Motherhood, apple pie, and fighting human trafficking
Early polling suggests that Proposition 35 looks like a sure winner in November — buoyed by voters who haven’t read or understood it but who like its title. Unfortunately, either through accident or design, Prop 35 is badly drafted — potentially turning even misdemeanor offenses dealing with prostitution, solicitation, non-marital sex, sex with minors, “sexting,” pornography, obscenity, and extortion into major, multi-year felonies.
One doesn’t have to think that such activities should be legal to think that they should be addressed with some sense of punishment being proportional to the crime. It must be fixed before it enters our Penal Code.
Prop 35 is a joint effort of Californians Against Slavery and the Safer California Foundation. Californians Against Slavery bills itself this way:
A nonprofit, non-partisan human rights organization dedicated to ending human trafficking in our state. Our mission is to defend the freedom of every child, woman and man by empowering the people of California to fulfill our obligation to stop human trafficking.
Now there is a group that is hard to oppose! Not many people outright celebrate slavery these days. And human trafficking, the prototypical example is where women are imported into the U.S. with false promises of legitimate work, held captive, and forced into prostitution for the benefit of American men. This is about as offensive as a practice can get. (Of course, “human trafficking” has another meaning as well: prostitution in any form, which is less offensive. This ambiguity will, as we’ll see, create problems.)
The group’s leader, Daphne Phung, was inspired to create Prop 35 by MSNBC’s excellent documentary on human trafficking, “Sex Slaves in America,” the transcript for which is available at http://on.today.com/nxLNI2. Please do read it. If such activities were legal and Prop 35 addressed only such horrors, I’d support it.
The Safer California Foundation bills itself this way:
… dedicated to supporting efforts to protect Californians from all forms of criminal exploitation. Created by Chris Kelly, former Facebook Chief Privacy Officer and a Silicon Valley attorney and philanthropist, the Safer California Foundation looks forward to the day when every neighborhood in California is as safe as our most secure neighborhoods today.
You may remember Chris Kelly as a well-funded 2010 Democratic candidate for Attorney General who lost to Kamala Harris in the primary. His address — business, probably — is listed as being in Garden Grove. He provided the lion’s share of funding for Prop 35, $1.66 million. (Perhaps I’ll be excused for suspecting that once Prop 35 passes, he’s not going to let us forget that, either.) As “criminal exploitation” is better known as “crime,” the above description is about as vague as they come: Chris Kelly is against crime.
Prop 35 would enact the “CASE Act.” CASE stands for “Californians Against Sexual Exploitation,” which is intended as a model law for other states to adopt. Notice that we’ve gone from opposing “Slavery” — a pretty well-defined concept — to opposing “Sexual Exploitation,” which is a lot broader and more nebulous. That is our first hint (not counting lavish sponsorship by what the Sacramento Bee calls “a politically ambitious financial angel”) of the problems with Prop 35.
That notwithstanding, it is hard to imagine a more “motherhood and apple pie” measure than this. What sort of monster, after all, could argue with opposing modern day slavery?
Here’s what kind of monster: someone who has actually read the bill, rather than just the title, and analyzed what its language would do. Such a monster may come to view Prop 35 as a “bait and switch” for voters.
Jane Fonda as a streetwalker in Klute & Cambodian child prostitute -- does all "sex trafficking" deserve the same legal treatment?
Surprise! Current Law Does Punish Pimping Minors. (Unbelievable!)
The website from which the photo at right came (and I’m taking their word that the girl in question is in fact a child prostitute) begins with these sentences:
Debbie was 15 when she was abducted from her Phoenix home late one night. Four men took her to an apartment from her home 25 miles away and continually raped and abused her. She spent days and days in a dog kennel, where her kidnappers forced her to eat dog biscuits and have sex with any man who came to the apartment. Unfortunately, this is a situation more than 2 million women and children find themselves in around the world annually.
(I support Prop 34, which will eliminate the death penalty, because it is too costly and sometimes has led to execution of the innocent. I have to admit, though — if I knew for sure that someone in their right mind had done this sort of thing, I wouldn’t shed a tear at their execution if it came to pass.)
Prop 35 demands our attention with these sorts of lurid and horrific stories of real prototypical human trafficking — usually foreign women lured into the U.S. with the promise of legitimate work, held captive, beaten, and forced into prostitution. It then uses our revulsion at this abominable practice to induce us to pass a bill that doesn’t necessarily have all that much to do with prototypical human trafficking.
Consider the paragraph above about “Debbie.” Does it strike you that we already have laws against all of this? It should — and that should make you wonder what is actually going on here. Here’s what’s going on here: rather than going after prototypical human trafficking, the law goes after the broader definition of human trafficking: prostitution. Proponents of Prop 35 will disagree with this assertion: on its face, Prop 35 only deals with forced prostitution. That will raise the question of what constitutes “force.”
As aside: If you’re wondering why almost no politician will feel able to oppose Prop 35, whatever their private misgivings, look at that last couple of sentences. What politician wants to parse what constitutes “force” in the activity of prostitution? Isn’t prostitution bad? The answer is that one can be perfectly comfortable with making all prostitution illegal — and yet not consider it all equally bad. Prostitution involving a 33-year-old woman who engages in it freely and voluntarily as a means of earning income may be bad, but it is clearly not as bad as prostitution involving a 13-year-old girl who can’t speak English held captive and forced into the sex trade. The greater crime should carry the greater penalty; that should be non-controversial. How does the CASE Act fare by that standard?
One thing that the CASE Act does is to raise the penalties for various crimes as indicated in this table from its FAQ page:
As you can see, a lot of what the CASE Act does is simply increasing sentencing. That’s fine, in prototypical human trafficking cases (especially including minors) where the accused has has primary rather than incidental involvement — and it’s something that I’ll bet the legislature would happily pass without a ballot initiative. But there’s something about this chart that undermines the credibility of proponents. Can you spot it?
Look in the column listing “current state” penalties for various activities, three and four lines down. And then ask yourself: do you honestly believe that there is currently no state penalty for sexual trafficking of a minor without force? Really?
There is a penalty for pimping; there is a penalty for kidnapping and false imprisonment; there are penalties for conspiracy and for solicitation to commit statutory rape. I’m probably leaving others out. So there are two possibilities here: either they authors of this chart are misleading (if not actually lying) — as if their argument that “yes that can be penalized but the specific label ‘sexual trafficking of a minor’ is not used so it doesn’t count” — or what they’re calling “sexual trafficking” is not what we think of when that term is used.
From what I can tell, it’s probably both.
Prop 35 Apparently Creates Big New Penalties against Underage Sex and All Prostitution
Prop 35 has been promoted largely by Christian religious activists who presumably generally oppose prostitution and underage (or even all non-marital) sex. That’s their right. If they can get voters to decide that prostitution and soliciting should be punished by 20 years in prison, they have the tools of the initiative process at their disposal. I’ll oppose them, but they can try it. However, they should be very clear and honest about what they’re actually doing.
In this case, under cover of fighting human trafficking, they would have raise the penalties for commercial sex to an outlandish degree — and define commercial sex extremely broadly.
The CASE Act is more of an anti-prostitution law than an anti-modern-day-slavery law. More than that, it’s an law that is anti-“statutory rape” — a term meaning simply underage sex.
Statutory rape, even with the minor’s consent, is considered rape because the minor is considered not to have the legal capacity to consent to sex. This renders all sexual activity, even consensual activity with someone whom the partner believes to be of age, as technically being “rape.” (Of course, in states like Arizona the age of consent is 16, not 18, so we’re not dealing with universal rules of nature here. This is a choice of the state regarding the mental capacity of minors — one often honored in the breach.)
The shocker is that CASE Act could literally make penalties for statutory rape greater than those for violent rape.
I have no problem with treating those engaged in real human trafficking as worse even than rapists. But the CASE Act is so broadly written that in the hands of aggressive police and prosecutors it could sweep illegal (but not uncommon) sexual encounters into the category of “human trafficking” — and that is simply wrong. It does so by expansively defining legal terms such as “commercial sex,” “force,” and “coercion.”
When examining a criminal law, one useful exercise is to consider the broadest possible expansion of each term and see how many acts it sweeps into its scope.
Redefining “commercial sex”
Here’s a riddle:
Q: Under §6(h)(2) of the CASE Act, what makes a sexual act into a “commercial sex act”?
A: That it occurs on account of anything of value being given or received by any person.
Here’s another riddle:
Q: Gee, does “anything of value” include buying someone dinner? A ticket to a movie? A drink?
A: “Anything of value” is not defined — but if it meant “money or its equivalent” it would say so.
Here’s a final riddle:
Q: Do you really think that prosecutors will think that they can get a jury to convict for a 19-year-old boy who takes a 17-year-old girl (or boy) to a concert, leading her to be grateful and to engage in a sexual act with him, under the CASE Act?
