Existing law makes it a misdemeanor for an individual to solicit, agree to engage in, or engage in, an act of prostitution with the intent to receive compensation, money, or anything of value from another person, as specified, or an act of prostitution with an adult or a minor in exchange for the individual providing compensation, money, or anything of value to the other person, as specified. Existing law makes it unlawful for a person to loiter in a public place with the intent to commit prostitution, as specified.

Existing law exempts a child under 18 years of age who is alleged to have engaged in prostitution or related offenses from being prosecuted for those offenses. Existing law authorizes a commercially exploited child under those circumstances to be adjudged a dependent child of the court and to be taken into temporary custody if the conditions allowing temporary custody without warrant are met.

This bill would declare the intent of the Legislature to enact legislation that would require wraparound services be provided to a person under 18 years of age who is alleged to be a victim of a commercial sex act.

Date of Hearing: April 17, 2018

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Repeals the decriminalization of prostitution offenses committed by minors, and establishes a deferred entry of judgment pilot program for commercially sexually exploited children. Specifically, this bill:

1. Repeals provisions of law which prohibit a minor engaged in commercial sexual activity from being charged with a prostitution-related offense.
   
2. Authorizes counties to establish a deferred entry of judgment pilot program for commercially sexually exploited children.
   
3. Allows a commercially sexually exploited child to participate in a deferred entry of judgement program if he or she is charged with, and pleads guilty to prostitution or loitering with the intent to commit prostitution.
   
4. Prohibits participation in the deferred entry of judgment program if the child has previously been charged with either of those offenses.
   
5. Requires the court to grant deferred entry of judgement if an eligible minor:
   
   1. Consents to participation in the program;
      
   2. Waives rights to a speedy trial or preliminary hearing; and,
      
   3. Pleads guilty to the charges; and waives time for pronouncement of judgment.
      
6. Requires the probation department to develop therapeutic rehabilitative programming that is specific to participants of the program, including, but not limited to, peer mentoring and trauma-informed therapy.
   
7. Allows the probation department to make a motion for entry of judgment if it believes that the minor is performing unsatisfactorily because of the commission of a new offense, or rules violations, or that the minor is not benefitting from program services.
   
8. States that if the court makes a finding of unsatisfactory performance in the program, as specified, then it shall enter judgment and schedule a sentencing hearing.
   
9. Provides that the minor shall serve no longer than six months in custody under the program.
   
10. Sunsets the DEJ provisions on January 1, 2021.

EXISTING LAW:

1. Makes it a misdemeanor to solicit, or agree to engage in, or engage in an act of prostitution with intent to receive compensation from another. (Pen. Code, § 647, subd. (b).)
   
2. Makes it a misdemeanor to loiter for the purposes of engaging in a prostitution offense. (Pen. Code, §§ 653.22, subd. (a)(1) & 653.26.)
   
3. Provides that a minor engaged in commercial sexual activity will not be charged for a prostitution offense. (Pen. Code, §§ 647, subd. (b)(5) & 653.22, subd. (a)(2).)
   
4. Provides that a commercially-sexually-exploited child (CSEC) may be adjudged a dependent child of the juvenile court and taken into temporary custody to protect the minor’s health or safety. (Pen. Code, §§ 647, subd. (b)(5) & 653.22, subd. (a)(2).)
   
5. Establishes the Commercially Sexually Exploited Children Program, as administered by the Department of Social Services (DSS), to serve children who have been sexually exploited. (Welf. & Inst. Code §§ 16524.6-16524.11.)
   
