AB22:
California Anti-Trafficking Bill
carolleigh@bayswan.org
Click for Update: Concerns after 7-6
These links address earlier versions of AB22, which were substantially different.
Click for Update: Concerns 6-17
Click for a recent version, 6-29, revised after our criticism
Pease email us at info@bayswan.org to comment on the 6-29 revision if you have specific issues with it!
Below comments on earlier versions of this legislation
This website provides detailed questions about AB22, a California anti-trafficking bill (as amended May 4, 2005). AB22 is important in it's remedies for victims in contexts of involuntary servitude and forced labor, but there are specific confusions in some of the lanuage such as broad definitions and redundacies of crimes convered in existing legislation. We are particularly concerned about how this law may be used against voluntary contexts in sex businesses and sex workers. Many of the questions below have been answered by attorneys, and one recommendation will be taken and the amendment offered at the next hearing, June 21st at the Senate Public Safety Committee Meeting.
AB22 is progressive in that it focuses on forced labor (as opposed to the 'non-operative definitions' in the United States Trafficking Victims Protection Act). Although AB22 does represent a positive effort to address forced labor, the reality is that some of the language in AB22 may have other results. From a sex worker rights perspective, due to current repressive trends and in light of the history of anti-trafficking, we have been concerned that AB22 would be used against our communities. This page itemizes concerns and includes responses.
We would appreciate any insight offered. Please contact carolleigh@bayswan.org with comments or call 415-751-1659.
2. Questions and concerns re: AB22
3. Text of AB22 (Enter AB22 in form)
4. Current Form of California Penal Code 181 (which AB22 amends)
6. California Public Defenders Association: Analysis of AB22
7. Commentary from Public Defender, Barry Melton
8. Commentary from BAYSWAN legislative research aid, Elizabeth Darke
9. Sex Worker Outreach Project: Analysis of AB22
10. California Definition of Trafficking 236.1 Departs from TVPA
From early on the anti-trafficking movement there has been concern amongst human rights activists that the anti-trafficking framework is easily used against voluntary sex work due to the history of anti-trafficking movements and laws. Anti-trafficking organizations such as the Global Alliance Against Traffic in Women worked with sex worker rights groups, supporting decriminalization. They believed that the trafficking framework should address forced labor and not specifically sex work, certainly not voluntary sex work. They embarked on a campaign to institute this definition and produce legislation aligned with this new definition.
Sex worker organizations objected to this strategy. Statement on Trafficking, Stigmatisation and Strategies for Alliances for Alliances (http://www.bayswan.org/alliances.html) is an early document explaining objections to that framework. The human rights campaign was partially successful on an international level, but holes were left in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons. The United States Trafficking Victims Protection Act was highly problematic, evolving from legislation originally designed by human rights activists, then rewritten by right wing and feminist anti-prostitution groups. See Unholy Alliance for more info.
California's new AB22, is well-intentioned and supported by many progressives. In fact, AB22 does attempt to step back from inclusion of voluntary sex work (in the non-operative definition of trafficking in the US TVPA). Despite the positive aspects of AB22, we have had concerns about potential problems within this language as we are concerned that aspects of AB22 may pose a threat to those who already suffer stigmatization and criminalization as sex workers. Many of the concerns have been answered (see below) and one amendment has been included. The remaining priorities focus on items on purple below or here.
The Califorina Public Defenders Association opposes this legislation because of this redundancy. This redundancy would only complicate prosecution of these crimes.
Their analysis is as follows:
The California Public Defenders Association
(CPDA) opposes AB 22, unless appropriately amended to cure certain ambiguities
that, in its present form, fail to differentiate its provisions from other
provisions already contained in the Penal Code. The proposed legislation
would include the existing crimes of slavery and involuntary servitude within
new provisions pertaining to human trafficking. The bill would establish
the crime of trafficking of a person for forced labor or services and the
crime of trafficking of a minor for sexual servitude, both punishable as
felonies. The bill would provide various sentencing enhancements for these
offenses.
CPDA has no disagreement with much of the underlying premise of this legislation
that seeks to impose further restrictions on human trafficking and slavery.
However, the problem with the proposed legislation is that it seems to encompass
some of the behaviors already regulated by Penal Code sections 265 through
267, inclusive; and, additionally, the proposed legislation also seems to
encompass behaviors proscribed by Penal Code sections 653f and 653j,
in addition to sections 653.20 through 653.23, inclusive. Accordingly,
it is suggested the proposed legislation is somewhat ambiguous and needs
clarification to the extent that a line of differentiation needs to
be drawn between the proposed legislation and the already well
regulated offenses of pimping and pandering as contained in Penal Code sections
265 through 267, as well as the various solicitation offenses contained in
Penal Code 653f, 653j and 653.20 through 653.23, inclusive.
