Prop 35- Human Trafficking, a Progressive Dilemma

by on October 1, 2012 · 11 comments

in Editor's Picks, Government, Politics

By Kit-Bacon Gressitt / Excuse Me, I’m Writing

It is a no-brainer to predict that the anti-human trafficking ballot initiative in California, Proposition 35, will pass by a landslide in November. The measure’s increased prison sentences and fines for labor and sex traffickers are popular responses to crime.

Even Maxine Doogan, spokesperson for the measure’s primary opposition, said Prop 35 is going to pass: “Everyone is against human trafficking. Of course we need to throw the book at human traffickers.”

But Doogan, the founder of Erotic Service Provider Legal, Educational and Research Project, a sex worker advocacy group, is not at all pleased with the measure’s inevitable success.

Neither are civil libertarians, if the ACLU’s opposition is any indication.

Even a couple of progressive state legislators, Senator Mark Leno (D-San Francisco) and Assemblymember Tom Ammiano (D-San Francisco), who has worked on strikingly similar legislation to combat trafficking, have questioned the wisdom of the measure to varying degrees — a pretty bold step, given voter fondness for harsh responses to crime.

Examination of the pros and cons, however, raises some issues that should cause at least a modicum of discomfort for progressives.

Doogan has two main arguments. First, she believes that Prop 35 is actually a cover for an anti-prostitution effort, arguing that the measure would make sex workers more vulnerable to prosecution and incarceration. However, there is no evidence that this is the proponents’ intent and they deny it. Second, Doogan thinks that the measure is poorly written and confusing.

“I think the California Democratic Party and the California Federation of Labor didn’t vet this ballot measure properly,” she said. “Like a lot of other voters, they just read the first lines, and they have no idea what it is.”

Doogan’s statement is correct in spirit if not in letter: How many voters do you know who read the entire texts of ballot measures?

While a few of us take perverse pleasure in wallowing through the arcane language, a survey by the Public Policy Institute of California found that 79% of respondents agreed that the “ballot wording for citizens’ initiatives is often too complicated and confusing for voters to understand what happens if the initiative passes.” And this seems to be the intent of many ballot measures’ sponsors, who are often corporate and out-of-state special interests.

California’s initiative process long ago abandoned its origins in grassroots citizen activism; the state’s initiatives now power what has become known as the “Initiative Industrial Complex,” an industry driven by profit and political agendas. Even Prop 35, although born of citizen concern, needed the investment of a millionaire — Chris Kelly, former Facebook executive and Democratic candidate for attorney general — to fund the signature gathering for the initiative’s petition.

Marc Klaas, father of abducted and murdered 12-year-old Polly Klaas and founder of the KlaasKids Foundation, signed the ballot argument in support of Prop 35. He suggested that initiatives are the only recourse for voters.

“I think there’s a disconnect between the legislature and the legislation that needs to be written,” he said. “In California, the fallback position is the initiative. Unfortunately you have to have big money to do that, and fortunately the proponents of Prop 35 have that.”

Prop 35 is clearly a product of such economic and political dynamics — and the measure’s language is indeed exceedingly complex, a characteristic likely to discourage already reluctant voters from reading it and understanding the many things it attempts to do.

To the proponents’ credit, though, Prop 35 attempts to bring state law in line with federal law. The California Attorney General’s webpage currently defines human trafficking as:

 All acts involved in the recruitment, abduction, transport, harboring, transfer, sale or receipt of persons, within national or across international borders, through force, coercion, fraud or deception, to place persons in situations of slavery or slave-like conditions, forced labor or services, such as forced prostitution or sexual services, domestic servitude, bonded sweatshop labor, or other debt bondage.

 This definition fails to address minors’ inability to give legal consent, a critical factor in human trafficking prosecution that is reflected in the federal definition, which reads, “If a person is under 18 years of age, regardless of whether any form of coercion is involved, the person is considered a victim of human trafficking.” Prop 35 would correct this weakness in the California law.