6. Provides, notwithstanding any other provision of law, that when a case is before the juvenile court for a determination of whether a minor should be declared a ward of the court because of the commission of a felony offense, DEJ is available if all of the following circumstances apply:
   
   1. The minor has not previously been declared to be a ward of the court for the commission of a felony offense;
      
   2. The offense charged is not one of the offenses enumerated in subdivision (b) of section 707;
      
   3. The minor has not previously been committed to the Division of Juvenile Facilities;
      
   4. The minor's record does not indicate that probation has ever been revoked without being completed;
      
   5. The minor is at least 14 years of age at the time of the hearing;
      
   6. The minor is eligible for probation as specified; and,
      
   7. The offense charged is not a specified sex offense. (Welf. & Inst. Code, § 790, subd. (a).)
      
7. Requires the prosecutor to review his or her file to determine whether the minor is eligible for deferred entry of judgment. (Welf. & Inst. Code, § 790, subd. (b).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “By eliminating the jurisdiction of the juvenile court, California politicians took away tools from judges, prosecutors and law enforcement that are necessary to get these children, who have a life expectancy of just seven short years, according to the FBI, out of danger and the help they need for healing. In addition, it has stripped law enforcement and prosecutors of the ability to build a case against their exploiters, so they no longer can hurt that child or other children.
   
   “By not providing children with the safety and wrap around services they desperately need before releasing them, we are setting them up for failure, additional trauma and violence, and the possibility of death. Under current California state law, law enforcement, resource parents, and group home staff may not prevent a child from running, giving the traffickers easy access. Further, due to our state’s hands-off policy, placing them in social services provides them easy access to recruit other at-risk children.”
   
2. SB 1322: SB 1322 (Mitchell), Chapter 654 Statutes of 2016, precludes minor victims of commercial sexual exploitation from being arrested and charged with prostitution and loitering with intent to commit prostitution. Instead of arresting the minor, law enforcement is to report the conduct to county social services as abuse or neglect. An officer is allowed to take the minor into temporary custody to protect the minor’s health or safety. The change in the law recognizes the harmful effects of arresting this population for their perpetrators’ crime, including further traumatization, disconnection from the community and school, and vulnerability to violence. It is supported by recent federal and state law aimed at building capacity in the child welfare system to identify and serve these victims.
   

Specifically as to state law, in 2014, as part of the budget, the Legislature created the Commercially Sexually Exploited Children Program to serve children who have been sexually exploited. The program was funded with $20 million to help child welfare agencies and community partners get victims appropriate services. The legislation authorized the use of these funds by counties electing to participate in the program for prevention and intervention activities and services to children who are victims, or at risk of becoming victims, of commercial sexual exploitation. It required DSS to contract for training for county children’s services workers to identify, intervene, and provide case management services to children who are victims of commercial sexual exploitation, and for the training of foster caregivers for the prevention and identification of potential victims. It also required each county, electing to receive funds, to develop an interagency protocol to be utilized in serving sexually exploited children who have been adjudged to be a dependent child of the juvenile court. (Welf. & Inst. Code §§ 16524.6-16524.11.)

This bill would repeal the provisions of SB 1322 and once again criminalize prostitution related offenses committed by commercially sexually exploited children.

1. Deferred Entry of Judgment (DEJ) in Juvenile Court: Proposition 21 added a deferred entry of judgment procedure in juvenile court. (DEJ) The procedure is governed by Welfare and Institutions Code section 790, et. seq., and California Rules of Court, rule 5.800. The petition must allege at least one felony offense, and the minor must be found both eligible and suitable for DEJ. The minor admits the petition allegations, waives time for entry of judgment, and undergoes probation for 12-36 months. If the minor successfully completes the period, the charges are dismissed and the minor’s record is sealed. On the other hand, if the juvenile court is dissatisfied with the minor’s performance on DEJ, it can lift the deferral and schedule a dispositional hearing. (Welf. & Inst. Code, § 793; Cal. Rules of Court, rule 8.500(h).)
2. 
   As to eligibility requirements, A minor who is 14 years or older, whose offense is not a section 707, subdivision (b) offense, has no prior felony adjudications, has not been previously committed to DJJ, has had no probation revocations, and meets the requirements for probation under Penal Code section 1203.06, is eligible for DEJ. (Welf. & Inst. Code, § 793; Cal. Rules of Court, rule 8.500(h).)
   

Juvenile misdemeanants are excluded from DEJ. A juvenile is excluded from DEJ even if the petition alleged a felony, but the juvenile ultimately admitted a misdemeanor. (In re R.C. (2010) 182 Cal.App.4th 1437.)