I discussed only
a small section of this bill with Attorney Cynthia Chandler of Justice Now
(http://www.jnow.org/ ) who noted:
The phrase
"Forced labor or services" CAN be interpreted to mean forced labor
or voluntary services, and that, indeed, there is a danger of that in the
context of current prosecution.
Recommendation: Change to either "forced labor or forced services' or
forced labor/services
Editors Note: This is particularly an issue as sexually related services are the only examples mentioned in the definitions of services in AB22. However it was pointed out to me since that conversation that 'forced labor or services' is defined in Section 7.
(c) "Forced labor or services"
means labor or services that are
performed or provided by another person and are obtained or
maintained through any of the following:
(1) Causing or threatening to cause serious harm to any person.
(2) Physically restraining or threatening to physically restrain
another person.
(3) Abusing or threatening to abuse the law or legal process.
(4) Knowingly destroying, concealing removing, confiscating, or
processing any actual or purported passport or other immigration
document, or any other actual or purported government identification
document, of another person.
(5) Blackmail.
(6) Causing or threatening to cause financial harm to any person.
Answer: Response from Barry Melton,Yolo County Public Defender's Office, member California Public Defenders Association
Question
#3 goes to the heart of what is being proposed by AB 22. There is no
current PC 181.2 in the Penal Code. And yes, the provisions of this proposed
section are very broadly drawn: For example, PC 181.2, subd. (c) states
"Forced labor or services" means labor or services that are performed
or provided by another person and are obtained or maintained through any
of the following: (6) Causing or threatening to cause financial harm
to any person. And PC 181.2, subd. (g) indicates "Services"
means an ongoing relationship between a person and the actor in which the
person performs activities under the supervision of or for the benefit of
the actor. Commercial sexual activity and sexually explicit performances
are forms of "services" pursuant to this section.
Read together, these sections could probably be construed in such a
manner that someone running or supervising a burlesque, or lapdancing concession,
could be violating the new law if he or she told an employee words to the
effect of, "You've been an hour late to work for the last two weeks.
If you don't come in on time I'll have to fire you." This is because
the statute states "commercial sexual activity and sexually explicit
performances are forms of "services" pursuant to the law, and someone
is engaging in "forced labor or services" if those services are
obtained or maintained by causing or threatening financial harm to any person.
I'd submit that, broadly viewed, "Do your job or I'll fire you"
is maintaining services by threat of financial harm and when "services"
is broadly defined to mean an ongoing relationship...where the person performs
activities under the supervision of...the actor.
Trafficking: Defined in United States Trafficking Victims Protection Act
Trafficking Policy Research Project
Questions and Concerns re: AB22
#1 Question:
Section 9 (a) 12 mentions pimping as "criminal profiteering activity," which is already 186.2 as it exists. I am assuming that this list is here only because AB22 is adding Human Trafficking to the list. Is that right? Am I right to assume that this does not enhance the crime of pimping? Is this section potentially problematic here?
Answer: Response (Barry Melton, PD, Yolo County, CA)
#1 Question (re PC 186.2 enhancement): PC 186.2, subd. (a)(12), which includes pimping and pandering in the class of crimes for which forfeiture of assets may be sought, is not within the subject matter of AB 22. It seems the current statute already contains this provision--AB 22 does not alter or change this pre-existing provision.
Answer:Response from BAYSWAN legislative research aid, Elizabeth Darke
A. -What does the inclusion of 'pimping' mean here? It’s already included in the current version of § 186.2.
The proposed amendment just adds the crime of human trafficking to the existing list of criminal profiteering activities.
B. -What is an underlying crime and how does that affect the collective sex
business owners?
In this case, the “underlying offense” is the criminal act committed or attempted for financial gain. This was already part of the statute, so it doesn’t change anything relating to sex business owners not engaged in severe trafficking.
186.2.
For purposes of this chapter, the following definitions apply:
(a) "Criminal profiteering activity" means any act committed or
attempted or any threat made for financial gain or advantage, which
act or threat may be charged as a crime under any of the following
sections:
(1) Arson, as defined in Section 451.
(2) Bribery, as defined in Sections 67, 67.5, and 68.
(3) Child pornography or exploitation, as defined in subdivision
(b) of Section 311.2, or Section 311.3 or 311.4, which may be
prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and 503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f, inclusive, and
Section 337i, except the activities of a person who participates
solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section 266.