A: Maybe not. But if it’s your son facing 12 years in prison and being branded for life as a registered sex offender as a result of the conviction, would you be more likely to tell him to accept a plea bargain just in case? And don’t prosecutors like plea bargains to pad their conviction statistics? And have they ever been known to deploy their prosecutorial discretion somewhat selectively?
(By the way, that could be your daughter in the above example rather than your son.)
Many sexual activities, including those involving minors, may be facilitated in part by the gift or receipt of “something of value” without being what we’d normally think of as “commercial.” Gift of receipt of “something of value” like a meal or drink, in the course of dating or even a casual encounter, is one way of showing that the potential sexual partner is valued, which in turn is may facilitate sexual activity. I can quote song lyrics to underline the point, but it’s probably unnecessary.
We don’t (unless we are jealous and/or mean) generally call the receipt of a gift that leads to a decision to engage in sexual activity a prostitute, nor do we call the person giving such a gift a john. Even if we did, the stakes under current law would simply be that the giver involved could be charged with solicitation and the recipient with being a prostitute; of such things are sitcom episodes made. It becomes a lot less funny, though, when what’s at risk is being charged with human sexual trafficking and registered sex offended status.
Under §4 of the CASE Act, though, only the one giving the gift could be charged with a crime; the recipient cannot be charged: “evidence that a victim of human trafficking … has engaged in any commercial sexual act as a result of being a victim of human trafficking is inadmissible to prove the victim’s criminal liability for any conduct related to that activity.” Furthermore, evidence of any “history of commercial sexual act of a victim of human trafficking … is inadmissible to attack the credibility or impeach the character of the victim.” (This is a great sort of provision when it comes to rape cases, for example, but in the context of human trafficking it can have some unintended consequences.)
Broadly increasing potential penalties for non-marital sex with adult partners, obscenity, etc.
Under §6 of the CASE Act, a person “is guilty of human trafficking” “who deprives or violates the personal liberty of another with the intent to effect or maintain a violation of” existing portions of the California Penal Code dealing with:
- prostitution or “illicit carnal connection with any man” (§266)
- living or deriving support from the proceeds of prostitution (§266(h))
- procuring prostitutes (§266(i))
- transporting minor prostitutes for immoral purposes(§266(j))
- taking away from guardians a minor for purposes of prostitution (§267)
- importation, publishing, possession, &c of real or simulated child pornography (§311.1)
- importation, publishing, possession, &c of obscene material, of real or simulated child pornography, or providing same to minors (§311.2), or using minors to produce such material (§311.4)
- visually depicting a minor having sex with a person or animal, experiencing penetration of their vagina or anus, masturbating, engaging in sadomasochistic activity, urinating, defecating, or revealing sexual organs for the purpose of sexual stimulation of the viewer (§311.3)
- any trafficking in obscene matter (§311.5 — a misdemeanor offense)
- engaging or participating in, sponsoring, &c, obscene life conduct in public, with or without admission fee (§311.6 — a misdemeanor offense)
- extortion (§518)
If “prostitution” and “obscenity” and the like were narrowly defined, this would be as much of a problem. But, as seen above, they aren’t. Take the definition of prostitution in California Penal Code § 266:
Every person who inveigles or entices any unmarried female, of previous chaste character, under the age of 18 years, into any house of ill fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any man; and every person who aids or assists in such inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man,
You can see how the CASE Act may seriously deter patronage of prostitutes overall, even though it’s not being marketed that way. That’s fine if one’s intent is to eliminate prostitution by attaching the potential of extremely severe penalties to it — but, again, that’s not how the CASE Act is being marketed.
Similarly, it may seriously deter non-marital sex, sexual activities (even short of intercourse) involving minors, pornography, obscenity, and anything that is conceivably extortion. This little proposition has the potential to make a major felony out of all sorts of deviations from sexual probity — and no one seems to realize it or debate it in those terms.
Of course, inducing or engaging in all of these activities is only a problem if it “deprives or violates the personal liberty of another,” which I helpfully put in bold above. What does that mean? Luckily for us, this term is defined in §(h)(3):
“Deprivation or violation of the personal liberty of another” includes substantial and sustained restriction of another’s liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out.
(This is what statutory analysis is like, by the way. Now we have to look through a bunch of other stuff.)
Turning “commercial sex acts” into “human trafficking”
How likely is it, though, that someone giving a minor a gift that results in a agreement to perform a sexual act could be charged with involvement in freaking human sexual trafficking? Well, it depends on the definitions assigned to a set of related terms like “force,” “coercion,” and “duress.”
With a long list like “force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person,” the chain is as weak as its weakest link. Many of these terms for how one could engage in deprivation of liberty are defined in the statute; I’ll just pick out a few of them.
Let’s start with “coercion,” defined in §(h)(1):
Coercion includes any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; the abuse or threatened abuse of the legal process; debt bondage; or the provision and facilitation of any controlled substance to a person with the intent to impair said person’s judgment.
So sharing drugs with someone could be enough for “coercion.” That does happen in some relationships, doesn’t it? (I’m not sure whether, for someone under 21, alcohol would be considered a “controlled substance,” but I wouldn’t be surprised. Marijuana certainly is.) What interests me, though, is the phrase “serious harm” — how is that defined? Check §(h)(8):
“Serious harm” includes any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all of the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor, services, or commercial sexual acts in order to avoid incurring that harm.
So if a woman without many resources stays in a relationship with a man — not someone who is abusing her physically or psychologically, mind you, just some guy — feels that she has to stay in the relationship because of a “pattern” (meaning it need not be intentional) that would mean that if she left him she would suffer psychologically or financially, that could constitute “serious harm.” Or if a high school junior dating a high school senior is worried about breaking up because of the prospect that he will tell others at school that she was performing oral sex on him, that also counts as “serious harm.” And if either the man or the boy are providing the woman or girl with drugs that impair judgment — that too could be “serious harm.”
Of course, “serious harm” only puts one in jeopardy for arrest for “human trafficking” if it leads to “commercial sexual acts,” so maybe this shouldn’t be worrisome. Unfortunately, as we’ve seen, the term “commercial sex acts” can also be stretched to include sex that involves gift or receipt of “anything of value.”
I think I won’t bother going over the definitions of “fear,” “deceit,” “duress,” and the rest. (Well, OK, I can’t resist — “duress” is defined to include an “implied threat of hardship.” How often does that happen? Prop 35 could almost be entitled the “Don’t You Dare Break Up With Your Girlfriend” Act.)
OK, seriously — could people really get prosecuted for all of this?
The first question is whether someone could get arrested for it.
One problem with a law that may literally be broad enough to take
- production of obscene materials
- any sex act (not just intercourse) with someone underage, even if you’re underage too
- rooming with someone you should realize is engaged in commercial sex acts (broadly defined)
- having sex with a prostitute who (whatever his or her appearance) may turn out to be underage (and “she looked like she was 25” is explicitly ruled out as a defense in the CASE Act itself)
- creating a situation where a financially dependent lover or one worried about her reputation or one to which you’ve provided marijuana, &c, does not feel that she can exit a relationship without “serious harm”, &c
and turn them from non-crimes or misdemeanors or in some cases penalties with little punishment into arrests for human freaking trafficking (with the punishments set forth above) is that it gives the police a lot of discretion. Remember, you could now be arrested on suspicion of “human trafficking”; it doesn’t have to be something that your partner demands of the police.
Now, you’re looking at a prospect of many years in jail, having to register as a sex offender, having to notify the government every time you create a new internet account — it’s all in there — and more. And you’re waiting for word to get out that you’ve been arrested for human trafficking — like the people who kidnapped that 15-year-old in the paragraph with which this story begins.
Let’s say the prosecutor comes to you and says “OK, we’re willing to put aside the human trafficking charge if you’ll plead guilty to this misdemeanor” (“which we otherwise couldn’t prove,” the prosecutor will not add.) What are you going to do?
I don’t know whether the furthest reaches of this law as written would pass muster in court. I am confident that a lot of people will, in order to avoid the worst consequences of the law, will plead guilty to almost anything to escape that possibility. So the question is less “what will happen in court” than “what will happen to people desperate not to find out what happens to them in court.”
I’d be remiss if I didn’t note that the police discretion possible under this law could mean that it could be selectively aimed at gays and lesbians, at political dissidents, at interracial couples, at religious minorities, etc. Someone calls in a tip that they think that “human trafficking” is taking place and we’re off to the races. It’s a really broad law.
The perverse effect of Prop 35 could be less police focus on real prototypical human trafficking
Perhaps the saddest thing about Prop 35 is that by expanding and diluting the meaning of “human trafficking,” it makes it easier for police and prosecutors to ignore the real thing, where it occurs. Why is that? It’s because once relatively minor activities get lumped into the category of “human trafficking,” police and prosecutors can get credit for fighting “human trafficking” by pursuing those minor violations rather than trying to find the people who killed and enslaved that 15-year-old girl in the first example above.
Real human traffickers are likely to be dangerous. What this law does is to create so many “soft targets” that police and prosecutors could get awards for fighting “human trafficking” without ever having to confront anyone who is actually engaged in what you and I currently think of as “human trafficking.”
