Existing law defines certain acts as disorderly conduct, punishable as a misdemeanor, including soliciting, agreeing to engage in, or engaging in any act of prostitution with another person, as specified, in exchange for the individual providing compensation, money, or anything of value to the other person.

This bill would make a 2nd or subsequent violation of this type of disorderly conduct punishable as either a misdemeanor, as specified, or a felony and would make a conforming change.

By increasing the penalty of a crime, this bill would impose a state-mandated local program.

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

This bill would provide that no reimbursement is required by this act for a specified reason.

Under existing law, anyone who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, or with the intent to effect a violation of specified sex crimes, is guilty of human trafficking. Under existing law, a person who causes a minor to engage in a commercial sex act, with the intent to violate specified sex crimes, is guilty of human trafficking. Existing law establishes the Commission on Peace Officer Standards and Training, and, among other duties, requires the commission to provide various specified courses of training for peace officers. Existing law requires the commission to develop a course on commercial sexual exploitation of children and victims of human trafficking, and also to implement a course on the training of law enforcement officers in California in the handling of human trafficking complaints.

This bill would state the intent of the Legislature to enact legislation relating to training conducted by the Commission on Peace Officer Standards and Training on the subject of human trafficking.

Date of Hearing: May 1, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2382

Author:(Blanca Rubio) – As Amended Ver:April 18, 2024

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

SUMMARY:

This bill increases the punishment for a second or subsequent conviction for soliciting or engaging in an act of prostitution from a misdemeanor to an alternative felony misdemeanor (“wobbler”).

FISCAL EFFECT:

Costs (local funds, General Fund) to the counties and the Department of Corrections and Rehabilitation to incarcerate people convicted of a felony under this bill, possibly in the hundreds of thousands of dollars annually. Actual incarceration costs will depend on the number of convictions, the length of each sentence, and whether each sentence must be served in county jail or state prison. The average annual cost to incarcerate one person in county jail is approximately $29,000. The Legislative Analyst’s Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

According to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Purpose. According to the author:

California is losing the fight against sex trafficking. The demand for prostitutes from solicitors drives criminals to traffic people and force them into prostitution. Under current law, solicitation of a prostitute is a misdemeanor, regardless of whether the perpetrator is a first time or repeat offender. Current law does not provide strong enough deterrents for those who repeatedly solicit prostitution. Without adequate deterrents in place, the State has allowed the demand for prostitutes to remain unchecked.

1. Background. In California, it is a criminal offense to accept compensation for sex or pay for the services of a sex worker. This offense is commonly known as “solicitation of prostitution” regardless of which part of the transaction the defendant participated in. Solicitation of prostitution is a misdemeanor punishable by up to six months in county jail, a fine, or both. If the solicitation involved a defendant who knew or should have known the person they solicited was under the age of 18, the offense is a misdemeanor punishable by up to one year in county jail, a fine, or both. Currently, a defendant’s first conviction for solicitation and any subsequent conviction for solicitation are subject to the same punishment. As detailed in the analysis of this bill by the Assembly Committee on Public Safety, human trafficking offenses are distinct from solicitation of prostitution and are punished much more harshly under existing law.

This bill increases the penalty for a second or subsequent conviction for solicitation of prostitution to a wobbler. A wobbler may be charged as a misdemeanor or a felony at the discretion of a prosecutor. Under this bill, the penalty for a subsequent misdemeanor conviction is up to one year in county jail, a fine, or both. The penalty for a subsequent felony conviction is 16 months, two years, or three years in county jail, a fine, or both. If the defendant has certain prior convictions, a felony conviction for solicitation of prostitution is punishable by a term in state prison. As with existing law, this bill does not distinguish between the punishment for a person who pays for sex and a person who is paid for sex.

Research shows that lengthy criminal sentences, which are costly to state and local governments, do not effectively deter crime. In general, the certainty that someone will be punished for an offense plays a larger role in deterring their criminal activity, rather than the length of their potential punishment.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Kimberly Horiuchi

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

ABPCA Bill Id:AB 2382

Author:(Blanca Rubio) – As Amended Ver:March 18, 2024

REVISED

SUMMARY:

Increases the punishment for a second or subsequent conviction for soliciting or engaging in any act of prostitution from a misdemeanor to a felony, as specified. Specifically, this bill:

1. States any person convicted of a second or subsequent offense for soliciting or engaging in prostitution with a person over the age of 18 in exchange for compensation, money, or anything of value, shall be punished as a felony, punishable by a maximum of three years in county jail.
2. States any person convicted of a second or subsequent offense for soliciting or engaging in prostitution with a person under the age of 18 in in exchange for compensation, money, or anything of value, shall be punished as a felony, punishable by a maximum of three years in county jail.

