495 would encourage prosecutors to sue civilly instead of prosecuting the accused offender criminally – with or without the consent of the victim. If failure to prosecute this type of crime is a problem, the answer is not to give prosecutors an incentive not to prosecute.

The changes proposed by AB 1495 are not the answer to the serious problem of commercial sexual exploitation of children, but instead could serve to undermine the appropriate criminal prosecution of those accused of such acts. If law enforcement officials are failing to appropriately prosecute these crimes, that problem should be addressed directly rather than by undermining the criminal justice system.

REGISTERED SUPPORT / OPPOSITION:

Support

Children’s Advocacy Institute (sponsor)

California Alliance of Caregivers

Consumer Attorneys of California

Dependency Legal Services

Freedom from Exploitation

Healing, Outreach, and Peer Empowerment Project

Lynch Foundation for Children

National Association of Missing and Exploited Children

Professional Fiduciary Association of California

San Diego County District Attorney

San Diego City Attorney

Sycuan Band of the Kumeyaay Nation

Various individuals

Opposition

American Civil Liberties Union

Analysis Prepared by: