Prop 35: Human Trafficking, a Progressive Dilemma

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