EXISTING LAW:

1. Provides that, except in cases where a different punishment is prescribed by any law, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. (Pen. Code, § 19.)
   
2. States any person who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view is guilty of a misdemeanor and punishable by up to six months in county jail. (Pen. Code, § 647, subd. (a).)
   
3. States individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with the intent to receive compensation, money, or anything of value from another person is guilty of a misdemeanor punishable by up to six months in the county jail. (Pen. Code, § 647, subd. (b)(1).)
   
4. States any individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with another person who is 18 years of age or older in exchange for the individual providing compensation, money, or anything of value to the other person is guilty of a misdemeanor punishable by up to six months in county jail. (Pen. Code 647, subd (b)(2).
   
5. Defines an agreement to engage in an act of prostitution as any person, with specific intent to so engage the individual, manifests an acceptance of an offer or solicitation by another person who is 18 years of age or older to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in an act of prostitution. (Pen. Code, § 647, subd. (b)(2).)
   
6. States any individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with another person who is a minor (i.e., under the age of 18) in exchange for the individual providing compensation, money, or anything of value to the minor, is punishable by up to six months in county jail. (Pen. Code, § 647, subd. (b)(3).)
   
7. Provides that, notwithstanding existing law, the crime of solicitation does not apply to a child under 18 years of age who is alleged to have engaged in conduct to receive money or other consideration that would, if committed by an adult, violate the solicitation statute. A commercially exploited child may be adjudged a dependent child of the court pursuant Welfare and Institutions Code and may be taken into temporary custody, if the conditions allowing temporary custody without warrant are met. (Pen. Code, § 647, subd. (b)(5).)
   
8. States any 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 $500,000. (Pen. Code, § 236.1, subd. (a).)
   
9. Specifies 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 commit specified crimes including pimping, pandering, or child pornography, is guilty of human trafficking. A violation is punishable by imprisonment in the state prison as follows:
   1. Five, 8, or 12 years and a fine of not more than $500,000; or
   2. Fifteen years to life and a fine of not more than $500,000 when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person. (Pen. Code, § 236.1, subd. (c).)
10. Provides that if a defendant is convicted of a felony offense and it is pled and proved that the defendant has been convicted of one prior serious or violent offense as defined, the term of imprisonment is twice the term otherwise imposed for the current offense. (Pen. Code, § 667.)
    
11. Punishes any person who deprives or violates the personal liberty of another with the intent to procure a person under the age of 18 to engage in prostitution (“procurement”), prostituting a person for all or a portion of their earnings (“pimping”), producing by force, threat of force, trick, or scheme for purposes of prostitution (“pandering”), delivering or giving a person under the age of 16 for purposes of lewd and lascivious conduct with a child (“procurement of a child”), abduction of a minor for prostitution, sale or distribution of obscene matter, production or exhibition of obscene matter, sexual exploitation of a child, employing a minor in the sale or distribution of child pornography, advertising or promoting obscene material, obscene live conduct, or extortion is guilty of human trafficking and shall be punished by imprisonment in the state prison for 8, 14, or 20 years and a fine of not more than $500,000. (Pen. Code, § 236.1, subd. (b).
12. Requires law enforcement agencies to use due diligence to identify all victims of human trafficking, regardless of the citizenship of the person. When a peace officer comes into contact with a person who has been deprived of his or her personal liberty, a minor who has engaged in a commercial sex act, a person suspected of engaging in prostitution, or a victim of a crime of domestic violence or sexual assault, the peace officer must consider whether the following indicators of human trafficking are present:
    1. Signs of trauma, fatigue, injury, or other evidence of poor care.
    2. The person is withdrawn, afraid to talk, or his or her communication is censored by another person.
    3. The person does not have freedom of movement.
    4. The person lives and works in one place.
    5. The person owes a debt to his or her employer.
    6. Security measures are used to control who has contact with the person.
    7. The person does not have control over his or her own government-issued identification or over his or her worker immigration documents. (Pen. Code, § 236.2, subd. (a)-(g).)
13. States a person who inflicts great bodily injury on a victim in the commission or attempted commission of human trafficking shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 7, or 10 years. (Pen. Code, § 236.4, subd. (b).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author’s Statement: According to the author: “California is losing the fight against sex trafficking. The demand for prostitutes from solicitors drives criminals to traffic people and force them into prostitution. Under current law, solicitation of a prostitute is a misdemeanor, regardless of whether the perpetrator is a first time or repeat offender. Current law does not provide strong enough deterrents for those who repeatedly solicit prostitution. Without adequate deterrents in place, the State has allowed the demand for prostitutes to remain unchecked. This bill would make it a felony for any person who solicits a prostitute after already having a prior conviction of the same offense.”
   