In addition to the measure’s complexity, however, there are other concerns about the effects of Prop 35.

Sen. Leno suggested that the cost to the state of longer sentences could reach hundreds of millions of dollars in the next ten years — at a time when California prisons are critically overcrowded and revenues are critically sparse.

But Daphne Phung, Founder of California Against Slavery, Prop 35’s primary sponsor, countered that, “If this initiative prevents only one child from being trafficked, it’s really worth it.”

Leno also questioned Prop 35’s requirement that convicted sex traffickers register as sex offenders — whether or not they have committed what are traditionally considered sex crimes.

While this will further burden California’s already-failing sex offender registry, which struggles without adequate funding for enforcement, logic suggests that trafficking a child to be raped by someone else is as great an offense as raping the child oneself. Plenty of voters would likely opt for being informed when a convicted sex trafficker moves to the neighborhood.

And this provides a nice segue to issues of civil liberty, a frequent basis of criticism of sex offender registry laws, which mandate that perpetrators who have served their sentences receive what some consider unconstitutional, lifelong punishment in the form of public shaming and harassment as a result of the registries.

Prop 35 would add fuel to this fiery debate by further mandating that all sex offenders (which would include sex traffickers if the measure passes) report their Internet service providers, online identities, user names and email addresses to law enforcement. The measure’s intent is to prevent online sexual exploitation, pornography, and recruitment for trafficking purposes, but the ACLU thinks it goes too far.

The organization’s legislative director for California, Francisco Lobaco, said at a hearing on Prop 35 that it raises serious free speech concerns: “The Supreme Court has long held that the First Amendment protects the right to speak anonymously. The initiative infringes on that right of registrants to speak anonymously on the Internet, because it means a person who is convicted decades ago of a relatively minor sex offense, such as indecent exposure, or a crime that has absolutely nothing to do with either children or the use of the Internet, must now inform the police of any name he or she uses in any sort of online discussion group. … This raises significant constitutional issues if in fact this initiative were to pass.”

And when that happens, those who question Prop 35 might be relieved to know that the sponsors wisely included a failsafe mechanism: Once passed, the resulting act can be amended by a simple majority of the votes in the state legislature, which begs the question of why the sponsors didn’t work with the legislature to begin with.

Klaas’ response to the question is steeped in experience.

“Lawmaking is frustrating at any level,” he said. “I’m torn by this, but I’m loathsome of the legislature. I can’t stand it up there [in Sacramento]. I’m in contempt of the whole bunch of them. It’s a terrible process. But the initiative is a process that can get things done.”

Klaas is correct: Initiatives can get things done — sometimes good things, sometimes bad.

California initiatives have banned same-sex marriage (Prop 8, in 2008), done away with bilingual education (Prop 227, in 1998), undermined funding for public schools (Prop 13, in 1978), mandated life sentences that have been wildly more severe than some “third strike” offenses warranted (Prop 184, in 1994), prohibited affirmative action in public employment, education and contracting (Prop 209, in 1996), denied healthcare and education to undocumented immigrants (Prop 187, in 1994), and the list of supposed “citizen” initiative fiascos goes on.

In the meantime, Prop 35 is going to pass, and we can only wait to see if it produces good things for the people of California or ends up in the rogue’s gallery of ill-conceived and malevolent ballot measures.