Because the offenses of prostitution and loitering for the purposes of prostitution activity are both misdemeanor offenses, if this conduct is once again criminalized as to minors, a commercially sexually exploited child would not be eligible for the current juvenile deferred entry of judgment program. This bill would create a separate deferred entry of judgment program for commercially sexually exploited children.

1. Argument in Support: None submitted.
   
2. Arguments in Opposition:
   
   1. According to the Children’s Law Center of California, “SB 1322 built on California’s multi-year investment in county child welfare systems to bolster services for sexually exploited children. Consistent with federal law, in 2014 California passed SB 855 which clarified that sexually exploited children are actually victims of child abuse and thus may be served by the child welfare system. SB 855 also established the Commercially Sexually Exploited Children’s Program (CSEC Program) and provided for on-going funding for counties to develop robust services and child welfare-led multidisciplinary responses for sex trafficked and at-risk children….
      
      “Children who have been sexually trafficked do not have to be arrested in order to be protected and to receive needed services. Under current statute, law enforcement retains the authority to take a sexually trafficked child into protective custody when he or she is found in danger, just as they would with any other minor who comes under their protection. Victims are eligible to receive needed mental health and other services, including peer counseling and trauma informed therapy under child welfare department supervision.”
      
   2. The California Public Defenders Association writes, “If adopted, AB 2714 would permit the arrest of child sex workers, authorize their temporary detention in juvenile hall, and permit the imposition of ‘punishment’ as a consequence for this conduct. This will dissuade child-prostitutes from coming forward and disclosing to authorities and other responsible adults that they are being sexually victimized at the hands of adults (for fear of arrest and criminal prosecution, as well as retaliation by their abusers) and will undermine and impede law enforcement efforts to work with these minors to ferret out and successfully prosecute the adult pimps and human traffickers who abduct, abuse, and manipulate these vulnerable and impressionable young boys and girls for financial gain.
      
      “These problems would not be eliminated, or even alleviated, by the bill’s proposed pilot ‘deferred entry of judgment’ program. Diversion programs have always been available for juveniles who enter the delinquency system due to the commission of misdemeanor offenses, including prostitution (see e.g., Welf. & Inst., §§ 654, 654.2, 725). Historically speaking, the existence and availability of such programs has not induced child sex workers to report abuse or facilitated their cooperation with law enforcement’s efforts to apprehend and convict abusers. There is no reason to believe that adding to the juvenile delinquency system yet another deferred entry of judgment program, such as that proposed by AB 2714, will have a different impact.”
      
3. Related Legislation: AB 1738 (Cunningham) requires a person convicted of soliciting a minor to register as a sex offender for 20 years. AB 1738 is pending hearing in this Committee.
   
4. Prior Legislation:
   
   1. SB 1322 (Mitchell), Chapter 654, Statutes of 2016, prohibits minor from being arrested and charged with prostitution and loitering with intent to commit prostitution.
      
   2. SB 855 (Committee on Budget), Chapter 29, Statutes of 2014, establishes the Commercially Sexually Exploited Children Program to serve children who have been sexually exploited and provided $20 million to help child welfare agencies and community partners get victims appropriate services.

REGISTERED SUPPORT / OPPOSITION:

Support

None

Opposition

Alliance for Children’s Rights
American Civil Liberties Union of California
Aviva Family and Children’s Services
Bill Wilson Center
California Alliance of Child and Family
California Public Defenders Association
Children’s Advocacy Institute
Children’s Law Center of California
Children Now
Country Welfare Directors Association of California
Edgewood Center for Children and Families
Ella Baker Center for Human Rights

Family Builders by Adoption
Florence Crittenton Services of Orange County
Friends Committee on Legislation of California
Hathaway Sycamores
John Burton Advocates for Youth
Lincoln
National Association of Social Workers, California Chapter
National Center for Youth Law
North Star Family Center
Public Counsel
Runaway Girl, Inc.
Seneca Family of Agencies
Shared Hope International
Summit Child and Family Services, Inc.
Trinity Youth Services

Analysis Prepared by: