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. Existing law requires law enforcement agencies to use due diligence to identify all victims of human trafficking regardless of the citizenship of the person.

This bill would provide that a victim of human trafficking or abuse has the right to have a human trafficking advocate, as defined, and a support person of the victims choosing present at an interview by a law enforcement authority, prosecutor, or the suspects defense attorney and would require the human trafficking advocate to advise the victim of the applicable limitations on the confidentiality of the victims communications with the advocate. The bill would authorize the law enforcement officer or the prosecutor to exclude the support person, but not the human trafficking advocate, if they believe that the support persons presence would be detrimental to the process. The bill would require the attending law enforcement authority or prosecutor to notify a victim of human trafficking or abuse of their right to have a human trafficking advocate and support person of their choosing present at the interview, as specified. By creating a new notification requirement for local law enforcement and prosecutors, 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. Existing law requires law enforcement agencies to use due diligence to identify all victims of human trafficking regardless of the citizenship of the person.

This bill would provide that a victim of human trafficking or abuse has the right to have a human trafficking advocate, as defined, and a support person of the victims choosing present at an interview by a law enforcement authority, prosecutor, or the suspects defense attorney and would require the human trafficking advocate to advise the victim of the applicable limitations on the confidentiality of the victims communications with the advocate. The bill would authorize the law enforcement officer or the prosecutor to exclude the support person, but not the human trafficking advocate, if they believe that the support persons presence would be detrimental to the process. The bill would require the attending law enforcement authority or prosecutor to notify a victim of human trafficking or abuse of their right to have a human trafficking advocate and support person of their choosing present at the interview, as specified. By creating a new notification requirement for local law enforcement and prosecutors, 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. Existing law requires law enforcement agencies to use due diligence to identify all victims of human trafficking regardless of the citizenship of the person.

This bill would provide that a victim of human trafficking or abuse has the right to have a human trafficking advocate, as defined, and a support person of the victims choosing present at an interview by a law enforcement authority, prosecutor, or the suspects defense attorney and would require the human trafficking advocate to advise the victim of the applicable limitations on the confidentiality of the victims communications with the advocate. The bill would authorize the law enforcement officer or the prosecutor to exclude the support person, but not the human trafficking advocate, if they believe that the support persons presence would be detrimental to the process. The bill would require the attending law enforcement authority or prosecutor to notify a victim of human trafficking or abuse of their right to have a human trafficking advocate and support person of their choosing present at the interview, as specified. By creating a new notification requirement for local law enforcement and prosecutors, 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. Existing law requires law enforcement agencies to use due diligence to identify all victims of human trafficking regardless of the citizenship of the person.

This bill would provide that a victim of human trafficking or abuse has the right to have a human trafficking advocate, as defined, and a support person of the victims choosing present at an interview by a law enforcement authority, prosecutor, or the suspects defense attorney and would require the human trafficking advocate to advise the victim of the applicable limitations on the confidentiality of the victims communications with the advocate. The bill would authorize the law enforcement officer or the prosecutor to exclude the support person, but not the human trafficking advocate, if they believe that the support persons presence would be detrimental to the process. The bill would require the attending law enforcement authority or prosecutor to notify a victim of human trafficking or abuse of their right to have a human trafficking advocate and support person of their choosing present at the interview, as specified. By creating a new notification requirement for local law enforcement and prosecutors, 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.

Existing law makes it a crime of human trafficking for a person to deprive or violate the personal liberty of another with the intent to obtain forced labor or services, or with the intent to effect or maintain any violation of specified crimes.

This bill would state the intent of the Legislature to enact legislation creating a data-informed, evidence-based estimate of the prevalence of human trafficking in California in order to support early identification and prevention of new trafficking cases.

UNFINISHED BUSINESS  

Bill No: SB 376

Author: Rubio (D), et al.

Amended: 6/1/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/18/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 40-0, 5/22/23

AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

SUBJECT: Human trafficking: victim rights

SOURCE: Coalition to Abolish Slavery and Trafficking

DIGEST:

This bill provides that a victim of human trafficking or abuse has the right to have a human trafficking advocate and a supporter person of the victim’s choosing present at an interview by a law enforcement authority.

Assembly Amendments make technical changes and add a coauthor.

ANALYSIS:

Existing law:

1. States 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 specified sex offenses is guilty of human trafficking. (Penal Code § 236.1 (c).)
2. Defines “commercial sex act” to mean sexual conduct on account of which anything of value is given or received by a person. (Penal Code § 236.1 (h)(2).)
3. Punishes human trafficking of a minor for the purpose of engaging in a commercial sexual act as follows:
4. Imprisonment in the state prison for 5, 8, or 12 years and a fine of not more than $500,000; or,
5. Imprisonment for 15 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. (Penal Code § 236.1 (c)(1)-(2).)
6. Requires a person convicted of human trafficking of a minor for the purpose of engaging in a commercial sexual act to register on the sex offender registry. (Penal Code § 290, (c)(1).)
7. Provides that any person who knowingly and maliciously prevents or dissuades, or attempts to prevent or dissuade, any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law is guilty of a crime. (Penal Code §§ 136.1 (a)(1)(2).)
8. Authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. (Penal Code § 136.2 (a).)
9. Provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Penal Code § 136.2 (b).)
10. States that when the defendant is charged with a crime involving domestic violence, rape, or a crime that requires the defendant to register on the sex offender registry, the court shall consider issuing a protective order on its own motion. (Penal Code § 136.2 (e)(1).)
11. States that the court may consider, when determining whether good cause exists to issue a restraining order during the pendency of criminal proceedings, the underlying nature of the offense charged, the defendant’s relationship to the victim, the likelihood of continuing harm to the victim, any current restraining order or protective order issued by civil or criminal court involving the defendant, and the defendant’s criminal history. (Penal Code § 136.2 (h)(2).)
12. Requires a court to consider issuing a protective order that may be valid for up to 10 years, to protect the victim of the crime when a defendant is convicted of any of the following crimes:
    1. A crime involving domestic violence;
    2. Human trafficking for labor or services;
    3. Rape, spousal rape, and statutory rape;
    4. Pimping and pandering;
    5. Gang offenses; and,
    6. Any offense requiring sex offender registration. (Penal Code §§ 136.2 (i)(1).)
13. Gives a victim of sex assault has the right to have a victim advocate and a support person at law enforcement interviews. (Penal Code § 679.04)
14. Provides “Human trafficking victim service organization” means a nongovernmental organization or entity that provides shelter, program, or other support services to victims of human trafficking and their children and that does all of the following:
15. Employs staff that meet the requirements of a human trafficking caseworker as set forth in this section.
16. Operates a telephone hotline, advertised to the public, for survivor crisis calls.
17. Offers psychological support and peer counseling provided in accordance with this section.
18. Makes staff available during normal business hours to assist victims of human trafficking who need shelter, programs, or other support services. (Evidence Code §1038.2(d))

This bill:

1. Provides that a victim of human trafficking or abuse, has the right to have a human trafficking advocate and a support person of the victim’s choosing present at an interview by a law enforcement authority, prosecutor, or the suspect’s defense attorney.
2. Provides that law enforcement or the prosecutor can exclude the support person if they believe their presence would be detrimental to the case.
3. Provides that prior to being present at an interview conducted by a law enforcement authority, prosecutor, or defense attorney, a human trafficking advocate shall advise the victim of applicable limitations on the confidentiality between the victim and the human trafficking advocate.
4. Defines “human trafficking advocate as a person employed by an organization specified in Evidence Code Section 1038.2.
5. Provides that prior to the commencement of the initial interview by a law enforcement authority or prosecutor pertaining to a criminal action arising out of a human trafficking incident, a victim of human trafficking or abuse shall be notified orally or in writing by attending law enforcement authority that the victim has the right to have a human trafficking person of the victim’s choosing present at the interview.
6. Provides at the time the victim is advised of their rights, the attending law enforcement authority or prosecutor shall also advise the victim of the right to have a human trafficking advocate and support person present at an interview by the defense attorney or investigators or agents employed by the defense attorney.
7. Provides that an initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspects does not constitute a law enforcement interview for purposes of this bill.

Comments

According to the author:

Survivors of human trafficking are often left in extremely vulnerable positions. Many are arrested for crimes they were forced to commit, and this may cause them to feel fearful of stepping forward with their traumatic experiences. This poses a huge barrier to break the cycle and escape their circumstances, and makes them vulnerable to being trafficked again. Because of these factors, it is crucial for victims to have a right to an advocate that would help navigate them through any interview by law enforcement authorities, prosecutors, or defense attorneys. This bill would additionally require law enforcement to notify or advise a victim of human trafficking of this right. Under current state law, survivors of domestic violence and sexual assault are already granted the right to an advocate, and survivors of human trafficking experience similar obstacles. This critical resource will increase potential survivor cooperation with the investigation and/or prosecution.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Assembly Appropriations Committee, minor, potentially absorbable costs (local funds, General Fund) to law enforcement agencies and prosecutors to notify human trafficking victims of their right to have an advocate and support person present at interviews, as required by the bill. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

SUPPORT: (Verified 6/27/23)

Coalition to Abolish Slavery and Trafficking (source)

American Association of University Women San Jose

Atina

Child Abuse Prevention Center

Crime Survivors Resource Center

Generate Hope

Healthy Alternatives to Violent Environments

Justice Restoration Center

Los Angeles Center for Law and Justice

Treasures Ministries

OPPOSITION: (Verified 6/27/23)

None received

ARGUMENTS IN SUPPORT: According to the sponsor, Coalition to Abolish Slavery and Trafficking:

Human trafficking affects thousands of individuals of all backgrounds, gender identities, sexual orientations, and ages. This crime involves the use of force, fraud, or coercion, to recruit, harbor, transport, provide, or obtain a person for the purposes of labor or sexual exploitation. Under existing law, the right to an advocate is only granted for survivors of sexual assault under Penal Code Section 264.2 (b) (1), and for survivors of domestic violence under Penal Code Section 679.5. This means that survivors of human trafficking are often navigating the complexities of the criminal legal system without an advocate present - leading to criminalization and re-victimization. Survivors of human trafficking face barriers similar to survivors of domestic violence and sexual assault and may be fearful of reporting due to fear of retaliation, issues with legal status, or forced criminality.