There is precedent for this. Marijuana joins heroin, meth, cocaine, PCP, and the like on the DEA’s “Schedule 1” of dangerous “hard” drugs. Are police more likely to take the risk to break up a meth lab, or to arrest some high school student for having a quarter-ounce of pot, if both lead to their being able to proclaim their success in fighting the “War on Drugs”?
My fear if Prop 35 passes is that we see a lot more bogus “success” against human trafficking while real human traffickers bribe police to look the other way.
Take it back to the workshop and FIX IT before it becomes law
I think that society does need to focus more on fighting real human trafficking. Some parts of the CASE Act strike me as useful; others as worth considering. As a whole, though, it’s an example of sloppy and reckless legislative drafting with little regard for civil rights or for creating perverse incentives.
It didn’t have to be that way. This is why we send laws through the legislature, to allow legislative committee staff to check their every implication and fix the problems before they become law. If a bill is passed as an initiative like this, the ability of the legislature to amend it is constrained.
The Sacramento Bee, in a very sympathetic article about Daphne Phung, the sponsor of the bill, said this:
Phung spent enough time in the Capitol to realize she could not persuade Democrats in the Legislature to approve longer sentences for human trafficking. Lawmakers are trying to reduce the prison population because of the federal court order requiring it and to cut costs.
If ever a red flag existed, this is it. (Yes, the idea that, as with marijuana laws, bogus prosecutions of people for human trafficking could push real criminals out of jail is just one of the many problems I haven’t yet mentioned.)
I would like to credit Daphne Phung with a big success here. The notion that the legislature would not pursue a normal statute, with the normal protections that process entails, after the preliminary success of Prop 35 in initial polls and endorsements is almost absurd. Congratulations, Ms. Phung, you have gotten the legislature’s attention. That is, no sarcasm here, a serious accomplishment. The question is: what do we do now?
One possibility is to pass Prop 35. It seems like few people are reading this law, though, because they think that they can’t politically afford to oppose it due to its title and the horror stories it invokes. That is a dereliction of duty on the part of the political and legal community, who are supposed to be willing to stand up and take a hit if necessary to prevent a dangerous law from getting onto the books. The mere fact that the CASE Act may suddenly change a current misdemeanor into a 12-20 year felony should be of grave concern, shouldn’t it? Doesn’t the way that it turns extortion into human trafficking — read §6(b)! — should give anyone pause.
The other possibility is to take the CASE Act back to the workshop, eliminate the bugs in it, and send it back through the legislature, where the unexpected problems that arise can be more easily fixed.
A final note: By the way, the law also applies these same terms against “human trafficking” to employment situations. Some workers are held in slavery conditions and that needs to be fought much harder. But there, too, the reach of this law is astoundingly broad. (Just try applying that analysis of “coercion” to a sweatshop.) I expect that, once Prop 35 passes, as a plaintiff’s employment lawyer I’ll be making great use of the CASE Act by charging employers, when appropriate, with coercive human trafficking; if the law gives me that power, I’d be derelict not to use it. Is that really what the voters of the state want?
[This story is also available at http://tinyurl.com/Prop35]
@ Greg Diamond:
1) I am involved in the fight against domestic violence (which may lead to human trafficking), and against human trafficking; however, I have not yet had the chance to read the CASE Act but will do so because as you indicated, it raises the unintended consequence of DIMINISHING the fight against real human trafficking.
2) Can you please look at the CASE Act and provide the revisions that you think will help increase the fight against human trafficking, but that will do away with the negative consequences that you detailed above.
thanks,
Francisco “Paco” Barragán
Executive Committee Board Member & Co-Founder
Human Trafficking Survivors Foundation (OC based)
(Fundación de Sobrevivientes de Tráfico Humano)
http://fsth.org
P.S.
a) Virginia Isaías, our President and Founder of FSTH.org is a kidnap victim and survivor of human trafficking
b) Please see also the petition to FREE SARA KRUZAN:
http://www.thepetitionsite.com/1/free-sara-kruzan/
I don’t think that I have the expertise to say how it should be changed. I do think that I have the expertise to describe what, given the current language, it will do. Luckily, others have the expertise to do the former.
I am just so grateful to find such an excellent and comprehensive argument.I was just mortified when I read it off my sample ballot.
I started a fax assault on every organization I could to try to get
someone to look at the thing.
I couldn’t get anyone’s attention.
I do believe this is self-serving on Kelly’s part.
And my candidate while I don’t believe is in his district,is
a stone’s throw from it and I have trouble believing they
haven’t crossed paths.Or don’t have common aspirations.
I am so fearful this will pass.
But if it does I will be suing the state of California for
“procuring” for profit seeking prisons!Though you may have
heard this as a rhetorical lefty talking point I have lived the nightmare of watching many poor and minority young men who were relentlessly
targeted including beloved family members.The billions thrown at prisons aren’t just tax dollars.They are thousands of hard earned dollars sucked out of poor families in all sorts of insidious ways from phone time to fines,you name it -talk about extortion! Entire communities are really decimated by Californians’ love affair with prison which to me has had a corrosive effect on the state.
Like everyone I know, I too want to see human trafficking ended and the perpetrators severely punished but Prop 35 is poorly written and making me think of the dragnets used to catch every possible creature in its way.
There is not enough focus being put on the unintended consequences of this proposition and I quite agree with what you refer to as your “rhetorical lefty talking point”. Thank you for being brave enough to mention the effects this dragnet will have on the prison population lining the pockets of for profit prisons. I have seen first hand young men who’s lives have been and will be ruined because their foolish use of the internet and being seduced into sexting sting operations. Let go back to the drawing board with this prop.
Wendy,
You say Californian’s have a “love affair with prison”, I say Californian’s have a love affair with sex, drugs and violence. When 12-13 year old girls are used (raped and discarded after a few years when they have lost their luster) for the commercial gains of others (usually adult males) it is time to stand up and fight for their protection and justice. Your voice is opposing these efforts to protect the innocent. You are fearful that a judge will not dismiss a frivolous lawsuit. This legislation improves the laws in a way that close loopholes so prosecutors can bring justice and protections to young sexually exploited youth. That is what prop 35 is about. That is all it has ever been about. If you are concerned about the needs of young minority men who turn to criminal industries and end up in gangs and in prison then do something about it other than complain. I stand arm in arm with those who mentor such youth and seek ways to lift them up out of their situation. But my primary effort has been for the young girls because I am a woman. I have volunteered in this effort for ending the sex slavery of children since 2009. Do something positive rather than speaking negatively and doing more harm to the victims than has already been done. Shame on the writer of this article whose motives can only be dark. Let the truth be known…YES on 35!!!
greg,
sometimes, you are spot on. human trafficking is horrific but when we have proposed initiatives that sound real good but actually further restrict our freedoms in the name of good intentions, we begin down that slippery slope. part of the problem is elected officials who have neither the balls or the intelligence to write functional legislation, part of the problem is well intentioned people who should not be proposing legislation and part of the problem is an electorate that responds blindly to headlines and not substance
Thanks. I’m having a hard time convincing people at our Executive Board meeting. That title is mighty powerful.
Beautifully said.This bill stinks.And I’m an old prude of a
grandma!When I just read the initiative on the ballot I
had a panic attack.To me draconian on the face of it.
This strikes me as it could be used against a kid rapping
on a street corner and all exculpatory evidence could be
suppressed if the witnesses were all labled as victims.
willie – this has been the problem since the country’s inception – founding fathers actually discussed ‘dangers’ of giving the vote to uneducated ill-informed ‘ordinary’ citizens who may mis-interpret political speech be easily swayed by opinions etc. in the final analysis though they agreed that giving the vote to us was worth the risk in forming a democracy- I agree. nobody can write legislature perfectly – someone will always come up with a loop-hole not previously considered – but prop 35 is a good start especially since California gets an F on no protections at all for trafficked victims, treating them like criminals not victims – studies will out concerning ‘willing’ prostitution. The bigger debate (from my perspective) is why the demand? if no demand then no problem – what’s with the johns? …
As I’ve previously acknowledged, “protecting the victims” is a good part of this bill. It doesn’t outweigh the bad aspects of Prop 35, though, especially as (to the extent it is constitutional) it would almost surely at this point pass the legislature if introduced as its own standalone bill. If I’m elected to State Senate next month, I’ll happily sponsor a bill supporting that specific provision myself.
Greg, great job explaining what this law could do. I vote NO!
As a proud survivor of slavery in its darkest form, I have been up on my hind legs with boxing gloves “fighting” lawmakers for over 4 decades. While all forms of slavery is no longer legal, it is an intolerable fact that it exists in modern day.Slavery/human trafficking is a worldwide epidemic, and a national shame, driven by the darkest forms of humanity – GREED – a 32 billion dollar “attractive” crime industry because, unlike drugs, humans can be sold repeatedly.
