Existing law provides that in specified civil actions brought by, on behalf of, or for the benefit of, senior citizens or disabled persons, as defined, the trier of fact must consider certain factors in determining the fine or penalty to be imposed. If the trier of fact makes an affirmative finding of any of these factors, existing law permits the imposition of a fine or penalty up to 3 times greater than authorized by statute, or, if the statute does not authorize a specific amount, up to 3 times greater than the amount the trier of fact would have imposed in the absence of that affirmative finding.

This bill would add similar provisions applicable to civil actions brought by, on behalf of, or for the benefit of, a minor or nonminor dependent, as defined, who is a victim of commercial sexual exploitation, as defined, against the person who committed the act and who is over 18 years of age, permitting imposition of a fine or penalty, payable to the victim, of up to 3 times greater than authorized by statute if specified findings are made by the trier of fact. The bill would also authorize a court, if no civil penalty is authorized by statute, to award a civil penalty not exceeding $50,000, and not less than $10,000, for each act of commercial sexual exploitation committed by the defendant upon making a specified affirmative finding, as specified.

Existing law provides that in specified civil actions brought by, on behalf of, or for the benefit of, senior citizens or disabled persons, as defined, the trier of fact must consider certain factors in determining the fine or penalty to be imposed. If the trier of fact makes an affirmative finding of any of these factors, existing law permits the imposition of a fine or penalty up to 3 times greater than authorized by statute, or, if the statute does not authorize a specific amount, up to 3 times greater than the amount the trier of fact would have imposed in the absence of that affirmative finding.

This bill would add similar provisions applicable to civil actions brought by, on behalf of, or for the benefit of, a minor or nonminor dependent, as defined, who is a victim of commercial sexual exploitation, as defined, against the person who committed the act and who is over 18 years of age, permitting imposition of a fine or penalty, payable to the victim, of up to 3 times greater than authorized by statute if specified findings are made by the trier of fact. The bill would also authorize a court, if no civil penalty is authorized by statute, to award a civil penalty not exceeding $50,000, and not less than $10,000, for each act of commercial sexual exploitation committed by the defendant upon making a specified affirmative finding, as specified.

Existing law provides that in specified civil actions brought by, on behalf of, or for the benefit of, senior citizens or disabled persons, as defined, the trier of fact must consider certain factors in determining the fine or penalty to be imposed. If the trier of fact makes an affirmative finding of any of these factors, existing law permits the imposition of a fine or penalty up to 3 times greater than authorized by statute, or, if the statute does not authorize a specific amount, up to 3 times greater than the amount the trier of fact would have imposed in the absence of that affirmative finding.

This bill would add similar provisions applicable to civil actions brought by, on behalf of, or for the benefit of, a minor or nonminor dependent, as defined, who is a victim of commercial sexual exploitation, as defined, committed by a person against the person who committed the act and who is over 18 years of age, permitting imposition of a fine or penalty, payable to the victim, of up to 3 times greater than authorized by statute if specified findings are made by the trier of fact. The bill would also authorize a court, if no civil penalty is authorized by statute, to award a civil penalty not exceeding $50,000, and not less than $10,000, for each act of commercial sexual exploitation committed by the defendant upon making a specified affirmative finding, as specified.

Existing law provides that in specified civil actions brought by, on behalf of, or for the benefit of, senior citizens or disabled persons, as defined, the trier of fact must consider certain factors in determining the fine or penalty to be imposed. If the trier of fact makes an affirmative finding of any of these factors, existing law permits the imposition of a fine or penalty up to 3 times greater than authorized by statute, or, if the statute does not authorize a specific amount, up to 3 times greater than the amount the trier of fact would have imposed in the absence of that affirmative finding.

This bill would add similar provisions applicable to civil actions brought by, on behalf of, or for the benefit of, a minor or nonminor dependent, as defined, who is a victim of commercial sexual exploitation, as defined, committed by a person who is over 18 years of age, permitting imposition of a fine or penalty of up to 3 times greater than authorized by statute if specified findings are made by the trier of fact. The bill would also authorize a court, if no civil penalty is authorized by statute, to award a civil penalty not exceeding $50,000, and not less than $10,000, for each act of commercial sexual exploitation committed by the defendant upon making a specified affirmative finding, as specified.

Existing law provides that in specified civil actions brought by, on behalf of, or for the benefit of, senior citizens or disabled persons, as defined, the trier of fact must consider certain factors in determining the fine or penalty to be imposed. If the trier of fact makes an affirmative finding of any of these factors, existing law permits the imposition of a fine or penalty up to 3 times greater than authorized by statute, or, if the statute does not authorize a specific amount, up to 3 times greater than the amount the trier of fact would have imposed in the absence of that affirmative finding.

This bill would add similar provisions applicable to civil actions brought by, on behalf of, or for the benefit of, minors a minor or nonminor dependent, as defined, who is a victim of commercial sexual exploitation, as defined, committed by a person who is over 18 years of age, permitting imposition of a fine or penalty of up to 3 times greater than authorized by statute if specified findings are made by the trier of fact. The bill would also specify that if the trier of fact finds that a minor is a victim of specified violations of the Penal Code relating to prostitution, pimping, or pandering, the trier of fact may impose a fine, civil penalty, or other penalty, or other remedy, in an amount up to 3 times greater than authorized by statute, or, if the statute does not authorize a specific amount, up to 3 times greater than the amount the trier of fact would impose in the absence of that affirmative finding. The bill would also authorize a court court, if no civil penalty is authorized by statute, to award a civil penalty not exceeding $50,000, and not less than $10,000, for each unlawful act under specified provisions of the Penal Code relating to prostitution, pimping, and pandering, for which a defendant is liable for fines, penalties, or other remedies, in an amount up to 3 times greater than the amount that the court would impose in the absence of an affirmative finding that a minor is a victim of the specified violations. of commercial sexual exploitation committed by the defendant upon making a specified affirmative finding, as specified.

Existing law provides that in specified civil actions brought by, on behalf of, or for the benefit of, senior citizens or disabled persons, as defined, the trier of fact must consider certain factors in determining the fine or penalty to be imposed. If the trier of fact makes an affirmative finding of any of these factors, existing law permits the imposition of a fine or penalty up to 3 times greater than authorized by statute, or, if the statute does not authorize a specific amount, up to 3 times greater than the amount the trier of fact would have imposed in the absence of that affirmative finding.

This bill would add similar provisions applicable to actions brought by, on behalf of, or for the benefit of, minors permitting imposition of a fine or penalty of up to 3 times greater than authorized by statute if specified findings are made by the trier of fact. The bill would also specify that if the trier of fact finds that a minor is a victim of specified violations of the Penal Code relating to prostitution, pimping, or pandering, the trier of fact may impose a fine, civil penalty, or other penalty, or other remedy, in an amount up to 3 times greater than authorized by statute, or, if the statute does not authorize a specific amount, up to 3 times greater than the amount the trier of fact would impose in the absence of that affirmative finding. The bill would also authorize a court to award a civil penalty not exceeding $50,000, and not less than $10,000, for each unlawful act under specified provisions of the Penal Code relating to prostitution, pimping, and pandering, for which a defendant is liable for fines, penalties, or other remedies, in an amount up to 3 times greater than the amount that the court would impose in the absence of an affirmative finding that a minor is a victim of the specified violations.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2105

Author:(Maienschein)

As Amended Ver:June 25, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Creates enhanced civil penalties, tripling any existing statutory civil penalty and providing an alternative $10,000 to $50,000 fine if no civil penalty is provided by statute, for acts that constitute "commercial sexual exploitation" of a minor or nonminor dependent. Specifically, this bill:

1. Clarifies that it only applies in civil actions brought by, on behalf of, or for the benefit of victims of commercial sexual exploitation who are minors or nonminor dependents against persons who engage in any act of commercial sexual exploitation of a minor or nonminor dependent.
2. Clarifies that for purposes of the bill, the status of the victim as a minor or nonminor dependent, and the age of the defendant is determined at the time of the defendant's act of commercial sexual exploitation of the victim.
3. Provides that in a civil action brought by, on behalf of, or for the benefit of a minor or nonminor dependent, whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact's discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty, or other penalty, or other remedy to impose:
4. Whether the defendant's conduct was directed to more than one minor or nonminor dependent;
5. Whether one or more minors or nonminor dependents suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct.
6. Whether the defendant knew or reasonably should have known that the victim was a minor or nonminor dependent. It shall not be a defense to imposition of fines, penalties, or other remedies pursuant to this paragraph that the defendant was unaware of the victim's age or status as a nonminor dependent at the time of the act.
7. Provides that if the trier of fact is not authorized by statute to impose a civil penalty in an action described in subdivision (b), the court may award a civil penalty not exceeding fifty thousand dollars ($50,000), and not less than ten thousand dollars ($10,000), for each act of commercial sexual exploitation committed by the defendant upon making an affirmative finding in regard to one or more of the factors set forth in paragraphs (1) to (3), inclusive, of subdivision (b). This penalty may be imposed in addition to any other remedy available in law or in equity.
8. Provides that any penalty imposed pursuant to this section shall be paid to the victim of the act of sexual exploitation.
9. Clarifies that it shall not be a defense to the imposition of fines or penalties pursuant to this section that the victim consented to the act of commercial sexual exploitation.
10. Provides that if the victim is under 18 years of age, the court, in its discretion, may order that any penalty imposed pursuant to this section be held in trust for the victim and used exclusively for the benefit and well-being of the victim. When the victim reaches 18 years of age or is emancipated, the trust shall expire and any unspent remainder shall be the sole property of the victim.
11. Provides that if the trier of fact makes an affirmative finding in regard to one or more of the factors set forth in 3), above, it may impose a fine, civil penalty, or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, if the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding.
12. Provides that in the event that no civil penalty is authorized by the statute, the finder of fact may award a civil penalty not exceeding fifty thousand dollars ($50,000), and not less than ten thousand dollars ($10,000), for each act of commercial sexual exploitation committed by the defendant upon making an affirmative finding in regard to one or more of the factors set forth in 3), above, and allows the penalty to be imposed in addition to any other remedy available in law or in equity.
13. Clarifies that it is not a defense to the imposition of fines or penalties pursuant to this section that the victim consented to the act of commercial sexual exploitation.
14. Defines the following terms to have the following meanings:
    1. "Commercial sexual exploitation" is an act committed for the purpose of obtaining property or money, or anything else of value in exchange for, or as a result of, a sexual act of a minor or nonminor dependent, including but not limited to an act that would constitute a violation of one of the following:
    2. Sex trafficking of a minor in violation of Penal Code section 236.1(c).
    3. Pimping of a minor in violation of Penal Code Section 266(h).
    4. Pandering of a minor in violation of Penal Code Section 266(i) subdivision (b).
    5. Procurement of a child under the age of 16 for lewd and lascivious acts in violation of Penal Code Section 266(j).
    6. Solicitation of a child for a purpose that is either in violation of Penal Code section 647(b), paragraph (3), subparagraph (A).
    7. An act described in Penal Code Section 11165.1(d) or subdivision (c).
    8. "Nonminor dependent" has the same meaning as in Welfare and Institutions Code Section 11400(v).

The Senate amendments:

1. Require that any penalty imposed pursuant to this section shall be paid to the victim of the act of sexual exploitation.
2. Provide that if the victim is under 18 years of age, the court, in its discretion, may order that any penalty imposed pursuant to this section be held in trust for the victim and used exclusively for the benefit and well-being of the victim. When the victim reaches 18 years of age or is emancipated, the trust shall expire and any unspent remainder shall be the sole property of the victim.
3. Make other minor technical and conforming changes.

FISCAL EFFECT: None

COMMENTS: According to the author, the enhanced civil penalty authorized by this bill is intended to "target child sex purchasers, persons who traffic in children and others (e.g., motel operators, on-line listings) that cause harm to this vulnerable population. This population is equally (and in some cases more so) deserving of the protections already afforded to senior citizens and the disabled." The author describes the need for the bill as follows:

The average age of entry for girls into prostitution or pornography is 12 to 14 years; for boys in California, the average age drops to 11 to 13 years old. These are not children who are passing as adults.. . .In San Diego alone, sex trafficking is estimated to be $810 million a year industry and we can see that criminal sanctions are not enough to stop these immoral businesses.

This Bill is Modeled on an Existing Statute That Authorizes Enhanced Penalties in Civil Actions for Defrauding Seniors. Existing law allows, in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons to redress unfair or deceptive acts or practices or unfair methods of competition, the tripling of a fine or civil penalty awarded to the plaintiff when the trier or fact determines that certain facts are present. Specifically, the finder of fact may triple the statutory fine in the event that it finds any of the following are present: (1) The defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons; (2) The defendant's conduct caused one or more senior citizens or disabled persons to suffer specific losses, including the loss or encumbrance of a primary residence, principal employment, or source of income; and (3) One or more senior citizens or disabled persons are substantially more vulnerable than other members of the public because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct.

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0003666

 CONSENT  

Bill No: AB 2105

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/19/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 70-0, 4/5/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: Children’s Advocacy Institute

Office of the San Diego County District Attorney

DIGEST:

This bill allows for a recovery of up to three times the amount of an award in a civil action brought by, or on behalf of, or for the benefit of, a person who is a minor or nonminor dependent and is a victim of commercial sexual exploitation, “whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter,” if that trier of fact finds any specified factors exist. It further authorizes a court to award a civil penalty of $10,000 to $50,000 where the trier of fact is not authorized by statute to impose a civil penalty.

ANALYSIS:

Existing law:

1. Provides, through the California Constitution, that in order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to certain enumerated rights, including the right to restitution. It further provides that it is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss. All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim. (Cal. Const., Art. I, Sec. 28.)
2. Provides that in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. (Pen. Code Sec. 1202.4.)
3. Provides that every person who suffers detriment from the unlawful act or omission of another, may recover from the person at fault a compensation therefor in money, which is called damages. (Civ. Code Sec. 3281.)
4. Provides that violation of a criminal statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the criminal statute. Any injured member of the public for whose benefit the statute is enacted may bring an action. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1224.)
5. Provides that every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights. (Civ. Code Sec. 1708.)
6. Provides that in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Civ. Code Sec. 3294.)
7. Provides that a person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 of the Penal Code is guilty of human trafficking. A violation of this subdivision is punishable by imprisonment in the state prison as specified, in addition to a fine of not more than $500,000. (Pen. Code Sec. 236.1(c).)
8. Provides that a victim of human trafficking, as defined in Section 236.1 of the Penal Code, may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. A prevailing plaintiff may also be awarded attorney’s fees and costs. In such an action, in addition to the remedies specified, the plaintiff may be awarded up to three times his or her actual damages or $10,000, whichever is greater. In addition, punitive damages may be awarded upon proof of the defendant’s malice, oppression, fraud, or duress in committing the act of human trafficking. Restitution paid by the defendant to the victim shall be credited against a judgment, award, or settlement obtained pursuant to such an action. (Civ. Code Sec. 52.5.)
9. Provides that any person who engages in an act of unlawful sexual intercourse with a minor is guilty of a misdemeanor or felony, depending on the ages of the perpetrator and the minor, and allows the district attorney to bring an action to recover civil penalties. It provides an elevating series of civil penalties for an adult who engages in an act of sexual intercourse with a minor. (Penal Code Section 261.5.)
10. Provides the conduct which meets the definition of “sexual exploitation.” (Pen. Code Sec. 11165.1(c).)
11. Defines “commercial sexual exploitation” to mean the sexual trafficking of a child, as described in subdivision (c) of Section 236.1; or, the provision of food, shelter, or payment to a child in exchange for the performance of any sexual act described in this section or subdivision (c) of Section 236.1. (Pen. Code Sec. 11165.1(d).)
12. Provides that in actions brought by, on behalf of, or for the benefit of, senior citizens or disabled persons, as defined, to redress unfair or deceptive acts or practices or unfair methods of competition, whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. Whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:

• whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons;
• whether the defendant’s conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person; and
• whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant’s conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct. (Civ. Code Sec. 3345.)

This bill:

1. Alters awards in a civil action brought by, or on behalf of, or for the benefit of, a person who is a minor or nonminor dependent and is a victim of commercial sexual exploitation committed by a defendant who is over 18 years of age. It provides that in such actions, whenever a trier of fact is authorized by a statute, other than the statutory penalty provided by this bill, to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty, or other penalty, or other remedy to impose. If the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty, or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, if the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:

• whether the defendant’s conduct was directed to more than one minor or nonminor dependent;
• whether one or more minors or nonminor dependents suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct;
• whether the defendant knew or reasonably should have known that the victim was a minor or nonminor dependent. It shall not be a defense to imposition of fines, penalties, or other remedies pursuant to this factor that the defendant was unaware of the victim’s age or status as a nonminor dependent at the time of the act.

1. Provides that if the trier of fact is not authorized by statute to impose a civil penalty in one of these actions, the court may award a civil penalty not exceeding $50,000, and not less than $10,000, for each act of commercial sexual exploitation committed by the defendant upon making an affirmative finding in regard to one or more of the factors above. This penalty is authorized to be imposed in addition to any other remedy available in law or in equity.
2. Provides that it shall not be a defense to the imposition of fines or penalties pursuant to its provisions that the victim consented to the act of commercial sexual exploitation. In addition, the age of the victim, the status of the victim as a minor or nonminor dependent, and the age of the defendant are determined at the time of the defendant’s act of commercial sexual exploitation of the victim.
3. Defines “commercial sexual exploitation” to mean an act committed for the purpose of obtaining property or money, or anything else of value in exchange for, or as a result of, a sexual act of a minor or nonminor dependent, including, but not limited to, an act that would constitute a violation of any of the following:

• sex trafficking of a minor in violation of subdivision (c) of Section 236.1 of the Penal Code;
• pimping of a minor in violation of Section 266h of the Penal Code;
• pandering of a minor in violation of subdivision (b) of Section 266i of the Penal Code;
• procurement of a child under the age of 16 for lewd and lascivious acts in violation of Section 266j of the Penal Code;
• solicitation of a child for a purpose that is either in violation of subparagraph (A) or pursuant to paragraph (3) of subdivision (b) of Section 647 of the Penal Code; or
• an act of sexual exploitation described in subdivision (c) or (d) of Section 11165.1 of the Penal Code.

1. Defines “nonminor dependent” as having the same meaning as in subdivision (v) of Section 11400 of the Welfare and Institutions Code.
2. Provides that any penalty imposed pursuant to it shall be paid to the victim of the act of sexual exploitation. If the victim is under 18 years of age, the court, in its discretion, is authorized to order that any penalty imposed pursuant to this section be held in trust for the victim and used exclusively for the benefit and well-being of the victim. When the victim reaches 18 years of age or is emancipated, the trust shall expire and any unspent remainder shall be the sole property of the victim.

Background

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

This bill provides for enhanced civil penalties in actions brought by, or on behalf of, or for the benefit of, minor or nonminor dependent victims of commercial sexual exploitation.

Comments

The author states:

The average age of entry for girls into prostitution or pornography is 12 to 14 years; for boys in California, the average age drops to 11 to 13 years old. These are not children who are passing as adults.

This bill would add a penalty provision (proposed Civil Code section 3345.1) which would allow for tripled damages in the event someone is sued for conduct that was direct[ed] towards minors. It would also allow for an alternate damage award ($10K - $50K per act) when civil damages are not easily quantifiable.

This provision was written in to specifically target child sex purchasers, persons who traffic in children and others (e.g., motel operators, on-line listings) that cause harm to this vulnerable population. This population is equally (and in some cases more so) deserving of the protections already afforded to senior citizens and the disabled.

Increasing the penalties for commercial sexual exploitation of children

This bill allows for a recovery of up to three times the amount of an award in a civil action brought by, or on behalf of, or for the benefit of, a person who is a minor or nonminor dependent and is a victim of commercial sexual exploitation, against a person who engaged in such an act, “whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter,” if that trier of fact finds any specified factors exist.

This language is drawn from existing Civil Code Section 3345, which was enacted to provide enhanced remedies for acts against senior citizens and disabled persons. It provides for the same trebling of damages, based, obviously, on different factors.

The State has a strong public policy to punish and deter commercial sexual exploitation of minors. In fact, a person guilty of human trafficking with a minor is subject to imprisonment of up to 15 years, in addition to a fine of up to $500,000. (Pen. Code Sec. 236.1(c).) In addition, existing law provides a victim of human trafficking with a right to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. (Civ. Code Sec. 52.5.) A prevailing plaintiff may be awarded attorney’s fees and costs, and up to three times his or her actual damages or $10,000, whichever is greater. In addition, punitive damages may be awarded upon proof of the defendant’s malice, oppression, fraud, or duress in committing the act of human trafficking. Elsewhere, the Penal Code provides that any person who engages in an act of unlawful sexual intercourse with a minor is guilty of a misdemeanor or felony, and allows the district attorney to bring an action to recover civil penalties of up to $25,000. (Pen. Code Sec. 261.5.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/27/18)

Children’s Advocacy Institute (co-source)

Office of the San Diego County District Attorney (co-source)

Bilateral Safety Corridor Coalition

California District Attorneys Association

County of San Diego

CSA San Diego County

End Violence Against Women International

Hidden Treasures Foundation

Lynch Foundation for Children

National Association for Missing and Exploited Children

Saved in America

World Without Exploitation

OPPOSITION: (Verified 6/27/18)

None received

ARGUMENTS IN SUPPORT: Writing in support, the National Association for Missing and Exploited Children states that this bill “is necessary to deter child sex purchasers and to provide a source of funds for the rehabilitation of victims of commercial sexual exploitation.” The Lynch Foundation for Children writes in support that this bill “is an important step in ensuring that our children are protected from becoming victims of sex trafficking.”

ASSEMBLY FLOOR: 70-0, 4/5/18

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Rendon

NO VOTE RECORDED: Travis Allen, Cristina Garcia, Gonzalez Fletcher, Mullin, O'Donnell, Steinorth, Wood

Prepared by: Christian Kurpiewski / JUD. / (916) 651-4113

6/27/18 14:54:37

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2105 (Author:Maienschein)

Version: March 21, 2018

Hearing Date: June 19, 2018

Fiscal: No

Urgency: No

Consultant: CK

SUBJECT

Punitive damages: minors

DESCRIPTION

This bill would allow for a recovery of up to three times the amount of an award in a civil action brought by, or on behalf of, or for the benefit of, a person who is a minor or nonminor dependent and is a victim of commercial sexual exploitation, “whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter,” if that trier of fact finds any specified factors exist. It would further authorize a court to award a civil penalty of $10,000 to $50,000 where the trier of fact is not authorized by statute to impose a civil penalty.

BACKGROUND

Human trafficking is the world’s fastest growing criminal enterprise, bringing in annual profits in the tens of billions of dollars. Human trafficking is generally defined as the use of force, coercion, or fraud to obtain coerced labor or personal services. Existing law provides that any person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services is guilty of the crime of human trafficking.

A recent report by the National Institute of Justice found that approximately 20 million people are victims of some form of human trafficking worldwide. The U.S. State Department estimates that 14,500 - 17,500 people are trafficked into the United States annually. However, estimates indicate that there are hundreds of thousands of victims in the United States. Over 80 percent of reported trafficking cases are sex trafficking, rather than labor or other forms. The data shows that sex trafficking can and does take place in every community, no matter the cultural makeup, the affluence, or the location of a community.

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

This bill would provide for enhanced civil penalties in actions brought by, or on behalf of, or for the benefit of, minor or nonminor dependent victims of commercial sexual exploitation.

CHANGES TO EXISTING LAW

Existing law, the California Constitution, provides that in order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to certain enumerated rights, including the right to restitution. It further provides that it is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss. All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim. (Cal. Const, art. I, Sec. 28.)

Existing law provides that in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. (Pen. Code Sec. 1202.4.)

Existing law provides that every person who suffers detriment from the unlawful act or omission of another, may recover from the person at fault a compensation therefor in money, which is called damages. (Civ. Code Sec. 3281.)

Existing case law provides that violation of a criminal statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the criminal statute. Any injured member of the public for whose benefit the statute is enacted may bring an action. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1224.)

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

Existing law provides that in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Civ. Code Sec. 3294.)

Existing law provides that a person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 of the Penal Code is guilty of human trafficking. A violation of this subdivision is punishable by imprisonment in the state prison as specified, in addition to a fine of not more than five hundred thousand dollars ($500,000). (Pen. Code Sec. 236.1(c).)

Existing law provides that a victim of human trafficking, as defined in Section 236.1 of the Penal Code, may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. A prevailing plaintiff may also be awarded attorney’s fees and costs. In such an action, in addition to the remedies specified, the plaintiff may be awarded up to three times his or her actual damages or ten thousand dollars ($10,000), whichever is greater. In addition, punitive damages may be awarded upon proof of the defendant’s malice, oppression, fraud, or duress in committing the act of human trafficking. Restitution paid by the defendant to the victim shall be credited against a judgment, award, or settlement obtained pursuant to such an action. (Civ. Code Sec. 52.5.)

Existing law provides that any person who engages in an act of unlawful sexual intercourse with a minor is guilty of a misdemeanor or felony, depending on the ages of the perpetrator and the minor, and allows the district attorney to bring an action to recover civil penalties. It provides an elevating series of civil penalties for an adult who engages in an act of sexual intercourse with a minor. (Penal Code Section 261.5.)

Existing law defines “sexual exploitation” to mean any of the following:

• conduct involving matter depicting a minor engaged in obscene acts, as specified;
• a person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or coerces a child, or a person responsible for a child’s welfare, as defined, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct;
• a person who depicts a child in, or who knowingly develops, duplicates, prints, downloads, streams, accesses through any electronic or digital media, or exchanges, a film, photograph, videotape, video recording, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except as provided. (Pen. Code Sec. 11165.1(c).)

Existing law defines “commercial sexual exploitation” to mean the sexual trafficking of a child, as described in subdivision (c) of Section 236.1; or, the provision of food, shelter, or payment to a child in exchange for the performance of any sexual act described in this section or subdivision (c) of Section 236.1. (Pen. Code Sec. 11165.1(d).)

Existing law provides that in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons, as defined, to redress unfair or deceptive acts or practices or unfair methods of competition, whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. Whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:

• whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons;
• whether the defendant’s conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person; and
• whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant’s conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct. (Civ. Code Sec. 3345.)

This bill would alter awards in a civil action brought by, or on behalf of, or for the benefit of, a person who is a minor or nonminor dependent and is a victim of commercial sexual exploitation committed by a person who is over 18 years of age. It would provide that in such actions, whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty, or other penalty, or other remedy to impose. If the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty, or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, if the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:

• whether the defendant’s conduct was directed to more than one minor or nonminor dependent;
• whether one or more minors or nonminor dependents suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct;
• whether the defendant knew or reasonably should have known that the victim was a minor or nonminor dependent. It shall not be a defense to imposition of fines, penalties, or other remedies pursuant to this factor that the defendant was unaware of the victim’s age or status as a nonminor dependent at the time of the act.

This bill would provide that if the trier of fact is not authorized by statute to impose a civil penalty, the court may award a civil penalty not exceeding $50,000, and not less than $10,000, for each act of commercial sexual exploitation committed by the defendant upon making an affirmative finding in regard to one or more of the factors above. This penalty would be authorized to be imposed in addition to any other remedy available in law or in equity.

This bill would provide that it shall not be a defense to the imposition of fines or penalties pursuant to its provisions that the victim consented to the act of commercial sexual exploitation. In addition, the age of the victim, the status of the victim as a minor or nonminor dependent, and the age of the defendant are determined at the time of the defendant’s act of commercial sexual exploitation of the victim.

This bill would define “commercial sexual exploitation” to mean an act committed for the purpose of obtaining property or money, or anything else of value in exchange for, or as a result of, a sexual act of a minor or nonminor dependent, including, but not limited to, an act that would constitute a violation of any of the following:

• sex trafficking of a minor in violation of subdivision (c) of Section 236.1 of the Penal Code;
• pimping of a minor in violation of Section 266h of the Penal Code;
• pandering of a minor in violation of subdivision (b) of Section 266i of the Penal Code;
• procurement of a child under the age of 16 for lewd and lascivious acts in violation of Section 266j of the Penal Code;
• solicitation of a child for a purpose that is either in violation of subparagraph (A) or pursuant to paragraph (3) of subdivision (b) of Section 647 of the Penal Code; or
• an act of sexual exploitation described in subdivision (c) or (d) of Section 11165.1 of the Penal Code.

This bill would define “nonminor dependent” as having the same meaning as in subdivision (v) of Section 11400 of the Welfare and Institutions Code.

COMMENT

1. Stated need for the bill

According to the author:

The average age of entry for girls into prostitution or pornography is 12 to 14 years; for boys in California, the average age drops to 11 to 13 years old. These are not children who are passing as adults.

And while we recently enacted legislation that will no longer treat these children as criminals that alone won’t stop more children from being victimized.

In San Diego alone, sex trafficking is estimated to be $810 million a year industry and we can see that criminal sanctions are not enough to stop these immoral businesses.

This bill would add a penalty provision (proposed Civil Code section 3345.1) which would allow for tripled damages in the event someone is sued for conduct that was direct[ed] towards minors. It would also allow for an alternate damage award ($10K - $50K per act) when civil damages are not easily quantifiable.

This provision was written in to specifically target child sex purchasers, persons who traffic in children and others (e.g., motel operators, on-line listings) that cause harm to this vulnerable population. This population is equally (and in some cases more so) deserving of the protections already afforded to senior citizens and the disabled.

2. Dramatically increasing the penalties available in cases involving commercial sexual

exploitation of children

This bill would allow for a recovery of up to three times the amount of an award in a civil action brought by, or on behalf of, or for the benefit of, a person who is a minor or nonminor dependent and is a victim of commercial sexual exploitation, “whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter,” if that trier of fact finds any specified factors exist.

This language is drawn from existing Civil Code Section 3345, which was enacted to provide enhanced remedies for acts against senior citizens and disabled persons. It provides for the same trebling of damages, based, obviously, on different factors.

The State has a strong public policy to punish and deter commercial sexual exploitation of minors. In fact, a person guilty of human trafficking with a minor is subject to imprisonment of up to 15 years, in addition to a fine of up to $500,000. (Pen. Code Sec. 236.1(c).) In addition, existing law provides a victim of human trafficking with a right to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. (Civ. Code Sec. 52.5.) A prevailing plaintiff may be awarded attorney’s fees and costs, and up to three times his or her actual damages or ten thousand dollars ($10,000), whichever is greater. In addition, punitive damages may be awarded upon proof of the defendant’s malice, oppression, fraud, or duress in committing the act of human trafficking. Elsewhere, the Penal Code provides that any person who engages in an act of unlawful sexual intercourse with a minor is guilty of a misdemeanor or felony, and allows the district attorney to bring an action to recover civil penalties of up to $25,000. (Pen. Code Sec. 261.5.)

