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California Prop 35

October 26, 2012

Political ActionWhile The SOLD Project focuses its efforts on combating child trafficking in Thailand, we know that human trafficking happens at home in the United States as well. Of the over 2,500 FBI cases of human trafficking opened for investigation between 2008 and 2010, nearly half involved the sexual exploitation of a child. The vast majority (80%) of cases involved sex trafficking, largely of U.S. citizens. Ten percent was for labor, which tends to involve people abducted and smuggled in from other countries.

California, with its large international border, major airports, and huge economy, is a hot spot of trafficking, especially in Los Angeles, San Francisco, and San Diego. To combat this problem, which is widely reputed to be growing, California has a proposition on the 2012 ballot.

Prop 35 Human Trafficking. Penalties. Initiative Statute

In a nutshell, Prop 35 seeks to do the following:

-       increase prison terms for traffickers to 15 years to life and increase fines for trafficking up to $1,500,000

-       stipulate that 70% of fines collected go directly to public agencies and nonprofit organizations that provide victim services, the rest to supporting relevant law enforcement efforts and training

-       require traffickers to register as sex offenders and to provide all internet screen names and identities for online activity

-       requires human trafficking training for officers

-       and prohibits the sexual conduct of the victim from being used to undermine their credibility in court

It also changes the California legal definition of human trafficking to match the federal definition. The penalties are also meant to mirror federal penalties and attempts to address trafficking that is facilitated by the internet, including the distribution and dissemination of child pornography and other images depicting the sexual coercion of children.

The Argument For Voting YES on Prop 35

Independent, impartial analysis suggests that the costs of implementing this law would be minor. Meanwhile, it significantly strengthens both law enforcement efforts and victim services. An independent task force that studied the problem of human trafficking in California urged the state to increase penalties for traffickers and this measure does just that. Having longer prison terms not only keeps traffickers off the streets longer (thus preventing them from going back and trafficking more victims), it provides further incentives for state prosecutors to devote their energies to the case, instead of leaving it to federal authorities, or letting it fall to the wayside when federal authorities cannot or choose not to pursue a case.

Devoting funds to strengthening victim rehabilitation and reintegration into society is also a necessity.  We cannot re-victimize the victims, or the chances that they will end up back in servitude greatly increase.

Because human trafficking is a crime that has changed greatly over time and requires our understanding to adapt to the new technologies and new environments in which it occurs, it’s also important to ensure law enforcement has the proper training to 1) recognize cases of human trafficking in an industry where the lines between coercion and consent can be blurry and obscured, 2) recognize that not all trafficking is sexual, and egregious abuses can occur with labor trafficking as well, and 3) understand the needs of the victims they are trying to help.

The Argument Against Prop 35

The case against Prop 35 tends to be ad hoc, with many claims that, as reported, are unsubstantiated. The reasons some have argued for voting NO on Prop 35 include:

-       it doesn’t go far enough, especially in providing victim services

-       it hampers the ability to prosecute prostitutes

-       victims may resist rescue because they fear deportation

Most of the complaints posted seem not to reflect a reading of the actual text of the proposition, which can be viewed here.

The only halfway cogent argument I’ve found was in the Los Angeles Times, where the following argument is made:

1) We already have laws in place, so why should we increase them? A kind of “if it ain’t broke, why fix it?” approach. In this case, it is up the voter to decide whether they agree that human trafficking is a problem and whether they would agree with the independent task force’s recommendations that we need to strengthen state and local response to it.

2) Longer prison terms may not be a deterrent to criminals. The deterrent effect, of course, depends on why traffickers get involved in the first place. Because trafficking is often driven by economic incentives, it comes down to whether the potential gain outweighs the risk of getting caught, going to jail for a few years versus over a decade, and paying higher fines.

3) Even traffickers who do not actively engage in sex with the victim, especially a minor, will be required to provide their information and online identities to legal authorities. The Times argues that this is a blunt instrument and “muddies the purpose of the database.” Including so many more entries to the database could tax already thin law enforcement resources.

To the complaint that this stipulation includes traffickers who did not have sex with the victim, I would argue that they are still responsible for a heinous crime. They are still benefiting from the exploitation of another human being, and facilitating others in doing the same. Operating online does not make them any different from a brothel owner on Soi Cowboy when it comes to the consequences of their actions. Even if they are not themselves having sex with children, they are making it easier for others to.

To the argument that it taxes thin resources, I find it a weak argument to say we should not collect information simply because it is difficult. Moreover, technology changes, and with it, so do our abilities to process it.

4) Saying “I didn’t know s/he was a minor” is not considered a defense, and the victim’s sexual conduct cannot be used to discredit them in court.  Those against Prop 35 argue this is unfair to defendants.

I personally have no problem putting pressure on anyone in management in the sex industry to introduce tighter controls ensuring that the people they work with are indeed of age. I would argue that, when it comes to sex, children cannot truly give consent, because their ability to understand and weigh the psychological, emotional, and physical consequences of sexual activity is not equal to that of an adult.

(I am personally neutral on the part about a victim’s sexual conduct being used to discredit them in court. Protecting them may help encourage victims to speak out against their abusers and we hear too often about sexual predators arguing “but she was asking for it.” However, it may hamper some defendants in making a legitimate case.)

Conclusion

Though I have not found a convincing argument against Prop 35, it does not follow there might not be unintended consequences. I open the floor here for discussion and arguments that people might have to suggest Prop 35 falls short.

However, as the case stands now, I believe the benefits of Prop 35 are clear, and the costs are minimal. Thus, as a California native and an advocate in the fight against child trafficking, I urge my fellow Californians to vote YES on Prop 35.

– Dr. Jade Keller

4 Comments leave one →
  1. Sheridan permalink
    October 26, 2012 2:18 pm

    I will be voting yes on 35 however my one reservation was the stipulation about registering as a sex offender. Although most human trafficking results in some sort of sex trade it is my impression that it also includes indentured servitude in the form of slave labor where no sexual crime is committed. Would there be discretionary measures on the behalf of the prosecutors and law enforcement to provide appropriate sentencing? I assume there would be. I think the best part of this measure is the additional funding to training of law enforcement in a notoriously underfunded field as well as for victim’s services.

    • November 11, 2012 9:11 pm

      I think that was one weakness of the wording of the proposition and I’m not sure if it was intended to ensure labor traffickers are lumped into the sex trafficker registry, of if that was just miswritten. I’m hoping they’ll follow common sense in the application…but it is a drawback worth noting.

Trackbacks

  1. Policy Memo: Proposition 35 | AAS 595 Human Trafficking
  2. Policy Memo: Proposition 35 Part 2 | AAS 595 Human Trafficking

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