This heinous trade in human flesh will continue to grow if lawmakers don’t crack down on their “own” corrupt government officials who work hand-in-glove with traffickers to obtain travel documents and seize passports.
Sadly, we are a culture of pervasive silence – stick our head in the sand – if a subject is distasteful, but if we, collectively, stand up and fight – protest the right to make this world a kinder, safer place for our children – hey, we did it against the Vietnam war, then we will be giving the get-out-jail free card to every unconscionable person who lives off the flesh of others.
I would like to quote Frederick Douglass: “Every one of us us should be ashamed to be free, while his brother or sister is a slave.”
Lucia Mann – award winning author, anti-human trafficking activist, and founder of the Modern-Day Slavery Reporting Center: http://www.mdsrc.org
Thanks for writing, Lucia.
Do you agree that human trafficking — prototypically something in which women and girl are kidnapped, raped, beaten, and then pimped against their will — is something distinct from willing participation in prostitution, statutory rape, possession of child pornography, production of obscene materials, extortion, etc.?
I am completely opposed to human trafficking. I think that Prop 35 dilutes the category by including many instances from these latter categories. My concern is that police and prosecutors will go after men who engage in prostitution or statutory rape with these huge new penalties and then proclaim themselves as heroes in the “war against human trafficking” without the burden and danger of fighting the ACTUAL, REAL human trafficking that you and I hate.
We can go after REAL human traffickers right now, under current law. This law increases penalties for actual human trafficking and that is probably fine. The problem is that is sweeps too much else into this heinous category.
Did Lucia read your article? Or does she just post this everywhere the topic of human trafficking comes up on her Google alert? I hope she comes back and answers. It would be nice to have a thoughtful response from her.
Thanks for your thoughtful analysis of this proposed legislation. Once again it appears there is legislation that is being sold to the public under the guise of anti human trafficking but really is more of an anti prostitution bill.
NO ONE wants to see anyone manipulated or coerced into the sex business especially those of us working in it! But what about the people who are in it by CHOICE? They are often discounted as the exception not the rule when in fact they are the rule. My favorite is when the rescue industry tells me and my peers that we do not exist. Human trafficking (which is a terrible thing) and prostitution should be discussed and addressed as separate issues but never seems to be.
The rescue industry (and it is an industry) which has shown itself to be very anti consensual prostitution at every turn, is very well funded hence we see legislation like this. The sex workers rights movement is not. This is very flawed legislation on so many levels which you laid out very nicely. I hope California (my former state) revises this or rejects it out right.
Jenny DeMilo
http://www.jennydemilo.com
Jenny,
It is difficult to separate victims from those willing to prostitute themselves. Research on the topic can be found at:
prostitutionresearch.com
(I have learned through reading this research that the vast majority would leave the profession if they felt they could.)
Many prostitutes have been repeatedly abused, raped and coerced before and during their victimization (in the case of sex slavery) or prostitution (when it was a choice).
Because these two categories cannot be separated it is still necessary to advocate for victims and especially children. Since the average age “prostitutes” begin their “profession” is 13 years old, they are underage. This makes them victims in need of protection, rescue and advocacy. This Initiative is the work of such advocates who have volunteered countless hours for the love of children. California Against Slavery had no money other than that earned by it’s grass roots volunteers. This is why we did not successfully achieve our first petition campaign in 2010. Last October when Chris Kelly became aware of our efforts he came forward to fund it. Long before Chris came along this effort has been underway. My friends 15 year old daughter has been a victim of trafficking for almost 2 years now. Currently we are unaware of her location but hope and pray she is still alive and that she will someday soon realized the trap, lies and deception she has been lured into. Her life has no hope or future for health or prosperity. Rescuing her and helping her start her life over is what this is all about. Sending a message to “PIMPS” or “traffickers” to sell children no more, is what this initiative is about.
I’ve worked in social services for homeless & at-risk youth for over 20 years.
I had a case, last year that broke my heart.
I worked for an organization that had an independent living skills program for homeless & at-risk youth.
(Keep in mind, that the youth that are ‘allowed’ in this program are the ones who ‘present’ the best, articulate, clean, w/o addictions to drugs/alcohol, enrolled in school/college,etc.)
16 y. o. female, single mother of a 1.5 y.o. baby girl.
Her mother was pimping her out to her “friends”, starting when the girl was 14.
She started to rebel against “mom”, and was kicked out of her home.
Got pregnant, dropped out of school. Had the baby. Couch-hopped til she heard about the program I was working at, applied and got accepted, as an emergency case.
Without parents to provide for her, she isn’t old enough to work FT, she isn’t old enough to get an apartment on her own, even if she could work FT.
She tried to get a job, her mom called her workplace and told them that she couldn’t work. (In some states, you have to have parental permission to work if you are underage.)
She was prostituting herself, to provide food, clothing, formula & diapers for her and her baby. She also, couldn’t get on any welfare or assistance, because her mother was already claiming her as a dependent. She had no resources, support or assistance.
Via this program, she was required to go to GED class & parenting classes. We couldn’t get her a job anywhere, she didn’t have consistent childcare, along with pretty intense ADHD.
Who is the trafficker/pimp? Who do you go after? How does that help?
How would putting this girl in jail or juvenile system help her or her kid?
This is a common story. The only reason she made it thru this particular program’s screening, was because it was deemed and emergency because of the baby.
She lasted 3 months in our care, before she was kicked out, back on the streets, for not meeting her goals.
PLEASE DO NOT MAKE LAWS HARSHER. PLEASE DO NOT CONTINUED TO RAPE THESE PEOPLE IN WAYS THAT YOUR ENTITLEMENT DOES NOT ALLOW YOU TO UNDERSTAND.
RETHINK & REWRITE THIS PROPOSITION with input from the community and community-based organizations most affected by these revisions; independent consensual sex workers, homeless & at-risk youth, adult industry professionals, etc.
In a larger sense, I think that mature dialog about sex & sexuality and what constitutes violation of rights is long overdue. I agree it s/b defined w/ no uncertain terms.
I want to be scrupulous in my criticism of Prop 35: one portion of it that I do like is that it would give some protection against the person involved in human trafficking themselves being subject to arrest as a result of that activity. It is aimed more at the customers and pimps of prostitutes rather than the prostitutes themselves. Personally, I think that such a change can and should be made legislatively.
Your question of who to prosecute in such a situation is well-taken. The mother, certainly — and I believe that this could be done under current law, with penalties harsh enough to deter pimping out one’s daughter if they are enforced.
My suspicion is that, on the facts you present — if I correctly understand that once her mom stopped her from working she fed herself by engaging in prostitution — the party that could be prosecuted is: you and your organization. If she was underage and you knew her to be engaged in prostitution, especially if you shared any of her income for rent or provided her with transportation that a reasonable person would know she would (or might?) use to travel to places where she would do so, then as I read this law you would be engaged in human trafficking,, as surely as if you had kidnapped her, beaten her up, raped her until she complied, and rented out her body yourself.
Her customers could also be arrested, of course — making it more probable that, if that seemed likely, she’d be killed to prevent her testimony.
So I think that one of your concerns is adequately addressed in the bill but that others are not. This bill is written for a world in which underage persons have no agency when it comes to prostitution, because of the fiction that they have no legally recognizable will. We don’t live in such a world.
I am now hearing more about this proposed Proposition 35, and the more I hear of it, the more I am opposed to it.
I no more am in favor of human trafficking than anyone else…but this legislation is a gross exercise in overkill that does more to drive away those who are trafficked from getting the assistance they need…and is dangerously close to the kind of “Swedish Model” form of legislation that merely punishes men for the “crime” of seeking consensual sex that doesn’t meet the moral standards of certain “feminists”.
It also flies in the face of the most effective tools and resources that can be used against human traffickers: active and legal sex workers, whom would be the first to be criminalized and harassed out of commission or sent underground once this proposal is passed.
This proposal deserves to be defeated.
Thanks for your response, I appreciate it!
I knew abt. the liability. We figured, best case – she’d actually work with the program. Worst case – we got her off the street for a while, so she could re-evaluate & maybe catch her breath, and have a moment to think less about day-to-day survival and figure out some shorter term goals, and at least offer her the chance to sleep w/o worry.
We tried, unsuccessfully, to get her into a program for trafficked/prostituted youth/women. She didn’t meet the age requirement for the housing support & she was not of the perspective that she needed any help, outside of housing support.
She didn’t want out of prostitution. Trust me, we all wanted her out of it. Immediately & irrevocably. Working retail/fastfood/wage slave jobs? She wouldn’t of made enough to pay rent & buy food for her & her daughter, let alone pay for daycare while she was at work. She turned one trick a week and had enough for rent, food & clothes. Plus, enough free time to spend with her daughter, so she didn’t need daycare.
We told her that under no circumstances was she to engage in any prostitution, while in our program. That was our only recourse. She got financially desperate & went back to it. The way the laws currently are written, we had no other choice than to set her up for failure & subsequently kick her out.
She’s still out there, as far as I know.
