AB 1738: Sex offenses: prostitution: registration.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2018-04-18
(1)Existing law requires persons convicted of specified sex offenses, or attempts to commit those offenses, to register with local law enforcement agencies while residing in the state or while attending school or working in the state. Existing law establishes, commencing January 1, 2021, 3 tiers of registration based on the underlying offense and other criteria, for periods of at least 10 years, at least 20 years, and life, respectively, or 2 tiers for other specified periods for a ward of the juvenile court. Willful failure to register, as required, is a misdemeanor, or a felony, depending on the underlying offense.
This bill would add, to the list of offenders required to register, an individual who is convicted of the commission, or the attempted commission, of soliciting, or agreeing to engage in, or engaging in, an 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, if the individual was 18 years of age or older at the time of the commission or attempted commission of the offense and knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking, as defined. The bill would classify that individual as a tier 2 offender, commencing January 1, 2021, subject to registration for at least 20 years. By imposing additional duties on local authorities, and by expanding the scope of persons who would be committing a crime by failing to register as a sex offender, this bill would create a state-mandated local program.
(2)Existing law requires the Department of Justice to make available to the public specified information concerning registered sex offenders on an Internet Web site. Existing law requires that information to include, among other things, the address at which the person resides for certain registrants, or the ZIP Code in which the person resides for other certain registrants. Existing law also authorizes a person to file an application for exclusion from the Internet Web site and establishes the requirements for exclusion.
This bill would require the department to make available to the public the above information concerning the individual described in paragraph (1), under the category of registrants whose ZIP Code is included in the information.
(3)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.
(1)Existing law requires persons convicted of specified sex offenses, or attempts to commit those offenses, to register with local law enforcement agencies while residing in the state or while attending school or working in the state. Existing law establishes, commencing January 1, 2021, 3 tiers of registration based on the underlying offense and other criteria, for periods of at least 10 years, at least 20 years, and life, respectively, or 2 tiers for other specified periods for a ward of the juvenile court. Willful failure to register, as required, is a misdemeanor, or a felony, depending on the underlying offense.
This bill would add, to the list of offenders required to register, an individual who is convicted of the commission, or the attempted commission, of soliciting, or agreeing to engage in, or engaging in, an 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, if the individual knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking, as defined. The bill would classify that individual as a tier 2 offender, commencing January 1, 2021, subject to registration for at least 20 years. By imposing additional duties on local authorities, and by expanding the scope of persons who would be committing a crime by failing to register as a sex offender, this bill would create a state-mandated local program.
(2)Existing law requires the Department of Justice to make available to the public specified information concerning registered sex offenders on an Internet Web site. Existing law requires that information to include, among other things, the address at which the person resides for certain registrants, or the ZIP Code in which the person resides for other certain registrants. Existing law also authorizes a person to file an application for exclusion from the Internet Web site and establishes the requirements for exclusion.
This bill would require the department to make available to the public the above information concerning the individual described in paragraph (1), under the category of registrants whose ZIP Code is included in the information.
(3)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.
(a)Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to the Act in those sections are to the Sex Offender Registration Act.
(b)Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.
(c)The following persons shall register:
Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, paragraph (3) of subdivision (b) of Section 647 if the offender was 18 years of age or older at the time of the commission or attempted commission of the offense and knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking as defined in Section 236.1, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.
(d)This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 2.Section 290 of the Penal Code, as added by Section 2.5 of Chapter 541 of the Statutes of 2017, is amended to read:290.(a)Sections 290 to 290.024, inclusive, shall be known, and may be cited, as the Sex Offender Registration Act. All references to the Act in those sections are to the Sex Offender Registration Act.
(b)Every person described in subdivision (c), for the period specified in subdivision (d) while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall register thereafter in accordance with the Act, unless the duty to register is terminated pursuant to Section 290.5 or as otherwise provided by law.
(c)The following persons shall register:
Every person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) or (c) of Section 236.1, Section 243.4, Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, paragraph (3) of subdivision (b) of Section 647 if the offender was 18 years of age or older at the time of the commission or attempted commission of the offense and knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking as defined in Section 236.1, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the offenses described in this subdivision; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the offenses described in this subdivision.
(d)A person described in subdivision (c), or who is otherwise required to register pursuant to the Act shall register for 10 years, 20 years, or life, following a conviction and release from incarceration, placement, commitment, or release on probation or other supervision, as follows:
(1)(A)A tier one offender is subject to registration for a minimum of 10 years. A person is a tier one offender if the person is required to register for conviction of a misdemeanor described in subdivision (c), or for conviction of a felony described in subdivision (c) that was not a serious or violent felony as described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
(B)This paragraph does not apply to a person who is subject to registration pursuant to paragraph (2) or (3).
(2)(A)A tier two offender is subject to registration for a minimum of 20 years. A person is a tier two offender if the person was convicted of an offense described in subdivision (c) that is also described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, Section 285, subdivision (g) or (h) of Section 286, subdivision (g) or (h) of Section 288a, subdivision (b) of Section 289, paragraph (3) of subdivision (b) of Section 647 if the offender was 18 years of age or older at the time of the commission or attempted commission of the offense and knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking as defined in Section 236.1, or Section 647.6 if it is a second or subsequent conviction for that offense that was brought and tried separately.
(B)This paragraph does not apply if the person is subject to lifetime registration as required in paragraph (3).
(3)A tier three offender is subject to registration for life. A person is a tier three offender if any one of the following applies:
(A)Following conviction of a registerable offense, the person was subsequently convicted in a separate proceeding of committing an offense described in subdivision (c) and the conviction is for commission of a violent felony described in subdivision (c) of Section 667.5, or the person was subsequently convicted of committing an offense for which the person was ordered to register pursuant to Section 290.006, and the conviction is for the commission of a violent felony described in subdivision (c) of Section 667.5.
(B)The person was committed to a state mental hospital as a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.
(C)The person was convicted of violating any of the following:
(i)Section 187 while attempting to commit or committing an act punishable under Section 261, 286, 288, 288a, or 289.
(ii)Section 207 or 209 with intent to violate Section 261, 286, 288, 288a, or 289.
(iii)Section 220.
(iv)Subdivision (b) of Section 266h.
(v)Subdivision (b) of Section 266i.
(vi)Section 266j.
(vii)Section 267.
(viii)Section 269.
(ix)Subdivision (b) or (c) of Section 288.
(x)Section 288.2.
(xi)Section 288.3, unless committed with the intent to commit a violation of subdivision (b) of Section 286, subdivision (b) of Section 288a, or subdivision (h) or (i) of Section 289.
(xii)Section 288.4.
(xiii)Section 288.5.
(xiv)Section 288.7.
(xv)Subdivision (c) of Section 653f.
(xvi)Any offense for which the person is sentenced to a life term pursuant to Section 667.61.
(D)The persons risk level on the static risk assessment instrument for sex offenders (SARATSO), pursuant to Section 290.04, is well above average risk at the time of release on the index sex offense into the community, as defined in the Coding Rules for that instrument.
(E)The person is a habitual sex offender pursuant to Section 667.71.
(F)The person was convicted of violating subdivision (a) of Section 288 in two proceedings brought and tried separately.
(G)The person was sentenced to 15 to 25 years to life for an offense listed in Section 667.61.
(H)The person is required to register pursuant to Section 290.004.
(I)The person was convicted of a felony offense described in subdivision (b) or (c) of Section 236.1.
(J)The person was convicted of a felony offense described in subdivision (a), (c), or (d) of Section 243.4.
(K)The person was convicted of violating paragraph (2), (3), or (4) of subdivision (a) of Section 261 or was convicted of violating Section 261 and punished pursuant to paragraph (1) or (2) of subdivision (c) of Section 264.
(L)The person was convicted of violating paragraph (1) of subdivision (a) of Section 262.
(M)The person was convicted of violating Section 264.1.
(N)The person was convicted of any offense involving lewd or lascivious conduct under Section 272.
(O)The person was convicted of violating paragraph (2) of subdivision (c) or subdivision (d), (f), or (i) of Section 286.
(P)The person was convicted of violating paragraph (2) of subdivision (c) or subdivision (d), (f), or (i) of Section 288a.
(Q)The person was convicted of violating paragraph (1) of subdivision (a) or subdivision (d), (e), or (j) of Section 289.
(R)The person was convicted of a felony violation of Section 311.1 or 311.11 or of violating subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, or 311.10.
(4)(A)A person who is required to register pursuant to Section 290.005 shall be placed in the appropriate tier if the offense is assessed as equivalent to a California registerable offense described in subdivision (c).
(B)If the persons duty to register pursuant to Section 290.005 is based solely on the requirement of registration in another jurisdiction, and there is no equivalent California registerable offense, the person shall be subject to registration as a tier two offender, except that the person is subject to registration as a tier three offender if one of the following applies:
(i)The persons risk level on the static risk assessment instrument (SARATSO), pursuant to Section 290.06, is well above average risk at the time of release on the index sex offense into the community, as defined in the Coding Rules for that instrument.
(ii)The person was subsequently convicted in a separate proceeding of an offense substantially similar to an offense listed in subdivision (c) which is also substantially similar to an offense described in subdivision (c) of Section 667.5, or is substantially similar to Section 269 or 288.7.
(iii)The person has ever been committed to a state mental hospital or mental health facility in a proceeding substantially similar to civil commitment as a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.
(5)(A)The Department of Justice may place a person described in subdivision (c), or who is otherwise required to register pursuant to the Act, in a tier-to-be-determined category if his or her appropriate tier designation described in this subdivision cannot be immediately ascertained. An individual placed in this tier-to-be-determined category shall continue to register in accordance with the Act. The individual shall be given credit for any period for which he or she registers towards his or her mandated minimum registration period.
(B)The Department of Justice shall ascertain an individuals appropriate tier designation as described in this subdivision within 24 months of his or her placement in the tier-to-be-determined category.
(e)The minimum time period for the completion of the required registration period in tier one or two commences on the date of release from incarceration, placement, or commitment, including any related civil commitment on the registerable offense. The minimum time for the completion of the required registration period for a designated tier is tolled during any period of subsequent incarceration, placement, or commitment, including any subsequent civil commitment, except that arrests not resulting in conviction, adjudication, or revocation of probation or parole shall not toll the required registration period. The minimum time period shall be extended by one year for each misdemeanor conviction of failing to register under this act, and by three years for each felony conviction of failing to register under this act, without regard to the actual time served in custody for the conviction. If a registrant is subsequently convicted of another offense requiring registration pursuant to the Act, a new minimum time period for the completion of the registration requirement for the applicable tier shall commence upon that persons release from incarceration, placement, or commitment, including any related civil commitment. If the subsequent conviction requiring registration pursuant to the Act occurs prior to an order to terminate the registrant from the registry after completion of a tier associated with the first conviction for a registerable offense, the applicable tier shall be the highest tier associated with the convictions.
(f)Nothing in this section shall be construed to require a ward of the juvenile court to register under the Act, except as provided in Section 290.008.
(g)This section shall become operative on January 1, 2021.
SEC. 3.Section 290.46 of the Penal Code, as amended by Section 9 of Chapter 541 of the Statutes of 2017, is amended to read:290.46.(a)(1)On or before the dates specified in this section, the Department of Justice shall make available information concerning persons who are required to register pursuant to Section 290 to the public via an Internet Web site as specified in this section. The department shall update the Internet Web site on an ongoing basis. All information identifying the victim by name, birth date, address, or relationship to the registrant shall be excluded from the Internet Web site. The name or address of the persons employer and the listed persons criminal history other than the specific crimes for which the person is required to register shall not be included on the Internet Web site. The Internet Web site shall be translated into languages other than English as determined by the department.
(2)(A)On or before July 1, 2010, the Department of Justice shall make available to the public, via an Internet Web site as specified in this section, as to any person described in subdivision (b), (c), or (d), the following information:
(i)The year of conviction of his or her most recent offense requiring registration pursuant to Section 290.