Therefore, there already exist strong penalty structures against human traffickers. This bill would dramatically increase civil penalties when any of the factors are found to exist. In addition, where “the trier of fact is not authorized by statute to impose a civil penalty,” this bill would authorize the court to award a civil penalty in an amount of $10,000 to $50,000 for each act of commercial sexual exploitation where one of the factors is affirmatively found to exist. This would only apply where no other civil penalty was available; however, it could be tacked on to any restitution or compensatory damages awards. This “alternative penalty” would be at the discretion of the court.

Given this potential, exponential increase of awards, there may be some concern regarding excessive penalty awards. Code of Civil Procedure Section 657 provides that a verdict may be vacated and any other decision may be modified or vacated, and a new or further trial granted, on the application of the relevant party, for the award of excessive or inadequate damages. This would function as a partial check on any awards granted pursuant to this bill, but would not necessarily curb excessive judgements. One issue that could bring about particularly excessive and unwarranted damages is if the “alternative penalty” provided for in subdivision (c) of the bill is trebled pursuant to subdivision (b) of the bill. The “alternative penalty” provides penalties when not otherwise available and already provides a wide range within which to exercise discretion. Therefore, it is arguably inappropriate to allow such an award to then be trebled. To address this issue, the following amendment is suggested:

Committee Amendment:

On page 2, in line 13, strike out “statute” and insert: “statute, other than subdivision (c),”

3. Clarity in operation

Public policy is arguably well-served by increasing civil penalties that narrowly focus on particularly egregious conduct and that serve to benefit the victims of commercial sexual exploitation. However, the language of the bill may need additional clarity to ensure these increased penalties do just that.

First, although subdivision (a) of proposed Section 3345.1 requires the plaintiff in these actions to be a victim of commercial sexual exploitation, the category of defendant is not narrowly circumscribed and subdivision (b) leaves room for the increased penalties to apply in cases where the defendant was not responsible for that commercial sexual exploitation. Arguably, the case is less strong to so substantially punish such a widespread class of persons where the culpability is not commensurate with actually engaging in commercial sexual exploitation. To address this concern and to carefully target these provisions so that they would only apply to those engaging in the exploitation, such as the traffickers and the buyers, the following Committee amendment is suggested:

Committee Amendments:

On page 2, in line 12, after “dependent,” insert: “against a person who engaged in any act of commercial sexual exploitation of a minor or nonminor dependent,”

On page 3, in line11, strike out “penalty” and insert: “penalty in an action described in subdivision (b),

Second, given the language that allows the trebling of penalties in a civil action “brought . . . for the benefit of” a victim, actions brought by, for example, district attorneys for civil penalties may also be trebled and those awards would not necessarily go to the victims of these crimes. (See Pen. Code Sec. 261.5 [provides a cause of action for district attorneys to collect civil penalties that would be deposited in a State Treasury Fund].) There may be concern that these enhanced penalties would not actually benefit victims and that certain entities would have a financial incentive to bring their own actions and collect the penalties. Arguably it undercuts the justification for the bill when claims brought “for the benefit of” victims would not actually benefit the specific victims of those crimes. To address this concern, the following amendment is suggested:

Committee Amendment:

On page 3, between lines 17 and 18, insert: “(d) Any penalty imposed pursuant to this section shall be paid to the victim of the act of sexual exploitation.”

Furthermore, given the potentially massive awards that would result from the enhancements pursuant to this bill, the following Committee amendment is suggested:

Committee Amendment:

Insert the following provision: “If the victim is under 18 years of age, the court, in its discretion, may order that any penalty imposed pursuant to this section be held in trust for the victim and used exclusively for the benefit and well-being of the victim. When the victim reaches 18 years of age or is emancipated, the trust shall expire and any unspent remainder shall be the sole property of the victim.”

Finally, the exact meaning of the language “or any other remedy the purpose or effect of which is to punish or deter” is not completely clear from its face. In fact, the scope of this language, as used in existing Section 3345, has been litigated all the way to the California Supreme Court. (Clark v. Superior Court (2010) 50 Cal.4th 605.) The Supreme Court applied a canon of statutory construction to interpret this “deter” language:

Pertinent here is this canon of statutory construction: “[W]hen a particular class of things modifies general words, those general words are construed as applying only to things of the same nature or class as those enumerated.” (People v. Arias (2008) 45 Cal.4th 169, 180.) The canon “presumes that if the Legislature intends a general word to be used in its unrestricted sense, it does not also offer as examples peculiar things or classes of things since those descriptions then would be surplusage.” (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141.) This simply means that if a statute contains a list of specified items followed by more general words, the general words are limited to those items that are similar to those specifically listed.

Application of that canon of statutory construction here supports defendant insurers’ argument that the statutory phrase “or any other remedy the purpose or effect of which is to punish or deter,” which appears in the trebled recovery provision in question (Civ. Code, § 3345, subd. (b)), means a remedy that is in the nature of a penalty. To conclude otherwise, as the Court of Appeal did here, would turn into meaningless surplusage the phrase immediately preceding the statute’s “deter” language, which expressly refers to a “fine, or a civil penalty or other penalty.” All remedies have some incidental deterrent effect. Here, the trebled recovery provision comes into play when the governing statutory remedy has “the purpose or effect” of punishing or deterring. (Civ. Code, § 3345, subd. (b), italics added.) Had the Legislature intended any statutory remedy to be subject to section 3345’s trebling provision, it would have used simply the word “remedy” without any qualifying language.

For the reasons given above, we conclude that trebled recovery may be awarded under Civil Code section 3345, subdivision (b) only if the statute under which recovery is sought permits a remedy that is in the nature of a penalty.

(Id. at 613-614.) The court went on to find that “because Civil Code section 3345 authorizes the trebling of a remedy only when it is in the nature of a penalty, and because restitution under the unfair competition law is not a penalty, an award of restitution under the unfair competition law . . . is not subject to section 3345’s trebling provision.” (Id. at 609.)

That holding would likely control the interpretation and application of the language in this bill and provide that remedies that are not punitive would “not fall within the trebled recovery provision.” (Id. at 614-615.)

4. Support

The University of San Diego Children’s Advocacy Institute, a co-sponsor of this bill, states:

With human trafficking estimated to be a $150 billion global industry and the fastest growing criminal enterprise in the world, and where California has the highest number of human trafficking incidents reported by the National Human Trafficking Hotline, it is appropriate to specifically identify this kind of grotesque and violent victimization as enjoying specifically articulated protections similar to those specifically afforded the disabled and seniors when they are unlawfully denied their money or property.

Trafficked children deserve legal protections comparable to those we generally offer seniors and the disabled.

Writing in support, the National Association for Missing and Exploited Children states that this bill “is necessary to deter child sex purchasers and to provide a source of funds for the rehabilitation of victims of commercial sexual exploitation.” The Lynch Foundation for Children writes in support that this bill “is an important step in ensuring that our children are protected from becoming victims of sex trafficking.”

Support: Bilateral Safety Corridor Coalition; California District Attorneys Association; County of San Diego; CSA San Diego County; End Violence Against Women International; Hidden Treasures Foundation; Lynch Foundation for Children; National Association For Missing and Exploited Children; Saved in America; World Without Exploitation

Opposition: None Known

HISTORY

Source: Children’s Advocacy Institute; Office of the San Diego County District Attorney

Related Pending Legislation:

SB 970 (Atkins, 2018) would amend the Fair Employment and Housing Act to require hotel, motel, and bed and breakfast inn employers to provide at least 20 minutes of training and education regarding human trafficking awareness to their employees who are likely to interact or come into contact with victims of human trafficking, as defined. If an employer violates these requirements, this bill would require the Department of Fair Employment and Housing to issue an order requiring compliance. This bill is currently in the Assembly Labor and Employment Committee.