2. Solicitation of Prostitution: Current Penal Code section 647 is premised on an offense enacted in 1872 which generally prohibited “lewd,” “immoral,” or “obscene” conduct. Penal Code section 647, subdivision (b) criminalizes solicitation of prostitution meaning any person who accepts compensation for sex or a person who pays for the services of a sex worker. Penal Code section 647, subdivision (b)(2) criminalizes solicitation for sex either by the offeror or the offeree, and without reference to the sex or gender of a person, and punishes a conviction for solicitation as a misdemeanor subject to up to six months in county jail. Furthermore, Penal Code section 647, subdivision (b)(3) criminalizes soliciting a person under the age of 18, without reference to whether the person is cis-male or female, or Trans, or non-binary, and regardless of whether the person knew the person was under the age of 18. Penal Code section 647, subdivision (b) is punishable as a six month misdemeanor except where the person knew or should have known that the person was under the age of 18. In that case, the penalty is a mandatory minimum of two days in county jail or up to one year in county jail and a fine of not more than $2,000. (See Pen. Code, § 647, subd. (l).)
3. Existing Penalties for Human Trafficking: According to the author, this bill aims to stem the crime of commercial sex trafficking:

“According to the Women’s Rights Group: The presence of economic disparities and social inequalities in California contributes to the vulnerability of marginalized populations. Poverty, homelessness, and lack of access to education and employment opportunities create conditions where individuals are more susceptible to exploitation by traffickers. Traffickers prey upon those facing economic hardships, promising them better lives or employment opportunities, only to subject them to exploitation. By enforcing stronger deterrents on solicitors of prostitution, which in turn will reduce the demand and market for sex trafficking in California, this bill will lead to more equitable outcomes for the state’s vulnerable and marginalized populations.” (Emphasis added.)

The penalties for commercial sex trafficking are substantially higher than a Realignment Act felony. The voters approved Proposition 35 in 2012, which made numerous changes to the human trafficking statute and substantially increased the sentences of any person who engages in either sex or labor trafficking.

Specifically, human trafficking by force or fear is a 15 to life sentence – meaning the defendant will receive parole hearings to determine if they are suitable for release, so the sentence may be much longer than 15 years. This is different than a determinate term – i.e., someone sentenced to the mid-term on robbery – four years – will serve no more than four years barring a conviction for another offense.

Inmates sentenced to life terms are often not paroled their first time before the Board of Parole Hearings. Human trafficking even without use of force or fear is subject to a sentence of up to 12 years in prison. Additionally, any proceeds purchased with or derived from human trafficking is subject to asset forfeiture. (See Pen. Code, § 236.7, subd. (a).) Finally, any person convicted of human trafficking must register as a sex offender for life and may not receive probation. (Pen. Code, § 1203.085, subd. (a).)

Penal Code section 236.1 was enacted in 2005 and specifically criminalized human trafficking – although most of the underlying bases for trafficking were criminalized by other sections of law. AB 22 (Lieber) Chapter 240, Statutes of 2005, enacted criminal penalties for human trafficking as follows: (a) three, four, or five years in state prison for any person who traffics another for labor or sex purposes; (b) four, six, or eight years if the person is under the age of 18. (Former Penal Code, § 236.1, subds. (a) and (b) (2005).) However, as noted above, those penalties were substantially increased by Proposition 35 in 2012. Additionally, the Legislature added human trafficking of a person under the age of 18 to the serious felonies list making it a strike. (See Pen. Code, § 1192.7, subd. (c)(42).) Adults were left out of the statute.