(13) Receiving stolen property, as defined in Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section 653f.
(16) Grand theft, as defined in Section 487.
(17) Trafficking in controlled substances, as defined in Sections
11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate securities, as
defined in Section 25541 of the Corporations Code.
(19) Any of the offenses contained in Chapter 7.5 (commencing with
Section 311) of Title 9, relating to obscene matter, or in Chapter
7.6 (commencing with Section 313) of Title 9, relating to harmful
matter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim, as defined in
Section 550.
(21) False or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(22) Money laundering, as defined in Section 186.10.
(23) Offenses relating to the counterfeit of a registered mark, as
specified in Section 350.
(24) Offenses relating to the unauthorized access to computers,
computer systems, and computer data, as specified in Section 502.
(25) Conspiracy to commit any of the crimes listed above, as
defined in Section 182.
(26) Subdivision (a) of Section 186.22, or a felony subject to
enhancement as specified in subdivision (b) of Section 186.22.
(27) Any offenses related to fraud or theft against the state's
beverage container recycling program, including, but not limited to,
those offenses specified in this subdivision and those criminal
offenses specified in the California Beverage Container Recycling and
Litter Reduction Act, commencing at Section 14500 of the Public
Resources Code.
(28) Human trafficking, as defined in Section 181.
(b) "Pattern of criminal profiteering activity" means engaging
in
at least two incidents of criminal profiteering, as defined by this
act, that meet the following requirements:
(1) Have the same or a similar purpose, result, principals,
victims, or methods of commission, or are otherwise interrelated by
distinguishing characteristics.
(2) Are not isolated events.
(3) Were committed as a criminal activity of organized crime.
Acts that would constitute a "pattern of criminal profiteering
activity" may not be used by a prosecuting agency to seek the
remedies provided by this chapter unless the underlying offense
occurred after the effective date of this chapter and the prior act
occurred within 10 years, excluding any period of imprisonment, of
the commission of the underlying offense. A prior act may not be used
by a prosecuting agency to seek remedies provided by this chapter if
a prosecution for that act resulted in an acquittal.
(c) "Prosecuting agency" means the Attorney General or the
district attorney of any county.
(d) "Organized crime" means crime that is of a conspiratorial
nature and that is either of an organized nature and seeks to supply
illegal goods and services such as narcotics, prostitution, loan
sharking, gambling, and pornography, or that, through planning and
coordination of individual efforts, seeks to conduct the illegal
activities of arson for profit, hijacking, insurance fraud,
smuggling, operating vehicle theft rings, fraud against the beverage
container recycling program, or systematically encumbering the assets
of a business for the purpose of defrauding creditors. "Organized
crime" also means crime committed by a criminal street gang, as
defined in subdivision (f) of Section 186.22. "Organized crime"
also
means false or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(e) "Underlying offense" means an offense enumerated in
subdivision (a) for which the defendant is being prosecuted.
#2 Question on Sec 6: Is this too vague?
- Vaguely written?
181(a): " or pays money, or
delivers
anything of value, to another, in consideration of having any
person placed in his custody, "
- this section below does not say use the term 'knowingly '(although other
sections do)
This seems highly problematic. All else seems dependent on knowing about
the force except for this section.
181 (b)
" or who benefits financially or by
receiving anything of value, from participation in a venture
which has engaged in an act described in this subdivision, "
Answer:
Response (Barry Melton, PD, Yolo County, CA)
#2 Question (re vagueness): Again, although this proposed legislation would
divide PC 181 into subdivisions, the language employed does not appear to
substantively change the existing language of PC 181. Editors Note: Mr. Melton's
comment was referring to vagueness in 181 (a), which is current law.
This does not respond to 181 (b)
Answer:Response from BAYSWAN legislative research aid, Elizabeth Darke
Vagueness of language in § 181(a) regarding the necessary mens rea for the crime of slavery or involuntary servitude? This section is the existing legislation that AB 22 seeks to amend. Note that the existing statute does require knowledge for the crime of aiding or assisting in the commission of slavery. However, the language “holds, or attempts to hold, any person in involuntary servitude” could be interpreted to mean that the actor has knowledge of the forcible or involuntary nature of the servitude in which they are holding the person.
Answer: Rep. Sally Leiber's (AB22 author) office:
We are aware of the issue you refer to in 181 (b) and we will be amending it for the next hearing at the Public Safety Committee on June 21st.