Love,

K-B

For more information on human trafficking:

California League of Women Voters Prop 35 analysis

President Obama’s speech last Tuesday on human trafficking

Federal anti-human trafficking initiatives

Recommendations for industry, government and other agencies to combat online human trafficking

Recently passed California anti-trafficking legislation

avatar Hope Francis October 1, 2012 at 2:29 pm

Sharmin Bock addresses the issues raised in this article at this link. Published on 9/28, Ms. Bock’s San Leandro Patch article is entitled, Vote Yes on Prop 35 to Stop Human Trafficking in California. Sharmin Bock is a a 23-year veteran prosecutor in California and a nationally recognized leader on cutting edge criminal prosecutions including human exploitation and trafficking.

avatar K-B October 1, 2012 at 3:16 pm

Yes, Bock and many, many others have endorsed Prop 35 (http://www.caseact.org/case/endorsements/). It would be tough for a politician or public figure not to, and, again, who isn’t against human trafficking? However, when we opt against civil liberties for an underclass (such as low-income mothers or criminals) to achieve a sense of security — that is often false (consider how our constitutional rights were trampled after Sept 11th) — we diminish civil rights for all of us, along with the integrity of our democracy. It would be interesting if we were to address the underlying causes of such crimes as human trafficking — poverty, misogyny, unchecked capitalism, failed “development” of “undeveloped” nations, etc. — concurrent with legislation or initiatives based on sound research, not emotion or politics. Hard to do in this particular context, I understand, but if this initiative were targeting, say, women’s access to contraception, I suspect you would opt for a more scientific approach.

avatar Rachel October 2, 2012 at 10:40 am

I agree that the underlying causes of Human Trafficking need to be addressed as well, and I think that Prop 35 seeks to address how the current law against trafficking has been failing. Personally working in the field of anti-human trafficking, I can say there are many issues that feed into the prevalence of this crime, but I do not think that most of them can really be addressed by making a new law or just addressing poverty or development issues. I think that the largest factor in human trafficking is that there is a basic lack of care for other human beings. Traffickers dehumanize their victims and often everyone else. There is no human worth. Society has played a large role in creating this mindset, and I’d argue that the “regular” citizen does their own fair share of dehumanizing as well.
I support Prop 35 because along with raising the sentencing for human traffickers, it seeks to bring awareness to the community that this crime is even happening in California, it seeks to humanize the victims (seeing prostitutes as potential victims rather than criminals… many of them started as minors), and best of all, it calls for action. We must address one issue at a time. It’d be great to address everything at once, but we must start somewhere. Hopefully Prop 35 will bring about other efforts to stomp out trafficking.

avatar Fight Human Trafficking October 1, 2012 at 3:53 pm

I will be voting YES on Prop 35… Here’s why:

Prop 35 is a well crafted initiative (not exceedingly complex, as you state – have you read it? It’s very simple.) – it is drafted by the people who fight human trafficking in the trenches everyday.

Maxine Doogan–the main opponent of 35–was charged with being a pimp. She attempts to deliberately mislead people about the effects of this initiative. She claims that it will affect people who unknowingly accept money gained by erotic services. This is not true. There is a clear INTENT standard – you must intend to buy/sell people against their will to be charged as a trafficker. Prop 35 is not about prostitution–it’s about people being bought and sold AGAINST THEIR WILL.

Prop 35 will simply put CA’s law in line with Federal penalties. Regarding the sex offenders registering their internet accounts, this is already done in NY. Seeing as just about every case I’ve ever seen of human trafficking was done online, this makes a lot of sense.

Prop 35 is supported by just about every stakeholder in this issue–from human rights groups to law enforcement groups to victims services groups–and BOTH political parties even endorse it (what else do both political parties agree on?).

Anyway, this one’s a no brainer for me… I’m voting YES on 35 to help curb this human rights abuse in our state.

avatar K-B October 1, 2012 at 8:54 pm

Fighting human trafficking: Doogan publicly identifies as a prostitute, and that does make her vulnerable to personal attack among those who do not honor women’s difficult choices in a patriarchal capitalist system. But this is a progressive paper, so I assume plenty of readers will take that tactic with a grain of salt. Daphne Phung is comparably vulnerable to attack from some quarters for her faith-based motivation for sponsoring the measure and for the number of conservative faith-based endorsers she has recruited. But I figure at this point that Doogan nor Phung’s personal stories are significantly less important than the proposition’s effects on civil rights, law enforcement, prosecution, and California’s profit-oriented prison industry. With some luck, the legislature will amend the act before it causes harm. In the meantime, since you know the measure will pass, I wonder if you couldn’t exercise a bit more grace than to lob a personal attack?