Thank you so much for this testimony.Shout it from the rooftops.
The author and candidates that support this along with their families
enjoy enormous privilege.I was really astonished when I spoke to
one of the staff members of a progressive candidate at just how
indifferent they are to the people and communities who sustain
the collateral damage.They better pray their kids never get curious
enough to check out a prostitute when they go to college but then
they’ll be able to just fly somewhere and these guys have armies of
representation.
We have entire communities that live with the PTSD that poverty and
being a target create.
Got here via sex and the 405. Over all this looks like a bad law, and I think you’re right to point out that extending the rape shield rule to human trafficking seems like a dangerous idea.
However, and I hope you don’t mind a devil’s advocate here, I think you may have drawn some incorrect conclusions about another point and I’m hoping you’ll tease them out some more in comments because I think if I’m right and you are mistaken, that undermines one of your criticisms of the law.
I want to start with your analysis of “commercial sex acts”
The actual language in the CASE act, I believe, is: “‘Commercial Sex Act’ means any sexual conduct on account of which anything of value is given or received by any person.” Now, it strikes me that you’ve glossed over the stickiest part of this definition, which is the vague “conduct on account of which.” I think you’re right, that’s garbage drafting. It looks to me like who ever drafted that particular phrase was reaching for the word “consideration” and either forgot about it or didn’t know about it. I think if you read “on account of which” to mean “consideration,” as opposed to “gifts” given where one party hopes sex will be forthcoming, then your concern about that particular phrasing disappears. If that’s the case, then what the law amounts to is harsher penalties for forced prostitution by allowing the showing of intent for the underlying crime to also satisfy the mens rea element for the new human trafficking crime.
If that’s all the law does, I don’t think some of your more nightmarish scenarios can occur. It looks to me more like what commercial sex act is what it sounds like, and the drafting is sloppy and vague, but applying the rule of lenity we’d have to read it as requiring a bargained for exchange and not a mere gift as you postulate. No?
Secondly,
There are a couple of things that didn’t strike me as right in this passage. I’m pretty sure, for example that last sentence has to be a mistake. The provision of drugs is listed under the definition of coercion, not serious harm, so maybe you just used the wrong term on accident? Also, note that the coercion definition where it includes provision of drugs that there’s an intent element that needs to be proved. It’s not enough that a couple of people were getting high together, it would be required that a person gave drugs to another with the specific intent to weaken their resistance to having their liberties abridged. That’s a much more narrow provision than I think you give it credit for being
<ore importantly though, i think you may have made a significant error in this bit of analysis by neglecting to note that the statute puts into place an objective rather than a subjective test for threats of serious harm. What the state would need to show to get a conviction is not that the victim felt threatened, but that a reasonable person of the victims age and experience would feel compelled by the kind of harm looming.
That actually seems to me to be the right approach to trying to deal with sexual servitude. If a perpetrator is using coercive tactics that are objectively of the sort that would force compliance, how is the victim in that case not the perpetrator's sex slave?
Third, I'm not sure I understand your point about the broad definitions of prostitution and obscenity. you say:
Except § 266 doesn’t look like prostitution to me, it looks like a law against a pimp turning a prostitute out. The crime of prostitution is under §647(a) et seq. Notably §647 is missing from the entirety of prop 35, although it is referenced in §266(a-j) wherever those crimes refer to “for the purposes of prostitution.” So there’s no direct mention of prostitution itself, but rather it all seems to deal with attendant crimes profitting from prostitution. Which would suggest on application of the expressio unius doctrine that it specifically doesn’t apply to people engaged in consensual prostitution and is aimed more specifically at trafficking and pimping that you’re giving credit. No?
I think you and AV FLox are right to worry about §266(h) in particular, but the problems that you raise about dependent children or domestic partners benefitting from a mother who works as a prostitute are present already in §266(h). That, to me, looks like a bad law on its face and there’s nothing in particular about prop 35 that adds to that other than the necessity that there be a deprivation of liberty attendant to it. But that deprivation of liberty I’ve argued isn’t as broad as you’ve taken it to be. And if that’s the case I don’t see the problem of tacking on the human trafficking element to this particular crime. In fact that looks like a more sane crime than the underlying offense.
As for the obscenity bit, I’m not 100% up on how Cali’s porn laws work, but again, the only time those would come into play is if someone were subjected to a deprivation of liberty with the purpose of committing one of the obscenity crimes. Isn’t that a form of sex slavery? Obviously I’m assuming my more narrow reading of the definition of “deprive of liberty” than the wider version that you apply. But that gets to the heart of my question, which is if I’m right and you have read that definition to say something it doesn’t (and as badly written as it is, I think you have), aren’t we then left with a fairly good definition of human trafficking.
As support I offer that this reading makes more sense of the extortion issue you mention:
I think you may be right here that the elements between human trafficking and plain old extortion do seem very close. But then, isn’t keeping someone in bondage a similar kind of crime to extortion? Where I think you don’t give adequate credit to prop 35 tho is in this part of the definition of deprivation of liberty that requires “substantial and sustained restriction of another’s liberty.” That isn’t an element of extortion, and therefore it doesn’t seem that this is duplicative, but instead adds another element to enhance the underlying offense, which seems perfectly legitimate to me.
Also, I’m not sure I understand why it matters that there’s no sexual component to extortion. Isn’t keeping someone in bondage in order to extort money from them also a form of human trafficking? I don’t think it’s necessary that a person be forced into prostitution in order to be a trafficking victim. Granted the title of the bill and most of its contents are about sex slave trafficking and pimping, but wouldn’t it be sort of a cruel oversight if in trying to deal with human trafficking for sexual purposes, a loophole was left open that prevented traffickers with extortion as their only motive could dodge the enhanced sentences? That strikes me as the reason why extortion was added to the list of pimping and porn crimes.
Finally,
Just an FYI here, controlled substances are defined under Cal H&S 11054-11057 which appear to be identical to the lists in the Federal Controlled Substances Act. Those are the specifically scheduled narcotics that have been controlled by the feds. Alcohol is not on the list, no matter how old, because it’s not a controlled substance, just like nicotine, caffeine, or salvia.
Sorry this was so long, but I really found your post useful and agree with most of it where I didn’t post a quibble above. In my view, the evidence law change on its own is bad enough to warrant defeating the whole bill. But at the same time, I think it’s often quite problematic to amend the penal code by popular vote. Criminal law is a specialized area and all of a state’s penal codes need to hang together rationally. Willy nilly updates by concerned citizens in the long run, I fear they do as much harm as good. Best case scenario, I think what you’ve got here is a lot of extra work for the staff lawyers in sacramento who will be tasked with amendments to clean up this law if it passes.
Worst case scenario, the appellate divisions of the various defense agencies in the state are going to have a field day with the sloppy language in this and with some luck it will get fixed, eventually, in the courts.
Although I do doubt that some of your more horrific hypotheticals will ever play out, the worst of what this bill does seems bad enough on its own.
Jason,
Thank you very much for the provocative analysis. Far from minding if you play devil’s advocate, I very much appreciate it. (Unfortunately, you’ve caught me on a day where I am both filing my ballot statements for State Senate and working on a filing for an MSJ, so I won’t be able to do as thorough a job of answering as I might.)
As I say in the piece, part of the problem is not simply what the law says, but what someone under arrest has to be concerned that the law might be construed to say. This law is a boon for prosecutors intent on racking up questionable plea bargains for lesser crimes. Yes, over the course of some years the law may get fixed in the appellate courts — but who wants to be labeled a human trafficker, for God’s sake, for even a couple of years of one’s life, with all of the disastrous personal and employment consequences?
Furthermore, it might not get fixed in the courts. Courts are unpredictable and we know from the California Supreme Court’s ruling in Prop 8 case that they will give extraordinary deference to the voice of the people as expressed through the initiative process.
Consideration for sex
You’re right that the “on account of” language in the law ought to be construed as requiring consideration when it comes to labeling an act as commercial sex. I’m simply not convinced that it will. The question of whether the gift or receipt of something of value is an actual (or even necessary) cause for the existence a sexual encounter is one of fact — hampered here by the evidentiary exclusions rules CASE imposes.
If I (back in my younger, single days) were to have taken a young woman to dinner and a movie, which is followed by an initial sexual encounter, I don’t really know that either expense was a “cause” of the sexual encounter — but the presumed facts that I was seeking it and that I thought that paying for dinner and a movie were useful towards my obtaining it are suggestive. The woman may know whether they were necessary conditions of the sexual encounter (not as “payment” but as “a sign of respect”) — or she may not, or she may be influenced at a later time (say by the prosecutor who found cocaine on her the following day) to remember it differently.
If this seems far-fetched, let me change the example: rural, conservative county; 40-year-old man with a 19-year-old closeted boy. Does it seem conceivable that a prosecutor may go after disliked groups using the CASE Act as a bludgeon? It certainly does to me.