SB 376 will provide critical access to a confidential advocate that can provide trauma-informed, survivor-centered and culturally responsive support that will increase the likelihood that the human trafficking survivor will access vital services, protections, and legal remedies

Prepared by: Mary Kennedy / PUB. S. /

6/28/23 14:24:38

**** END ****

Date of Hearing: June 21, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

SBPCA Bill Id:SB 376

Author:(Rubio) – As Amended Ver:June 1, 2023

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

SUMMARY:

This bill gives a victim of human trafficking or abuse the right to have a human trafficking advocate and a support person present when the victim is interviewed by a law enforcement authority, prosecutor, or the trafficking suspect’s defense attorney.

FISCAL EFFECT:

Minor, potentially absorbable costs (local funds, General Fund) to law enforcement agencies and prosecutors to notify human trafficking victims of their right to have an advocate and support person present at interviews, as required by the bill. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

COMMENTS:

1. Author’s Statement. According to the author:

Survivors of human trafficking are often left in extremely vulnerable positions. Many are arrested for crimes they were forced to commit, and this may cause them to feel fearful of stepping forward with their traumatic experiences. This poses a huge barrier to break the cycle and escape their circumstances, and makes them vulnerable to being trafficked again. Because of these factors, it is crucial for victims to have a right to an advocate that would help navigate them through any interview by law enforcement authorities, prosecutors, or defense attorneys. This bill would additionally require law enforcement to notify or advise a victim of human trafficking of this right. Under current state law, survivors of domestic violence and sexual assault are already granted the right to an advocate, and survivors of human trafficking experience similar obstacles. This critical resource will increase potential survivor cooperation with the investigation and/or prosecution.

1. Background. Under current law, victims of certain domestic abuse and sexual assault crimes have a right to be accompanied by an advocate and a support person during interviews with law enforcement officials, prosecutors, and defense attorneys. This bill extends a similar right to victims of human trafficking and requires that law enforcement agencies and prosecutors inform qualifying victims of the right. If a law enforcement agency or prosecutor determines that the presence of an advocate or support person is detrimental to the interview process, the bill allows them to exclude the advocate or support person from the interview. A human trafficking advocate is someone with education, professional training, and experience working with human trafficking survivors who can provide advice and assistance to a trafficking victim navigating the criminal legal process. A support person may be any person of the victim’s choosing who can provide support during a mentally and emotionally challenging interview. According to supporters of the bill, this bill takes a survivor-centered, trauma-informed approach that will help human trafficking survivors participate in interviews and access care and services.

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

Date of Hearing: June 13, 2023

Counsel: Mureed Rasool

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 376

Author:(Rubio) – As Amended Ver:June 1, 2023

SUMMARY: Grants victims of human trafficking the right to have a human trafficking advocate and support person at an interview by law enforcement authorities, district attorneys, or the suspect’s defense attorney, and be advised of such right. Specifically, this bill:

1. States that a human trafficking victim, as defined, has the right to have a human trafficking advocate and a support person of the victim’s choosing present at an interview by a law enforcement authority, prosecutor, or a suspect’s defense attorney.
   
2. Authorizes law enforcement or a prosecutor to exclude the support person from the interview if they believe the support person’s presence would be detrimental to the interview process.
   
3. Defines a “human trafficking advocate” as a person employed by a human trafficking victim service organization, who has a specified degree or license, and meets other specified qualifications.
   
4. Defines a “support person” as a family member or friend of the victim, not including the human trafficking advocate.
   
5. Requires human trafficking advocates, prior to an interview, to advise the victim of applicable limitations to the confidentiality of their communications.
   
6. Requires law enforcement authorities or a prosecutor, prior to commencement of the interview, to notify the human trafficking victim, either orally or in writing, that they have the right to the presence of a human trafficking advocate and a support person.
   
7. Requires law enforcement authorities or a prosecutor to also notify the victim that the right extends to an interview by the suspect’s defense attorney or their investigators or agents.
   
8. Specifies that an initial investigation into a crime by law enforcement does not constitute an “interview” for the purposes of these provisions.

EXISTING LAW:

1. Provides that a victim of sexual assault as the result of specified offenses has the right to have victim advocates and a support person of the victim s choosing present at any interview by law enforcement authorities, district attorneys, or defense attorneys. (Pen. Code, 679.04, subd. (a).)
   
2. Specifies that a sexual assault victim retains this right regardless of whether the victim has previously waived the right in a previous medical evidentiary or physical examination or in a previous interview by law enforcement authorities, district attorneys, or defense attorneys. (Pen. Code, 679.04, subd. (a).)
   
3. Specifies that the support person for a sexual assault victim may be excluded from an interview by law enforcement or the district attorney if they determine that the presence of the support person would be detrimental to the purpose of the interview. (Pen. Code, 679.04, subd. (a).)
   
4. Defines “victim advocate” as a sexual assault counselor, as defined, or a victim advocate working in a center, as specified. (Pen. Code, 679.04, subd. (a).)
   