avatar Lizz October 1, 2012 at 4:29 pm

I am glad to see that Prop 35 addresses both sides of human trafficking, with increased funding for victims (all fines from convicted traffickers will go to victims services) as well as increased penalties against human traffickers. Slavery is an rising problem in California. 3 of the top 13 child sex trafficking cities in the US are located here! As a state, we need to collectively say no to human trafficking. Vote YES ON 35!

avatar Ginger October 2, 2012 at 8:27 am

Prop 35 will to protect, defend, and provide for victims and survivors whose “civil liberties” are grossly, cruelly, and inhumanely violated for the profit of another. It is the responsibility of a civilized society to provide for the public safety and the needs of victims, as well as preserving the rights of the accused. It will be the job of the judge and jury to protect the civil liberties of “criminals”. And… really… Prop 35 is not about prostitution. Please interview a human trafficking survivor.

avatar RJ October 2, 2012 at 11:18 am

Prop 35 aims to increase penalties and qualify traffickers as sex offenders. I am glad this proposition is on the ballot. In as direct as possible a way, Prop 35 begins to address one underlying cause of trafficking – the profit motive of the “reseller.” By levying stiffer penalties and redirecting funds gained from those penalties to victim services, Prop 35 actually delivers a double-dose of benefit. I will be voting YES on Prop 35.

avatar KjS October 2, 2012 at 11:51 am

The arguments used by the opposition are very misleading and some are just plain false. As Veteran Prosecutor Sharmin Bock states in her article ) : “Prop 35 does not impact prostitution involving consensual adults. There are laws on the books against prostitution, but Prop 35 only covers cases where traffickers profit from the sexual exploitation of a child or the forced exploitation of an adult.” This is not about prostitution, it’s about trafficking. It’s about saving that 12 year old girl from being forced to have sex with up to 10 men a night. And then providing funding to the services providers who will help her get her life back on track. It’s actually pretty clear! I will be voting YES on 35!

avatar votingyes October 3, 2012 at 4:59 pm

I read the summary and arguments in the ballot initiative guide and I think it was clear. Prop 35 will help protect victims of human trafficking and make the penalties similar to our federal standard. I will vote yes on Prop 35.

To clarify, human trafficking is when someone is FORCED or COERCED (persuaded by force or threats) into sex acts or labor acts. This is AGAINST his/her will. Prostitution is not human trafficking UNLESS the person is being FORCED into the situation, per the definition of the term.

avatar HM October 31, 2012 at 5:57 pm

The last sentence of this article does not sit well with me,
“we can only wait to see if it produces good things for the people of California or ends up in the rogue’s gallery of ill-conceived and malevolent ballot measures.”
It’s irresponsible to claim agnosticism about the consequences of your actions (in this case, California potentially passing Prop 35).

For my part, I look forward to voting YES on Prop 35. I appreciate that it’s short, to-the-point, easily readable and understood, and will address 2 pressing gaps in California law. First gap is that current law doesn’t reflect the SEVERITY of trafficking crimes. You can get more time for a host of “lesser” offenses. Prop 35 communicates to the public that trafficking is an intolerable offense.

The second gap is that trafficking is difficult to prosecute in California due to the fact that most victims won’t testify (out of fear or trying, under the influence of Stockholm syndrome, to protect their trafficker). Currently, without the victim’s testimony, conviction is unlikely. Prop 35 allows prosecutors to present other evidence to support a case, things that include common signs of trafficking like victims presenting extreme fear, PTSD, signs of physical and psychological abuse.

Let’s get the bad guys (and gals) that are tricking and forcing kids, men and women into outright slavery!

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