Serious harm & intent element
The basic thrust of this law as regards minors is that they don’t have the legal ability to give consent. So, 18-year-old Johnny gives 17-year-old Janie some hits off a joint. Janie gets high and consents to sex. She had no legal ability to consent to sex; the sex is, therefore, rape. I think it is without question that rape is “serious harm.” In real life, it may not be traumatic for Janie at all; that doesn’t matter to the law.
There’s another point at which “serious harm” comes into play, as I recall, but I don’t have it memorized and will have to return to it. It may be re coercion or duress.
As for the intent element, I do not think it much of a stretch to say that when a high school boy gets a high school girl high in circumstances that lead to a sexual encounter, the intent element of whether those psychoactive substances were provided so as to (so to speak) lubricate the path towards that end is likely to be met. (And, again, all the more so regarding politically disfavored homosexual liaisons.)
As for the objective element, I did have it in mind. What this law does is conflate violent rape and statutory rape — now it’s all just rape. So, going back to Johnny and Janie, the question is whether a reasonable 17-year-old girl would see the prospect of being raped as a serious harm. The fact that Janie might welcome it, or even seek it out, is immaterial; she is deemed not to have the capacity (at least in our state) to determine whether that “serious harm” is good or bad. It is as if Johnny convinced Janie to drive drunk; she may think that it’s exciting and fun, but that doesn’t matter. A reasonable Janie would have known that drunk driving, like being “raped,” is bad.
(I agree with you, by the way, that using the objective definition puts the drafters of this law on the right track towards a reasonable definition of trafficking in this respect; I just don’t think that, given the other provisions of the law, they arrived there safely.)
Definitions of prostitution
You’re right — one nice thing about this law is that it is very sympathetic to prostitutes themselves. This law affects everyone involved in prostitution (pimp, john, driver, roommate) except the prostitute. I’ll need to look at §266 later and see whether I misspoke, but I’m inclined to believe you.
Yes, I agree that the problem in §266(h) is already in the Penal Code — but this compounds and substantially augments it. Now a violation of that provision is turned into human trafficking, diluting an important and horrific concept with unjust results. Obviously, our different conclusions depend on the different premises hashed out above. Similarly, you’re right that my concerns about the treatment of obscenity depends on my belief that the CASE Act allows an expansive reading of “deprivation of liberty.”
Extortion
When I spoke to Chris Kelly at the Democratic Executive Board meeting in Anaheim a couple of weekends ago, he denied that the bill addressed non-sexual extortion at all, claiming that it merely addressed “human trafficking” (apparently oblivious to the fact that if CASE defines non-sexual extortion as “human trafficking” then saying that “the proposition addresses only ‘human trafficking'” places no added limitation on it! I didn’t get the sense that he really understood the law that he’s paying $2 million to enact.) So he would apparently disagree with your analysis.
Where we differ here is on whether any extortion does or doesn’t inherently involve a “substantial and sustained restriction of another’s liberty.” I think that criminal extortion (which means that I’m excluding de minimus harms) in inherently a substantial restriction of another’s liberty — and given the prospect that it can be repeated, sustained. I’m not sure that this is in effect an extra element of the crime at all. I agree that non-sexual extortion is certainly a variety of human trafficking that warrants concern and action; I just don’t think that all extortion should be ipso facto considered “human trafficking.”
Alcohol as “Controlled Substance”
Thanks for the correction; this is one of the things I had run out of time to look up! It applies to marijuana, though, which is itself a huge problem.
Conclusion
I agree that defining criminal law by plebiscite is usually asking for trouble — and this is a good example of that. We have smart staff attorneys on the government payroll in Sacramento tasked with crafting proper law for a good reason. The proponents of this bill now have our rapt attention; the legislature now in effect has a gun to its head and should be allowed to craft a proper law.
I appreciate your time and effort here; I hope that we’ll be able to continue this conversation. I also hope that someone is going to step up and actively oppose this bill, even they spend just 1% of what Chris Kelly is spending.
Great! Thanks for the detailed reply. I’m supposed to be applying for jobs tonight so I’m unfortunately not going to be able to give you as thorough a response as I’d like to, but there a couple of points I’d like to hit while they’re still fresh in my mind.
I think I now understand the point you’re making about how it sweeps in the strict liability sex assault crimes with the ones that require intent to subvert. I’m not sure I agree with you, because the human trafficking enhancement isn’t strict liability, so I think that may be the pressure valve on that particular issue. But if you’re right and I’m wrong that’s a pretty horrific outcome. That’s not something I’m at all comfortable flipping a coin about, so even if I’ve got the best of the reading, I doubt it’s worth the risk.
However, and it’s really just a quibble, because statutory rape doesn’t require intent at all, I think you don’t need to go the extra step of worrying about kids getting each other high. Granted, I can very clearly envision some grandstanding prosecutor in an election year using exactly this sort of reading to charge a kid with human trafficking for having sex with his underage girlfriend. But it looks to me like you don’t even need the drugs to get to “deprivation of liberty” if stat. rape will hold the charge up on its own. So there, if you’re right and I’m wrong, I think the bill may be worse than than you at first suggested.
On the extortion issue, I think the reason that you can say it’s an added element to enhance the crime is because you can extort something from someone fairly quickly. For example, say Eugenee sends Wimpy a photograph in the mail with a picture of Wimpy peeping in Olive Oyl’s bedroom window while she’s getting dressed. There’s a note attached that reads “Pay me 1 Million dollars for the photo and negatives or I’ll send it to Olive’s notoriously violent boyfriend Popeye instead.” Now, I think maybe you can make a case that that’s a substantial deprivation of liberty, but it’s definitely not sustained. Again this looks like sloppy drafting to me, it looks like what they really wanted was something like “false imprisonment as a means of extorting a third party” to deal with the issue of human traffickers keeping passports hostage in order to force family members to buy trafficked persons out of bondage.
So yeah, that’s a problem, but I don’t think that it’s necessarily so bad that it sweeps in all extortion, because you do have to give some evidence for the “substantial” and the “sustained” character of the liberty deprivation. Then again, California is one of those states that thinks premeditation can happen in an instant, iirc, so maybe the result you fear isn’t as outside the realm of the probable as it seems to me at first blush.
Anyway thanks again for the detailed response. You’ve definitely earned yourself another regular reader.
I don’t have time to go back to the statute to check my recollection on the “getting other kids high” issue, but I think that it took the crime from what struck me as a reasonable punishment to an unreasonable one. I forget exactly where it fits in — I think to a definition of coercion, duress, etc.
“False imprisonment as a means of extortion” sounds like it would be an excellent definition of when it turns into human trafficking. Take a look at the statutory language: it transforms “false imprisonment into “false imprisonment and human trafficking.”
Once again, I appreciate your comments! I’ll do more on Prop 35 in the months to come and may alert you to those posts, if I may.
Excellent article! I followed the link from The Honest Courtesan. I only have issue with one of your comments in the comment thread here. Not raking you over the coals, but just something to clear up that even some sex worker allies don’t always understand:
You’re right — one nice thing about this law is that it is very sympathetic to prostitutes themselves. This law affects everyone involved in prostitution (pimp, john, driver, roommate) except the prostitute.
If that law is not distinguishing against the violent and non-violent versions of those relationships, that is a huge problem. Any law that would also target our non-violent associates is never sympathetic to us, whether it is Prop 35 or any other legislation or proposal seeking to do the same. And I don’t remember ever seeing a distinction made between violent and non-violent interactions in consensual prostitution as most groups who propose such legislation are against anything that even hints at legalization or decriminalization of prostitution, much less possibly legitimizing it as real work. They want us to stop existing….for our own good, of course.
Targeting non-violent clients only drives them away, but first makes it difficult to complete necessary administrative tasks like security screening. Sex workers who are prostitutes and have that as their sole source of income will quickly find themselves having to accept appointments with possibly dangerous men who will not submit to screening (much less any other safety, like condoms) to make ends meet. Targeting drivers that we pay out of our own pockets to transport us safely to and from appointments does nothing but remove another person who will be looking out for our safety and whose presence, even while not in the room, will make any potentially violent client think twice. Targeting roommates, who are also often friends, does nothing except, again, remove another layer of protection and isolates us.
Just something to keep in mind, whether it is in regard to Prop 35 or not. Keep up the good work!
Greg. The point Chris Kelly was trying to make was that this law (236.1 p.c.) is a human trafficking law. It is not a ‘sex trafficking’ law. The concept of human trafficking (to paraphrase the federal standard) refers to any kind of labor that is obtained by means of force, fraud or coercion. Commercial sex is just one type of labor.
Jason’s analysis of the extortion component is spot on.
I presume that you weren’t one of the people present at our conversation (though I was lucky enough to have given the high sign to a smart witness who was.) That was not the context of the conversation; in fact, you have it backwards. My analysis of the bill was that by defining all extortion — not just related to labor, but to anything — as included within “human trafficking,” the law went beyond sexual extortion. (Had you been there to add your point, I would have added “… or labor extortion,” but that’s not the part of the CASE Act that concerns me.)
