Short List

Text of AB22 (Enter AB22 in form) to read the entire bill.

Update 6-17-05 Concerns regarding AB22- Please note that this short list is NOT comprehensive, but represents some of the problems with AB22 that have been pointed out by a number of legal experts. AB22 has some serious issues and further research should be done.

1. Rep Liebers office said that a fix to this below has been added. We want to see this amendment to be sure. See the context below in 181.

This sentence below does not say use the term 'knowingly' (although other sentences do)

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, "

My recommendation:or who benefits financially or by receiving anything of value,

from knowingly participating in a venture which has engaged in an act described in this subdivision."

This is the context in 181:
SEC. 6. Section 181 of the Penal Code is amended to read:
181. (a) 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.
(b) Every person who knowingly subjects, or attempts to
subject, another person to forced labor or services, or who
knowingly participates in, recruits, entices, harbors, transports,
provides, or obtains by any means, or attempts to recruit, entice,
harbor, transport, provide, or obtain by any means, another
person, intending or knowing that the person will be subjected to
forced labor or services, 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, is
guilty of human trafficking, punishable by 3, 4, or 6 years in the
state prison.

2. Causing or threatening to cause 'financial harm' is too broad according to Barry Melton who wrote the dissent from the California Public Defender Association

In section 181.6, section 6 number (6) Causing or threatening to cause 'financial harm' is too broad.
Barry Melton writes:

...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.

Recommend omitting (6) Causing or threatening to cause 'financial harm'

3. Definition of 'services' in Section 7 (g)
a-Other examples of services should be added such as domestic work should be added. I am left with the impression in the section as it stands, that sexual services are the only types of services covered.

b-"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.

"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. Domestic and other household work, and commercial sexual
labor are examples of "services" pursuant to this section.

Context:

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.
(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.
(h) "Trafficking victim" means a person subjected to the practices
set forth in Sections 181, 181.1, or 181.2.

4. Confidentiality is not sufficiently secure for this population

Article 8.8. Human Trafficking Victim-Caseworker Privilege
1038.

As Michael Foley of SWOP 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.

SWOP 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 Foley 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.