(ii)The year he or she was released from incarceration for that offense.
(iii)Whether he or she was subsequently incarcerated for any other felony, if that fact is reported to the department. If the department has no information about a subsequent incarceration for any felony, that fact shall be noted on the Internet Web site.
However, no year of conviction shall be made available to the public unless the department also is able to make available the corresponding year of release of incarceration for that offense, and the required notation regarding any subsequent felony.
(B)(i)Any state facility that releases from incarceration a person who was incarcerated because of a crime for which he or she is required to register as a sex offender pursuant to Section 290 shall, within 30 days of release, provide the year of release for his or her most recent offense requiring registration to the Department of Justice in a manner and format approved by the department.
(ii)Any state facility that releases a person who is required to register pursuant to Section 290 from incarceration whose incarceration was for a felony committed subsequently to the offense for which he or she is required to register shall, within 30 days of release, advise the Department of Justice of that fact.
(iii)Any state facility that, prior to January 1, 2007, released from incarceration a person who was incarcerated because of a crime for which he or she is required to register as a sex offender pursuant to Section 290 shall provide the year of release for his or her most recent offense requiring registration to the Department of Justice in a manner and format approved by the department. The information provided by the Department of Corrections and Rehabilitation shall be limited to information that is currently maintained in an electronic format.
(iv)Any state facility that, prior to January 1, 2007, released a person who is required to register pursuant to Section 290 from incarceration whose incarceration was for a felony committed subsequently to the offense for which he or she is required to register shall advise the Department of Justice of that fact in a manner and format approved by the department. The information provided by the Department of Corrections and Rehabilitation shall be limited to information that is currently maintained in an electronic format.
(3)The State Department of State Hospitals shall provide to the Department of Justice the names of all persons committed to its custody pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code, within 30 days of commitment, and shall provide the names of all of those persons released from its custody within five working days of release.
(b)(1)On or before July 1, 2005, with respect to a person who has been convicted of the commission or the attempted commission of any of the offenses listed in, or who is described in, paragraph (2), the Department of Justice shall make available to the public via the Internet Web site his or her name and known aliases, a photograph, a physical description, including gender and race, date of birth, criminal history, prior adjudication as a sexually violent predator, the address at which the person resides, and any other information that the Department of Justice deems relevant, but not the information excluded pursuant to subdivision (a). On or before January 1, 2013, the department shall make available to the public via the Internet Web site his or her static SARATSO score and information on an elevated risk level based on the SARATSO future violence tool.
(2)This subdivision shall apply to the following offenses and offenders:
(A)Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289.
(B)Section 207 committed with intent to violate Section 261, 286, 288, 288a, or 289.
(C)Section 209 committed with intent to violate Section 261, 286, 288, 288a, or 289.
(D)Paragraph (2) or (6) of subdivision (a) of Section 261.
(E)Section 264.1.
(F)Section 269.
(G)Subdivision (c) or (d) of Section 286.
(H)Subdivision (a), (b), or (c) of Section 288, provided that the offense is a felony.
(I)Subdivision (c) or (d) of Section 288a.
(J)Section 288.3, provided that the offense is a felony.
(K)Section 288.4, provided that the offense is a felony.
(L)Section 288.5.
(M)Subdivision (a) or (j) of Section 289.
(N)Section 288.7.
(O)Any person who has ever been adjudicated a sexually violent predator, as defined in Section 6600 of the Welfare and Institutions Code.
(P)A felony violation of Section 311.1.
(Q)A felony violation of subdivision (b), (c), or (d) of Section 311.2.
(R)A felony violation of Section 311.3.
(S)A felony violation of subdivision (a), (b), or (c) of Section 311.4.
(T)Section 311.10.
(U)A felony violation of Section 311.11.
(c)(1)On or before July 1, 2005, with respect to a person who has been convicted of the commission or the attempted commission of any of the offenses listed in paragraph (2), the Department of Justice shall make available to the public via the Internet Web site his or her name and known aliases, a photograph, a physical description, including gender and race, date of birth, criminal history, the community of residence and ZIP Code in which the person resides or the county in which the person is registered as a transient, and any other information that the Department of Justice deems relevant, but not the information excluded pursuant to subdivision (a). On or before July 1, 2006, the Department of Justice shall determine whether any person convicted of an offense listed in paragraph (2) also has one or more prior or subsequent convictions of an offense listed in subdivision (c) of Section 290, and, for those persons, the Department of Justice shall make available to the public via the Internet Web site the address at which the person resides. However, the address at which the person resides shall not be disclosed until a determination is made that the person is, by virtue of his or her additional prior or subsequent conviction of an offense listed in subdivision (c) of Section 290, subject to this subdivision.
(2)This subdivision shall apply to the following offenses:
(A)Section 220, except assault to commit mayhem.
(B)Paragraph (1), (3), or (4) of subdivision (a) of Section 261.
(C)Paragraph (2) of subdivision (b), or subdivision (f), (g), or (i), of Section 286.
(D)Paragraph (2) of subdivision (b), or subdivision (f), (g), or (i), of Section 288a.
(E)Subdivision (b), (d), (e), or (i) of Section 289.
(d)(1)On or before July 1, 2005, with respect to a person who has been convicted of the commission or the attempted commission of any of the offenses listed in, or who is described in, this subdivision, the Department of Justice shall make available to the public via the Internet Web site his or her name and known aliases, a photograph, a physical description, including gender and race, date of birth, criminal history, the community of residence and ZIP Code in which the person resides or the county in which the person is registered as a transient, and any other information that the Department of Justice deems relevant, but not the information excluded pursuant to subdivision (a) or the address at which the person resides.
(2)This subdivision shall apply to the following offenses and offenders:
(A)Subdivision (a) of Section 243.4, provided that the offense is a felony.
(B)Section 266, provided that the offense is a felony.
(C)Section 266c, provided that the offense is a felony.
(D)Section 266j.
(E)Section 267.
(F)Subdivision (c) of Section 288, provided that the offense is a misdemeanor.
(G)Section 288.3, provided that the offense is a misdemeanor.
(H)Section 288.4, provided that the offense is a misdemeanor.
(I)Section 626.81.
(J)Paragraph (3) of subdivision (b) of Section 647, if the offender was 18 years of age or older at the time of the commission or attempted commission of the offense and knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking, as defined in Section 236.1.
(K)Section 647.6.
(L)Section 653c.
(M)Any person required to register pursuant to Section 290 based upon an out-of-state conviction, unless that person is excluded from the Internet Web site pursuant to subdivision (e). However, if the Department of Justice has determined that the out-of-state crime, if committed or attempted in this state, would have been punishable in this state as a crime described in subdivision (c) of Section 290, the person shall be placed on the Internet Web site as provided in subdivision (b) or (c), as applicable to the crime.
(e)(1)If a person has been convicted of the commission or the attempted commission of any of the offenses listed in this subdivision, and he or she has been convicted of no other offense listed in subdivision (b), (c), or (d) other than those listed in this subdivision, that person may file an application with the Department of Justice, on a form approved by the department, for exclusion from the Internet Web site. If the department determines that the person meets the requirements of this subdivision, the department shall grant the exclusion and no information concerning the person shall be made available via the Internet Web site described in this section. He or she bears the burden of proving the facts that make him or her eligible for exclusion from the Internet Web site. However, a person who has filed for or been granted an exclusion from the Internet Web site is not relieved of his or her duty to register as a sex offender pursuant to Section 290 nor from any otherwise applicable provision of law.
(2)This subdivision shall apply to the following offenses:
(A)A felony violation of subdivision (a) of Section 243.4.
(B)Section 647.6, if the offense is a misdemeanor.
(C)A felony violation of Section 311.1, subdivision (b), (c), or (d) of Section 311.2, or Section 311.3, 311.4, 311.10, or 311.11 if the person submits to the department a certified copy of a probation report filed in court that clearly states that all victims involved in the commission of the offense were at least 16 years of age or older at the time of the commission of the offense.
(D)(i)An offense for which the offender successfully completed probation, provided that the offender submits to the department a certified copy of a probation report, presentencing report, report prepared pursuant to Section 288.1, or other official court document that clearly demonstrates that the offender was the victims parent, stepparent, sibling, or grandparent and that the crime did not involve either oral copulation or penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object.
(ii)An offense for which the offender is on probation at the time of his or her application, provided that the offender submits to the department a certified copy of a probation report, presentencing report, report prepared pursuant to Section 288.1, or other official court document that clearly demonstrates that the offender was the victims parent, stepparent, sibling, or grandparent and that the crime did not involve either oral copulation or penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object.
(iii)If, subsequent to his or her application, the offender commits a violation of probation resulting in his or her incarceration in county jail or state prison, his or her exclusion, or application for exclusion, from the Internet Web site shall be terminated.
(iv)For the purposes of this subparagraph, successfully completed probation means that during the period of probation the offender neither received additional county jail or state prison time for a violation of probation nor was convicted of another offense resulting in a sentence to county jail or state prison.
(3)If the department determines that a person who was granted an exclusion under a former version of this subdivision would not qualify for an exclusion under the current version of this subdivision, the department shall rescind the exclusion, make a reasonable effort to provide notification to the person that the exclusion has been rescinded, and, no sooner than 30 days after notification is attempted, make information about the offender available to the public on the Internet Web site as provided in this section.
(4)Effective January 1, 2012, no person shall be excluded pursuant to this subdivision unless the offender has submitted to the department documentation sufficient for the department to determine that he or she has a SARATSO risk level of low or moderate-low.
(f)The Department of Justice shall make a reasonable effort to provide notification to persons who have been convicted of the commission or attempted commission of an offense specified in subdivision (b), (c), or (d), that on or before July 1, 2005, the department is required to make information about specified sex offenders available to the public via an Internet Web site as specified in this section. The Department of Justice shall also make a reasonable effort to provide notice that some offenders are eligible to apply for exclusion from the Internet Web site.
(g)(1)A designated law enforcement entity, as defined in subdivision (f) of Section 290.45, may make available information concerning persons who are required to register pursuant to Section 290 to the public via an Internet Web site as specified in paragraph (2).
(2)The law enforcement entity may make available by way of an Internet Web site the information described in subdivision (c) if it determines that the public disclosure of the information about a specific offender by way of the entitys Internet Web site is necessary to ensure the public safety based upon information available to the entity concerning that specific offender.
(3)The information that may be provided pursuant to this subdivision may include the information specified in subdivision (b) of Section 290.45. However, that offenders address may not be disclosed unless he or she is a person whose address is on the Department of Justices Internet Web site pursuant to subdivision (b) or (c).
(h)For purposes of this section, offense includes the statutory predecessors of that offense, or any offense committed in another jurisdiction that, if committed or attempted to be committed in this state, would have been punishable in this state as an offense listed in subdivision (c) of Section 290.
(i)Notwithstanding Section 6254.5 of the Government Code, disclosure of information pursuant to this section is not a waiver of exemptions under Chapter 3.5 (commencing with Section 6250) of Title 1 of Division 7 of the Government Code and does not affect other statutory restrictions on disclosure in other situations.
(j)(1)Any person who uses information disclosed pursuant to this section to commit a misdemeanor shall be subject to, in addition to any other penalty or fine imposed, a fine of not less than ten thousand dollars ($10,000) and not more than fifty thousand dollars ($50,000).
(2)Any person who uses information disclosed pursuant to this section to commit a felony shall be punished, in addition and consecutive to any other punishment, by a five-year term of imprisonment pursuant to subdivision (h) of Section 1170.
(k)Any person who is required to register pursuant to Section 290 who enters an Internet Web site established pursuant to this section shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.
(l)(1)A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.
(2)Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited:
(A)Health insurance.
(B)Insurance.
(C)Loans.