SB 1104 (Roth, 2018) would require school districts to identify the most appropriate methods of informing parents and guardians of pupils of human trafficking prevention resources. This bill is currently in the Assembly Education Committee.

AB 1861 (Rodriguez, 2018) would amend the human trafficking education program in schools to include information on how social media and mobile device applications are used for human trafficking. This bill is currently in the Senate Appropriations Committee.

AB 2034 (Kalra, 2018) would require a business or other establishment that operates a bus station or intercity passenger rail or light rail stations, on or before January 1, 2020, to train its new and existing employees who are likely to interact with, or to come into contact with, a victim of human trafficking or who are likely to receive a report from another employee about suspected human trafficking, in recognizing the signs of human trafficking and how to report those signs to the appropriate law enforcement agency. This bill is currently in the Senate Judiciary Committee.

AB 2732 (Gonzalez Fletcher, 2018) would make it unlawful for an employer to knowingly destroy, conceal, remove, confiscate, or possess any actual or purported passport or other immigration document, or any other actual or purported government identification document of another person in the course of committing, or with the intent to commit, various crimes, including human trafficking. This bill is currently in the Senate Labor and Industrial Relations Committee.

AB 2992 (Daly, 2018) would require the Commission on Peace Officer Standards and Training to develop a course on commercially sexually exploited children and victims of human trafficking. This bill is currently in the Senate Public Safety Committee.

Prior Legislation:

AB 1495 (Maienschien, 2017) would have created a cause of action for child victims of sexual exploitation that provides for civil penalties of anywhere from $10,000 and $50,000 per unlawful act; damages, including medical and counseling expenses; injunctive relief; restitution and disgorgement; and reasonable attorneys’ fees and costs. This bill was held in the Senate Appropriations Committee.

SB 597 (Leyva, Ch. 570, Stats. 2017) allowed victims of human trafficking to participate in the Secretary of State’s Safe at Home program.

AB 1227 (Bonta, Ch. 558, Stats. 2017) required human trafficking prevention education in schools.

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

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

Prior Vote:

Assembly Floor (Ayes 70, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

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

Date of Hearing: March 20, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2105

Author:(Maienschein) – As Amended Ver:March 15, 2018

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: ENHANCED CIVIL PENALTIES: COMMERCIAL SEXUAL EXPLOITATION OF MINORS AND NONMINOR DEPENDENTS

KEY ISSUE: SHOULD STATE LAW AUTHORIZE ENHANCED CIVIL PENALTIES, TO EITHER TRIPLE AN EXISTING CIVIL FINE OR IMPOSE A FINE OF BETWEEN TEN AND FIFTY THOUSAND DOLLARS IF NO SUCH FINE IS AUTHORIZED BY STATUTE, IN A CIVIL ACTION BASED UPON AN ACT THAT MEETS THE BILL’S DEFINITION OF “COMMERCIAL SEXUAL EXPLOITATION” OF A MINOR OR A NONMINOR DEPENDENT?

SYNOPSIS

The purpose of awarding compensatory damages to an aggrieved plaintiff is to make that plaintiff whole. On the other hand, California law recognizes that in cases where the defendant’s conduct is particularly egregious, it is appropriate to impose additional damages in order to punish the defendant and deter similar misconduct in the future. Along those same lines, this bill would impose enhanced monetary penalties in civil actions brought by, on behalf of, or for the benefit of a minor or nonminor dependent to redress conduct that meets the bill’s definition of “commercial sexual exploitation.” According to the author, the enhanced civil penalty authorized by this bill is intended to “target child sex purchasers, persons who traffic in children and others (e.g., motel operators, on-line listings) that cause harm to this vulnerable population.” The author’s effort is in line with recent efforts of the Legislature to curtail the scourge of human trafficking, including commercial sexual exploitation, and to punish and deter those who engage in the reprehensible, abusive, and illegal practice.

The bill is modeled on an existing statute that authorizes enhanced penalties in civil actions for defrauding seniors. Civil Code Section 3345 allows, in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons to redress unfair or deceptive acts or practices or unfair methods of competition, the tripling of a fine or civil penalty awarded to the plaintiff when the trier or fact determines that certain facts are present. Courts have held that the tripling effect of Section 3345 only applies to civil fines and other monetary penalties that are designed to punish or deter the undesirable conduct that is the focus of the measure. Because the language of this bill is so similar to Section 3345, courts would likely interpret its provisions in the same manner.

The bill is consistent with past legislative efforts to authorize civil actions based upon criminal conduct. The Legislature has specifically authorized civil actions based upon crimes such as human trafficking and domestic violence. Some critics of the bill may argue that liability for crimes should be decided by juries or judges in criminal cases, by criminal procedural standards, including, but not limited to, the right against self-incrimination and requirement of proof beyond a reasonable doubt. But this argument would be misguided for two reasons. First, the bill does not create a new cause of action for commercial sexual exploitation where no such cause of action exists. Second, this bill is premised on the right of a plaintiff who is a victim of commercial sexual exploitation to adjudicate the defendant’s civil liability for that conduct which has injured the plaintiff, not to litigate a defendant’s criminal liability. If the bill were to become law, its enhanced fines, like any punitive damages award, would be subject to the Constitutional prohibition on the imposition of excessive fines. Therefore, the finder of fact would be directed to consider not only the nature of the defendant’s act, but also the financial resources of the defendant. Likewise, the defendant would have the ability under existing law to challenge any fines that were imposed pursuant to the bill on the basis that they were unconstitutionally excessive.

In order to clarify the intent and make the bill stronger in the process, the author proposes a minor clarifying amendment to remove an unnecessary scienter requirement from one factor that allows the finder of fact to impose the bill’s tripled penalty. That amendment is reflected and incorporated into the analysis, below. The bill, co-sponsored by the Office of the San Diego County District Attorney and the University of San Diego Children’s Advocacy Institute, is supported by a number of children’s advocacy and anti-human trafficking organizations. There is no opposition on file.

SUMMARY: Creates enhanced civil penalties, tripling any existing statutory civil penalty and providing an alternative $10,000 to $50,000 fine if no civil penalty is provided by statute, for acts that constitute “commercial sexual exploitation” of a minor or nonminor dependent. Specifically, this bill:

1. Clarifies that it only applies in civil actions brought by, on behalf of, or for the benefit of victims of commercial sexual exploitation who are minors or nonminor dependents and who are sexually exploited by persons who are over the age of majority.
2. Clarifies that for purposes of the bill, the status of the victim as a minor or nonminor dependent, and the age of the defendant is determined at the time of the defendant’s act of commercial sexual exploitation of the victim.
3. Provides that in a civil action brought by, on behalf of, or for the benefit of a minor or nonminor dependent, whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty, or other penalty, or other remedy to impose:
4. Whether the defendant’s conduct was directed to more than one minor or nonminor dependent;
5. Whether one or more minors or nonminor dependents suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct;
6. Whether the defendant was aware or reasonably should have been aware that the victim was a minor or nonminor dependent. It shall not be a defense to imposition of fines, penalties, or other remedies pursuant to this paragraph that the defendant was unaware of the victim’s age or status as a nonminor dependent at the time of the act.
7. Provides that if the trier of fact makes an affirmative finding in regard to one or more of the factors set forth in 3), above, it may impose a fine, civil penalty, or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, if the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding.
8. Provides that in the event that no civil penalty is authorized by the statute, the finder of fact may award a civil penalty not exceeding fifty thousand dollars ($50,000), and not less than ten thousand dollars ($10,000), for each act of commercial sexual exploitation committed by the defendant upon making an affirmative finding in regard to one or more of the factors set forth in 3), above, and allows the penalty to be imposed in addition to any other remedy available in law or in equity.
9. Clarifies that it is not a defense to the imposition of fines or penalties pursuant to this section that the victim consented to the act of commercial sexual exploitation.
10. Defines the following terms to have the following meanings:
    1. “Commercial sexual exploitation” is an act committed for the purpose of obtaining property or money, or anything else of value in exchange for, or as a result of, a sexual act of a minor or nonminor dependent, including but not limited to an act that would constitute a violation of one of the following:
    2. Sex trafficking of a minor in violation of subdivision (c) section 236.1 of the Penal Code.
    3. Pimping of a minor in violation of Section 266h of the Penal Code.
    4. Pandering of a minor in violation of subdivision (b) of Section 266i of the Penal Code.
    5. Procurement of a child under the age of 16 for lewd and lascivious acts in violation of Section 266j of the Penal Code.
    6. Solicitation of a child for a purpose that is either in violation of subparagraph (A), or pursuant to paragraph (3) of subdivision (b) of section 647 of the Penal Code.
    7. An act described in subdivision (c) or subdivision (d) of Section 11165.1 of the Penal Code.
    8. “Nonminor dependent” has the same meaning as in subdivision (v) of Section 11400 of the Welfare and Institutions Code.