#3 Questions on Sec 7
(g) "Services" means an
ongoing relationship between a person and
the actor in which the person performs activities under the
supervision of or for the benefit of the actor. Commercial sexual
activity and sexually explicit performances are forms of "services"
pursuant to this section. Nothing in this section shall be construed
to legitimize or legalize prostitution.
-What is this about an 'actor?' Is this a convention of legalese?
(g) puts sex work in the context of services. Why is labor distinguished from services? (Answer: I an told that 'forced labor or services' is the wording recommended by human rights groups)
Editors recommendation re definition of services:
1-(g) there should be examples other than sexual services such as domestic or other household work.
2-"Nothing in this section shall be construed to legitimize or legalize prostitution." This sentence is inflammatory and has no relationship to the law other than to weaken the rights of sex workers if they are not trafficked.
-if a client of a lap dancer buys
a dance and later it is reveal that she had a pimp who exploited her fitting
this definition, can the client, club owner, etc be sued?
-Can someone who buys a dress from a factory with slaves be prosecuted?
-How far does this go and can we add anything to the law to clarify. We are
concerned because we believe sex work businesses would be especially targeted.
Editor's Note:I believe that these issues are addressed by a revision of 181 (b) as stated below.
Answer: Rep. Sally Leiber's (AB22 author) office:
We are aware of the issue you refer to in 181 (b) and we will be amending it for the next hearing at the Public Safety Committee on June 21st.
Answer: Response (Barry Melton, PD, Yolo County, CA)
#3 Question: As differed from the commentary regarding Questions #1 and #2, above, Question #3 goes to the heart of what is being proposed by AB 22. There is no current PC 181.2 in the Penal Code. And yes, the provisions of this proposed section are very broadly drawn: For example, PC 181.2, subd. (c) states "Forced labor or services" means labor or services that are performed or provided by another person and are obtained or maintained through any of the following: (6) Causing or threatening to cause financial harm to any person. And PC 181.2, subd. (g) indicates "Services" means an ongoing relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor. Commercial sexual activity and sexually explicit performances are forms of "services" pursuant to this section.
Read together, these sections could probably be construed in such a manner that someone running or supervising a burlesque, or lapdancing concession, could be violating the new law if he or she told an employee words to the effect of, "You've been an hour late to work for the last two weeks. If you don't come in on time I'll have to fire you." This is because the statute states "commercial sexual activity and sexually explicit performances are forms of "services" pursuant to the law, and someone is engaging in "forced labor or services" if those services are obtained or maintained by causing or threatening financial harm to any person. I'd submit that, broadly viewed, "Do your job or I'll fire you" is maintaining services by threat of financial harm and when "services" is broadly defined to mean an ongoing relationship...where the person performs activities under the supervision of...the actor.
Answer:Response from BAYSWAN legislative research aid, Elizabeth Darke
Leigh: What is this about an 'actor?' Is this a convention of legalese?
Yes; it refers to the person committing or attempting a criminal act.
Leigh: Why is labor distinguished from services? What about domestic services?
(g) should have examples other than sexual services. This sentence (re legitimization)
is inflammatory and has no relationship to the law other than to weaken rights
of sex workers if they are not trafficked.
Excellent point! It might be a reference to pimping, except that § 653.20 specifies that sexually explicit performance is not prostitution and therefore can’t by definition be subject to pimping. There should be examples of other kind of services included here. Also, the implication is that “services” have no “economic or financial value” since “services” are distinguished from “labor.”
Leigh: if a client of a lap dancer buys a dance and later it is reveal that
she had a pimp who exploited her fitting this definition, can the client,
club owner, etc be sued? -Can someone who buys a dress from a factory with
slaves be prosecuted?
No. § 181(b)
defines the crime of trafficking as the knowing subjection, or attempted
subjection, of another person to forced labor or service, or the knowing
participation in causing another person to be subjected to forced labor or
service with the intent or knowledge that the person will be subjected to
forced labor or service, or profiting from participation in either of those
acts.
(See context below)
SEC. 7. Section 181.2 is added to
the Penal Code, to read:
181.2.
For purposes of this chapter, the following definitions apply:
(a) "Blackmail" includes but is not limited to a threat to expose
any secret tending to subject any person to hatred, contempt, or
ridicule.
(b) "Financial harm" includes credit extortion, criminal violation
of usury provisions.
(c) "Forced labor or services" means labor or services that are
performed or provided by another person and are obtained or
maintained through any of the following:
(1) Causing or threatening to cause serious harm to any person.
(2) Physically restraining or threatening to physically restrain
another person.