(D)Credit.
(E)Employment.
(F)Education, scholarships, or fellowships.
(G)Housing or accommodations.
(H)Benefits, privileges, or services provided by any business establishment.
(3)This section shall not affect authorized access to, or use of, information pursuant to, among other provisions, Sections 11105 and 11105.3, Section 8808 of the Family Code, Sections 777.5 and 14409.2 of the Financial Code, Sections 1522.01 and 1596.871 of the Health and Safety Code, and Section 432.7 of the Labor Code.
(4)(A)Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) or in violation of paragraph (2) shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorneys fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).
(B)Whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of misuse of the information available via an Internet Web site established pursuant to this section in violation of paragraph (2), the Attorney General, any district attorney, or city attorney, or any person aggrieved by the misuse is authorized to bring a civil action in the appropriate court requesting preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern or practice of misuse. The foregoing remedies shall be independent of any other remedies or procedures that may be available to an aggrieved party under other provisions of law, including Part 2 (commencing with Section 43) of Division 1 of the Civil Code.
(m)The public notification provisions of this section are applicable to every person described in this section, without regard to when his or her crimes were committed or his or her duty to register pursuant to Section 290 arose, and to every offense described in this section, regardless of when it was committed.
(n)A designated law enforcement entity and its employees shall be immune from liability for good faith conduct under this section.
(o)The Attorney General, in collaboration with local law enforcement and others knowledgeable about sex offenders, shall develop strategies to assist members of the public in understanding and using publicly available information about registered sex offenders to further public safety. These strategies may include, but are not limited to, a hotline for community inquiries, neighborhood and business guidelines for how to respond to information posted on this Internet Web site, and any other resource that promotes public education about these offenders.
(p)This section shall remain in effect only until January 1, 2022, and as of that date is repealed.
SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to the Act in those sections are to the Sex Offender Registration Act.
(b)Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.
(c)The following persons shall register:
Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, paragraph (3) of subdivision (b) of Section 647 if the offender knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking as defined in Section 236.1, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.
(d)This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 2.Section 290 of the Penal Code, as added by Section 2.5 of Chapter 541 of the Statutes of 2017, is amended to read:290.(a)Sections 290 to 290.024, inclusive, shall be known, and may be cited, as the Sex Offender Registration Act. All references to the Act in those sections are to the Sex Offender Registration Act.
(b)Every person described in subdivision (c), for the period specified in subdivision (d) while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall register thereafter in accordance with the Act, unless the duty to register is terminated pursuant to Section 290.5 or as otherwise provided by law.
(c)The following persons shall register:
Every person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) or (c) of Section 236.1, Section 243.4, Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, paragraph (3) of subdivision (b) of Section 647 if the offender knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking as defined in Section 236.1, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the offenses described in this subdivision; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the offenses described in this subdivision.
(d)A person described in subdivision (c), or who is otherwise required to register pursuant to the Act shall register for 10 years, 20 years, or life, following a conviction and release from incarceration, placement, commitment, or release on probation or other supervision, as follows:
(1)(A)A tier one offender is subject to registration for a minimum of 10 years. A person is a tier one offender if the person is required to register for conviction of a misdemeanor described in subdivision (c), or for conviction of a felony described in subdivision (c) that was not a serious or violent felony as described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
(B)This paragraph does not apply to a person who is subject to registration pursuant to paragraph (2) or (3).
(2)(A)A tier two offender is subject to registration for a minimum of 20 years. A person is a tier two offender if the person was convicted of an offense described in subdivision (c) that is also described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, Section 285, subdivision (g) or (h) of Section 286, subdivision (g) or (h) of Section 288a, subdivision (b) of Section 289, paragraph (3) of subdivision (b) of Section 647 if the offender knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking as defined in Section 236.1, or Section 647.6 if it is a second or subsequent conviction for that offense that was brought and tried separately.
(B)This paragraph does not apply if the person is subject to lifetime registration as required in paragraph (3).
(3)A tier three offender is subject to registration for life. A person is a tier three offender if any one of the following applies:
(A)Following conviction of a registerable offense, the person was subsequently convicted in a separate proceeding of committing an offense described in subdivision (c) and the conviction is for commission of a violent felony described in subdivision (c) of Section 667.5, or the person was subsequently convicted of committing an offense for which the person was ordered to register pursuant to Section 290.006, and the conviction is for the commission of a violent felony described in subdivision (c) of Section 667.5.
(B)The person was committed to a state mental hospital as a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.
(C)The person was convicted of violating any of the following:
(i)Section 187 while attempting to commit or committing an act punishable under Section 261, 286, 288, 288a, or 289.
(ii)Section 207 or 209 with intent to violate Section 261, 286, 288, 288a, or 289.
(iii)Section 220.
(iv)Subdivision (b) of Section 266h.
(v)Subdivision (b) of Section 266i.
(vi)Section 266j.
(vii)Section 267.
(viii)Section 269.
(ix)Subdivision (b) or (c) of Section 288.
(x)Section 288.2.
(xi)Section 288.3, unless committed with the intent to commit a violation of subdivision (b) of Section 286, subdivision (b) of Section 288a, or subdivision (h) or (i) of Section 289.
(xii)Section 288.4.
(xiii)Section 288.5.
(xiv)Section 288.7.
(xv)Subdivision (c) of Section 653f.
(xvi)Any offense for which the person is sentenced to a life term pursuant to Section 667.61.
(D)The persons risk level on the static risk assessment instrument for sex offenders (SARATSO), pursuant to Section 290.04, is well above average risk at the time of release on the index sex offense into the community, as defined in the Coding Rules for that instrument.
(E)The person is a habitual sex offender pursuant to Section 667.71.
(F)The person was convicted of violating subdivision (a) of Section 288 in two proceedings brought and tried separately.
(G)The person was sentenced to 15 to 25 years to life for an offense listed in Section 667.61.
(H)The person is required to register pursuant to Section 290.004.
(I)The person was convicted of a felony offense described in subdivision (b) or (c) of Section 236.1.
(J)The person was convicted of a felony offense described in subdivision (a), (c), or (d) of Section 243.4.
(K)The person was convicted of violating paragraph (2), (3), or (4) of subdivision (a) of Section 261 or was convicted of violating Section 261 and punished pursuant to paragraph (1) or (2) of subdivision (c) of Section 264.
(L)The person was convicted of violating paragraph (1) of subdivision (a) of Section 262.
(M)The person was convicted of violating Section 264.1.
(N)The person was convicted of any offense involving lewd or lascivious conduct under Section 272.
(O)The person was convicted of violating paragraph (2) of subdivision (c) or subdivision (d), (f), or (i) of Section 286.
(P)The person was convicted of violating paragraph (2) of subdivision (c) or subdivision (d), (f), or (i) of Section 288a.
(Q)The person was convicted of violating paragraph (1) of subdivision (a) or subdivision (d), (e), or (j) of Section 289.
(R)The person was convicted of a felony violation of Section 311.1 or 311.11 or of violating subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, or 311.10.
(4)(A)A person who is required to register pursuant to Section 290.005 shall be placed in the appropriate tier if the offense is assessed as equivalent to a California registerable offense described in subdivision (c).
(B)If the persons duty to register pursuant to Section 290.005 is based solely on the requirement of registration in another jurisdiction, and there is no equivalent California registerable offense, the person shall be subject to registration as a tier two offender, except that the person is subject to registration as a tier three offender if one of the following applies:
(i)The persons risk level on the static risk assessment instrument (SARATSO), pursuant to Section 290.06, is well above average risk at the time of release on the index sex offense into the community, as defined in the Coding Rules for that instrument.
(ii)The person was subsequently convicted in a separate proceeding of an offense substantially similar to an offense listed in subdivision (c) which is also substantially similar to an offense described in subdivision (c) of Section 667.5, or is substantially similar to Section 269 or 288.7.
(iii)The person has ever been committed to a state mental hospital or mental health facility in a proceeding substantially similar to civil commitment as a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.
(5)(A)The Department of Justice may place a person described in subdivision (c), or who is otherwise required to register pursuant to the Act, in a tier-to-be-determined category if his or her appropriate tier designation described in this subdivision cannot be immediately ascertained. An individual placed in this tier-to-be-determined category shall continue to register in accordance with the Act. The individual shall be given credit for any period for which he or she registers towards his or her mandated minimum registration period.
(B)The Department of Justice shall ascertain an individuals appropriate tier designation as described in this subdivision within 24 months of his or her placement in the tier-to-be-determined category.
(e)The minimum time period for the completion of the required registration period in tier one or two commences on the date of release from incarceration, placement, or commitment, including any related civil commitment on the registerable offense. The minimum time for the completion of the required registration period for a designated tier is tolled during any period of subsequent incarceration, placement, or commitment, including any subsequent civil commitment, except that arrests not resulting in conviction, adjudication, or revocation of probation or parole shall not toll the required registration period. The minimum time period shall be extended by one year for each misdemeanor conviction of failing to register under this act, and by three years for each felony conviction of failing to register under this act, without regard to the actual time served in custody for the conviction. If a registrant is subsequently convicted of another offense requiring registration pursuant to the Act, a new minimum time period for the completion of the registration requirement for the applicable tier shall commence upon that persons release from incarceration, placement, or commitment, including any related civil commitment. If the subsequent conviction requiring registration pursuant to the Act occurs prior to an order to terminate the registrant from the registry after completion of a tier associated with the first conviction for a registerable offense, the applicable tier shall be the highest tier associated with the convictions.
(f)Nothing in this section shall be construed to require a ward of the juvenile court to register under the Act, except as provided in Section 290.008.
(g)This section shall become operative on January 1, 2021.
SEC. 3.Section 290.46 of the Penal Code, as amended by Section 9 of Chapter 541 of the Statutes of 2017, is amended to read:290.46.(a)(1)On or before the dates specified in this section, the Department of Justice shall make available information concerning persons who are required to register pursuant to Section 290 to the public via an Internet Web site as specified in this section. The department shall update the Internet Web site on an ongoing basis. All information identifying the victim by name, birth date, address, or relationship to the registrant shall be excluded from the Internet Web site. The name or address of the persons employer and the listed persons criminal history other than the specific crimes for which the person is required to register shall not be included on the Internet Web site. The Internet Web site shall be translated into languages other than English as determined by the department.
(2)(A)On or before July 1, 2010, the Department of Justice shall make available to the public, via an Internet Web site as specified in this section, as to any person described in subdivision (b), (c), or (d), the following information:
(i)The year of conviction of his or her most recent offense requiring registration pursuant to Section 290.
(ii)The year he or she was released from incarceration for that offense.
(iii)Whether he or she was subsequently incarcerated for any other felony, if that fact is reported to the department. If the department has no information about a subsequent incarceration for any felony, that fact shall be noted on the Internet Web site.
However, no year of conviction shall be made available to the public unless the department also is able to make available the corresponding year of release of incarceration for that offense, and the required notation regarding any subsequent felony.
(B)(i)Any state facility that releases from incarceration a person who was incarcerated because of a crime for which he or she is required to register as a sex offender pursuant to Section 290 shall, within 30 days of release, provide the year of release for his or her most recent offense requiring registration to the Department of Justice in a manner and format approved by the department.
(ii)Any state facility that releases a person who is required to register pursuant to Section 290 from incarceration whose incarceration was for a felony committed subsequently to the offense for which he or she is required to register shall, within 30 days of release, advise the Department of Justice of that fact.
(iii)Any state facility that, prior to January 1, 2007, released from incarceration a person who was incarcerated because of a crime for which he or she is required to register as a sex offender pursuant to Section 290 shall provide the year of release for his or her most recent offense requiring registration to the Department of Justice in a manner and format approved by the department. The information provided by the Department of Corrections and Rehabilitation shall be limited to information that is currently maintained in an electronic format.
