Submitted July 18, 2012

Proposition 35

Human Trafficking. Penalties. Sex Offender Registration. Initiative Statute.

Background

Federal Law. Federal law contains various provisions prohibiting human trafficking. The Federal Trafficking Victims Protection Act generally defines two types of human trafficking:

• Sex Trafficking—in which persons are recruited, transported, or obtained for a commercial sex act that is induced by force or fraud or in which the victim performing the act is under age 18. An example of sex trafficking is forcing a person into prostitution.
• Labor Trafficking—in which persons are recruited, transported, or obtained through the use of force or fraud to provide labor or other services. An example of this is forcing a foreign national to work for free by threatening deportation.

These laws are enforced by federal law enforcement agencies that may act independently or with state and local law enforcement agencies.

State Law. Existing state law contains similar criminal prohibitions against human trafficking. Specifically, state law defines human trafficking as violating the liberty of a person with the intent to either (1) commit certain felony crimes (such as prostitution) or (2) obtain forced labor or services. Human trafficking is punishable under state law by a prison sentence of up to five years or, if the victim is under the age of 18, by a state prison sentence of up to eight years. Offenders convicted of human trafficking crimes that result in great bodily injury to the victim can be punished with additional terms of up to six years. In recent years, there have been only a few people annually sent to state prison for human trafficking crimes. As of March 2012, there were 18 such offenders in state prison.

Under existing state law, most offenders who have been convicted of a sex crime (including some crimes involving human trafficking) are required to register as sex offenders with their local police or sheriff’s departments.

Proposal

This measure makes several changes to state law related to human trafficking. Specifically, it (1) expands the definition of human trafficking, (2) increases the punishment for human trafficking offenses, (3) imposes new fines to fund services for human trafficking victims, (4) changes how evidence can be used against human trafficking victims, and (5) requires additional law enforcement training on handling human trafficking cases. The measure also places additional requirements on sex offender registrants.

Expanded Definition of Human Trafficking. This measure amends the definition of human trafficking under state law. Specifically, the measure defines more crimes related to the creation and distribution of obscene materials depicting minors as a form of human trafficking. For example, duplicating or selling these obscene materials could be considered human trafficking even if the offender had no contact with the minor depicted. In addition, with regard to sex trafficking cases involving minors, prosecutors would not have to show that force or coercion occurred. (This would make state law similar to federal law.)

More Severe Criminal Penalties for Human Trafficking. This measure increases the current criminal penalties for human trafficking under state law. For example, the measure increases the prison sentence for labor trafficking crimes to a maximum of 12 years per offense, and for sex trafficking of adults to up to 20 years per offense. Sex trafficking of minors that involved force or fraud would be punishable by up to a life term in prison. Figure 1 lists each of the measure’s increases in the maximum prison sentences, sentence enhancements, and criminal fines.

In addition, the measure specifies that offenders convicted of human trafficking with previous convictions for human trafficking receive additional five-year prison terms for each of those prior convictions. Under the measure, offenders convicted of human trafficking that resulted in great bodily injury to the victim could be punished with additional terms of up to ten years. The measure also permits criminal courts to impose fines of up to $1.5 million for human trafficking offenses.

Programs for Human Trafficking Victims. The measure requires that the funds collected from the above fines support services for victims of human trafficking. Specifically, 70 percent of funds would be allocated to public agencies and nonprofit organizations that provide direct services to such victims. The measure requires that the remaining 30 percent be provided to law enforcement and prosecution agencies in the jurisdiction where the charges were filed and used for human trafficking prevention, witness protection, and rescue operations.

Changes Affecting Court Proceedings. The measure also affects the trial of criminal cases involving charges of human trafficking. Specifically, the measure prohibits the use of evidence that a person was involved in criminal sexual conduct (such as prostitution) to prosecute that person for that crime if the conduct was a result of being a victim of human trafficking. The measure also makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim’s credibility or character in court. In addition, this measure disallows certain defenses in human trafficking cases involving minors. For example, a defendant could not claim as a defense being unaware of the minor’s age.

Law Enforcement Training. This measure requires all peace officers employed by police and sheriff’s departments and the California Highway Patrol (CHP) who perform field or investigative work to undergo at least two hours of training on how to handle human trafficking complaints. This training would have to be completed by July 1, 2014 or within six months of the officer being assigned to the field or investigative work.

Expanded Requirements for Sex Offender Registration. This measure requires registered sex offenders to provide the names of their internet providers and identifiers to local police or sheriff’s departments. Such identifiers include e-mail addresses, user names, screen names, or other personal identifiers for internet communication and activity. If a registrant changes his or her internet service account or changes or adds an internet identifier, the individual must notify law enforcement within 24 hours of such changes.

Fiscal Effects

Currently, human trafficking cases are often prosecuted under federal law, rather than California state law, even when California law enforcement agencies are involved in the investigation of the case. This is partly because these types of crimes often involve multiple jurisdictions and also because of the federal government’s historical lead role in such cases. It is unknown whether the expanded definition of human trafficking and other changes proposed in this measure would significantly increase the number of state human trafficking arrests and convictions or whether most such cases would continue to be handled primarily by federal law enforcement authorities. As a result, the fiscal effects of this measure on state and local governments discussed below are subject to some uncertainty.

Minor Increase in State and Local Criminal Justice Costs From Increased Penalties. The measure would result in some additional state and local criminal justice costs by increasing the criminal penalties for human trafficking. In particular, the increased prison sentences in the measure would increase the length of time offenders spend in state prison. In addition, it is possible that the measure’s provisions increasing funding and training requirements for local law enforcement could result in additional human trafficking arrests, prosecutions, and convictions. This could also increase state and local criminal justice costs. In total, these new costs are not likely to exceed a couple million dollars annually.

Potential Increase in Local Law Enforcement Training Costs. As noted earlier, this measure requires that most state and local law enforcement officers receive specific training on human trafficking. Since CHP officers already receive such training, there would be no additional state costs. The fiscal impact of this requirement on local agencies would depend on the extent to which local officers are currently receiving such training and on how local law enforcement agencies chose to satisfy the measure’s training requirements. Counties and cities could collectively incur costs of up to a few million dollars on a one-time basis to train existing staff and provide back-up staff to officers who are in training, with lesser costs incurred each subsequent year to train newly hired officers.

Increased Fine Revenue for Victim Services. The new criminal fines established by this measure would result in some additional revenue, likely not to exceed a few million dollars annually. Actual revenues would depend on the number of individuals convicted of human trafficking, the level of fines imposed by the courts, and the amount of actual payments made by the convicted offenders. These revenues would be dedicated primarily to services for victims of human trafficking, but also would be used for human trafficking prevention, witness protection, and rescue operations.