Additionally, over the past dozen years, we have increased funding and services for victims of human trafficking, as well as law enforcement and district attorneys involved in the apprehension and prosecution of human trafficking. According to the author: “California is losing the fight against sex trafficking. The demand for prostitutes from solicitors drives criminals to traffic people and force them into prostitution.” The California Department of Corrections and Rehabilitation (“CDCR”) and the California Office of Attorney Open Justice portal do not break down Penal Code section 236.1 convictions.^[1] Arrest and conviction data for violation of Penal Code section 236.1 was not readily available. However, according to the National Human Trafficking Hotline, among others, law enforcement is improving their odds against cracking down on human sex trafficking because of numerous laws that have changed in the past 10 years.

Additionally, the amount of funding to combat trafficking has substantially increased. In 2023, California Office of Emergency Services (“Cal OES”) allocated $27 million for human trafficking victim assistance and the federal Office of Victims Crime is awarding $6.3 million under the Field-Generated Strategies to Address the Criminalization of Minor Victims of Sex Trafficking program to end the criminalization of minor victims of sex trafficking and develop, expand or strengthen victim service programs to support victim-centered, trauma-informed, developmentally appropriate and evidence-based responses to minor victims of sex trafficking. (U.S. Department of Justice (October 26, 2022) Justice Department Awards Over $90 million to combat Human Trafficking.)^[2]

The United States is widely regarded as a destination country for human trafficking. Federal reports have estimated that 14,500 to 17,500 victims are trafficked into the United States annually. This does not include the number of victims who are trafficked within the United States each year. According to the National Human Trafficking Hotline, 10,949 cases of human trafficking were reported in the United States in 2018.

According to the hotline, California is one of the largest sites of human trafficking in the United States. In 2018, 1,656 cases of human trafficking were reported in California. Of those cases, 1,226 were sex trafficking cases, 151 were labor trafficking cases, 110 involved both labor and sex trafficking, and in 169 cases the type of trafficking was not specified. The Office of Attorney General specifies on its efforts to combat trafficking:

Progressively stepping up their efforts since last year, the teams — one covering Northern California and another covering Southern California — are now nearly fully staffed and have already taken action across the state to support law enforcement partners in disrupting and dismantling human trafficking and the criminal exploitation of children. Attorney General Bonta today also issued an information bulletin to local authorities to provide guidance on key techniques meant to help reduce harm in law enforcement interactions with sexually exploited youth. In addition, the Attorney General today highlighted new funds included in the proposed state budget aimed at combatting the effects of the pandemic on human trafficking and directly supporting survivors across California through $30 million in new grants over the next 3 years. The new proposed funds are in addition to $10 million per year in grants already included in the budget.^[3]

It is unclear whether the rates of human trafficking are “skyrocketing” as the author suggests, but even if arrest rates are higher now than in the arrest rates were in the past, that may mean we are using the laws we have already enacted and to crack down on the scourge of human trafficking.

There is no evidence that human trafficking has increased since the Legislature repealed Penal Code section 653.22 – loitering with intent to commit prostitution, or that most, or even a lot, of sex workers are victims of human trafficking. Additionally, there are far fewer resources being directed at the trafficking of non-binary people or adult Cis or Trans Women, who are being killed at a shocking rate. (See Human Rights Watch, (November 18, 2021), “I just try to Make it Home Safe,’ Violence and the Human Rights of Transgender People in the United States,” online, p. 1)^[4]

Unfortunately, solicitation laws are most often imposed on the very people this bill proposes to protect – Black and Brown Cis and Trans Women. As explained in detail below, sex workers often describe inhuman and abusive treatment by law enforcement, especially if the sex worker is a Trans woman of color. While statutes are not written to discriminate against others, the application of laws may not always be equitable or fair.

