December 6, 2011
Pursuant to Elections
Code Section 9005, we have reviewed a proposed statutory initiative
related to human trafficking (A.G. File No. 11‑0059).
Background
Federal Law. Federal law
contains various criminal prohibitions against human trafficking. The
Federal Trafficking Victims Protection Act generally defines two types
of trafficking in persons: (1) sex trafficking in which a
commercial sex act is induced by force or fraud, or in which the victim
performing the act is under age 18, and (2) labor trafficking
in which persons are recruited, transported, provided, or obtained
for labor or services through the use of force or fraud. These federal
laws are enforced by federal law enforcement agencies that may act
independently or in conjunction with state and local law enforcement
agencies.
State Law.
Existing state law contains similar criminal prohibitions
against trafficking in persons. 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 pandering or
prostitution) or
(2) obtain forced labor or services. Human trafficking is punishable
under the state Penal Code by a state prison sanction of up to five
years, or, if the victim is under the age of 18, by a state prison
sanction of up to eight years.
Under existing state
law, most offenders convicted of sex crimes (including some crimes
involving human trafficking) are required to register as sex offenders
with the local law enforcement agency where they reside for the
remainder of their lives.
Proposal
Expanded Definition of Human
Trafficking.
This measure proposes to amend the definition of human
trafficking under state law by adding new crimes to the list of criminal
violations that may be associated with human trafficking. For example,
under the measure, violating the liberty of a person with the intent to
distribute obscene matter would now be defined in statute as a form of
human trafficking. In addition, the measure amends the definition of a
sex trafficking crime involving minors such that, similar to federal
law, it would no longer be necessary for the crime to involve force or
coercion in order for it to be considered human trafficking.
More Severe Criminal Penalties
for Human Trafficking. This measure increases the current
criminal penalties for human trafficking under state law. Under the
measure, labor trafficking crimes would be punishable by up to 12 years
in state prison and sex trafficking would be punishable by up to 20
years in prison. Sex trafficking of minors that involved such actions as
force or fraud would be punishable by up to a life term in prison.
Moreover, offenders
with previous convictions for human trafficking could receive an
additional and consecutive five years in prison for each previous
conviction. Offenders convicted of human trafficking which resulted in
great bodily injury to the victim could be punished with an additional
and consecutive term of up to ten years. In addition, the measure
permits criminal courts to impose new fines of up to $500,000 for human
trafficking, depending on the specific offense. The measure also permits
the courts to impose an additional fine of up to $1 million. The measure
states that courts shall consider a variety of factors in setting this
additional fine, including the seriousness and gravity of the offense
and the extent to which the victim suffered losses as a result of the
crime.
Programs for Human Trafficking
Victims. The measure requires that funds collected from
the above fines be deposited in the Victim-Witness Assistance Fund to
support services for victims of human trafficking. Specifically,
70 percent of funds shall 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—for trafficking prevention and rescue operations.
Changes Affecting
Criminal Trials.
The measure also affects the trial of criminal cases
involving charges of human trafficking. Specifically, the measure
affects cases involving potential evidence that a victim of human
trafficking was also liable for criminal sexual conduct. This measure
does not allow such evidence to be used to prosecute a crime victim in
such circumstances. It also makes evidence of sexual conduct by a victim
inadmissible for the purposes of attacking the victim's credibility in
court. In addition, this measure states that certain defenses to the
criminal prosecution of human trafficking involving minors are
invalid—for example, a claim that the minor consented to the illegal
activities alleged in the case or mistaken age of the victim.
Law Enforcement Training.
This measure requires that all police officers and sheriff's
deputies, as well as peace officers employed by the California Highway
Patrol, who perform field or investigative work undergo at least two
hours of training in the handling of 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 position.
Expanded Requirements for Sex
Offender Registration. This measure states that sex
offenders who are required under current law to register with local law
enforcement agencies must provide at the time of registration any
internet identifiers and service providers they used. 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. Therefore,
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 that we discuss below are subject to
considerable uncertainty.
Potential Increase in Local Law
Enforcement Training Costs.
As noted earlier, this measure requires that certain
state and local law enforcement officers receive specific training on
human trafficking. The state law enforcement officers specified in the
measure already receive such training. Therefore, there would be no
additional state costs for this training. The fiscal impact of this
requirement on local agencies would partially depend on the unknown
extent to which local officers are currently receiving such training,
such as through the Commission on Peace Officer Standards and Training.
Depending on how local law enforcement agencies choose 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 additional costs incurred each year to train newly
hired officers.
Minor Increase in State and
Local Correctional Costs.
The measure would result in additional state and local correctional
costs by increasing the criminal penalties for human trafficking, as
well as by possibly increasing the number of human trafficking
arrests, prosecutions, and convictions. However, given that, as of
October 2011, only 16 individuals were reportedly being held in state
prison for human trafficking, any increase in costs resulting from this
measure is likely to be minimal compared to the overall cost of the
state and county correctional systems.
Potential Minor Increase in
Other State Program Costs.
If the measure were to increase the number of human
trafficking arrests and convictions, it could result in a minimal
increase in costs for certain state health and social services programs.
This is because the state provides certain temporary benefits to victims
of human trafficking until they qualify to receive such benefits from
the federal government. However, the current benefit costs for human
trafficking victims are relatively small compared to the overall size of
these programs. Any increase in health and social services costs from
this measure is therefore likely to be minimal. In addition, an increase
in the number of human trafficking cases could result in a minimal
increase in costs for the state court system.
Increased Fine Revenue for
Victim Services. The new criminal fines established by
this measure would likely result in an unknown amount of additional
revenue, likely not to exceed the low millions of dollars annually,
depending on the number of individuals convicted of human trafficking
and the level of fines imposed by the courts. However, the measure
requires that all these revenues be dedicated to services for victims of
human trafficking and human trafficking prevention and prosecution.
Summary of Fiscal Effects
It is unknown whether
the measure would increase state human trafficking arrests and
convictions given the current dominant federal role in these types of
cases. Thus, the fiscal effects resulting from the measure are subject
to significant uncertainty. The major fiscal effects we have identified
are summarized below:
·
Potential one-time local government costs
of up to a few million dollars on a statewide basis, and lesser
additional costs incurred each year, due to the new mandatory training
requirements for certain law enforcement officers.
·
Minor increase to state and local
governments on the costs of incarcerating and supervising human
trafficking offenders.
·
Unknown amount of additional revenue from
new criminal fees, likely not to exceed the low millions of dollars
annually, which would fund services for human trafficking victims.
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