His response was that the reference to the underlying goal of extortion as a predicate of the crime was narrower than I was saying, given that (in the relevant part of the bill) they were just talking about sex, and that it would not address non-sexual extortion. Your point would make sense if he had argued that the motivation was broader than I was asserting, but he said that it was less broad.
Ok, I figured I better read the bill again and — dang — I see what you are saying.
They clearly very badly (ok, fatally) muddled the language of the statute. Note how section (c) includes the term “commercial sex act”. This is clearly what Kelly is referring to when he says that they were not referring to non-sexual extortion. Unfortunately for Mr. Kelly, I see how the absence of “commercial sex act” from section (b) creates the situation you were describing.
Jason’s point, by the way, is a reasonable explanation of the existing statute where the extortion component has always been a bit of a head-scratcher but not very consequential because the penalties under the current law apply equally to any human trafficking crime.
Here’s the wording from the existing statute:
236.1. (a) Any person who deprives or violates the personal liberty of another with the intent to effect or maintain a felony violation of Section 266, 266h, 266i, 267, 311.4, or 518, or to obtain forced labor or services, is guilty of human trafficking and shall be punished by imprisonment in the state prison for 5, 8, or 12 years and a fine of not more than five hundred thousand dollars ($500,000).
Here’s the new language:
(b) Any person who deprives or violates the personal liberty of another with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking and shall be punished by imprisonment in the state prison for 8, 14, or 20 years and a fine of not more than five hundred thousand dollars ($500,000).
(c) Any person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking. A violation of this subdivision is punishable by imprisonment in the state prison as follows:
Thanks — yes, that’s the problem. (My agenda for the weekend includes re-reading the Act and breaking it down even more than I did before, in preparation for an interview next week. I’ll be more back up to speed by Monday.)
What we’re doing right here in this discussion, this close analysis of its language, is what should have been done with the bill before it ever got near inclusion into the Penal Code. It’s what would have happened to it, by smart staff attorneys, as it went through the legislative process. With rare exceptions, they would have found and hammered out all of its dents.
That hasn’t happened — and to some extent that scares the hell out of me. The judiciary may (or may not) solve the problems, but in so doing it might have to ignore certain parts of the bill — such as the one that makes extortion, any extortion, into human trafficking. (The problem there is that once that’s how human trafficking is defined by law, changing the definition to exclude it is not a legislative change that would further the purpose of the bill. (Maybe they’d use the title of the bill or something to manage that — but you’re not supposed to do that.)
The CASE Act, in my opinion, just hasn’t been sufficiently vetted. However appealing and emotionally affecting it is, we don’t know what unpleasant surprises it may contain. I’m only half-kidding in saying that it’s sort of like the Sarah Palin of ballot proposals.
Hi Greg – I appreciate how thoroughly you have dissected the language in Prop 35. I am writing from KMVT, a local TV station in Mountain View, and we want to do a segment on Prop 35 very soon (election is just around the corner!). Please email me if you are interested.
P.S. You would be a guest on our in-house show “Silicon Valley Buzz”. You can see a few recent episodes here: http://www.kmvt15.org/webchannel/svbuzz.html
This is an excellent essay and I agree with much of it. It is true that current laws against pimping are used against prostitutes, especially in coercing plea bargains. If one simply holds money while a fellow worker goes on a date (common practice) one is accused of pimping. The same can be said for passing a phone number of a worker or client. Criminalization of third parties, or of clients increases the vulnerability of sex workers. The CASE Act takes it a step further by broadening definitions, raising fines and punishments to a bizarre extent, etc. as you and others point out. At “Against The Case Act” http://www.againstthecaseact.com we have collected some excellent essays and statements, including yours, Greg. Thanks!
Greg,
Excellent post!
As the former manager of a U.S. DOJ-funded anti-human trafficking task force at the San Jose Police Department (I retired in 2011 in the rank of lieutenant), and now working as a consultant on anti-trafficking efforts and response, I appreciate your detailed examination of the CASE Act. (If you do a search for John Vanek’s Human Trafficking Blog you can read some of my other thoughts.)
Your readers may be interested in knowing that this year California Attorney General Kamala Harris convened a Human Trafficking Work Group to examine the current and future state of response to trafficking in California. The final report is currently in the last stages of review and is scheduled to be released this fall. The report contains many excellent recommendations for improving our response, and these recommendations come from the multidisciplinary community that has been doing the work for years. I recommend opposition to Prop 35, and then look to implement the recommendations provided by the actual experts in responding to human trafficking.
Thank you, John. I appreciate the lead on AG Harris’s Work Group. I’ll check your blog to see if you have information on it (even prior to the final report); if not, I’d love to see you post any links reporting what happened at the time the group was convened.
Sex Trafficking/Slavery is used by many groups as a attempt to outlaw all adult consensual prostitution around the world by saying that all women are victims even if they do it willing. This hurts any real victims because it labels all sex workers as victims.
Adult Women are NOT children.
Media coverage of trafficking and adult women’s migration and sex work is confused and inaccurate. The media wrongly uses the terms ‘sex work’ and ‘trafficking’ and adult sex work and child sex trafficking synonymously, as if they were the same. perpetuating stereotypes and stigmatization, and contributing to the violation of women’s right to free movement and livelihood options. They assume that if any woman moves from place to place for sex work that they are being trafficking. The media, politicians, aid groups, feminist, and religious organizations does not take into account that she may do this of her own free will. Too often women are treated like children. Prostitution is a business between adults and in our society adults are responsible for themselves. Sex slavery/trafficking on the other hand is non-consensual. To equate that the two are the same is to say grown adult women are not capable of being responsible or thinking for themselves.
Adult women are not children.
There needs to be a distinct separation of:
1. Forced Child sex trafficking
2. Adult consensual prostitution.
They are not the same.
“Sex Trafficking/Slavery” is used by many groups as a attempt to outlaw all consensual adult prostitution around the world by saying that all women are victims even if they do it willing. This hurts any real victims because it labels all sex workers as victims. This is done by the media, aid groups, NGO’s, feminists,politicians, and religious organizations that receive funds from the government. There are very strong groups who promote that all adult women who have sex are victims even if they are willing, enjoy it and go out of there way to get it. These groups try to get the public to believe that no adult women in their right mind would ever go into the sex business unless she was forced to do so, weather she knew it or not. They say that 100% of all sex workers are trafficking victims.
They do this in order to label all men as sex offenders and wipe out all consensual prostitution. Which is what their real goal is. There is almost no one who challenges or questions them about their false beliefs. Therefore, the only voices you hear are of these extreme groups. These groups want to label all men as terrible sex offenders for seeing a willing adult sex worker. No one stands up to say this is foolish, the passive public says nothing.
These groups even say that all men who marry foreign women are terrible sex predators who take advantage of these “helpless foreign women wives”.
These groups believe that two adults having consensual sex in private should be outlawed. Since they believe that it is impossible for a man to have sex with a woman without abusing the woman in the process.
This is an example of feminists and other groups exploiting the suffering of a small minority of vulnerable and abused women in order to further their own collective interests. For example, getting money from the government and Charity into their organizations. Rather than wanting to find the truth.
I’m kind of an old prude and don’t want to make prostitution more accessible-but as I read what you were saying something even
more important occurred to me about linking these offenses so closely.
If we weren’t so all-fired eager to punish -voluntary prostitutes
could have been a great ally if our true intent was to identify
and rescue victims of slavery.
They are out there and have access and would be able to identify
and even steer victims toward help or escape.
By linking these two very different things -the self-righteous chest
beating justice junkies have killed a pathway to rescue people.
That’s a very important point. Again, going after “voluntary prostitutes” is going after the low-hanging fruit; after all, they’re not trying to be hidden. Resources put into busting them are resources not put into to solving the problem of “involuntary prostitutes” — that is, sex slaves — which is costlier, harder, and more dangerous. Which do we expect law enforcement to do under Prop 35?
I barely got through the end of your verbose analysis. the take-away: this guy’s upset b/c someone might take his fun away. I know after some time on the planet that men NEED to have THEIR needs met. Your rationales and prop-ups are ludicrous. Why can’t women and girls have more choices? Do you actually think they like this work? Don’t bother responding. I got your message.
Accusing people who oppose Prop 35 because it’s badly crafted legislation of doing so because they want to be able to pimp or have sex with prostitutes or engage in human trafficking or whatever the hell you’re trying to allege is weak bullshit.
Do I think that some adult women prefer prostitution to the alternatives available to them? They sure say that they do. Do I think that some others are forced or coerced into it? Absolutely — and that must be fought.
I can believe that you barely got through the end of my analysis. You should be less proud of that than you seem to think.
@ Knoll …..
I opposed “human & sex trafficking”, but I am “against” Prop 35 because it clumps everything under one umbrella and I don’t believe this law will be any more effective than the one that they are trying to amend.
“Women and Men” who are in “consent” of having “paid” sexual relations with clients SHOULD NOT be clumped up in this law. For example, if you “unknowingly” have a family member or a friend of yours happens to be engaging in paid sex acts, then they will have to register as a “sex offender”…. which they are not. You might be shocked at first that someone you know does this for a living, but do you think it would be fair for them to be “criminals” because they “chose” to be in that profession?
With regards to children… I agree… they do not have a choice. This is where the law gets complicated because it gets clumped in with adults.
I feel that the law should specifically be geared towards “trafficking” issues and should not include adult/consented decisions.
By the way, as a child, I was sexually violated by a three family members. Do you know what happens to children when they get molested? They are taken away from their family and enter into the “system”. We are then treated as if we are the criminals. Locked up and thrown into homes mixed with other kids who can be violent, drug users, etc.
Now I ask you…. did the law protect me and my sisters? No, we were just part of the system and we had to grow up fighting for our own lives and deal with our issues ourselves with nobody really doing anything to go after perpetrators.
I will tell you right now, what happened to us back then is no different as to what’s happening with victims of Human & Sex trafficking. People will vote in a law and has no understanding of what it truly means….and these laws will not produce results either. Why? Because nobody really gives a $hit what happens to the victims. Just like wars… people don’t care what happens “after” soldiers have fought in them.
You have a choice to vote yes or no… but before you vote, please give careful attention to what you are voting for.
Thanks in advance!
I went into this Proposition thinking it seemed a bit off, the title is definitely a little misleading. The first question I asked myself is why do ALL human traffickers have to register as sex offenders for life? Having spent time in the military where we are required to be trained in human trafficking, I understood already that prostitution is not the only reason for human trafficking. I wanted to research this a little further to ensure that any punishment would fit the crime and was at least satisfied that labor trafficking would not constitute registering as a sex offender.
The one thing that did get me that I feel was maybe missed that I have a huge issue with this proposition… unless i am mistaken and read this wrong… is in the Extortion bit. If you look at the proposed amendments to sec 290 it states that all persons found guilty of, among other sections, “subdivision (b) and (c) of Section 236.1” will have to register as a sex offender for life. well if you look at subdivision b, it lists a bunch of sections of the state penal code one of them being section 518 or extortion. No where in (b) or 518 does it say anything about the extortion being sexual in nature. While I agree that this could be considered human trafficking, it is non sexual extortion and there for you should NOT be required to register as a sex offender for the rest of your life for doing it.
Did anyone else catch that or am I reading this incorrectly? Bottom line is that I feel that you should only have to register as a sex offender for committing a sex offense. Thanks.
I mention that in the story itself; have a look. When I spoke to Chris Kelly about that, he denied it — in a way that made me think that he believed that perhaps the title of the section would override the plain language of its text. If so, I just have to shake my head at that.
Note also that, by excluding section (a), the “sex offender registry” part of this proposal (to its credit) does exclude those who engage in human trafficking involving solely labor issues (e.g., de facto slavery.) Maybe what we need is a “labor offender” registry.
Thanks for the reply Greg, I did notice that for the credit of this that it did differentiate between labor and sex trafficking. I did read the article and all of the comments in this post, I saw that you had talked about the extortion bit, however, I didn’t see it clearly spelled out that the portion in question would make a non sex offender register as a sex offender. To me this is the very largest hang up with this bill. Don’t get me wrong, there are a bunch of hang ups but the punishment should fit the crime. I am like you, I support the vague intent of this proposition but I will be voting NO for this. I just really hope that more people actually take the time to read the actual text, instead of just taking the official voters guide at its word.
Greg,
I feel that there are two responses that could arise from those of us who are not well-trained in law:
1) “Wow, Greg sounds really smart! He must know what he is talking about! Prop 35 horrible! This law could really have some bad unintended consequences!”
2) “This article is ridiculous! He is just contriving scenarios, twisting the words of the law, and using his extensive knowledge and quotations of CA law as a scare tactic! He’s convincing people to believe him by saying things they don’t understand (‘he’s so smart he must be right’).”
I don’t think that either of these responses are particularly helpful in ending sex trafficking or preventing superficial laws with unintended consequences from being enacted.
From my perspective, I strongly believe that while most people are nominally against sex trafficking, most of us do not know the gruesome reality or frightening extent of sex trafficking in the United States. Therefore, we do not care a whole lot one way or the other– at least not enough to act against sex trafficking in ways that would require anything more than verbal condemnation of sex trafficking. It is a hidden crime that goes largely unnoticed.
In addition, I highly suspect that the line between prostitution and sex trafficking is very unclear. When does it really turn from a consensual selling of one’s body for sex, in which the prostitute has the power, to the forced giving of one’s body for sex, in which the pimp and client has the power? It is easy to define this on paper, but in the real situation, it gets very messy. Some women may perhaps be very glad to work in a safe and protected environment in which they can sell their bodies for sex, make a lot of money, and go home to a descent house and a nice life away from work. Others, perhaps, work as a prostitute in horrible situations, in which they experience some level of exploitation and oppression from their clients and bosses, but are free to leave if they want; they just don’t because they need the money. And then there are those who are literally slaves, and yet they do have the ability to leave, but they fear for their lives if they do, because they have lost all reputation in the “outside” world, and all the pimps and others in the “hidden” world of prostitution and sex trafficking (and everything in between) know them and care nothing about their well being, but just making money off them. In addition, I know for a fact that there are those pimps who have been arrested and imprisoned for sex trafficking, and yet the victims still are fearing for their lives, because the pimp is threatening them from in jail, and will get released in only five years!
So, with that being said, I have a couple more specific questions:
1. Would it be possible to list your specific concerns in a shorter, bullet-point way that would highlight each individual concern, be understandable to the average person, and allow for a dialog and suggestions?
2. What ways would you recommend promoting an increased awareness of the horrors and complexities of sex trafficking? This article seems to do little to help in the cause against sex trafficking, but a lot in the cause to hurt it, because it offers no alternative.
3. Finally, is there any way that you could join forces with those who are all “gung-ho” about fighting sex trafficking, and help them modify the laws, and fight FOR them, from a sensible, lawyer’s perspective? In other words, you are exactly the kind of person the anti-sex-trafficking movement needs: someone who is willing to critique a law that sounds so good on the face of it. They need people to critique it in order to make it better.
I know that is a lot to ask, but with you extensive knowledge of the laws, and the potentially harmful side-effects, it seems like you are ideal for this. And if not, perhaps you know of people who could help.
If sex-trafficking is really going to be fought, we must be united, and not fighting each other, but rather joining forces, using our various gifts to bring about real change.
You do realize your rants about extortion and prostitution and such are all rants against the CURRENT law, right? The CASE Act doesn’t add those things to the trafficking law – Sections 266, 266h, 266i, 267, 311.4, and 518 are already part of the current law, and that includes all of the prostitution ones except for the transport of a minor AND it also includes extortion. This is sloppy legal analysis on your part.
No, it’s not sloppy legal analysis. The CASE Act gives them new power to those preexisting sections and by making certain actions (even in some cases benign actions) that arguably are taken to effectuate those crimes (including misdemeanors) and turns them into major felonies.
This article needs to be easily uploadable to Facebook. ASAP.
This is not meant as (just) a flattering compliment. I’m stating a real need.
Is there any way this can be quickly done?
Thanks,
S.
p.s. Bonus points for an eye-catching, well-designed, non-sensationalizing graphic. ;>
Responding to both — thanks for the compliments, S. (Yes, I am proud of the graphic!)
I had wanted to be much more involved in the Prop 35 fight than I’ve turned out to be — and I did go on a suicide mission to the California Democratic Party, shortly after this piece came out, where I presented as much of this as I could in an unsuccessful attempt to stop our endorsement.
But, I’m a solo practitioner lawyer and work heated up, and I’m a candidate for State Senate, and as both a blogger and a county party executive board member I’m active in lots of other campaigns. There’s only so much time — and creating a website, high-quality Facebook campaign, etc. just turned out to be impossible.
I plan to have one more piece coming out on 35 — and I hope to be part of whatever fleet of attorneys chops it down to a reasonable scope in court. But one lesson here is that more people have to step up when something like this comes down the pike!
Oh whoops, never mind. Found it.
(Or… thanks! That was fast!).
Thanks for writing this!
-S.
I know your post is focused on 35, but your aside about supporting 34 is something I can’t avoid letting slide. Please please please rethink your stance on 34.
I’m opposed to the death penalty as well, and our prison system does have some pretty substantial financial issues related to bloat, but replacing the death penalty with life without parole is just replacing one kind of death for another, and it perpetuates the dehumanization of those convicted, whether correctly or wrongfully.
If you’re really concerned about protecting those who are wrongfully accused, inflicting on them life sentences without the possibility of parole doesn’t help anything. If you’re concerned about budget, let’s rethink all of the people we put in prison (not jail) for non-violent and/or drug-related crimes.
9th Circuit says sex offender Internet rules violate free speech
http://www.latimes.com/local/lanow/la-me-ln-sex-offenders-20141118-story.html