Jeanne Kuang
CalMatters

By Jeanne Kuang, CalMatters

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California Republicans have developed something of a formula in the state Legislature.

Push to raise penalties for certain kinds of sex crimes, like trafficking minors. Press the Democrats, many of whom remain wary of increasing prison sentences in the waning heyday of criminal justice reform, on the details. Have a field day in the media with the ensuing public outrage.

It’s become a reliable way over the past three years to deliver small wins for the superminority party. Even if Republicans aren’t always successful at passing the legislation, they can use it to expose fault lines among the opposing party that dominates the Capitol, or even score some support from the state’s de facto Democratic leader, Gov. Gavin Newsom.

That strategy has led them to win bipartisan approval for bills to increase the penalties for child sex trafficking and soliciting 15-year-olds and under for sex.

The latest such episode exploded in the Assembly this week when Republicans tried to push Democrats to increase penalties for soliciting 16- and 17-year-olds for sex or prostitution. That crime is a misdemeanor punishable by between two days to a year in jail.

Solicitation involves asking for or arranging sex in exchange for money or something valuable; a host of other sex crimes involving minors of any age are felonies, including paying for and having sex with a minor.

This time, Republicans had the backing of freshman Democratic Assemblymember Maggy Krell, of Sacramento, who authored Assembly Bill 379. Krell objected on Tuesday when her colleagues removed the provision on soliciting older minors, saying fellow Democrats had forced her to agree to it on the threat the Public Safety committee would refuse to hold a hearing otherwise.

When Republicans said they would try to add the provision into another bill on the floor on Thursday, she bucked Democratic leadership by supporting them.

“We need to say, loud and clear, that if you’re under 18, a child, a minor … the person buying that person should be charged with a felony,” she said on the Assembly floor. “It’s plain and simple, sex without consent – that’s rape.”

Some moderate Democrats joined her, publicly chiding their colleagues for walking into a political landmine.

“Somehow, as our president tanks our economy and deports innocent children, the American people still don’t trust Democrats,” said Bakersfield Assemblymember Jasmeet Bains. “Any sane person knows that purchasing a 16- and 17-year-old for sex should be a felony, not a misdemeanor. This should not be a debate.”

A Rare Intervention From Newsom

Democrats already did the same thing last year.

When they passed a Republican bill to increase penalties for soliciting minors, they carved out 16 and 17-year-olds out of concern the provision would treat older teenagers who are in consenting relationships the same as human traffickers. With the passage of that law, soliciting minors who are 15 or younger is punishable by up to three years in jail.

Newsom, too, earlier this week issued a statement supporting the higher penalties for minors of all ages — a rare, but not unprecedented, intervention from a governor who occasionally chides fellow progressives when he thinks they’ve gone too far.

The Republican effort failed on the Assembly floor Thursday, though it did garner some support from Democrats, like Bains. And it forced Democrats into a defensive mode.

They inserted language into the bill expressing their “intent” to address the question of older teens, and continue debating the matter in future hearings this year. Assembly Speaker Robert Rivas also stripped Krell’s name from the bill and wrote in two Democratic co-authors, Assembly Public Safety Chair Nick Schultz and Elk Grove Assemblymember Stephanie Nguyen, a moderate Democrat.

Schultz, a Burbank Democrat, said he plans to hold informational hearings on the issue and hopes to pass some form of amended bill this fall. The bill, without the higher penalties for soliciting older teens, is headed to the Assembly Appropriations Committee.

Assemblymember Carl DeMaio, a San Diego Republican, vowed to make Democrats pay for the move in the next election.

“I don’t think voters are going to fall for this, and I will spend every day working to ensure that,” he said.

Progressives Warn of ‘Unintended Harm’ to Teens

Krell, a former prosecutor of sex crimes known for taking on the operators of the trafficking website Backpage, introduced AB 379 to target buyers of teenage victims in the sex trade.

It’s supported by Republicans, organizations that help survivors, law enforcement, including Sacramento County Sheriff Jim Cooper, and Lt. Gov. Eleni Kounalakis. The proposal would make it a crime to loiter with the intent to purchase sex, and would use the fines from those charges to fund services for trafficking survivors.

Krell’s fellow Democrats mostly don’t have a problem with that. But they objected to the bill’s inclusion of making the solicitation of 16- and 17-year-olds a “wobbler” on the first offense, meaning it could be charged as a misdemeanor or a felony. They had just removed an identical provision from a law by Republican Sen. Shannon Grove, of Bakersfield, last year, that made solicitation of 15-year-olds (or any minor who is a trafficking victim) a “wobbler” on first offense.

Progressives, criminal justice reform advocates and other organizations that help survivors are concerned with blurry lines in some young people’s relationships. In a statement, Anne Irwin, director of Smart Justice California, said the provision “risked unintended harm to minors.”

Democrats said they don’t want to allow older teenagers to be charged with felonies if their parents don’t approve of an interracial or an LGBTQ consenting relationship.

“Sending an 18-year-old high school senior to state prison for offering his 17-year-old classmate $20 to fool around isn’t smart criminal justice policy,” Sen. Scott Wiener, a San Francisco Democrat, wrote on social media this week.

Wiener was one of the lawmakers who pushed for 16- and 17-year-olds to be removed last year. Through a spokesperson, he declined to comment further.

Proponents of the legislation have said those concerns are largely hypothetical. They countered that prosecutors wouldn’t spend time charging teenagers who are having consensual sex. (The legal age of consent is 18.) Grove, who co-authored Krell’s bill, said though it’s already a felony to pay for sex with any minor, any conversation and deal-making that precedes that act should be stopped.

But Schultz and Rivas accused their critics of playing politics and misstating current laws. In addition to it being a felony to have sex with a minor, it is also a felony to contact any minor to commit sexual offense and to send sexual text messages to minors.

“No one in the room is OK with” minors being sold for sex, Rivas said. “This is a nuanced issue and conversation.”

Schultz would not share details of how he envisions changing the bill to include 16- and 17-year-olds later this year, but said he’s considering provisions that lessen penalties for the alleged offender if he’s close in age to the victim — similar to carve-outs in the state’s statutory rape laws.

Rivas dismissed the idea the issue had become a political liability for Democrats.

“It’s always high stakes around here,” he said. “Our commitment is to get it right.”

This article was originally published on CalMatters and was republished under the Creative Commons Attribution-NonCommercial-NoDerivatives license.