Penal Code § 236.1 PC – Human Trafficking – California Law

Under Penal Code § 236.1 PC, the California crime of human trafficking is defined as depriving someone of their personal liberty either to obtain forced labor, to pimp or pander them, to violate California’s child pornography laws, or to persuade a minor to engage in commercial sex acts.

Examples

• A pimp is harboring several underage prostitutes, and he confiscates their earnings and tells them that he will kill their parents if they ever stop working for him.
• The owner of a clothing factory provides room and board but no wages to undocumented workers, and she tells them she will report them to ICE if they leave.
• A family keeps an undocumented domestic servant from the Philippines locked in their house, and they confiscate her passport and threaten her with violence when she tries to escape.

Penalties

In 2012, California voters passed Proposition 35 (the “Californians Against Sexual Exploitation Act”), which provides for new, very harsh penalties for people convicted of violating Penal Code 236.1.²

Trafficking people is always a felony in California law.³

Human trafficking crime (PC 236.1)	California penalties
Trafficking to obtain forced labor or services	5, 8, or 12 years in state prison, and a fine of up to $500,000.4
Trafficking to commit a crime related to commercial sex, child pornography, or extortion	8, 14, or 20 years in state prison, a fine of up to $500,000,5 and sex offender registration.6
Persuading a minor to engage in a commercial sex act	5 to 12 years in prison (or 15 years to life if you used force, fear, or threat of injury to the alleged victim), a fine of up to $500,000, and sex offender registration.7

Legal defenses

Human trafficking sounds like a heinous crime, but many people accused of it have done nothing wrong—or, at the very least, may actually have only committed a much less serious offense.

An experienced criminal defense attorney can help you mount a convincing legal defense to trafficking charges. Some potential defenses are:

• You were falsely accused,
• You did not actually deprive the alleged “victim” of his/her liberty (for example, the alleged victim was actually free to go), and
• You made a mistake of fact that makes you not guilty of the crime of human trafficking.

Below, our California criminal defense attorneys will address the following topics about human trafficking:

• 1. “Human Trafficking” Defined
• 2. Penalties
• 3. Defenses
• 4. Related Offenses
• Additional Resources

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. “Human Trafficking” Defined

What is human trafficking? The legal definition of human trafficking in California depends on the section of the relevant statute—PC 236.1—under which you are charged.

Penal Code 236.1(a): Forced Labor or Services

If you are charged under PC 236.1(a), the prosecutor must prove the following elements of the jury instructions:

1. You deprived another human being of their personal liberty or violated that person’s personal liberty, AND
2. When you did so, you intended to obtain forced labor or services.⁸

Let’s flesh out some of the terms in this legal definition for victims of labor exploitation to understand their meaning better:

Depriving Another Person of their Personal Liberty

A deprivation or violation of someone’s personal liberty is a substantial and sustained restriction of their liberty through one of the following:

• Force or fear,
• Fraud or deceit,
• Coercion,
• Violence,
• Duress (for example, a threat of force, violence, danger, hardship, or retribution),
• Menace (for example, a verbal or physical threat of harm), or
• Threat of injury to that person or someone else, under circumstances that make it reasonably likely that the person would believe that the threat would be carried out.⁹

Duress can include a threat to take away—or actually taking away—the victim’s passport or other immigration document.¹⁰

Example: Amanda travels to India soliciting for domestic servants. She hires a young woman named Sonali, promising her a comfortable wage, and brings Sonali back to the United States with her.

Once they are back in the United States, Amanda demands that Sonali work long hours for her, for no pay. She tells Sonali that, because her temporary visa has expired and she is no longer in the U.S. legally, she will be arrested and sent to prison if she ever tries to leave Amanda’s house. Amanda also takes away Sonali’s passport.

Amanda has deprived Sonali of her personal liberty—using deceit and duress. She is a labor trafficking victim forced into domestic servitude.

Forced Labor or Services

“Forced labor or services” means labor or services that are obtained or maintained through force, fraud, duress, coercion, or similar behavior that would be expected to reasonably overpower the will of the person providing the labor or services.¹¹

Note that forced labor does not necessarily have to be unpaid. This distinguishes forced labor under this law from our normal idea of “slave labor”—which we tend to think of as unpaid.

Example: Raul is an illegal foreign national from Mexico who works on a farm in the Central Valley. He earns a low wage for very hard work. His cousin finds him a better job in a restaurant, and Raul goes to tell the farm’s owner, Kevin, that he will be quitting.

But Kevin threatens to send his friends to beat up Raul if he leaves his job on the farm. He also threatens to report Raul to the immigration authorities if he leaves the job. Raul therefore has no choice but to stay with his farm job.

Because he is only working on the farm as a result of Kevin’s threats, Raul is now performing forced labor under PC 236.1. This is a form of modern-day slavery.

Penal Code 236.1(b): Human Trafficking for Purposes of Pimping, Child Pornography, or Extortion

The elements of PC 236.1(b), are as follows:

1. You deprived another person of their personal liberty or violated that person’s personal liberty, AND
2. When you did so, you intended to commit one of a specified list of crimes.¹²

The crimes associated with PC 236.1(b) are:

• PC 266 enticing a female under 18 to engage in prostitution,
• PC 266h pimping,
• PC 266i pandering,
• Penal Code 266j procurement of a child under 16 for lewd or lascivious acts,
• PC 267 abduction of a person under 18 for purposes of prostitution,
• PC 311.1 or 311.2 transporting or distributing child pornography,
• PC 311.3 developing, duplicating, printing, or exchanging child pornography,
• PC 311.4 employing minors to participate in child pornography,
• PC 311.5 advertising obscene material,
• PC 311.6 production of obscene live performances, and
• PC 518 extortion/blackmail.¹³

Example: Marcus is part of a sex trafficking case that brings young women from Russia to the United States on fake passports, promising them jobs in restaurants in the U.S.

But in fact, once the women reach the U.S., they are kept as near-prisoners in a private home, given drugs and alcohol, subjected to sexual abuse, and made to work as prostitutes. They are told that they will be beaten or killed if they try to escape.

Marcus doesn’t act as a pimp himself but is responsible for helping to control the women. He may be charged with PC 236.1(b), for depriving the women of their personal liberty in order to aid in a violation of California’s law against pimping.

Penal Code 236.1(c): Causing a Minor to Engage in Commercial Sex

PC 236.1(c) makes it a crime in the state of California to:

1. Cause, induce, or persuade a minor to engage in a commercial sex act,
2. With the intent to commit one of the crimes listed above.¹⁴

The legal definition of trafficking people under this section is notably different from the other sections of Penal Code 236.1—because it does not require that you deprive anyone of their personal liberty. Nonetheless, this activity is still considered “human trafficking.”¹⁵

Example: Kathleen is a former prostitute who now acts as a “madam”—a female pimp—providing high-end prostitutes to high-paying johns. She meets a 16-year-old named Raquel and talks Raquel into working for her. Raquel is enticed by the large amounts of money she can earn as a high-class call girl and readily agrees.

Even though Raquel has chosen to work for Kathleen of her own free will, Kathleen may still be charged with PC 236.1(c).

It is also important to note that you can be prosecuted even if you were honestly mistaken about the age of the “victim.”¹⁶

2. Penalties

The punishment, penalties and sentencing for PC 236.1 depend on which section of the statute you are alleged to have violated. However, the crime is always a California felony.¹⁷

Penal Code 236.1(a) PC Penalties

For a violation of PC 236.1(a) (depriving another person of their liberty with the intent to obtain forced labor or services), the penalties are as follows:

• Formal (felony) probation,
• A California state prison sentence of five (5), eight (8), or twelve (12) years, and/or
• A fine of up to five hundred thousand dollars ($500,000).¹⁸

Penal Code 236.1(b) PC Penalties

For a violation of PC 236.1(b) (depriving another person of their liberty with the intent to enable a violation of laws on pimping/pandering, child pornography, or extortion), the penalties are as follows:

• Formal (felony) probation,
• A California state prison sentence of eight (8), fourteen (14), or twenty (20) years, and/or
• A fine of up to five hundred thousand dollars ($500,000).¹⁹

You will also be required to register for life as a three-tier sex offender under PC 290, California’s Sex Offender Registration Act.²⁰

Penal Code 236.1(c) PC Penalties

Finally, if you violate Penal Code 236.1(c) (causing or persuading a minor to engage in a commercial sex act), you face the following potential penalties:

• Formal (felony) probation,
• A California state prison sentence of five (5), eight (8), or twelve (12) years, and/or
• A fine of up to five hundred thousand dollars ($500,000).²¹