EXISTING LAW:

1. Guarantees the right of a victim in a criminal case to receive restitution from a convicted defendant. (Cal. Const., art. I, sec. 28, subd. (13); Penal Code section 1202.4.)
2. Provides that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. A prevailing plaintiff may also be awarded attorney’s fees and costs. (Civil Code Section 52.5 (a). All further statutory references are to the Civil Code, unless otherwise indicated.)
3. Authorizes, in an action under 2), above, the plaintiff to be awarded up to three times his or her actual damages or ten thousand dollars ($10,000), whichever is greater, as well as punitive damages upon proof of the defendant’s malice, oppression, fraud, or duress in committing the act of human trafficking. (Section 52.5 (b).)
4. Provides that every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages. (Section 3281.)
5. Allows, where the defendant's oppression, fraud, or malice has been proven by clear and convincing evidence, the recovery of punitive damages “for the sake of example and by way of punishing the defendant.” (Section 3294 (a).)
6. Allows a verdict to be vacated on the basis of “excessive or inadequate damages.” (Code of Civil Procedure (CCP) Section 657 (5).)
7. Provides that a person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, is guilty of human trafficking and shall be punished by imprisonment in the state prison for 5, 8, or 12 years and a fine of not more than five hundred thousand dollars ($500,000). (Penal Code Section 236.1 (a).)
8. Provides that any person who engages in an act of unlawful sexual intercourse with a minor is guilty of a misdemeanor or felony, depending on the ages of and age difference between the perpetrator and the minor and allows the district attorney to bring an action to recover civil penalties, where amounts collected are deposited with the county and the Underage Pregnancy Prevention Fund. (Penal Code Section 261.5.)
9. Imposes elevated civil penalties on an adult who engages in an act of sexual intercourse with a minor for a violation of Penal Code Section 261.5. (Ibid.)
10. Defines “Sexual exploitation” to refer to any of the following:
    1. Conduct involving matter depicting a minor engaged in obscene acts in violation of Section 311.2 (preparing, selling, or distributing obscene matter) or subdivision (a) of Section 311.4 (employment of minor to perform obscene acts).
    2. A person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or coerces a child, or a person responsible for a child’s welfare, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct. For the purpose of this section, “person responsible for a child’s welfare” means a parent, guardian, foster parent, or a licensed administrator or employee of a public or private residential home, residential school, or other residential institution.
    3. A person who depicts a child in, or who knowingly develops, duplicates, prints, downloads, streams, accesses through any electronic or digital media, or exchanges, a film, photograph, videotape, video recording, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons described in subdivisions (c) and (e) of Section 311.3. (Penal Code Section 11165.1 (c).)
11. Defines “commercial sexual exploitation” to refer to either of the following:
12. The sexual trafficking of a child, as described in subdivision (c) of Section 236.1.
13. The provision of food, shelter, or payment to a child in exchange for the performance of any sexual act described in this section or subdivision (c) of Section 236.1. (Penal Code Section 11165.1 (d).)
14. Allows for a tripled monetary penalty in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons to redress unfair or deceptive acts or practices or unfair methods of competition when one of the following is found:
15. The defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons.
16. The defendant’s conduct caused one or more senior citizens or disabled persons to suffer specific losses, including the loss or encumbrance of a primary residence, principal employment, or source of income.
17. One or more senior citizens or disabled persons are substantially more vulnerable than other members of the public because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct. (Section 3345.)
18. Provides that in an action described in 12), above, where the trier of fact has determined that one of the factors is present and the statute does not authorize a monetary penalty in a specific amount, a monetary penalty of up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding can be imposed. (Ibid.)

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

COMMENTS: The purpose of awarding compensatory damages to an aggrieved plaintiff is to make that plaintiff whole. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 417 [J. Mosk, concurring in majority opinion, reversing trial court’s grant of a new trial on the basis of excessive damages awarded by the jury].) On the other hand, California law recognizes that in cases where the defendant’s conduct is particularly egregious, it is appropriate to impose additional damages in order to punish the defendant and deter similar misconduct in the future. Along those same lines, this bill would impose enhanced monetary penalties in civil actions brought by, on behalf of, or for the benefit of a minor of nonminor dependent to redress conduct that meets the bill’s definition of “commercial sexual exploitation.”

According to the author, the enhanced civil penalty authorized by this bill is intended to “target child sex purchasers, persons who traffic in children and others (e.g., motel operators, on-line listings) that cause harm to this vulnerable population. This population is equally (and in some cases more so) deserving of the protections already afforded to senior citizens and the disabled.” The author describes the need for the bill as follows:

The average age of entry for girls into prostitution or pornography is 12 to 14 years; for boys in California, the average age drops to 11 to 13 years old. These are not children who are passing as adults.. . .In San Diego alone, sex trafficking is estimated to be $810 million a year industry and we can see that criminal sanctions are not enough to stop these immoral businesses.

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

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

In recent years, the Legislature has enacted a series of measures aimed at curbing human trafficking. In 2012, the Legislature enacted SB 1193 (Steinberg, Chapter 515, Statutes of 2012), which required specified businesses and other establishments—including airports, adult businesses, airports, truck stops and bus stations--to post a model notice developed by the Department of Justice containing information related to slavery and human trafficking, including information related to specified nonprofit organizations that provide services in support of the elimination of slavery and human trafficking. The requirement was expanded to apply to hotels, motels, and bed and breakfast inns just last year in AB 260 (Santiago, Chapter 547, Statutes of 2017).

This Bill is Modeled on an Existing Statute That Authorizes Enhanced Penalties in Civil Actions for Defrauding Seniors. Section 3345 allows, in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons to redress unfair or deceptive acts or practices or unfair methods of competition, the tripling of a fine or civil penalty awarded to the plaintiff when the trier or fact determines that certain facts are present. Specifically, the finder of fact may triple the statutory fine in the event that it finds any of the following are present: (1) The defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons; (2) The defendant’s conduct caused one or more senior citizens or disabled persons to suffer specific losses, including the loss or encumbrance of a primary residence, principal employment, or source of income; and (3) One or more senior citizens or disabled persons are substantially more vulnerable than other members of the public because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct. (Section 3345 (b).)

Section 3345 is one of “more than 30 instances” in which “the Legislature has provided for double or treble damages as a punishment for wrongful acts.” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 425.) Other examples include unlawful advertising (Business & Professions Code Section 17537.4); willful violation of laws governing retail installment sales (Section 1812.9); evictions based on fraudulent intent to occupy (Section 1947.10); failure to pay certain wages (Labor Code Section 206); and finally human trafficking (Section 52.5 (a)). Section 3345 acts as a multiplier, tripling the statutory amount payable to a plaintiff when a statutory fine is provided in a statute (or alternatively authorizing a fine of up to three times the amount the fine that the trier of fact would otherwise impose).

