California Democrats 'Water Down' Sex Trafficking Bill. Good.

California Democrats are taking heat for "water[ing] down" a "child sex trafficking bill." But—as anyone whose brain isn't completely broken by politics might imagine—this isn't a case of lawmakers trying to make life easy for people who abuse and exploit children. They're just trying to insert a smidge of sanity into the bill's punishment schemes. The scorn with which this has been met underscores how hard it is for legislators to push back against policies that are purportedly about protecting children.

The Bill 

The measure in question—Senate Bill 1414—was introduced in April by state Sens. Shannon Grove (R–Bakersfield), Anna Caballero (D–Merced), and Susan Rubio (D–Baldwin Park). It would raise the penalties for soliciting a minor for prostitution.

It passed the state Senate in a 36–0 vote in May, after being amended somewhat from its original form.

It passed out of the Assembly Public Safety Committee in an 8–0 vote last week, after another amendment was added. The amended bill now goes to the Assembly Appropriations Committee.

It's these amendments that have some, including Grove, up in arms.

The Amendments 

Under current California law, soliciting someone an offender knows or reasonably should know is a minor for prostitution is a misdemeanor, punishable by mandatory minimum imprisonment of 2 days in county jail and a possible punishment of up to one year in jail and a $10,000 fine.

As introduced, the bill would have raised the offense to a felony and the punishment up to a possible four years in state prison and a fine of $25,000, "regardless of whether" defendants knew or should have known the person was a minor and regardless of whether defendants were themselves above age 18. It also included sex offender registration requirements.

The original version had no mens rea component for applying enhanced penalties—that is, it didn't matter if the person charged had no reason to believe the person solicited was under age 18. And it had no exceptions for when the person doing the soliciting was also a minor.

Under the amended versions of SB 1414, solicitation of a minor would sometimes be a misdemeanor punishable by up to one year in county jail and sometimes be a felony punishable by up to three years in county jail. The stronger punishment would be available only when the defendant was 18 or older and "knew or should have known that the person who was solicited was a minor at the time of the offense." And it would only apply when "the solicited minor was under 16 years of age at the time of the offense, or if the person solicited was under 18 years of age at the time of the offense and the person solicited was a victim of human trafficking." A second or subsequent offense would always be a felony, and an offender more than 10 years older than the solicited minor would have to register as a sex offender for 10 years.

Note that nothing in the bill (as introduced or amended) would change penalties for people who force or coerce minors into prostitution. Nor would it affect the laws surrounding sexual activity with a minor. This is about solicitation, which is essentially a speech crime—the asking about sexual activity or offering of money for sex.

"The bill does not require physical contact or sexual contact with the minor victim," according to the Ella Baker Center for Human Rights. "There are already felony crimes associated with actual lewd or sexual contact with a minor."

The Controversy 

The amendments to SB 1414 have drawn criticism from Grove and others, who claim the bill will now make it too hard to punish sex criminals. In reality, the amended bill simply allows punishments to be more tailored to circumstances.

The amended bill will make it harder to punish everyone in a blanket way, but in a free society we should consider that a good thing.

The heat that those amending the bill have taken shows a wider problem in our criminal justice system, in which allowing for any nuance gets slammed as weak and inexcusable. But there's nothing weak about realizing that specific circumstances do matter, and that a one-size-fits-all solution to law enforcement is likely to over-punish and over-incarcerate.

It takes courage to craft criminal justice solutions that are fair both to victims and to those accused of crimes. Whether this amended bill gets that balance right is up for debate (contra its critics, there are ways in which it may still give too little credence to mens rea), but it's clearly at least attempting to grapple with gray areas.

Under the amended version, adult defendants who brazenly solicit minors for sex can receive a more extreme punishment. But defendants who are minors themselves, are barely older than 18, or have no reason to know the person in question is a minor may receive a lesser sentence. Punishments can be tailored to the circumstances. What's so bad about that?

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