BUT, if the charges are that you used force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or another person to commit this offense—then the potential prison sentence increases to fifteen (15) years to life!²²

A conviction under this section also leads to mandatory lifetime sex offender registration. In addition, human trafficking of a child is a “serious felony” and therefore a strike offense:

• If you have a prior conviction for a serious or violent felony, the penalties for human trafficking double.
• If you have two prior convictions for a serious or violent felony, then the penalties for human trafficking are 25 years to life. ²³

Additional Prison Terms for Great Bodily Injury or Prior Convictions

In addition to the prison terms listed above, you face an additional, consecutive term of five (5), seven (7) or ten (10) years in prison if it is determined that you inflicted great bodily injury on a victim while committing or attempting to commit a trafficking offense.²⁴

Also, if you have previous convictions for violating PC 236.1, your sentence will be enhanced by an additional, consecutive prison term of five (5) years for each prior violation.²⁵

Additional Fines and Civil Penalties for Human Trafficking

In addition to the prison terms and fines discussed above, you may face further financial penalties.

First, thanks to Proposition 35, which was passed in 2012, the court may slap you with an additional fine of up to one million dollars ($1,000,000).²⁶ In deciding whether or not to impose an additional fine—and how much it will be—the judge can consider

• The seriousness of your offense,
• The circumstances and duration of your offense,
• The amount of economic gain you derived from the trafficking, and
• The extent to which the victim suffered losses.²⁷

Second, the victim may bring a civil lawsuit against you for damages relating to your conduct. The court has wide discretion to impose large civil penalties under California law—including amounts up to three (3) times the actual damages that the victim is able to show.²⁸

Finally, if you are convicted of trafficking involving a commercial sex act committed by a person under 18, then you could face various forms of asset forfeiture. Specifically, the state might be able to seize:

• Any property, including vehicles, real estate, and money, that was used to facilitate the crime, and/or
• Any property acquired through or with the proceeds of the trafficking.²⁹

Example: Recall Kathleen from our example above. Let’s say Kathleen is arrested for—and convicted of—trafficking people, for recruiting 16-year-old Raquel to act as a prostitute.

The court sentences Kathleen to 5 years in prison and a hundred thousand dollar fine. But in addition, the court orders the seizure of the car that she used to transport Raquel to her jobs, the condo where she and Raquel discussed their business arrangement, and all the money that the prosecutor is able to prove Kathleen earned from Raquel’s work as a prostitute.

3. Defenses

Trafficking people carries heavy penalties and a terrible social stigma in California. A good criminal defense attorney is absolutely essential for fighting these charges.

Some of the legal defenses that you and your attorney may be able to use to build your case include:

You Were Falsely Accused

According to Pasadena criminal defense lawyer Neil Shouse³⁰:

“Human trafficking charges rarely arise out of nowhere. Often this crime is charged because an employee is angry at their employer—and falsely accuses the employer of depriving them of their liberty. Or maybe the defendant actually has committed the crime of pimping or pandering—but is being falsely accused by the prostitutes who work for him.”

The alleged victims of crimes of human trafficking are usually low-level employees, prostitutes, of the illegal immigrant population—people who might have a motivation to accuse someone else of holding them against their will, in order to gain sympathy or lenient treatment for themselves.

If you are falsely accused, you and your lawyer will want to leave no stone unturned in gathering evidence to show that your account of events is the correct one.

You Did Not Actually Deprive the Alleged “Victim” of Their Liberty

In real life, there are often lots of gray areas that can lead to unwarranted accusations of trafficking people.

Perhaps the alleged victim thought that s/he was not free to leave an employment situation, when really you had done nothing to lead him/her to believe that.

Or perhaps you did threaten him/her with consequences if s/he left the employment situation—but those threats did not rise to the level that would make you criminally liable for trafficking people.

You Made a Mistake of Fact

Mistake of fact is a valid defense to a crime that depends on you realizing what you were doing when you committed the acts that led to the criminal charges.

Perhaps you took your domestic servant’s or employee’s passport for safekeeping, thinking that you needed to do so to prove that you were complying with immigration laws.

Or perhaps—if you are accused under PC 236.1(c)—you introduced a person under 18 years of age to someone you expected them to have a sexual relationship with—but you did not expect that relationship to involve sex for money.