1. Disparate Impact on Black, Indigenous, People of Color, and Members of the LGBTQ+ Community in Prostitution Cases: This bill proposes to further protect Black, Indigenous, People of Color and members of the LGBTQ+ community by increasing penalties for prostitution. There seems to be little dispute between supporters and opponents of this bill that members of the LGBTQ+ community and Black, Indigenous, and People of Color are uniquely disadvantaged in sex work and at significantly higher risk of being trafficked.^[5]

A study conducted in 2019 through the Los Angeles County Public Defender’s office compiled data from all of the charges of violations of a prostitution-related crime reported from the Compton Branch of the Public Defender’s office. During a one-week period of time in July 2019, a total of 48 cases were reported. (Derek J. Demeri, “Policing of People in the Sex Trades in Compton: Analysis of Section 653.22 Clients,” Law Offices of the Los Angeles County Public Defender (2019).) The Demeri study also found that the majority of arrests were made up of young Black women. 42.6 percent of arrests were for people aged 21-24 with the next highest rate being 23.4 percent for people aged 18-20. (Id. at p. 2.) As for race, 72.3 percent were Black with the next highest rate being 17 percent for Hispanic. (Id., at p. 4.) Additionally, the study showed the same four officers made the majority of arrests during that period. (Id., p. 10.) Twenty-five percent (25%) of people arrested for a prostitution-related offense like loitering to commit an act of prostitution had no prior sex work-related convictions.

In 76.7 percent of cases, alleged suspects were characterized as wearing revealing clothing as evidence in support of intent to solicit a sex act. (Id., p. 12) Finally, in 45 out of 46 cases, the suspect’s state of dress was the stated basis for probable cause to arrest. (Ibid.) In 71.7% of cases, possession of condoms was used to support probable cause. (Ibid.)^[6] As explained in numerous scholarly articles and literary pieces by women with lived experience, including Zoli, at al., “Towards Action Research With Trans Women Sex Workers: Policy, space and social challenges,” in Journal of Community Psychology (January 2021), p. 1, sex workers are most often the victims of the worst kind of gender stereotypes that reverberate across society and reinforce oppressive assumptions dating back to puritanical New England, such as “women who dress like that are sluts,” and “women who engage in risky conduct deserve what they get.”^[7] While, in this case, that is most certainly an unintended consequence – the application of solicitation laws have real impact on already vulnerable populations.^[8]

According to the Yale Global Health Partnership in June 2020, arrest and conviction records for prostitution-related crimes make it harder for sex workers, and those cited for unlawful sex work, to find alternative employment - holding them in street economies and economic hardships - “exacerbating ongoing race and gender discrimination.”^[9]

Criminalization exacerbates the barriers to housing, public benefits, and other social supports especially needed by street-based sex workers. These harms most often fall on People of Color and members of the LGBTQ+ community because there are higher rates of arrest and conviction for those groups.

As explained above, sex work takes on many forms. In many cases, sex workers do not “walk the stroll” offering services – they provide outcall services via an internet website. For the most part, sex workers who provide outcall services tend to be Caucasian and more affluent.

However, sex workers who offer services to passersby on the street are at much greater risk of discrimination and harassment by law enforcement and are much more likely to be people of color. According to the University of Southern California, Gould School of Law, International Human Rights Clinic’s November 15, 2021 report, “Over-Policing Sex Trafficking: How U.S. Law Enforcement Should Reform Operations,” many sex workers reported abusive and even violent and dehumanizing encounters with law enforcement. This affects the value of increased criminal penalties because they may only be used to arrest sex workers, not anyone else.

The Gould School of Law Report also notes that in most cases, the sex worker is prosecuted – not the trafficker or the purchaser of sex. If the goal is addressing the horrors of sex trafficking, it may make more sense to immunize sex workers against any arrest and prosecution and offer trauma-informed medical and mental health care so they may feel confident assisting law enforcement in prosecuting traffickers.

The author of the bill intimates this change is premised on a law in Nordic countries. However, there are some important distinctions between the “Nordic model” and California’s solicitation law. First, Nordic countries have robust social safety nets and sex for compensation is not against the law. Citizens in Nordic counties are also do not struggle with issues of generationally poverty with little or no prospects for a better life. Finally, this state continues to struggle with racial disparities in policing. Nordic countries do not have a history of racial violence in law enforcement.

1. Immigration Consequences: A conviction for any crime where the penalty following conviction is a year or more and specified crimes “of moral turpitude” will likely bar a person from receiving lawful permanent residence status and may result in deportation. Prostitution-related immigration laws developed primarily in the late 1800s and early 1900s to respond to the singular concern about the threat of the sexuality of noncitizen women to American morality. (Dadhania, Article: Deporting Undesirable Women (2018) 9 U.C. Irvine L. Rev. 53, 56.)