(3) Abusing or threatening to abuse the law or legal process.
(4) Knowingly destroying, concealing removing, confiscating, or
processing any actual or purported passport or other immigration
document, or any other actual or purported government identification
document, of another person.
(5) Blackmail.
(6) Causing or threatening to cause financial harm
to any person.
(Click for Barry Melton's analysis:)
(d) "Labor" means work of economic or financial value.
(e) "Maintain" means in relation to labor services, to secure
continued performance thereof, regardless of any initial agreement on
the part of the victim to perform that type of service.
(f) "Obtain" means, in relation to labor or services, to secure
performance thereof.
(g) "Services" means an ongoing relationship
between a person and
the actor in which the person performs activities under the
supervision of or for the benefit of the actor. Commercial sexual
activity and sexually explicit performances are forms of "services"
pursuant to this section. Nothing in this section shall be construed
to legitimize or legalize prostitution.
(Click for Editor's recommendation:)
(h) "Trafficking victim" means a person subjected to the practices
set forth in Sections 181, 181.1, or 181.2.
Article 8.8. Human
Trafficking Victim-Caseworker Privilege
1038.
As Michael Foley pointed out this language is particularly problematic. Although this is currently Article 1037 Evidence Code in domestic violence cases, there is additional reason that a caseworker and client may be at odds, regarding documentation of immigrants.
1038.1.
(b) A human trafficking caseworker shall inform a trafficking
victim of any applicable limitations on confidentiality of
communications between the victim and the caseworker. This
information may be given orally.
Micahel Foley asks, "Why doesn't this need to be in writing? This is
a dangerous claus."
Leigh: Especially when there are issues of migrants and language.
1038.1.
(a) The court may compel disclosure of information received by a
human trafficking caseworker that constitutes relevant evidence of
the facts and circumstances involving a crime allegedly perpetrated
against the victim and that is the subject of a criminal proceeding,
if the court determines that the probative value of the information
outweighs the effect of disclosure of the information on the victim,
the counseling relationship, and the counseling services.
The court may compel disclosure if the victim is either dead or not the
complaining witness in a criminal action against the perpetrator.
Michael Foly of SWOP points out 'Creating a confidentiality agreement with
limitations is not confidentiality at all.'
Leigh-The court will find this probative according to Attorney Cynthia Chandler,
especially in cases like this. The language in these sections exactly matches
language of domestic violence, but this issue requires different standards.
the context:
Article 8.8. Human Trafficking Victim-Caseworker
Privilege
1038.
(a) A trafficking victim, whether or not a party to the action,
has a privilege to refuse to disclose, and to prevent another from
disclosing, a confidential communication between the victim and a
human trafficking caseworker if the privilege is claimed by any of
the following persons:
(1) The holder of the privilege.
(2) A person who is authorized to claim the privilege by the
holder of the privilege.
(3) The person who was the human trafficking caseworker at the
time of the confidential communication. However, that person may not
claim the privilege if there is no holder of the privilege in
existence or if he or she is otherwise instructed by a person
authorized to permit disclosure. The human trafficking caseworker who
received or made a communication subject to the privilege granted by
this article shall claim the privilege whenever he or she is present
when the communication is sought to be disclosed and he or she is
authorized to claim the privilege under this section.
(b) A human trafficking caseworker shall inform a trafficking
victim of any applicable limitations on confidentiality of
communications between the victim and the caseworker. This
information may be given orally.
1038.1.
(a) The court may compel disclosure of information received by a
human trafficking caseworker that constitutes relevant evidence of
the facts and circumstances involving a crime allegedly perpetrated
against the victim and that is the subject of a criminal proceeding,
if the court determines that the probative value of the information
outweighs the effect of disclosure of the information on the victim,
the counseling relationship, and the counseling services.
The court may compel disclosure if the victim is either dead or not the
complaining witness in a criminal action against the perpetrator.
Current Law: 181 in Penal Code
181. Every person who holds, or attempts
to hold, any person in
involuntary servitude, or assumes, or attempts to assume, rights of
ownership over any person, or who sells, or attempts to sell, any
person to another, or receives money or anything of value, in
consideration of placing any person in the custody, or under the
power or control of another, or who buys, or attempts to buy, any
person, or pays money, or delivers anything of value, to another, in
consideration of having any person placed in his custody, or under
his power or control, or who knowingly aids or assists in any manner
any one thus offending, is punishable by imprisonment in the state
prison for two, three or four years.
We would appreciate any insight offered. Please contact carolleigh@bayswan.org with comments.