The multiplying effect of Section 3345 only applies to civil fines and other monetary penalties that are designed to punish or deter the undesirable conduct that is the focus of the measure (i.e. unfair or deceptive acts or practices or unfair methods of competition victimizing seniors). (Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) In Clark, a class action brought on behalf of senior citizens who alleged deceptive business practices by the defendant relating to the purchase and sale of annuity contracts, plaintiffs asserted that statutory law entitled them to a trebling of the award of compensatory damages. The California Supreme Court rejected their argument and held that the trebled recovery provision in question (that is also used in this bill)—“or any other remedy the purpose or effect of which is to punish or deter” —only “comes into play when the governing statutory remedy has “the purpose or effect” of punishing or deterring undesirable behavior, and does not apply to any and all “remedy” without qualification. (Ibid.) The Court further clarified that “unlike restitution, a penalty is a recovery without reference to the actual damage sustained.” (Id. at p. 615 [internal quotations and citations omitted].) Because this bill uses language about the purpose and effect of the tripled penalty that is identical to the language used in Section 3345, the Court’s reasoning in Clark would likely also apply to this bill’s multiplier provision. Thus, the bill would not triple all damages, but would only triple a monetary penalty designed to punish the defendant and deter the defendant and others from engaging in similar unlawful actions in the future.

This Bill is Consistent With Past Legislative Efforts to Authorize Civil Actions Based Upon Criminal Conduct. The Legislature has specifically authorized civil actions based upon crimes such as human trafficking (Section 52.5) and domestic violence (Section 1708.6). For example, in 2005, the Legislature enacted the California Trafficking Victims Protection Act (AB 22 (Lieber), Chapter 240, Statutes of 2005), which established civil and criminal penalties for human trafficking and allowed for forfeiture of assets derived from human trafficking. This Committee heard and reported out AB 1684 (Stone, Chap. 63, Stats. 2016) which authorized the Department of Fair Employment and Housing (DFEH) to receive complaints and prosecute civil actions on behalf of human trafficking victims. Under then-existing law, a victim of human trafficking could bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. (Section 52.5 (a).) In the analysis, this Committee noted that authorizing DFEH to pursue the action was appropriate because “despite the relatively strong damages available to a victim [actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief pursuant to Section 52.5 (a)], …a trafficked victim's right to civil relief is not well known and, therefore, is often not addressed.” (Assembly Judiciary Committee, January 20, 2016.)

Some critics of the bill may argue that liability for crimes should be decided by juries or judges in criminal cases, by criminal procedural standards, including, but not limited to, the right against self-incrimination and requirement of proof beyond a reasonable doubt. But this argument would be misguided for two reasons. First, the bill does not create a new cause of action for commercial sexual exploitation where no such cause of action exists. A minor (or nonminor dependent) victim of commercial sexual exploitation may be able to bring a claim based under the human trafficking statute in Section 52.5. Furthermore, common law recognizes that a civil action can be based upon criminal conduct. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1224.) In Angie M., a minor sought punitive damages for unlawful seduction/childhood sexual abuse and intentional infliction of emotional distress from the defendant sex offender. The trial court sustained the defendant's demurrer without leave to amend, but the appellate court directed the trial court to vacate its order and overrule the demurrer, holding that “Civil actions lie in favor of crime victims. Violation of a criminal statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the criminal statute. [Citations.] Any injured member of the public for whose benefit the statute is enacted may bring an action.” (Id., at p. 1224.)

Second, this bill is premised on the right of a plaintiff who is a victim of commercial sexual exploitation to adjudicate the defendant’s civil liability for that conduct which has injured the plaintiff, not to litigate a defendant’s criminal liability. While rules of civil procedure would apply to the adjudication of that civil matter, including a lower burden of proof, the defendant would still retain all rights guaranteed by the U.S. Constitution to criminal defendants, including all the criminal defendant’s procedural rights, including having criminal charges proved beyond a reasonable doubt, that come into play in a criminal prosecution.

While Damages Designed to Deter and Punish Unlawful Behavior are Appropriately Imposed on Defendants Who Engage in Particularly Egregious Conduct, the Amount of Damages—Even in Those Cases—Cannot be Excessive. Existing law allows the imposition of punitive damages in a case where the defendant's oppression, fraud, or malice has been proven by clear and convincing evidence. (Section 3294 (a).) The purpose of punitive damages is “for the sake of example and by way of punishing the defendant.” (Ibid.) Courts have interpreted Section 3294 to authorize punitive damages only when the defendant has acted “with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff's rights.” (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 922.)

But even when the reprehensible conduct that justifies imposition of punitive damages is established, the amount of punitive damages cannot be excessive. At some point, damages become unconstitutionally punitive “when an award can fairly be categorized as ‘grossly excessive’” in relation to the state interests it serves, it enters “the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” (BMW of North America v. Gore (1996) 517 U.S. 559, 568.) California law recognizes this principle in CCP 657 (5), which allows a verdict to be vacated on the basis of “excessive or inadequate damages.”

The Constitutional “excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve[,]” specifically the state’s legitimate interests in punishing the defendant and in deterring it from future misconduct. (BMW of North America v. Gore, supra, 517 U.S. at p. 568.) According to the California Supreme Court, three factors must be considered in relation to the assessment of punitive damages: (1) the degree of reprehensibility of the act; (2) the amount of compensatory damages awarded; and (3) the wealth of the particular defendant. (Neal, supra, 21 Cal. 3d at p. 928.) As the Neal court observed, “[O]bviously, the function of deterrence … will not be served if the wealth of the defendant allows him to absorb the award with little or no discomfort.” (Id, at p. 928.)

Therefore, if this bill were signed into law, the finder of fact would likely be directed to consider the factors set forth in Neal. If the finder of fact imposed a monetary penalty that the defendant thought was excessive, the defendant could file a motion to vacate the award pursuant to CCP 657 (5). A court that reviewed such a motion would then review the Neal factors, including the financial means of the defendant.

Minor Clarifying Amendment Proposed by the Author. The bill in print allows the enhanced civil penalty to be imposed in a case where there is evidence that “the defendant knew or should have known that his or her conduct was directed to one or more than one minor or nonminor dependent.” The purpose of this provision appears to be to impose enhanced penalties on defendants who victimize multiple minors or nonminor dependents. In that case, the defendant’s knowledge is irrelevant and a plaintiff should not be required to prove that the defendant knew about multiple victims when the number of victims is an objective fact. In order to remove the unnecessary scienter requirement, making the bill stronger in the process, the author proposes a minor clarifying amendment so that the relevant language reads as follows:

Whether the defendant knew or should have known that his or her the defendant’s conduct was directed to one or more than one minor or nonminor dependent.

Prior Similar Legislation: SB 1157 (Davis, Chapter 823, Statutes of 1988) authorized, in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons to redress unfair or deceptive acts or practices or unfair methods of competition, the tripling of a fine or civil penalty awarded to the plaintiff when the trier or fact determines that certain facts are present.

AB 22 (Lieber, Chapter 240, Statutes of 2005) enacted the California Trafficking Victims Protection Act, which established civil and criminal penalties for human trafficking and allowed for forfeiture of assets derived from human trafficking.

AB 1495 (Maienschein, 2017) would have created a new cause of action for child victims of sexual exploitation, and allowed for the recovery of civil penalties, damages, and other remedies to provide for the benefit and well-being of the victim and allowed the victim’s parents, guardians, or guardians ad litem, and public prosecutors to file the cause of action on behalf of the victim. AB 1495 died in the Senate Appropriations Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Office of the San Diego County District Attorney (co-sponsor)

University of San Diego, Children’s Advocacy Institute (co-sponsor)

CSA San Diego County

Hidden Treasures

Lynch Foundation for Children

National Association For Missing and Exploited Children

Saved in America

World Without Exploitation

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334