Federal law states any person “directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution” may be denied admission, re-admission, or LPR status. (8 U.S.C. § 1182, subd. (a)(2)(D); See generally, Argot v. Superior Court of San Bernardino County [People of State of California] (June 8, 2022, No. E075674) ___Cal.App.5th___ [2022 Cal. App. Unpub. LEXIS 3535, at *6-7].)

Congress passed the Victims of Trafficking Violence and Protection Act (VTVPA) in 2000. This law was enacted in the wake of increased awareness of human trafficking, particularly commercial sex trafficking. The VTVPA was multi-faceted legislation targeting human trafficking. It created T and U nonimmigrant statuses for victims of severe forms of human trafficking to allow them to remain in the United States to assist in law enforcement efforts against their traffickers and for victims of serious crimes including human trafficking, respectively. (Dadhania, 9 U.C. Irvine L. Rev., at 73.)

However, U and T visas are frequently denied to trafficking victims unless they participate in a law enforcement investigation – which may risk their lives or even their families’ lives. If a trafficking victim makes the decision to protect their family rather than speak to the police, the VTVPA may not provide any remedy.

Hence, undocumented Californians may be uniquely penalized because an arrest or conviction for a prostitution-related crime may result in deportation or other serious immigration consequences. If the goal is protect human trafficking victims, does it make more sense to provide a full range of services to those who seek assistance and complex law enforcement actions to arrest traffickers –many of whom operate organized criminal operations?

1. Arguments in Support: According to the Peace Officers Research Association of California: Current law defines certain acts as disorderly conduct, punishable as a misdemeanor, including soliciting, agreeing to engage in, or engaging in any act of prostitution with another person in exchange for the individual providing compensation, money, or anything of value to the other person. This bill would make a 2nd or subsequent violation of this type of disorderly conduct punishable as a felony.
   
2. Arguments in Opposition: According to the California Public Defenders Association: While well intentioned, ending human trafficking is a goal we all share, AB 2382 is bad public policy because it punishes sex workers and customers alike, is based on a flawed model “the Nordic model”, undoes reforms that the Legislature has made a mere 8 years ago, wastes money and will endanger the very individuals it purports to want to protect.

• Proposed Penal Code section 647(m) states that a second conviction of section 647(b)(2) which prohibits soliciting or agreeing to prostitution with an individual 18 years or older is punishable as a felony. This will apply to both sex workers and their customers regardless of whether the sex workers are trafficked, suffer from drug addiction or mental illness.
• The “Nordic” model so called because it has been employed in some Scandinavian countries decriminalizes the conduct of sex workers while increasing the penalties for consumers, in other words, end demand has not been found to actually decrease demand in one study from Northern Ireland and is certainly not appropriate for importing to the United States unless and until sex workers do not face criminal penalties. California still criminalizes sex workers.
• Eight years ago in 2016, the California Legislature enacted SB 1129 (Monning) which eliminated the 90-day mandatory sentence for a second or subsequent conviction of 647(b).
  
• Jailing sex workers and their clients wastes scarce public resources at a time that the State of California is facing a historic budget crisis.
• Further criminalizing prostitution does not end it but endangers sex workers.

“Citing studies and surveys from locales as diverse as Baltimore, Maryland, to Vancouver, Canada, the consensus is that further criminalizes sex workers.

In criminalized contexts, sex workers face violence from clients, related both to the context of the interactions and the actual and perceived lack of police protection. For example, 22 percent of the 250 female20 sex workers surveyed in Baltimore, Maryland reported physical or sexual violence by a client in the past three months. Research suggests a strong association between rushing negotiation and experiences with client-perpetrated violence; when sex work is illegal workers may not be able to as effectively screen clients or negotiate fees or activities. The lack of time or conditions to agree upon a fee in advance can increase the risk of disagreement and violent or aggressive escalation by the client during or after the fact. For example, findings from three studies in Vancouver, Canada indicate that rushing client negotiations, often due to police presence, resulted in increased client violence to female workers. (Internal Citations Omitted.) ACLU Research Brief: Is Sex Work Decriminalization the Answer? What The Research Tells Us, Oct. 16, 2020 (Available online (https://www.aclu.org/publications/sex-work-decriminalization-answer-what-research-tells-us)

“Current law already carries elevated charges and penalties for individuals that engage in serious crimes related to prostitution. Human trafficking, pimping, and pandering are all felonies that carry significant prison sentences.