(iv)Any state facility that, prior to January 1, 2007, released a person who is required to register pursuant to Section 290 from incarceration whose incarceration was for a felony committed subsequently to the offense for which he or she is required to register shall advise the Department of Justice of that fact in a manner and format approved by the department. The information provided by the Department of Corrections and Rehabilitation shall be limited to information that is currently maintained in an electronic format.
(3)The State Department of State Hospitals shall provide to the Department of Justice the names of all persons committed to its custody pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code, within 30 days of commitment, and shall provide the names of all of those persons released from its custody within five working days of release.
(b)(1)On or before July 1, 2005, with respect to a person who has been convicted of the commission or the attempted commission of any of the offenses listed in, or who is described in, paragraph (2), the Department of Justice shall make available to the public via the Internet Web site his or her name and known aliases, a photograph, a physical description, including gender and race, date of birth, criminal history, prior adjudication as a sexually violent predator, the address at which the person resides, and any other information that the Department of Justice deems relevant, but not the information excluded pursuant to subdivision (a). On or before January 1, 2013, the department shall make available to the public via the Internet Web site his or her static SARATSO score and information on an elevated risk level based on the SARATSO future violence tool.
(2)This subdivision shall apply to the following offenses and offenders:
(A)Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289.
(B)Section 207 committed with intent to violate Section 261, 286, 288, 288a, or 289.
(C)Section 209 committed with intent to violate Section 261, 286, 288, 288a, or 289.
(D)Paragraph (2) or (6) of subdivision (a) of Section 261.
(E)Section 264.1.
(F)Section 269.
(G)Subdivision (c) or (d) of Section 286.
(H)Subdivision (a), (b), or (c) of Section 288, provided that the offense is a felony.
(I)Subdivision (c) or (d) of Section 288a.
(J)Section 288.3, provided that the offense is a felony.
(K)Section 288.4, provided that the offense is a felony.
(L)Section 288.5.
(M)Subdivision (a) or (j) of Section 289.
(N)Section 288.7.
(O)Any person who has ever been adjudicated a sexually violent predator, as defined in Section 6600 of the Welfare and Institutions Code.
(P)A felony violation of Section 311.1.
(Q)A felony violation of subdivision (b), (c), or (d) of Section 311.2.
(R)A felony violation of Section 311.3.
(S)A felony violation of subdivision (a), (b), or (c) of Section 311.4.
(T)Section 311.10.
(U)A felony violation of Section 311.11.
(c)(1)On or before July 1, 2005, with respect to a person who has been convicted of the commission or the attempted commission of any of the offenses listed in paragraph (2), the Department of Justice shall make available to the public via the Internet Web site his or her name and known aliases, a photograph, a physical description, including gender and race, date of birth, criminal history, the community of residence and ZIP Code in which the person resides or the county in which the person is registered as a transient, and any other information that the Department of Justice deems relevant, but not the information excluded pursuant to subdivision (a). On or before July 1, 2006, the Department of Justice shall determine whether any person convicted of an offense listed in paragraph (2) also has one or more prior or subsequent convictions of an offense listed in subdivision (c) of Section 290, and, for those persons, the Department of Justice shall make available to the public via the Internet Web site the address at which the person resides. However, the address at which the person resides shall not be disclosed until a determination is made that the person is, by virtue of his or her additional prior or subsequent conviction of an offense listed in subdivision (c) of Section 290, subject to this subdivision.
(2)This subdivision shall apply to the following offenses:
(A)Section 220, except assault to commit mayhem.
(B)Paragraph (1), (3), or (4) of subdivision (a) of Section 261.
(C)Paragraph (2) of subdivision (b), or subdivision (f), (g), or (i), of Section 286.
(D)Paragraph (2) of subdivision (b), or subdivision (f), (g), or (i), of Section 288a.
(E)Subdivision (b), (d), (e), or (i) of Section 289.
(d)(1)On or before July 1, 2005, with respect to a person who has been convicted of the commission or the attempted commission of any of the offenses listed in, or who is described in, this subdivision, the Department of Justice shall make available to the public via the Internet Web site his or her name and known aliases, a photograph, a physical description, including gender and race, date of birth, criminal history, the community of residence and ZIP Code in which the person resides or the county in which the person is registered as a transient, and any other information that the Department of Justice deems relevant, but not the information excluded pursuant to subdivision (a) or the address at which the person resides.
(2)This subdivision shall apply to the following offenses and offenders:
(A)Subdivision (a) of Section 243.4, provided that the offense is a felony.
(B)Section 266, provided that the offense is a felony.
(C)Section 266c, provided that the offense is a felony.
(D)Section 266j.
(E)Section 267.
(F)Subdivision (c) of Section 288, provided that the offense is a misdemeanor.
(G)Section 288.3, provided that the offense is a misdemeanor.
(H)Section 288.4, provided that the offense is a misdemeanor.
(I)Section 626.81.
(J)Paragraph (3) of subdivision (b) of Section 647, if the offender knew, or reasonably should have known, that the other person was a minor and a victim of human trafficking, as defined in Section 236.1.
(J)(K)Section 647.6.
(K)(L)Section 653c.
(L)(M)Any person required to register pursuant to Section 290 based upon an out-of-state conviction, unless that person is excluded from the Internet Web site pursuant to subdivision (e). However, if the Department of Justice has determined that the out-of-state crime, if committed or attempted in this state, would have been punishable in this state as a crime described in subdivision (c) of Section 290, the person shall be placed on the Internet Web site as provided in subdivision (b) or (c), as applicable to the crime.
(e)(1)If a person has been convicted of the commission or the attempted commission of any of the offenses listed in this subdivision, and he or she has been convicted of no other offense listed in subdivision (b), (c), or (d) other than those listed in this subdivision, that person may file an application with the Department of Justice, on a form approved by the department, for exclusion from the Internet Web site. If the department determines that the person meets the requirements of this subdivision, the department shall grant the exclusion and no information concerning the person shall be made available via the Internet Web site described in this section. He or she bears the burden of proving the facts that make him or her eligible for exclusion from the Internet Web site. However, a person who has filed for or been granted an exclusion from the Internet Web site is not relieved of his or her duty to register as a sex offender pursuant to Section 290 nor from any otherwise applicable provision of law.
(2)This subdivision shall apply to the following offenses:
(A)A felony violation of subdivision (a) of Section 243.4.
(B)Section 647.6, if the offense is a misdemeanor.
(C)A felony violation of Section 311.1, subdivision (b), (c), or (d) of Section 311.2, or Section 311.3, 311.4, 311.10, or 311.11 if the person submits to the department a certified copy of a probation report filed in court that clearly states that all victims involved in the commission of the offense were at least 16 years of age or older at the time of the commission of the offense.
(D)(i)An offense for which the offender successfully completed probation, provided that the offender submits to the department a certified copy of a probation report, presentencing report, report prepared pursuant to Section 288.1, or other official court document that clearly demonstrates that the offender was the victims parent, stepparent, sibling, or grandparent and that the crime did not involve either oral copulation or penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object.
(ii)An offense for which the offender is on probation at the time of his or her application, provided that the offender submits to the department a certified copy of a probation report, presentencing report, report prepared pursuant to Section 288.1, or other official court document that clearly demonstrates that the offender was the victims parent, stepparent, sibling, or grandparent and that the crime did not involve either oral copulation or penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object.
(iii)If, subsequent to his or her application, the offender commits a violation of probation resulting in his or her incarceration in county jail or state prison, his or her exclusion, or application for exclusion, from the Internet Web site shall be terminated.
(iv)For the purposes of this subparagraph, successfully completed probation means that during the period of probation the offender neither received additional county jail or state prison time for a violation of probation nor was convicted of another offense resulting in a sentence to county jail or state prison.
(3)If the department determines that a person who was granted an exclusion under a former version of this subdivision would not qualify for an exclusion under the current version of this subdivision, the department shall rescind the exclusion, make a reasonable effort to provide notification to the person that the exclusion has been rescinded, and, no sooner than 30 days after notification is attempted, make information about the offender available to the public on the Internet Web site as provided in this section.
(4)Effective January 1, 2012, no person shall be excluded pursuant to this subdivision unless the offender has submitted to the department documentation sufficient for the department to determine that he or she has a SARATSO risk level of low or moderate-low.
(f)The Department of Justice shall make a reasonable effort to provide notification to persons who have been convicted of the commission or attempted commission of an offense specified in subdivision (b), (c), or (d), that on or before July 1, 2005, the department is required to make information about specified sex offenders available to the public via an Internet Web site as specified in this section. The Department of Justice shall also make a reasonable effort to provide notice that some offenders are eligible to apply for exclusion from the Internet Web site.
(g)(1)A designated law enforcement entity, as defined in subdivision (f) of Section 290.45, may make available information concerning persons who are required to register pursuant to Section 290 to the public via an Internet Web site as specified in paragraph (2).
(2)The law enforcement entity may make available by way of an Internet Web site the information described in subdivision (c) if it determines that the public disclosure of the information about a specific offender by way of the entitys Internet Web site is necessary to ensure the public safety based upon information available to the entity concerning that specific offender.
(3)The information that may be provided pursuant to this subdivision may include the information specified in subdivision (b) of Section 290.45. However, that offenders address may not be disclosed unless he or she is a person whose address is on the Department of Justices Internet Web site pursuant to subdivision (b) or (c).
(h)For purposes of this section, offense includes the statutory predecessors of that offense, or any offense committed in another jurisdiction that, if committed or attempted to be committed in this state, would have been punishable in this state as an offense listed in subdivision (c) of Section 290.
(i)Notwithstanding Section 6254.5 of the Government Code, disclosure of information pursuant to this section is not a waiver of exemptions under Chapter 3.5 (commencing with Section 6250) of Title 1 of Division 7 of the Government Code and does not affect other statutory restrictions on disclosure in other situations.
(j)(1)Any person who uses information disclosed pursuant to this section to commit a misdemeanor shall be subject to, in addition to any other penalty or fine imposed, a fine of not less than ten thousand dollars ($10,000) and not more than fifty thousand dollars ($50,000).
(2)Any person who uses information disclosed pursuant to this section to commit a felony shall be punished, in addition and consecutive to any other punishment, by a five-year term of imprisonment pursuant to subdivision (h) of Section 1170.
(k)Any person who is required to register pursuant to Section 290 who enters an Internet Web site established pursuant to this section shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.
(l)(1)A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.
(2)Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited:
(A)Health insurance.
(B)Insurance.
(C)Loans.
(D)Credit.
(E)Employment.
(F)Education, scholarships, or fellowships.
(G)Housing or accommodations.
(H)Benefits, privileges, or services provided by any business establishment.
(3)This section shall not affect authorized access to, or use of, information pursuant to, among other provisions, Sections 11105 and 11105.3, Section 8808 of the Family Code, Sections 777.5 and 14409.2 of the Financial Code, Sections 1522.01 and 1596.871 of the Health and Safety Code, and Section 432.7 of the Labor Code.
(4)(A)Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) or in violation of paragraph (2) shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorneys fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).
(B)Whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of misuse of the information available via an Internet Web site established pursuant to this section in violation of paragraph (2), the Attorney General, any district attorney, or city attorney, or any person aggrieved by the misuse is authorized to bring a civil action in the appropriate court requesting preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern or practice of misuse. The foregoing remedies shall be independent of any other remedies or procedures that may be available to an aggrieved party under other provisions of law, including Part 2 (commencing with Section 43) of Division 1 of the Civil Code.
(m)The public notification provisions of this section are applicable to every person described in this section, without regard to when his or her crimes were committed or his or her duty to register pursuant to Section 290 arose, and to every offense described in this section, regardless of when it was committed.
(n)A designated law enforcement entity and its employees shall be immune from liability for good faith conduct under this section.
(o)The Attorney General, in collaboration with local law enforcement and others knowledgeable about sex offenders, shall develop strategies to assist members of the public in understanding and using publicly available information about registered sex offenders to further public safety. These strategies may include, but are not limited to, a hotline for community inquiries, neighborhood and business guidelines for how to respond to information posted on this Internet Web site, and any other resource that promotes public education about these offenders.
(p)This section shall remain in effect only until January 1, 2022, and as of that date is repealed.
SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
|
Date
|
Status
|
|---|---|
| Apr 26, 2018 | From committee: Without further action pursuant to Joint Rule 62(a). |
| Apr 24, 2018 | In committee: Set, second hearing. Failed passage. |
| Apr 19, 2018 | Re-referred to Com. on PUB. S. |
| Apr 18, 2018 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Apr 10, 2018 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Jan 16, 2018 | Referred to Com. on PUB. S. |
| Jan 4, 2018 | From printer. May be heard in committee February 3. |
| Jan 3, 2018 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Apr 24, 2018 | Reconsideration. | Assembly Standing Committee on Public Safety |
Failed |
|
| Apr 24, 2018 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Failed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| ACLU of California | * Against | Apr 24, 2018 |
| Calfornia Police Chief's Association | * Support | Apr 24, 2018 |
| California Peace Officers Association | * Support | Apr 24, 2018 |
| California Public Defender's Association | * Against | Apr 24, 2018 |
| California State Sheriff's Association | * Support | Apr 24, 2018 |
| California Statewide Law Enforcement Association | ** Support | Apr 23, 2018 |
| Crime Victims United Of California | ** Support | Apr 23, 2018 |
| Los Angeles Police Protective League | * Support | Apr 24, 2018 |
| Peace Officers Research Association Of California | ** Support | Apr 23, 2018 |
| Riverside Sheriff's Association | * Support | Apr 24, 2018 |
Date of Hearing:
Counsel: Matthew Fleming
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 1738
Author:(Cunningham) – As Amended Ver:April 18, 2018
SUMMARY:
Requires a person 18 years or older, who is convicted of soliciting, engaging in, or agreeing to engage in an act of prostitution with a minor, to register as a sex offender for 20 years, if the person knew or reasonably should have known that the minor was both underage and a victim of human trafficking.
EXISTING LAW:
-
- Establishes the Sex Offender Registration Act (the Act). (Pen. Code, § 290, subd. (a).)
- Requires persons convicted of the following offenses to register under the Act as a sex offender with law enforcement and with any school they attend, while residing, working, or studying in California:
- Murder, Kidnapping and Assault, committed with the intent to commit:
- Rape or attempted rape;
- Sodomy;
- Lewd or lascivious act with a minor;
- Oral Copulation with a minor;
- Sexual penetration by use of force or fear;
- Rape or attempted rape;
- Sexual Battery;
- Rape;
- Aiding and abetting a rape;
- Pimping or pandering a minor;
- Child Procurement;
- Aggravated sexual assault of a child under 14 years of age;
- Contributing to the delinquency of a minor with lewd or lascivious conduct;
- Incest;
- Sodomy;
- Lewd or lascivious act with a minor;
- Oral Copulation;
- Showing obscene material to minors;
- Contacting a minor with the intent to commit certain felonies;
- Arranging a meeting with a minor for lewd purposes;
- Continuous sexual abuse of a minor;
- Engaging in sodomy with a child 10 years or younger;
- Sexual penetration by force or fear;
- Child pornography laws;
- Indecent exposure;
- Annoying or molesting a child;
- Solicitation to commit a sex crime;
- Any statutory predecessor that includes all elements of one of the above-mentioned offenses;
- Attempt or conspiracy to commit any of the above-mentioned offenses (Pen. Code, §§ 290, subds. (b) – (c).)
- Murder, Kidnapping and Assault, committed with the intent to commit:
- Implements a three-tiered sex offender registration as of January 1, 2021. (Pen. Code, § 290 subds. (d) – (g).)
- Provides that a person required to register for an adult court conviction is subject to lifetime registration (tier three), if he or she was convicted of one of the most serious types of sex offenses or otherwise presents a high risk for recidivism, as defined.
- (Pen Code, § 290, subds. (d)(3)(A) – (R).)
- (Pen Code, § 290, subds. (d)(3)(A) – (R).)
- Provides that unless the person is subject to registration under tier three, a person is required to register under the Act for an adult court conviction of a serious or violent or other specified felony sex offense must register for a minimum of 20 years (tier two). (Pen Code, § 290, subd. (d)(2)(A).)
- Provides that unless a person is subject to registration under tier two or tier three, a person is required to register under the Act for an adult court conviction of a misdemeanor or non-violent, non-serious sex offense must register under tier one, for a minimum of 10 years (tier one). (Pen Code, § 290, subd. (d)(1)(A).)
- Gives the judge discretion to order sex offender registration for any offense if it finds that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. (Pen. Code, § 290.006.)
- Provides that willful violation of any part of the registration requirements constitutes a misdemeanor if the offense requiring registration was a misdemeanor, and constitutes a felony of the offense requiring registration was a felony or if the person has a prior conviction of failing to register. (Pen. Code, § 290.018, subds. (a) and (b).)
- Provides that if the defendant agreed to engage in an act of prostitution, the person soliciting the act of prostitution need not specifically intend to engage in an act or prostitution. (Pen. Code, § 647, subd. (b).)
- Provides for a mandatory confinement period of 2 days for a person solicits a minor if the person knew or should have known that the person solicited was a minor. (Pen. Code, § 647 subd. (m).)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, “Human Trafficking is a $150 billion dollar global industry, and California has the highest incident rate per capita. According to the National Human Trafficking Hotline, in 2017 alone, California saw a total of 705 trafficking cases and of those 705, 544 were related to sex trafficking. AB 1738 ensures that enablers of trafficking must register as sex offenders pursuant to PC 290. It adds solicitation for a sex act of a trafficking victim who is a minor to tier 2 (minimum 20 years) registration.”
- The Current Sex Offender Registration System and Megan's Law website has Become too Unwieldy to be Effective for Law Enforcement: California has more registered sex offenders than any other state. There are approximately 88,000 identified sex offenders (per Department of Justice, August 2007). Currently, the California Department of Corrections and Rehabilitation (CDCR) supervises about 10,000 of those 88,000 sex offenders, of which about 3,200 have been designated as High Risk Sex Offenders (CDCR Housing Summit, March 2007). Additionally, there are about 22,500 adult sex offenders serving time in one of 32 state prisons operated by CDCR (California Sex Offender Management Task Force Report, July 2007). (http://www.casomb.org/.)
The California Sex Offender Management Board (CASOMB) was created on September 20, 2006. According to CASOMB, there are a number of problems with the current system as a result of adding too many low-risk sex offenders. California’s system of lifetime registration for all convicted sex offenders has created a registry that is very large and that includes many individuals who do not necessarily pose a risk to the community. According to the CASOMB:
“Under the current system, many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result, law enforcement cannot monitor higher risk offenders more intensively in the community due to sheer numbers now in the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the community lives of those – such as families – whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety.[1]”
The consequences of these realities are that the registry has, in some ways, become counterproductive to improving public safety. When everyone is viewed as posing a significant risk, the ability for law enforcement and the community to differentiate between who is truly high risk and more likely to reoffend becomes impossible. There needs to be a way for all persons to distinguish between sex offenders who require increased monitoring, attention and resources and those who are unlikely to reoffend.
There are many unintended consequences and indirect costs associated with sex offender registration.
- Innocent families and children of offenders (including victims of intra-familial sexual abuse) also bear the consequences of lifetime registration since they can often be identified by the public. Adverse consequences also arise for employers, landlords, neighbors and others.
- There has been a proliferation of residence restrictions and exclusion zones for registered sex offenders in many jurisdictions in California. Violation of these can lead to criminal charges. The obstacles posed by registration status prevent many individuals from obtaining housing or employment and becoming functioning, contributing, tax-paying members of society.
- There is reason to believe that registration policies, especially lifetime registration, keep some victims, particularly family members of the offender, from disclosing the abuse because they wish to avoid the stigma that will impact their family and their own lives for a very long time.
If the current registration system was effective in the ways intended, these consequences might be considered part of the price to pay for the greater good. But, since the current registry does not attain its intended purposes, many of these unintended consequences are without justification.
It should be noted that SB 384 (Weiner) Chapter 541, Statutes of 2017 was a massive legislative undertaking that will dramatically change California’s Sex Offender Registration when it becomes effective in 2021. One of the intended purposes of SB 384 was to distinguish between low and high risk offenders and reduce the total number of persons on the registry so that law enforcement could spend less time doing paperwork and more time monitoring those people who actually make our communities less safe. This bill would require additional low-level (misdemeanor) offenders to register, who are only tangentially related, if at all, to the much more serious crime of human trafficking. It therefore appears to be counterproductive to the aims of SB 384.
- The Purpose of the Sex Offender Registry: The intent of this bill seems focused on the horrors of human trafficking as a global epidemic. According to the author, human trafficking is a $150 billion global industry and people engaging in prostitution with people who they should know to be minors are “enablers” of that industry. The impetus for this bill therefore seems to be that persons engaging in certain acts of prostitution deserve to register as a sex offender for 20 years and that mandatory sex offender registration is a just punishment for the crimes they commit.
However, the sex offender registry is not, and was never intended to be a punishment. (See In re Alval (2004) 33 Cal.4th 254, 279 [“the purpose and intent of registration are regulatory, as a means of assisting law enforcement in dealing with the serious problem of recidivist sex offenders.”]) By contrast, the purpose of the sex offender registry is to allow law enforcement the ability to locate and monitor individuals who present a high risk to recommit a sexual assault.
The purpose of the sex offender registry is important to keep in mind when it comes making an act of prostitution a registerable offense. According to CASOMB, “the overwhelming majority of sex offenders victimize people known to them; approximately 90 percent of child victims know their offenders, as do 80 percent of adult victims.” (http://www.casomb.org/.) Persons who solicit, agree to engage, or who engage in prostitution – the targets of this bill – are almost by definition complete strangers to the prostitutes with whom they interact. For that reason, it may not be appropriate to add them to the registry.
- Judges Can Already Order Sex Offender Registration for any Criminal Offense: Pursuant to Penal Code Section 290.006 a judge can order any defendant convicted of any offense to register as a sex offender. The judge need only find that the person committed an offense as a result of sexual compulsion or for purposes of sexual gratification. What this bill seeks to do is therefore entirely possible under current law, provided the judge makes certain findings. This bill would establish mandatory registration for persons who “should have known” certain facts about the person they solicited, agreed to engage with, or engaged in prostitution with. It would remove judicial discretion in misdemeanor cases.
- “Knew or Should Have Known” is a Problematic Standard: This bill requires sex offender registration for a person convicted of engaging in an act of prostitution with a minor if that person “knew or reasonably should have known,” that the other was both a minor and a victim of human trafficking. This bill would cover persons who are targeting sex-trafficked minors intentionally, but would also ensnare persons who do not actually know that they are soliciting a sex-trafficked minor provided that they “should have known.” While there are some exceptions, the “should have known” standard is unusual in criminal law because it equates to “ordinary negligence.” (See e.g. People v. Nicolas, (2017) 8 Cal. App. 5th 1165, 1174-75; People v. Young (1942) 20 Cal. 2d 832, 835-36.) Requiring 20 years sex offender registration as a result of ordinary negligence seems disproportionate.
Furthermore, the “should have known” standard is likely to cause problems of proof. Some of the questions it raises are: (1) How does a prosecutor prove that an offender “should have known” the minor is a victim of human trafficking? (2) Must the prosecutor prove that the perpetrator “should have known” beyond reasonable doubt, or is some lesser degree of proof to be used? (3) Does this bill require a prosecutor to plead and prove that the perpetrator’s victim is also a victim of another, separate individual who is a human trafficker? (4) Would the prosecutor have to show, beyond a reasonable doubt, that the second offender is guilty of human trafficking (beyond reasonable doubt), and that the minor was indeed his or her victim? (5) Must there be a contemporaneous prosecution of that trafficker? (6) Does a judge or a jury decide whether the perpetrator “should have known” that the person was trafficked? Without answers for these questions, as well as others, practicability of the “should have known” standard is hard to ascertain.
- Prostitution and Human Trafficking are Distinct Offenses: A growing number of policy discussions are equating prostitution offenses with human trafficking offenses. There is no doubt that the crimes are related, however, they are not the same crime and sometimes one has nothing to do with the other. A number of proposals seek to treat all prostitution offenses more severely because of the grave threat and nature of human trafficking. Human trafficking is a very serious crime, involving forced servitude, with very serious penalties that include sex offender registration. Most prostitution offenses between a person who is soliciting a prostitute and the prostitute themselves are misdemeanor crimes. Additionally, pimps and panderers generally are treated more severely by the law, with much more serious consequences than the prostitute or the “john.” Unlike the crimes of pimping and pandering, human trafficking is a crime that generally involves some form of force or coercion.
This approach has been criticized by some because it blurs the line between human trafficking and prostitution. Sex workers say it discounts their ability to willingly work in the sex industry. (See Nevada Movement Draws the Line on Human Trafficking by Tom Ragan, Las Vegas Review Journal, May 26, 2013, < http://www.reviewjournal.com/news/las-vegas/nevada-movement-draws-line-human-trafficking>.)- Prostitution Generally: The basic crime of prostitution is a misdemeanor offense. (Pen. Code § 647(b).) Prostitution can be generally defined as "soliciting or agreeing to engage in a lewd act between persons for money or other consideration." Lewd acts include touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification of either person.
To implicate a person for prostitution themselves, the prosecutor must prove that the defendant "solicited" or "agreed" to "engage" in prostitution. A person agrees to engage in prostitution when the person accepts an offer to commit prostitution with specific intent to accept the offer, whether or not the offerer has the same intent.
For the crime of "soliciting a prostitute" the prosecutors must prove that the defendant requested that another person engage in an act of prostitution, and that the defendant intended to engage in an act of prostitution with the other person, and the other person received the communication containing the request. The defendant must do something more than just agree to engage in prostitution. The defendant must do some act in furtherance of the agreement to be convicted. Words alone may be sufficient to prove the act in furtherance of the agreement to commit prostitution
A violation of Pen. Code § 647(b) is a misdemeanor. There is a mandatory confinement term of three days if the defendant knew that he or she was soliciting minor, or if they were trying to solicit a minor and instead solicited someone posing as a minor. (Pen. Code, § 647 subd. (b)(5).) In addition, if the defendant did not actually know, but “should have known” that the prostitute was a minor, there is a mandatory two days confinement. (Pen. Code, § 647 subd. (m).) In addition the faces fines, probation, possible professional licensing restrictions or revocations, possible immigration consequences, possible asset forfeiture, and possible driving license restrictions.
- Human Trafficking: Human trafficking involves the recruitment, transportation or sale of people for forced labor. Through violence, threats and coercion, victims are forced to work in, among other things, the sex trade, domestic labor, factories, hotels and agriculture. According to the January 2005 United States Department of State's Human Smuggling and Trafficking Center report, "Fact Sheet: Distinctions Between Human Smuggling and Human Trafficking", there is an estimated 600,000 to 800,000 men, women and children trafficked across international borders each year. Of these, approximately 80% are women and girls and up to 50% are minors. A recent report by the Human Rights Center at the University of California, Berkeley cited 57 cases of forced labor in California between 1998 and 2003, with over 500 victims. The report, "Freedom Denied", notes most of the victims in California were from Thailand, Mexico, and Russia and had been forced to work as prostitutes, domestic slaves, farm laborers or sweatshop employees. [University of California, Berkeley Human Rights Center, "Freedom Denied: Forced Labor in California" (February, 2005).] According to that author:
"While the clandestine nature of human trafficking makes it enormously difficult to accurately track how many people are affected, the United States government estimates that about 17,000 to 20,000 women, men and children are trafficked into the United States each year, meaning there may be as many as 100,000 to 200,000 people in the United States working as modern slaves in homes, sweatshops, brothels, agricultural fields, construction projects and restaurants."
In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. The proposition increased criminal penalties for human trafficking, including prison sentences up to 15-years-to-life and fines up to $1,500,000. Additionally, the proposition specified that the fines collected are to be used for victim services and law enforcement. Proposition 35 requires persons convicted of trafficking to register as sex offenders. Proposition 35 prohibits evidence that victim engaged in sexual conduct from being used against victims in court proceedings. Additionally, the proposition lowered the evidential requirements for showing of force in cases of minors:
Trafficking Victims Protection Act of 2000 (22 USC Sections 7101 et seq.): In October 2000, the Trafficking Victims Protection Act of 2000 (TVPA) was enacted and is comprehensive, addressing the various ways of combating trafficking, including prevention, protection and prosecution. The prevention measures include the authorization of educational and public awareness programs. Protection and assistance for victims of trafficking include making housing, educational, health-care, job training and other federally funded social service programs available to assist victims in rebuilding their lives. Finally, the TVPA provides law enforcement with tools to strengthen the prosecution and punishment of traffickers, making human trafficking a federal crime.
2012 Update to Human Trafficking Laws: In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. Specifically, Proposition 35 increased criminal penalties for human trafficking offenses, including prison sentences up to 15-years-to-life and fines up to $1.5 million. The proposition specified that the fines collected are to be used for victim services and law enforcement. In criminal trials, the proposition prohibits the use of evidence that a person was involved in criminal sexual conduct (such as prostitution) to prosecute that person for that crime if the conduct was a result of being a victim of human trafficking, and makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim’s credibility or character in court. The proposition lowered the evidentiary requirements for showing of force in cases of minors.
Proposition 35 also requires persons convicted of human trafficking to register as sex offenders and expanded registration requirements by requiring registered sex offenders to provide the names of their internet providers and identifiers, such as e-mail addresses, user names, and screen names, to local police or sheriff’s departments. After passage of Proposition 35, plaintiffs American Civil Liberties Union and Electronic Frontier Foundation filed a law suit claiming that these provisions unconstitutionally restricts the First Amendment rights of registered sex offenders in the states. A United States District Court judge granted a preliminary injunction prohibiting the implementation or enforcement of Proposition 35's provisions that require registered sex offenders to provide certain information concerning their Internet use to law enforcement. (Doe v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013 LEXIS 5428.)
- Argument in Support: According to the California Statewide Law Enforcement Association, “According to the California Attorney General, human trafficking is the world’s fastest growing criminal enterprise and is an estimated $32 billion-a-year global industry. California’s law enforcement community has taken great steps to ensure the public’s safety, including the recent efforts to reduce human sex trafficking. AB 1738 builds on policies enacted by the legislature over the past several years requiring individuals who solicit or engage in an act of prostitution with a minor to register as a tier 2 offender. California’s laws pertaining to sex offenses, particularly those tied to human trafficking rings, are outdated and often silent on the severity of such cases. AB 1738 will provide our law enforcement officers the necessary data and tools they need regarding offenders within the communities they serve.”
- Argument in Opposition: According to the American Civil Liberties Union, “AB 1738 is unnecessary. Courts already have the discretion to order anyone who commits any offense to register as a sex offender under Penal Code section 290.006. AB 1738 will also make it more difficult to effectively manage people convicted of sex offenses who pose a real risk. California already requires a vast number of people to register as sex offenders.”
- Related Legislation: SB 757 (Glazer), of the 2017-2018 Legislative Session, would require a person convicted of prostitution with a minor to register unless the court finds that the defendant had reason to believe the victim was not a minor, was misled about the victim’s age, or was less than three years older than the victim at the time of the solicitation. SB 757 is pending referral from the Assembly Rules Committee.
- Prior Legislation:
- AB 1912 (Achadjian), of the 2015-2016 Legislative Session, would have required a person convicted of soliciting a minor, who the person knew or reasonably should have known, was both a minor and a victim of human trafficking to register as a sex offender for a period of five years after a first conviction, 10 years after a second conviction, and 20 years after a third or subsequent conviction. AB 1912 failed passage in the Assembly Public Safety Committee.
- AB 733 (Chavez), of the 2015-2016 Legislative Session, would have required sex offender registration for a person convicted of the offense of solicitation of a minor. AB 733 failed passage in the Assembly Public Safety Committee.
- SB 384 (Wiener) Chapter 541, Statutes of 2017, established a three-tiered sex offender registry, requiring the most serious sex offenders (tier 3) to register for life, requiring tier 2 sex offenders to register for 20 years, and requiring tier 1 sex offenders to register for 10 years.
- SB 303 (Morell), of the 2017-2018 Legislative Session, would have added an additional term to the sentence of a convicted human trafficker if it was pled and proved that the offense involved a victim who was under the age of 16. SB 303 died in the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Peace Officers Association
California Police Chiefs Association
California State Sheriffs’ Association
California Statewide Law Enforcement Association
Crime Victims United of California
Peace Officers Research Association of California
Riverside Sheriffs’ Association
Opposition
American Civil Liberties Union
California Public Defender’s Association
Analysis Prepared by:
Matthew Fleming / PUB. S. / (916) 319-3744
CASOMB’s Year End Report, 2014 at p. 12. Available at: <http://www.casomb.org/docs/CASOMB_End_of_Year_Report_to_Legislature_2014.pdf> [as of April 4, 2018]. ↑
Date of Hearing:
Counsel: Matthew Fleming
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 1738
Author:(Cunningham) – As Introduced Ver:January 3, 2018
SUMMARY:
Requires any person who is convicted of soliciting, engaging in, or agreeing to engage in an act of prostitution with a minor to register as a sex offender for 20 years, if the person knew or reasonably should have known that the minor was both underage and a victim of human trafficking.
EXISTING LAW:
-
- Establishes the Sex Offender Registration Act (the Act). (Pen. Code, § 290, subd. (a).)
- Requires persons convicted of the following offenses to register under the Act as a sex offender with law enforcement and with any school they attend, while residing, working, or studying in California:
- Murder, Kidnapping and Assault, committed with the intent to commit:
- Rape or attempted rape;
- Sodomy;
- Lewd or lascivious act with a minor;
- Oral Copulation with a minor;
- Sexual penetration by use of force or fear;
- Rape or attempted rape;
- Sexual Battery;
- Rape;
- Aiding and abetting a rape;
- Pimping or pandering a minor;
- Child Procurement;
- Aggravated sexual assault of a child under 14 years of age;
- Contributing to the delinquency of a minor with lewd or lascivious conduct;
- Incest;
- Sodomy;
- Lewd or lascivious act with a minor;
- Oral Copulation;
- Showing obscene material to minors;
- Contacting a minor with the intent to commit certain felonies;
- Arranging a meeting with a minor for lewd purposes;
- Continuous sexual abuse of a minor;
- Engaging in sodomy with a child 10 years or younger;
- Sexual penetration by force or fear;
- Child pornography laws;
- Indecent exposure;
- Annoying or molesting a child;
- Solicitation to commit a sex crime;
- Any statutory predecessor that includes all elements of one of the above-mentioned offenses;
- Attempt or conspiracy to commit any of the above-mentioned offenses (Pen. Code, §§ 290, subds. (b) – (c).)
- Murder, Kidnapping and Assault, committed with the intent to commit:
- Implements a three-tiered sex offender registration as of January 1, 2021. (Pen. Code, § 290 subds. (d) – (g).)
- Provides that a person required to register for an adult court conviction is subject to lifetime registration (tier three), if any of the following apply:
- The person was subsequently convicted of a violent registerable felony sex offense in a separate proceeding;
- The person was convicted of a violent felony, committed as a result of sexual compulsion or for purposes of sexual gratification, for which he or she was ordered to register;
- The person was committed to a state mental hospital as a sexually violent predator;
- The person was convicted of any of the following:
- murder while attempting to commit or committing a specified sex offense;
- kidnapping with the intent to commit a specified sex offense;
- assault with intent to commit specified sex offenses or commission of the same acts in the course of a first degree burglary;
- pimping a minor;
- pandering with a minor;
- procurement of a child under age 16 for lewd or lascivious acts;
- abduction of a minor for purposes of prostitution;
- aggravated sexual assault of a child;
- lewd or lascivious acts on a child under 14 years of age by force or violence, or lewd acts on a child 14 or 15 years of age by a person at least 10 years older than the child;
- sending harmful matter that depicts a minor(s) engaged in sexual conduct to a child;
- contacting a minor with the intent to commit a specified sex offense;
- contacting a minor with the intent to expose oneself or engage in lewd or lascivious behavior;
- continuous sexual abuse of a child;
- sex offense with a child 10 years of age or younger;
- solicitation of rape by force or violence, sodomy by force or violence, oral copulation by force or violence, and solicitation of other specified sex offenses;
- any offense for which the person is sentenced to a life term under the habitual sex offender law.
- murder while attempting to commit or committing a specified sex offense;
- The person’s risk level on the static risk assessment instrument for sex offenders (SARATSO) is well above average risk at the time of release into the community;
- The person is a habitual sex offender;
- The person was convicted of lewd or lascivious acts on a child in two separate proceedings brought and tried separately;
- The person was sentenced to 15 to 25 years to life for an offense under the habitual sex offender law;
- The person is required to register as a mentally disordered sex offender;
- The person was convicted of specified felony human trafficking offenses;
- The person was convicted of felony sexual battery by restraint or while the victim was unconscious of the nature of the act;
- The person was convicted of rape of a child, or rape by force or violence, or where the victim was prevented from resisting by an intoxicating or controlled substance, or where the victim was unconscious of the nature of the act;
- The person was convicted of spousal rape by force or violence, or where the victim was prevented from resisting by an intoxicating or controlled substance, or where the victim was unconscious of the nature of the act;
- The person was convicted of rape in concert;
- The person was convicted of contributing to the delinquency of a minor involving lewd or lascivious conduct;
- The person was convicted of sodomy by force or violence, or in concert, or where the victim was unconscious of the nature of the act, or where the victim was prevented from resisting by an intoxicating or controlled substance;
- The person was convicted of oral copulation upon by force or violence, or in concert, or where the victim is unconscious of the nature of the act, or where the victim was prevented from resisting by an intoxicating or controlled substance;
- The person was convicted of an act of sexual penetration by force or violence, or where the victim is unconscious of the nature of the act, or where the victim is prevented from resisting by an intoxicating or controlled substance, or where with a child under 14 years of age and who is more than 10 years younger than the person;
- The person was convicted of child pornography (other than misdemeanor possession of child pornography). (Pen Code, § 290, subds. (d)(3)(A) – (R).)
- The person was subsequently convicted of a violent registerable felony sex offense in a separate proceeding;
- Provides that unless the person is subject to registration under tier three as specified above, a person is required to register under the Act for an adult court conviction of a serious or violent or other specified felony sex offense must register for a minimum of 20 years (tier two). (Pen Code, § 290, subd. (d)(2)(A).)
- Provides that unless a person is subject to registration under tier two or tier three as specified above, a person is required to register under the Act for an adult court conviction of a misdemeanor or non-violent, non-serious sex offense must register for a minimum of 10 years (tier one). (Pen Code, § 290, subd. (d)(1)(A).)
- Gives the judge discretion to order sex offender registration for any offense if it finds that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. (Pen. Code, § 290.006.)
- Provides that willful violation of any part of the registration requirements constitutes a misdemeanor if the offense requiring registration was a misdemeanor, and constitutes a felony of the offense requiring registration was a felony or if the person has a prior conviction of failing to register. (Pen. Code, § 290.018, subds. (a) and (b).)
- Provides that if the defendant agreed to engage in an act of prostitution, the person soliciting the act of prostitution need not specifically intend to engage in an act or prostitution. (Pen. Code, § 647, subd. (b).)
- Provides for a mandatory confinement period of 2 days for a person solicits a minor if the person knew or should have known that the person solicited was a minor. (Pen. Code, § 647 subd. (m).)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, “Human Trafficking is a $150 billion dollar global industry, and California has the highest incident rate per capita. According to the National Human Trafficking Hotline, in 2017 alone, California saw a total of 705 trafficking cases and of those 705, 544 were related to sex trafficking. AB 1738 ensures that enablers of trafficking must register as sex offenders pursuant to PC 290. It adds solicitation for a sex act of a trafficking victim who is a minor to tier 2 (minimum 20 years) registration.”
- The Current Sex Offender Registration System and Megan's Law website has Become too Unwieldy to be Effective for Law Enforcement: The California Sex Offender Management Board (CASOMB) was created on September 20, 2006. According to CASOMB, there are a number of problems with the current system as a result of adding too many low-risk sex offenders. California’s system of lifetime registration for all convicted sex offenders has created a registry that is very large and that includes many individuals who do not necessarily pose a risk to the community. According to the CASOMB:
Under the current system, many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result, law enforcement cannot monitor higher risk offenders more intensively in the community due to sheer numbers now in the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the community lives of those – such as families – whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety.[1]
The consequences of these realities are that the registry has, in some ways, become counterproductive to improving public safety. When everyone is viewed as posing a significant risk, the ability for law enforcement and the community to differentiate between who is truly high risk and more likely to reoffend becomes impossible. There needs to be a way for all persons to distinguish between sex offenders who require increased monitoring, attention and resources and those who are unlikely to reoffend.
There are many unintended consequences and indirect costs associated with sex offender registration.
- Innocent families and children of offenders (including victims of intra-familial sexual abuse) also bear the consequences of lifetime registration since they can often be identified by the public. Adverse consequences also arise for employers, landlords, neighbors and others.
- There has been a proliferation of residence restrictions and exclusion zones for registered sex offenders in many jurisdictions in California. Violation of these can lead to criminal charges. The obstacles posed by registration status prevent many individuals from obtaining housing or employment and becoming functioning, contributing, tax-paying members of society.
- There is reason to believe that registration policies, especially lifetime registration, keep some victims, particularly family members of the offender, from disclosing the abuse because they wish to avoid the stigma that will impact their family and their own lives for a very long time.
The presence nearby of one or more registered sex offenders can drive down property values in a neighborhood and make houses difficult to sell. If the current registration system was effective in the ways intended, these consequences might be considered part of the price to pay for the greater good. But, since the current registry does not attain its intended purposes, many of these unintended consequences are without justification.
It should be noted that SB 384 (Weiner) Chapter 541, Statutes of 2017 was a massive legislative undertaking that will dramatically change California’s Sex Offender Registration when it becomes effective in 2021. One of the intended purposes of SB 384 was to distinguish between low and high risk offenders and reduce the total number of persons on the registry so that law enforcement could spend less time doing paperwork and more time monitoring those people who actually make our communities less safe. This bill would require additional low-level (misdemeanor) offenders to register, who are only tangentially related, if at all, to the much more serious crime of human trafficking. It therefore appears to be counterproductive to the aims of SB 384.
- Sex Offender Registration is Regulatory, Not Punitive: The intent of this bill seems focused on the horrors of human trafficking. According to the author, people engaging in prostitution with minors are enablers of human trafficking. The suggestion is that persons engaging in this kind of conduct deserve to register for 20 years and that mandatory sex offender registration is a just punishment for the crimes they commit. From a policy perspective, however, the purpose of the sex offender registry is regulatory. (See In re Alval (2004) 33 Cal. 4th 254, 279 (“the purpose and intent of registration are regulatory, as a means of assisting law enforcement in dealing with the serious problem of recidivist sex offenders.”) It is therefore inconsistent with legislative policy to impose sex offender registration as a means of punishment.
- Judges can Already order Sex Offender Registration for any Criminal Offense: Pursuant to Penal Code Section 290.006 a judge can order any defendant convicted of any offense to register as a sex offender. The judge need only find that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. This bill would establish a rigid scheme of mandatory registration and take away judicial discretion in misdemeanor cases. As a policy matter this is disfavored.
- “Knew or Should Have Known” is a Problematic Standard: This bill requires sex offender registration for a person convicted of engaging in an act of prostitution with a minor if that person “knew or reasonably should have known,” that the other was both a minor and a victim of human trafficking. The bill would cover persons who are targeting sex-trafficked minors intentionally, but would also ensnare persons who do not actually know that they are soliciting a sex-trafficked minor provided that they “should have known.”
What this means is that there are two distinct groups of people who would be required to register under this bill. The first group includes people with the specific, perverse intention to engage in prostitution with a sex-trafficked person under the age of 18. As of now, it is entirely unclear how many people are prowling about with that specific intent. No examples have been provided of a person roaming the streets inquiring as to where to find an underage, sex-trafficked person so he or she can pay to have sex with them. Therefore, the more likely situation in which this bill would require a person to register is when that person falls in to the second group, meaning he or she “should have known” the prostitute was both a minor and a victim of sex-trafficking.
While there are some exceptions, the “should have known” standard is unusual in criminal law because it equates to “ordinary negligence.” (See e.g. People v. Nicolas, (2017) 8 Cal. App. 5th 1165, 1174-75; People v. Young (1942) 20 Cal. 2d 832, 835-36.) Requiring 20 years of sex offender registration based as a result of ordinary negligence seems disproportionate.
Furthermore, the “should have known” standard is likely to cause problems of proof. Some of the questions it raises are: (1) How does a prosecutor prove that an offender “should have known” the minor is a victim of human trafficking? (2) Must the prosecutor prove that the perpetrator “should have known” beyond reasonable doubt, or is some lesser degree of proof to be used? (3) Does this bill require a prosecutor to plead and prove that the perpetrator’s victim is also a victim of another, separate individual who is a human trafficker? (4) Would the prosecutor have to show, beyond a reasonable doubt, that the second offender is guilty of human trafficking (beyond reasonable doubt), and that the minor was indeed his or her victim? (5) Must there be a contemporaneous prosecution of that trafficker? (6) Does a judge or a jury decide whether the perpetrator “should have known” that the person was trafficked? Without answers for these questions, as well as others, practicability of the “should have known” standard is hard to ascertain.
- Prostitution and Human Trafficking are not Always the Same Thing: A growing number of policy discussions are equating prostitution offenses with human trafficking offenses. There is no doubt that the crimes are related, however, they are not the same crime and sometimes one has nothing to do with the other. A number of proposals seek to treat all prostitution offenses more severely because of the grave threat and nature of human trafficking. Human trafficking is a very serious crime, involving forced servitude, with very serious penalties. Most prostitution offenses between a person who is soliciting a prostitute and the prostitute themselves are misdemeanor crimes. Additionally, pimps and panderers generally are treated more severely by the law, with much more serious consequences than the prostitute or the “john.” Unlike the crimes of pimping and pandering, human trafficking is a crime that generally involves some form of force or coercion.
California has existing strict laws for the treatment of pimps and panderers, as well as human traffickers. However, those crimes are not the same criminal offenses. Furthermore, not every person who solicits a prostitute is engaged in the crime of human trafficking. Blurring the lines between the less severe crimes related to prostitution, and the more severe crimes related to human trafficking, weakens the severity of human trafficking offenses. For instance, this committee has approved bills to add human trafficking to the list of serious and violent felonies. However, if we continue to expand the definition of human trafficking to include more minor, prostitution-related offenses the committee would have to re-evaluate in the future whether it would still consider human trafficking a serious or violent felony.
According to the Polaris Project, "Human trafficking is a form of modern-day slavery where people profit from the control and exploitation of others. As defined under U.S. federal law, victims of human trafficking include children involved in the sex trade, adults age 18 or over who are coerced or deceived into commercial sex acts, and anyone forced into different forms of 'labor or services,' such as domestic workers held in a home, or farm-workers forced to labor against their will. The factors that each of these situations have in common are elements of force, fraud, or coercion that are used to control people." (<http://www.polarisproject.org/human-trafficking/overview>.)
Pimping under California law means receiving compensation from the solicitation of a known prostitute. (Pen. Code, § 266h.) Whereas pandering means procuring another person for the purpose of prostitution by intentionally encouraging or persuading that person to become or continue being a prostitute. (Pen. Code, § 266i.) Oftentimes, pimps use mental, emotional, and physical abuse to keep their prostitutes generating money. Consequently, there has been a paradigm shift where pimping and pandering is now viewed as possible human trafficking.
This new approach has been criticized by some because it blurs the line between human trafficking and prostitution. Sex workers say it discounts their ability to willingly work in the sex industry. (See Nevada Movement Draws the Line on Human Trafficking by Tom Ragan, Las Vegas Review Journal, May 26, 2013, < http://www.reviewjournal.com/news/las-vegas/nevada-movement-draws-line-human-trafficking>.)
- Prostitution Generally: The basic crime of prostitution is a misdemeanor offense. (Pen. Code § 647(b).) Prostitution can be generally defined as "soliciting or agreeing to engage in a lewd act between persons for money or other consideration." Lewd acts include touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification of either person.
To implicate a person for prostitution themselves, the prosecutor must prove that the defendant "solicited" or "agreed" to "engage" in prostitution. A person agrees to engage in prostitution when the person accepts an offer to commit prostitution with specific intent to accept the offer, whether or not the offerer has the same intent.
For the crime of "soliciting a prostitute" the prosecutors must prove that the defendant requested that another person engage in an act of prostitution, and that the defendant intended to engage in an act of prostitution with the other person, and the other person received the communication containing the request. The defendant must do something more than just agree to engage in prostitution. The defendant must do some act in furtherance of the agreement to be convicted. Words alone may be sufficient to prove the act in furtherance of the agreement to commit prostitution
Violation of Pen. Code § 647(b) is a misdemeanor. There is a mandatory confinement term of three days if the defendant knew that he or she was soliciting minor, or if they were trying to solicit a minor and instead solicited someone posing as a minor. (Pen. Code, § 647 subd. (b)(5).) In addition, if the defendant did not actually know, but “should have known” that the prostitute was a minor, there is a mandatory two days confinement. (Pen. Code, § 647 subd. (m).) In addition the faces fines, probation, possible professional licensing restrictions or revocations, possible immigration consequences, possible asset forfeiture, and possible driving license restrictions.
Closely associated crimes to prostitution include: abduction of a minor for prostitution (Pen. Code § 267); seduction for prostitution (Pen. Code § 266); keeping a house of prostitution (Pen. Code § 315); leasing a house for prostitution (Pen. Code § 318); sending a minor to a house of prostitution (Pen. Code 273e); taking a person against that person's will for prostitution (Pen. Code § 266 (a)); compelling a person to live in an illicit relationship (Pen. Code § 266 (b)); placing or leaving one's wife in a house of prostitution (Pen. Code § 266 (g)); loitering for prostitution (Pen. Code § 653.22 subd. (a)); pimping ( Pen. Code § 266 (h)); or, pandering ( Pen. Code § 266 (i)). Most of these crimes are punished much more severely than the underlying prostitution offense, particularly the crimes of pimping, pandering, and procurement.
- Human Trafficking Generally: Human trafficking involves the recruitment, transportation or sale of people for forced labor. Through violence, threats and coercion, victims are forced to work in, among other things, the sex trade, domestic labor, factories, hotels and agriculture. According to the January 2005 United States Department of State's Human Smuggling and Trafficking Center report, "Fact Sheet: Distinctions Between Human Smuggling and Human Trafficking", there is an estimated 600,000 to 800,000 men, women and children trafficked across international borders each year. Of these, approximately 80% are women and girls and up to 50% are minors. A recent report by the Human Rights Center at the University of California, Berkeley cited 57 cases of forced labor in California between 1998 and 2003, with over 500 victims. The report, "Freedom Denied", notes most of the victims in California were from Thailand, Mexico, and Russia and had been forced to work as prostitutes, domestic slaves, farm laborers or sweatshop employees. [University of California, Berkeley Human Rights Center, "Freedom Denied: Forced Labor in California" (February, 2005).] According to that author:
"While the clandestine nature of human trafficking makes it enormously difficult to accurately track how many people are affected, the United States government estimates that about 17,000 to 20,000 women, men and children are trafficked into the United States each year, meaning there may be as many as 100,000 to 200,000 people in the United States working as modern slaves in homes, sweatshops, brothels, agricultural fields, construction projects and restaurants."
- Human Trafficking Generally: Human trafficking involves the recruitment, transportation or sale of people for forced labor. Through violence, threats and coercion, victims are forced to work in, among other things, the sex trade, domestic labor, factories, hotels and agriculture. According to the January 2005 United States Department of State's Human Smuggling and Trafficking Center report, "Fact Sheet: Distinctions Between Human Smuggling and Human Trafficking", there is an estimated 600,000 to 800,000 men, women and children trafficked across international borders each year. Of these, approximately 80% are women and girls and up to 50% are minors. A recent report by the Human Rights Center at the University of California, Berkeley cited 57 cases of forced labor in California between 1998 and 2003, with over 500 victims. The report, "Freedom Denied", notes most of the victims in California were from Thailand, Mexico, and Russia and had been forced to work as prostitutes, domestic slaves, farm laborers or sweatshop employees. [University of California, Berkeley Human Rights Center, "Freedom Denied: Forced Labor in California" (February, 2005).] According to that author:
In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. The proposition increased criminal penalties for human trafficking, including prison sentences up to 15-years-to-life and fines up to $1,500,000. Additionally, the proposition specified that the fines collected are to be used for victim services and law enforcement. Proposition 35 requires persons convicted of trafficking to register as sex offenders. Proposition 35 prohibits evidence that victim engaged in sexual conduct from being used against victims in court proceedings. Additionally, the proposition lowered the evidential requirements for showing of force in cases of minors:
- Trafficking Victims Protection Act of 2000 (22 USC Sections 7101 et seq.): In October 2000, the Trafficking Victims Protection Act of 2000 (TVPA) was enacted and is comprehensive, addressing the various ways of combating trafficking, including prevention, protection and prosecution. The prevention measures include the authorization of educational and public awareness programs. Protection and assistance for victims of trafficking include making housing, educational, health-care, job training and other federally funded social service programs available to assist victims in rebuilding their lives. Finally, the TVPA provides law enforcement with tools to strengthen the prosecution and punishment of traffickers, making human trafficking a federal crime.
- 2012 Update to Human Trafficking Laws: In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. Specifically, Proposition 35 increased criminal penalties for human trafficking offenses, including prison sentences up to 15-years-to-life and fines up to $1.5 million. The proposition specified that the fines collected are to be used for victim services and law enforcement. In criminal trials, the proposition prohibits the use of evidence that a person was involved in criminal sexual conduct (such as prostitution) to prosecute that person for that crime if the conduct was a result of being a victim of human trafficking, and makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim’s credibility or character in court. The proposition lowered the evidentiary requirements for showing of force in cases of minors.
Proposition 35 also requires persons convicted of human trafficking to register as sex offenders and expanded registration requirements by requiring registered sex offenders to provide the names of their internet providers and identifiers, such as e-mail addresses, user names, and screen names, to local police or sheriff’s departments. After passage of Proposition 35, plaintiffs American Civil Liberties Union and Electronic Frontier Foundation filed a law suit claiming that these provisions unconstitutionally restricts the First Amendment rights of registered sex offenders in the states. A United States District Court judge granted a preliminary injunction prohibiting the implementation or enforcement of Proposition 35's provisions that require registered sex offenders to provide certain information concerning their Internet use to law enforcement. (Doe v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013 LEXIS 5428.)
- Trafficking Victims Protection Act of 2000 (22 USC Sections 7101 et seq.): In October 2000, the Trafficking Victims Protection Act of 2000 (TVPA) was enacted and is comprehensive, addressing the various ways of combating trafficking, including prevention, protection and prosecution. The prevention measures include the authorization of educational and public awareness programs. Protection and assistance for victims of trafficking include making housing, educational, health-care, job training and other federally funded social service programs available to assist victims in rebuilding their lives. Finally, the TVPA provides law enforcement with tools to strengthen the prosecution and punishment of traffickers, making human trafficking a federal crime.
- Argument in Support: According to the California Statewide Law Enforcement Association, “According to the California Attorney General, human trafficking is the world’s fastest growing criminal enterprise and is an estimated $32 billion-a-year global industry. California’s law enforcement community has taken great steps to ensure the public’s safety, including the recent efforts to reduce human sex trafficking. AB 1738 builds on policies enacted by the legislature over the past several years requiring individuals who solicit or engage in an act of prostitution with a minor to register as a tier 2 offender. California’s laws pertaining to sex offenses, particularly those tied to human trafficking rings, are outdated and often silent on the severity of such cases. AB 1738 will provide our law enforcement officers the necessary data and tools they need regarding offenders within the communities they serve.”
- Argument in Opposition: According to the American Civil Liberties Union, “AB 1738 is unnecessary. Courts already have the discretion to order anyone who commits any offense to register as a sex offender under Penal Code section 290.006. AB 1738 will also make it more difficult to effectively manage people convicted of sex offenses who pose a real risk. California already requires a vast number of people to register as sex offenders.”
- Related Legislation: SB 757 (Glazer), of the 2017-2018 Legislative Session, would require a person convicted of prostitution with a minor to register unless the court finds that the defendant had reason to believe the victim was not a minor, was misled about the victim’s age, or was less than three years older than the victim at the time of the solicitation. SB 757 is pending referral from the Assembly Rules Committee.
- Prior Legislation:
- AB 1912 (Achadjian), of the 2015-2016 Legislative Session, would have required a person convicted of soliciting a minor, who the person knew or reasonably should have known, was both a minor and a victim of human trafficking to register as a sex offender for a period of five years after a first conviction, 10 years after a second conviction, and 20 years after a third or subsequent conviction. AB 1912 failed passage in the Assembly Public Safety Committee.
- AB 733 (Chavez), of the 2015-2016 Legislative Session, would have required sex offender registration for a person convicted of the offense of solicitation of a minor. AB 733 failed passage in the Assembly Public Safety Committee.
- SB 384 (Wiener) Chapter 541, Statutes of 2017, established a three-tiered sex offender registry, requiring the most serious sex offenders (tier 3) to register for life, requiring tier 2 sex offenders to register for 20 years, and requiring tier 1 sex offenders to register for 10 years.
- SB 303 (Morell), of the 2017-2018 Legislative Session, would have added an additional term to the sentence of a convicted human trafficker if it was pled and proved that the offense involved a victim who was under the age of 16. SB 303 died in the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Peace Officers Association
California Police Chiefs Association
California State Sheriffs’ Association
California Statewide Law Enforcement Association
Crime Victims United of California
Peace Officers Research Association of California
Riverside Sheriffs’ Association
Opposition
American Civil Liberties Union
California Public Defender’s Association
Analysis Prepared by:
Matthew Fleming / PUB. S. / (916) 319-3744
CASOMB’s Year End Report, 2014 at p. 12. Available at: <http://www.casomb.org/docs/CASOMB_End_of_Year_Report_to_Legislature_2014.pdf> [as of April 4, 2018]. ↑
Discussed in Hearing
7MIN
Assembly Standing Committee on Public Safety
Bill Author
Bill Co-Author(s):