4. Related Offenses

Penal Code 266h & 266i PC Pimping and Pandering

As discussed above, you may be charged with trafficking people if you deprive someone else of their personal liberty with the intent to commit PC 266h pimping or PC 266i pandering. Therefore, it is quite common to be charged with both trafficking and with one of these crimes.

PC 266h pimping consists of either:

1. Finding customers (“johns”) for a prostitute and then collecting a fee from the customer, or
2. Collecting some or all of a prostitute’s pay.³¹

PC 266i pandering consists of “procuring” another person for the purpose of prostitution, by intentionally encouraging or persuading someone to become a prostitute.³²

Both pimping and pandering are felonies, punishable by:

• Three (3), four (4), or six (6) years in prison,
• A fine of up to ten thousand dollars ($10,000),³³ and/or
• PC 290 registration as a sex offender—but only if the person you are convicted of pimping or pandering is a minor.³⁴

Penal Code 311.3 & 311.11 PC Child Pornography

Child pornography offenses are also associated with PC 236.1—that is, you can be charged with trafficking if you deprive someone of their liberty in order to commit a child pornography offense.

Therefore, it is also common to see human trafficking tried in conjunction with child pornography charges.

The specific child pornography offenses associated with trafficking people are³⁵:

• PC 311.1 or 311.2 transporting or distributing child pornography—which may be charged as a misdemeanor or a felony, depending on the circumstances of the offense,³⁶
• PC 311.3 developing, duplicating, printing, or exchanging child pornography—a misdemeanor for the first offense but a felony for subsequent offenses,³⁷ and
• PC 311.4 employing minors to participate in child pornography—which may be charged as a misdemeanor or a felony, depending on the circumstances of the case.³⁸

Penal Code 518 PC Extortion

PC 518 extortion is another California offense that is associated with PC 236.1. If you deprive someone of their liberty with the intent to commit extortion, this is considered trafficking humans.³⁹

California extortion is defined as either of the following:

• Using force or threats to compel someone to give you money or other property, or
• Using force or threats to compel a public officer to perform an official act.⁴⁰

Extortion is a felony punishable by two (2), three (3), or four (4) years in county jail.⁴¹

California Kidnapping

Another closely-related offense to PC 236.1 is PC 207 California kidnapping.

Kidnapping is defined as:

1. Moving another person
2. A substantial distance,
3. Without that person’s consent,
4. By use of force or fear.⁴²

Because kidnapping involves moving a person without their consent, it is somewhat similar to trafficking (which requires depriving a person of their personal liberty⁴³). But there are major differences between the two offenses, such as:

1. California kidnapping requires that you use force or fear to detain the victim, and
2. Trafficking must involve an intent either to obtain forced labor or services, or to commit one of the specified crimes such as pimping or extortion.⁴⁴

Kidnapping is a felony, punishable by three (3), five (5), or eight (8) years in state prison, and/or a maximum ten thousand dollar ($10,000) fine.⁴⁵

Because the penalties for kidnapping usually are lighter than those for trafficking humans, it may sometimes make sense to try to get a trafficking charge replaced by a kidnapping charge—if the circumstances of the alleged offense permit that strategy.

Penal Code 186.22 PC Street Gang Sentencing Enhancement

Finally, PC 236.1 charges may be enhanced by charges under PC 186.22, California’s “gang enhancement” law.

According to a report by the California Office of the Attorney General, trafficking people in California is often committed by or in association with domestic and international street gangs.

If you are charged, and the prosecutor alleges that you committed the crime for the benefit of or in association with a criminal street gang—then you could face an additional two (2), three (3), or four (4) years (or even more, in special cases) in prison.⁴⁶

Additional Resources

If you are a victim, find help at the following:

• Polaris Project
• Operation Reclaim and Rebuild
• National Human Trafficking Resource Center
• Coalition to Abolish Slavery and Trafficking
• Human Trafficking Task Force – United States Government
• California Alliance to Combat Trafficking and Slavery Task Force (2007)
• The National Human Trafficking Hotline
• Human Trafficking – U.S. Department of State (state.gov)
• The Advocates for Human Rights
• California Law Enforcement Agencies
• Los Angeles County Sheriff
• National Human Trafficking Hotline: Text BeFree (233733)
• United Nations – Human Trafficking and Migrant Smuggling
• Department of Justice (DOJ) – Human Trafficking in the United States
• Combat Human Trafficking in Persons
• International Labour Organization (ILO)
• U.S. Department of State – Trafficking in Persons Report

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