“AB 2382 would make a second or subsequent conviction for simply soliciting prostitution a felony, punishable by a maximum of three years imprisonment. This is disproportionate punishment for the behavior covered by this bill. AB 2382 will disproportionately impact lower socio-economic communities, black, brown and LGBTQ. Affluent individuals for the most part conduct their sexual business transactions online, at private clubs and fancy hotels. The high end sex workers that they hire are not standing on street corners in the cold and rain seeking customers to pay their bills or their drug habits.

1. Related Legislation:
   
   1. AB 1602 (Alvarez), expands the definition of solicitation to include an individual who operates a motor vehicle in any public place and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists with the intent to solicit prostitution. AB 1602 was referred to, but never heard in this committee.
      
   2. AB 2646 (Ta), also re-enacts the crime of loitering with intent to commit prostitution. AB 2646 is pending referral to this committee.
      
   3. AB 2828 (Rodriguez), creates a new felony for any solicitation or an agreement to engage in solicitation of prostitution in exchange for compensation when the person soliciting the prostitute has been convicted of the same crime on 2 prior occasions. AB 2828 is pending referral to this committee.
      
   4. SB 1219 (Seyarto), expands the definition of solicitation to include loitering with the intent to solicit prostitution, as specified, and re-enacts the crime of loitering with intent to commit prostitution. SB 1219 is pending referral to the Senate Committee on Public Safety.
      
2. Prior Legislation:
   
3. AB 1193 (Blanca Rubio), of the 2021-22 Legislative Session, increased the penalty for misdemeanor solicitation of a minor, making it alternatively punishable as a felony by 16 months, two, or three years in the state prison regardless of whether the defendant knew or should have known the person was a minor. AB 1129 was referred to, but never heard, in this committee.
   
4. AB 1970 (Horvath), of the 2021-22 Legislative Session increased the penalty for misdemeanor solicitation of a minor, making it alternatively punishable as a felony by 16 months, two, or three years in the state prison regardless of whether the defendant knew or should have known the person was a minor. AB 1970 was referred to, but never heard in this committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Peace Officers Research Association of California (PORAC)

Opposition

California Public Defenders Association
Ella Baker Center for Human Rights
Felony Murder Elimination Project
Legal Services for Prisoners With Children
Smart Justice California, a Project of Tides Advocacy
Together in Service
Uncommon Law

Analysis Prepared by:

Kimberly Horiuchi / PUB. S. / (916) 319-3744

1. See https://www.cdcr.ca.gov/research/offender-outcomes-characteristics/offender-data-points/ https://openjustice.doj.ca.gov/exploration/crime-statistics/crimes-clearances [both last visited April 8, 2024.) ↑

2. https://www.justice.gov/criminal/criminal-ceos ↑

3. Located at https://oag.ca.gov/human-trafficking [last visited April 8, 2024]. ↑

4. Located at https://www.hrw.org/report/2021/11/18/i-just-try-make-it-home-safe/violence-and-human-rights-transgender-people-united, [last visited April 12, 2024.] ↑

5. See Micaela Anderson, Child Trafficking Hits Close to Home, UNICEF USA, January 12, 2021, found at https://www.unicefusa.org/stories/child-trafficking-hits-close-home, last visited February 23, 2024. ↑

6. 2019 is the same year the Legislature enacted SB 233 (Weiner), Chapter 141, Statutes of 2019 which explicitly prevents use of condoms as a basis for probable cause to arrest a person for solicitation or loitering with intent to commit prostitution. ↑

7. Zoli, at al., “Towards Action Research With Trans Women Sex Workers: Policy, space and social challenges,” Journal of Community Psychology (January 2021), p. 1, located at https://onlinelibrary.wiley.com/doi/full/10.1002/jcop.22511 [last visited April 14, 2024.] ↑

8. See Walker, “To Protect Black Tans Lives, Decriminalizes Sex Work,” published by the ACLU News and Commentary online, November 20, 2020 [Kanija Walker is a former sex worker and activist at “Heart to Hand.” ↑

9. Yale Global Health Justice Partnership, Sex Workers and Allies Network, “The Harmful Consequences of Sex Work Criminalization on Health and Rights” (June 2020) (last visited February 22, 2024 https://law.yale.edu/center.ghip.docoments .) ↑