by Steve Wright
The Family Healing Center will be sharing with KRL’s readers about the things they do once a month.
I am sure your face looks like mine did the first time I was asked this question, which was just a few days ago. As much as I try to keep up with the laws in California and across the nation, I am sometimes surprised when I am asked about certain laws being passed that I am not aware of. So, of course when I was asked a question to which I did not know the answer (and thought I was being pranked), I set out to find the truth. Once I started to research this question I found there were opinions on both sides of the issue, and it was not as simple as most of the newspapers made it seem. Due to the need to be brief in this article, I won’t go into all of the possibilities, could-haves, should-haves, and would-haves. I will stick to what actually is the new law, and add a few facts that I ran into while doing the research.
The simple answer to the question is YES. I couldn’t believe it either, but as I said, it is not an easy, simple answer. I will provide you, at the end, with a few links to articles and the Legislative Digest in case you want to read all of the material that came out of the California Legislature.
First of all, prostitution is defined in the California Penal Code, Section 647(b), which is part of California’s Disorderly Conduct Laws. It is defined simply as anyone who solicits to engage or engages in any act of prostitution (sex for money), with specific intent to engage in the act. It also goes on to state that “prostitution” includes any lewd act between persons for money or other consideration. Now there are other areas of the code that define lewd acts and consideration and even persons, but I think we all know what those are and, for the sake of this article, these are not important.
One interesting thing about the old law, prior to this change, is that it did not make any reference to age. So it was illegal to engage in prostitution at any age, whether you were an adult or a juvenile. In the past several years the tragic phenomenon of human and sex trafficking has hit our society hard. The primary target of these heinous crimes is children who are either kidnapped from their homes, or are abused by their own family and sold into this horrific situation. Many juveniles were being taken into custody and charged with the crime of prostitution, when in actuality they were victims of human trafficking. The crime of prostitution is a misdemeanor, so it becomes a revolving door as police are required to release those arrested for misdemeanors on a citation to appear. Police must also witness a misdemeanor occur in order to make an arrest, so unless there is a targeted investigation, many of these crimes go undetected and under-reported. Many are also transient, are not from the local area in which they are working, and either do not have identification or have false identification that, unless you have some expertise in recognizing false documents, might be missed.
The California Legislature, once it recognized the problem of human trafficking, thought that one of the things they could do to keep the child victims from being prosecuted, was to change the law. I wish I knew the entire history of the law, and after more reading and research I will. Senator Holly Mitchell wrote the initial Bill, SB 1322, that was first introduced February 19, 2016. One of the things that made this such a convoluted issue was that the other Bills that were presented alongside this one made it much more difficult to understand. Each of the other four bills made different recommendations for change from the initial SB 1322. SB 1322 simply added a section to the current law that stated:
“…(2) Not withstanding paragraph (1), this subdivision does not apply to a child under 18 years of age who is alleged to have engaged in conduct to receive money or other consideration that would, if committed by an adult, violate this subdivision. A commercially exploited child under this paragraph may be adjudged a dependent child of the court pursuant to paragraph (2) of subdivision (b) of Section 300 of the Welfare and Institutions Code and may be taken into temporary custody pursuant to subdivision (a) of Section 305 of the Welfare and Institutions Code, if the conditions allowing temporary custody without warrant are met.”
I apologize for quoting the code at such length, but it is important to see what the original Bill added to the law. It simply did not want to criminalize a child victim, and gave authority for law enforcement to take a child into protective custody if they believed the child was being used and exploited in the human trafficking market.
The other Bills had different provisions which the authors wanted added to the Bill. Some were potentially positive, and some were not. Two of the Bills that passed were SB 420 and SB 1129, which were signed by the Governor and became part of the law. The other two did not pass: AB 1708, which was vetoed by the Governor on 09/27/16, and AB 1771 which died in the Senate on 08/19/16.
SB 420 adds two sections that differentiate between the act of prostitution with an adult and the act of prostitution with a minor. SB 1129 does two things which may be even more significant to the law, and seems to apply to the offender or the one who solicits the act. SB 1129 removes the increased penalty for repeat offenses. In the current law, for a second offense there is a mandatory 45-day jail sentence, and for a third and subsequent offense, there is a mandatory 90-day jail sentence, plus at the discretion of the judge, the offenders driver’s license can be suspended for 30 days under certain circumstances. SB 1129 removes the mandatory 45- and 90-day jail sentences and only includes the 30-day license suspension.
So the controversy comes up when we realize that the legislature has decriminalized prostitution for juvenile offenders, but in their eyes they honestly believe they are protecting children from human trafficking. The reality is somewhere in the middle; many believe that it is now legal for juveniles to participate in prostitution, which could open the door for traffickers to feel more comfortable with using children. The pressure and threat the traffickers can put on these children can force them not to tell on their abusers. The new law also does not consider those juvenile offenders, who may be habitual runaways and involved in this life style by their own choices. Even in those cases, where there is the potential for tragic events which prompted that life style choice, there should be some latitude. There are arguments on both sides of this new law, but the bottom line is: “Are we protecting children?” If we truly are then, bravo. If not, then we here in California have made a grave error in judgment, because the reality is that the pimps, panderers, and traffickers of children for sex will continue, even though it is still against the law. Decriminalizing prostitution for juveniles seems to incentivize the exploitation of the population it is intended to protect.