5. Provides that prior to the commencement of the initial interview by law enforcement authorities or the district attorney pertaining to any criminal action arising out of a sexual assault, a victim of sexual assault as the result of specified offenses shall be notified in writing by the attending law enforcement authority or district attorney that the victim has the right to have victim advocates and a support person of the victim s choosing present at the interview or contact, about other rights of the victim pursuant to law, as specified, and that the victim has the right to request to have a person of the same gender as the victim present in the room during any interview with a law enforcement official or district attorney, unless no such person is reasonably available. This provision applies to investigators and agents employed or retained by law enforcement or district attorney. (Pen. Code, 679.04, subd. (b)(1).)
   
6. States that at the time a sexual assault victim is advised of his or her rights, the attending law enforcement authority or district attorney shall also advise the victim of the right to have victim advocates and a support person present at any interview by the defense attorney or investigators or agents employed by the defense attorney. (Pen. Code, 679.04, subd. (b)(2).)
   
7. Specifies that the presence of a victim advocate shall not defeat any existing right otherwise guaranteed by law. A victim's waiver of the right to a victim advocate is inadmissible in court, unless a court determines the waiver is at issue in the pending litigation. (Pen. Code, 679.04, subd. (b)(3).)
   
8. Specifies that the victim has the right to request to have a person of the same gender or opposite gender as the victim present in the room during any interview with a law enforcement official or district attorney, unless no such person is reasonably available. (Pen. Code, 679.04, subd. (b)(4).)
   
9. States that an initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspects shall not constitute a law enforcement interview for purposes of this section. (Pen. Code, 679.04, subd. (c).)
   
10. Grants a victim of domestic violence or abuse, as defined, the right to have a domestic violence advocate and a support person of the victim's choosing present at any interview by law enforcement authorities, prosecutors, or defense attorneys. (Pen. Code, 679.05, subd. (a).)
    
11. Specifies that the support person may be excluded from an interview by law enforcement or the prosecutor if the law enforcement authority or the prosecutor determines that the presence of that individual would be detrimental to the purpose of the interview. (Pen. Code, 679.05, subd. (a).)
    
12. Defines “domestic violence advocate” to mean either a person employed by a program, as specified, for the purpose of rendering advice or assistance to victims of domestic violence, or a domestic violence counselor, as defined. (Pen. Code, 679.05, subd. (a).) 
    
13. Provides that prior to being present at any interview conducted by law enforcement authorities, prosecutors, or defense attorneys, a domestic violence advocate shall advise the victim of any applicable limitations on the confidentiality of communications between the victim and the domestic violence advocate. (Pen. Code, 679.05, subd. (a).)
    
14. Provides that prior to the commencement of the initial interview by law enforcement authorities or the prosecutor pertaining to any criminal action arising out of a domestic violence incident, a victim of domestic violence or abuse, as defined, shall be notified orally or in writing by the attending law enforcement authority or prosecutor that the victim has the right to have a domestic violence advocate and a support person of the victim's choosing present at the interview or contact. (Pen. Code, 679.05, subd. (b)(1).)
    
15. Specifies that at the time the victim is advised of his or her rights, the attending law enforcement authority or prosecutor shall also advise the victim of the right to have a domestic violence advocate and a support person present at any interview by the defense attorney or investigators or agents employed by the defense attorney. (Pen. Code, 679.05, subd. (b)(2).)
    
16. State that an initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspects shall not constitute a law enforcement interview for purposes of this section. (Pen. Code, 679.05, subd. (b)(2).
17. Provides that a person who deprives or violates the personal liberty of another to obtain forced labor or services is guilty of human trafficking, and can be imprisoned for 5, 8, or 12 years. (Pen. Code, § 236.1, subd. (a).)
    
18. States that a person who deprives or violates the personal liberty of another with the intent to pimp, pander, procure, or commit another specified sex crime, is guilty of human trafficking and may be imprisoned for 8, 14, or 20 years. (Pen. Code, § 236.1, subd. (b).)
    
19. Provides that a person who induces or persuades a minor to engage in a commercial sex act, as specified, is guilty of human trafficking and may be imprisoned for 5, 8, or 12 years, or for 15 years to life if some form of violence, threat, or duress is involved. (Pen. Code, § 236.1, subd. (c).)
    
20. Defines a human trafficking “victim” as a person who consults a human trafficking caseworker for the purpose of securing assistance concerning a condition related to their experience as a human trafficking victim. (Evid. Code, § 1038.2, subd. (e).)
    
21. Defines a “human trafficking caseworker” as a person employed by a human trafficking victim service organization, who has a specified degree or license, and meets other specified qualifications. (Evid. Code, § 1038.2, subd. (c).)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “Survivors of human trafficking are often left in extremely vulnerable positions. Many are arrested for crimes they were forced to commit, and this may cause them to feel fearful of stepping forward with their traumatic experiences. This poses a huge barrier to break the cycle and escape their circumstances, and makes them vulnerable to being trafficked again. Because of these factors, it is crucial for victims to have a right to an advocate that would help navigate them through any interview by law enforcement authorities, prosecutors, or defense attorneys. This bill would additionally require law enforcement to notify or advise a victim of human trafficking of this right. Under current state law, survivors of domestic violence and sexual assault are already granted the right to an advocate, and survivors of human trafficking experience similar obstacles. This critical resource will increase potential survivor cooperation with the investigation and/or prosecution.”
   
2. Human Trafficking: According to the Department of Justice (DOJ), human trafficking, also known as modern-day slavery, is a crime involving the coercion or compelling of a person to provide labor or services, or to engage in commercial sex acts. The coercion can be physical or psychological, and may involve the use of violence, threats, lies, or debt bondage. It is among the world’s fastest growing criminal enterprises and is estimated to be a $150 billion-a-year worldwide industry. The International Labor Organization estimates that there are approximately 24.9 million human trafficking victims globally at any given time. (DOJ. What is Human Trafficking? <https://oag.ca.gov/human-trafficking/what-is#top> [as of Mar. 29, 2023]; DOJ. Human Trafficking. <https://oag.ca.gov/human-trafficking> [as of Mar. 29, 2023].)
   
   The U.S. is widely regarded as a destination country for human trafficking. (DOJ. What is Human Trafficking? <https://oag.ca.gov/human-trafficking/what-is#top> [as of Jun. 7, 2023]; DOJ. Human Trafficking. <https://oag.ca.gov/human-trafficking> [as of Jun. 7, 2023].) At the federal level, it is estimated that 14,500 to 17,500 victims are trafficked into the U.S. annually. At the state level, California is one of the nation’s top destination states for human trafficking. Human trafficking victims do not necessarily fit into any one profile. (Id.) Victims of human trafficking include men, women, and children from diverse backgrounds in terms of race, color, national origin, religion, sexual orientation, socioeconomic status, and education level. (Id.) Many domestic victims of sex trafficking are runaway or homeless youth with backgrounds of sexual and physical abuse, poverty, or addiction; these vulnerabilities are often exploited by traffickers. (Id.)
   The California Trafficking Victims Protection Act, enacted in 2006, established human trafficking for forced labor or services as a felony crime. (See Pen. Code, § 236.1) Since the California Trafficking Victims Protection Act, a number of additional laws have been passed in California related to human trafficking. (Judicial Council of California (JCC), Human Trafficking in California: Toolkit for Judicial Officers (2017) <http://www.courts.ca.gov/documents/human-trafficking-toolkit-cfcc.pdf > [as of Jun. 6, 2023] at p. 31.) “Trafficking victims have certain commonalities that make them vulnerable to exploitation, including poverty, history of sexual or physical abuse, a lack of family or family support, young age, and limited education.” (Id. at 3.) “Traffickers convince victims to distrust outsiders, particularly law enforcement, and victims are kept unaware of their rights.” (Id. at p. 4.) “Collaborative approaches to treating victims as victims rather than as criminals have been identified as successful practices. Victim-centered approaches to prosecution ensure that victims are treated as victims and not as criminals, and that they have access to adequate services, assistance, and benefits.” (Id. at p. 5.)

This bill takes a more victim-centered approach during the interview process by allowing the victim to choose whether to have a trained advocate and a support person be present. Supporters of the bill note that interviewing human trafficking victims can be complex and that an interview may be significantly traumatic for a human trafficking victim. As such, supporters say that the presence of trained advocates and support persons can provide emotional backing needed for a victim to share their story. This bill is similar to the rights already provided in law for sexual assault and domestic violence victims.

1. Argument in Support: According to the bill’s sponsor, the Coalition to Abolish Slavery & Trafficking, “Human trafficking affects thousands of individuals of all backgrounds, gender identities, sexual orientations, and ages. This crime involves the use of force, fraud, or coercion, to recruit, harbor, transport, provide, or obtain a person for the purposes of labor or sexual exploitation. Under existing law, the right to an advocate is only granted for survivors of sexual assault under Penal Code Section 264.2 (b) (1), and for survivors of domestic violence under Penal Code Section 679.5. This means that survivors of human trafficking are often navigating the complexities of the criminal legal system without an advocate present - leading to criminalization and re-victimization. Survivors of human trafficking face barriers similar to survivors of domestic violence and sexual assault and may be fearful of reporting due to fear of retaliation, issues with legal status, or forced criminality.
   
   “SB 376 will provide critical access to a confidential advocate that can provide trauma-informed, survivor-centered and culturally responsive support that will increase the likelihood that the human trafficking survivor will access vital services, protections, and legal remedies.”
   
2. Argument in Opposition: None received.
   
3. Related Legislation: SB 464 (Wahab), adds a licensed attorney who represents a sexual assault victim to the list of persons the victim may have present during an interview. SB 464 is pending referral in the Assembly Rules Committee.
   
4. Prior Legislation:
   
   1. AB 3059 (Kalra), of the 2019-2020 Legislative Session, was substantially similar to this bill. AB 3059 was held in the Assembly Public Safety Committee without further action.
      
   2. SB 1091 (Pavley), Chapter 148, Statutes of 2012, added human trafficking victims to the list of crimes for which a prosecution witness may have two support persons during testimony.
      
   3. SB 1441 (Kuehl), Chapter 159, Statutes of 2004, gave domestic violence victims the right to have an advocate and a support person present during interviews with law enforcement authorities, prosecutors, or defense attorneys.
      
   4. SB 1444 (Solis), Chapter 1075, Statutes of 1996, gave sexual assault victims the right to have an advocate and a support person present during specified interactions with law enforcement authorities or defense attorneys.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Coalition to Abolish Slavery & Trafficking (CAST) (Sponsor)

American Association of University Women (AAUW) San Jose

Atina

Child Abuse Prevention Center

Community Solutions for Children, Families, and Individuals

Crime Survivors Resource Center

Generate Hope

Healthy Alternatives to Violent Environments

Justice Restoration Center

Los Angeles Center for Law and Justice

Prosecutors Alliance California

Santa Barbara County Human Trafficking Task Force

Treasures Ministries

Opposition

None received.

Analysis Prepared by: Mureed Rasool / PUB. S. / (916) 319-3744

THIRD READING  

Bill No: SB 376

Author: Rubio (D), et al.

Amended: 4/20/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/18/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Human trafficking: victim rights

SOURCE: Coalition to Abolish Slavery and Trafficking

DIGEST:

This bill provides that a victim of human trafficking or abuse has the right to have a human trafficking advocate and a supporter person of the victim’s choosing present at an interview by a law enforcement authority.

ANALYSIS:

Existing law:

1. States 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 specified sex offenses is guilty of human trafficking. (Penal Code § 236.1 (c).)
2. Defines “commercial sex act” to mean sexual conduct on account of which anything of value is given or received by a person. (Penal Code § 236.1 (h)(2).)
3. Punishes human trafficking of a minor for the purpose of engaging in a commercial sexual act as follows:
4. Imprisonment in the state prison for 5, 8, or 12 years and a fine of not more than $500,000; or,
5. Imprisonment for 15 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. (Penal Code § 236.1 (c)(1)-(2).)
6. Requires a person convicted of human trafficking of a minor for the purpose of engaging in a commercial sexual act to register on the sex offender registry. (Penal Code § 290, (c)(1).)
7. Provides that any person who knowingly and maliciously prevents or dissuades, or attempts to prevent or dissuade, any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law is guilty of a crime. (Penal Code §§ 136.1 (a)(1)(2).)
8. Authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. (Penal Code § 136.2 (a).)
9. Provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Penal Code § 136.2 (b).)
10. States that when the defendant is charged with a crime involving domestic violence, rape, or a crime that requires the defendant to register on the sex offender registry, the court shall consider issuing a protective order on its own motion. (Penal Code § 136.2 (e)(1).)
11. States that the court may consider, when determining whether good cause exists to issue a restraining order during the pendency of criminal proceedings, the underlying nature of the offense charged, the defendant’s relationship to the victim, the likelihood of continuing harm to the victim, any current restraining order or protective order issued by civil or criminal court involving the defendant, and the defendant’s criminal history. (Penal Code § 136.2 (h)(2).)
12. Requires a court to consider issuing a protective order that may be valid for up to 10 years, to protect the victim of the crime when a defendant is convicted of any of the following crimes:
    1. A crime involving domestic violence;
    2. Human trafficking for labor or services;
    3. Rape, spousal rape, and statutory rape;
    4. Pimping and pandering;
    5. Gang offenses; and,
    6. Any offense requiring sex offender registration. (Penal Code §§ 136.2 (i)(1).)
13. Gives a victim of sex assault has the right to have a victim advocate and a support person at law enforcement interviews. (Penal Code § 679.04)
14. Provides “Human trafficking victim service organization” means a nongovernmental organization or entity that provides shelter, program, or other support services to victims of human trafficking and their children and that does all of the following:
15. Employs staff that meet the requirements of a human trafficking caseworker as set forth in this section.
16. Operates a telephone hotline, advertised to the public, for survivor crisis calls.
17. Offers psychological support and peer counseling provided in accordance with this section.
18. Makes staff available during normal business hours to assist victims of human trafficking who need shelter, programs, or other support services. (Evidence Code §1038.2(d))

This bill:

1. Provides that a victim of human trafficking or abuse, has the right to have a human trafficking advocate and a support person of the victim’s choosing present at an interview by a law enforcement authority, prosecutor, or the suspect’s defense attorney.
2. Provides that law enforcement or the prosecutor can exclude the support person if they believe their presence would be detrimental to the case.
3. Provides that prior to being present at an interview conducted by a law enforcement authority, prosecutor, or defense attorney, a human trafficking advocate shall advise the victim of applicable limitations on the confidentiality between the victim and the human trafficking advocate.
4. Defines “human trafficking advocate as a person employed by an organization specified in Evidence Code Section 1038.2.
5. Provides that prior to the commencement of the initial interview by a law enforcement authority or prosecutor pertaining to a criminal action arising out of a human trafficking incident, a victim of human trafficking or abuse shall be notified orally or in writing by attending law enforcement authority that the victim has the right to have a human trafficking person of the victim’s choosing present at the interview.
6. Provides at the time the victim is advised of their rights, the attending law enforcement authority or prosecutor shall also advise the victim of the right to have a human trafficking advocate and support person present at an interview by the defense attorney or investigators or agents employed by the defense attorney.
7. Provides that an initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspects does not constitute a law enforcement interview for purposes of this bill.

Comments

According to the author:

Survivors of human trafficking are often left in extremely vulnerable positions. Many are arrested for crimes they were forced to commit, and this may cause them to feel fearful of stepping forward with their traumatic experiences. This poses a huge barrier to break the cycle and escape their circumstances, and makes them vulnerable to being trafficked again. Because of these factors, it is crucial for victims to have a right to an advocate that would help navigate them through any interview by law enforcement authorities, prosecutors, or defense attorneys. This bill would additionally require law enforcement to notify or advise a victim of human trafficking of this right. Under current state law, survivors of domestic violence and sexual assault are already granted the right to an advocate, and survivors of human trafficking experience similar obstacles. This critical resource will increase potential survivor cooperation with the investigation and/or prosecution.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 5/2/23)

Coalition to Abolish Slavery and Trafficking (source)

American Association of University Women San Jose

Atina

Child Abuse Prevention Center

Crime Survivors Resource Center

Generate Hope

Healthy Alternatives to Violent Environments

Justice Restoration Center

Los Angeles Center for Law and Justice

Treasures Ministries

OPPOSITION: (Verified 5/2/23)

None received

ARGUMENTS IN SUPPORT: According to the sponsor, Coalition to Abolish Slavery and Trafficking:

Human trafficking affects thousands of individuals of all backgrounds, gender identities, sexual orientations, and ages. This crime involves the use of force, fraud, or coercion, to recruit, harbor, transport, provide, or obtain a person for the purposes of labor or sexual exploitation. Under existing law, the right to an advocate is only granted for survivors of sexual assault under Penal Code Section 264.2 (b) (1), and for survivors of domestic violence under Penal Code Section 679.5. This means that survivors of human trafficking are often navigating the complexities of the criminal legal system without an advocate present - leading to criminalization and re-victimization. Survivors of human trafficking face barriers similar to survivors of domestic violence and sexual assault and may be fearful of reporting due to fear of retaliation, issues with legal status, or forced criminality.

SB 376 will provide critical access to a confidential advocate that can provide trauma-informed, survivor-centered and culturally responsive support that will increase the likelihood that the human trafficking survivor will access vital services, protections, and legal remedies

Prepared by: Mary Kennedy / PUB. S. /

5/3/23 15:07:40**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 376 Hearing Date: April 18, 2023

Subject: Human trafficking: victim rights

HISTORY

Source: Coalition to Abolish Slavery and Trafficking

Prior Legislation: SB 382 (Caballero) Chapter 87, Stats. 2022

AB 1735 (Cunningham) Chapter 805, Stats. 2018

AB 1850 (Waldron) Chapter 673, Stats. 2014

SB 226 (Cedillo) Chapter 498, Stats. 2003

SB 723 (Pavley) Chapter 155, Stats. 2011

Support: Child Abuse Prevention Center

Opposition: The California Public Defenders Association

PURPOSE

The purpose of this bill is to provide that a victim of human trafficking or abuse has the right to have a human trafficking advocate and a supporter person of the victim’s choosing present at an interview by a law enforcement authority.

Existing law states 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 specified sex offenses is guilty of human trafficking. (Penal Code § 236.1 (c).)

Existing law defines “commercial sex act” to mean sexual conduct on account of which anything of value is given or received by a person. (Penal Code § 236.1 (h)(2).)

Existing law punishes human trafficking of a minor for the purpose of engaging in a commercial sexual act as follows:

• Imprisonment in the state prison for 5, 8, or 12 years and a fine of not more than $500,000; or,
• Imprisonment for 15 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. (Penal Code § 236.1 (c)(1)-(2).)

Existing law requires a person convicted of human trafficking of a minor for the purpose of engaging in a commercial sexual act to register on the sex offender registry. (Penal Code § 290, (c)(1).)

Existing law provides that any person who knowingly and maliciously prevents or dissuades, or attempts to prevent or dissuade, any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law is guilty of a crime. (Penal Code §§ 136.1 (a)(1)(2).)

Existing law authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. (Penal Code § 136.2 (a).)

Existing law provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Penal Code § 136.2 (b).)

Existing law states that when the defendant is charged with a crime involving domestic violence, rape, or a crime that requires the defendant to register on the sex offender registry, the court shall consider issuing a protective order on its own motion. (Penal Code § 136.2 (e)(1).)

Existing law states that the court may consider, when determining whether good cause exists to issue a restraining order during the pendency of criminal proceedings, the underlying nature of the offense charged, the defendant’s relationship to the victim, the likelihood of continuing harm to the victim, any current restraining order or protective order issued by civil or criminal court involving the defendant, and the defendant’s criminal history. (Penal Code § 136.2 (h)(2).)

Existing law requires a court to consider issuing a protective order that may be valid for up to 10 years, to protect the victim of the crime when a defendant is convicted of any of the following crimes:

• 1. A crime involving domestic violence;
     
  2. Human trafficking for labor or services;
  3. Rape, spousal rape, and statutory rape;
  4. Pimping and pandering;
  5. Gang offenses; and,
  6. Any offense requiring sex offender registration. (Penal Code §§ 136.2 (i)(1).)
     

Existing law gives a victim of sex assault has the right to have a victim advocate and a support person at law enforcement interviews. (Penal Code § 679.04)

Existing law provides “Human trafficking victim service organization” means a nongovernmental organization or entity that provides shelter, program, or other support services to victims of human trafficking and their children and that does all of the following:

(1)Employs staff that meet the requirements of a human trafficking caseworker as set forth in this section.

(2)Operates a telephone hotline, advertised to the public, for survivor crisis calls.

(3)Offers psychological support and peer counseling provided in accordance with this section.

(4) Makes staff available during normal business hours to assist victims of human trafficking who need shelter, programs, or other support services. (Evidence Code §1038.2(d))

This bill provides that a victim of human trafficking or abuse, has the right to have a human trafficking advocate and a support person of the victim’s choosing present at an interview by a law enforcement authority, prosecutor, or defense attorney.

This bill provides that prior to being present at an interview conducted by a law enforcement authority, prosecutor, or defense attorney, a human trafficking advocate shall advise the victim of applicable limitations on the confidentiality between the victim and the human triafficking advocate.

This bill defines “human trafficking advocate as a person employed by an organization specified in Evidence Code Section1038.2.

This bill provides that prior to the commencement of the initial interview by a law enforcement authority or prosecutor pertaining to a criminal action arising out of a human trafficking incident, a victim of human trafficking or abuse shall be notified orally or in writing by attending law enforcement authority that the victim has the right to have a human trafficking person of the victim’s choosing present at the interview.

This bill provides at the time the victim is advised of their rights, the attending law enforcement authority or prosecutor shall also advise the victim of the right to have a human trafficking advocate and support person present at an interview by the defense attorney or investigators or agents employed by the defense attorney.

This bill provides that an initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspects does not constitute a law enforcement interview for purposes of this section.

COMMENTS

1. Need for This Bill

According to the author:

Survivors of human trafficking are often left in extremely vulnerable positions. Many are arrested for crimes they were forced to commit, and this may cause them to feel fearful of stepping forward with their traumatic experiences. This poses a huge barrier to break the cycle and escape their circumstances, and makes them vulnerable to being trafficked again. Because of these factors, it is crucial for victims to have a right to an advocate that would help navigate them through any interview by law enforcement authorities, prosecutors, or defense attorneys. This bill would additionally require law enforcement to notify or advise a victim of human trafficking of this right. Under current state law, survivors of domestic violence and sexual assault are already granted the right to an advocate, and survivors of human trafficking experience similar obstacles. This critical resource will increase potential survivor cooperation with the investigation and/or prosecution.

2. Right to have a victim’s advocate.

Under existing law, a person who is a victim of a sex offense has the right to have a victim’s advocates and a person of their choice during the sex assault exam and other stages of the investigation. This bill gives a victim of human trafficking or abuse the right to have a human trafficking advocate and support person of the victim’s choosing present at an interview by law enforcement by law enforcement, prosecutor, or defense attorney.

The bill excludes initial exams by law enforcement when an initial determination is being made as to whether a crime has been committed and to identify the suspects. Is this clear enough to let law enforcement know when the right to the advocate occurs? What if the victim is also one of the suspects, does that change the timing?

This bill mimics the existing law regarding sex assault victims but also allowing a support person of the victim’s choosing. Should there be any limit on who the support person could be or any ability to exclude a chosen support person? Unlike sex assault victims where it is unlikely that the victim will ask the perpetrator of the crime to be present, human trafficking can be very complex and could it be possible that the victim would pick a person, who even if not the main perpetrator, is involved with the perpetrator? What if the support person is another victim, could it hurt the prosecutor’s case if they were to hear each other’s’ testimony? If law enforcement suspects the support person may be tangentially involved in the human trafficking or another victim should they be able to exclude them?

3. Right to have advocate present at interview with defense attorney

Along with having the right to have a victim’s advocate and support person present at law enforcement and prosecutor interviews, this bill also gives the person the right to have these people present at interviews with their defense attorney and their investigators. While a defense attorney may decide to allow a support person to be present during some discussions with a client, could an absolute right interfere with an attorney’s ability to defend a person vigorously? Does it interfere with attorney client privilege? Could it result in a victim not fully trusting or listening to the counsel of their attorney, what if an advocate tries to advise the victim differently than defense counsel would? Could it result in a delay in conversations or settlement of a case if a support person must be waited for?

The California Public Defenders Association also raises these issues stating:

This both interferes with the attorney client relationship between the human trafficking victim and their attorney and the right of the defendant if it is not the human trafficking victim to freely investigate their case. If the human trafficking victim is charged with an offense, SB 376 would interfere with the attorney’s ability to zealously defend their client. A human trafficking victim might not trust their attorney or listen to their lawyer’s advice. Additionally, the support person might advocate in what they perceive to be the victim’s best interest regardless of what the victim desires.

If on the other hand, SB 376 is designed to give the victim protection from the accused’s lawyer, it is not necessary. The victim already had the right to refuse a defense lawyer’s interview or have anyone present that they desire. The victim does not need a mandated “minder”.

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