No on Prop 35: the analysis – An Urban Futurist Democrat

This is the third in a continuing series of blog posts analyzing the major propositions on the November 2012 California ballot. Prop 30, Prop 31.

As election day nears, I’m skipping through to a proposition people probably need the most education on: number 35.

Proposition 35 is largely about sex trafficking. Its biggest provision is to significantly increase penalties against sex trafficking and sexual exploitation, with longer jail sentences and fines up to the seven digits, with fine money dedicated to law enforcement and victim support. Other provisions are meant to facilitate enforcement and convictions: removing sexual history of the victim or mistaking a minor’s age as defenses and requiring traffickers to register as sex offenders.

Obviously sex/human trafficking is indefensible. However, that doesn’t mean it needs an initiative combating it. The same ideas could be taken up by the Legislature. To that question Californians Against Slavery’s website says, for one reason, that they mean to raise awareness, which is a joke: the ballot is an inappropriate forum for “raising awareness,” not to mention an inefficient use of their funds. The other cited reason is that the Legislature has failed in the past to pass similar measures.

To see why the Legislature might have done so, let’s turn to the substance of 35. There are a number of reasons to take pause.

Just in principle, we have been trying harsh sentencing for 30 years, and it does not seem to solve social problems – just put more people into prison (spending boatloads of money into the bargain) while the problems fester. But certainly many people think sex exploitation is a different animal from other crimes, so I’ll pass this argument by.

Getting instead into details, 35 is a complicated bill which seems to greatly expand the definition of exploitation and trafficking beyond how we commonly understand it. The progression goes like this (h/t to Greg Diamond):

– First, they had the bright idea to make it a felony to force a minor for the purpose of not just prostitution, but a long list of Penal Code section references for various sex-related offenses: procuring, child pornography, stripping, etc. All of this is labeled “human trafficking” and punishable by 8-20 years and a large fine.

– Second, the following is also human trafficking:

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.

So not necessarily forcing someone into prostitution, but just persuading them, would be punishable with 5-12 years! And that doesn’t just mean with the threat of force: a subsection below the quoted text raises the sentence to 15-to-life if the inducement is done with “force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury.” Meaning that simple persuasion in its ordinary sense, with no threats or deceit at all, falls under the quoted definition for a 5-12 sentence.

This means just one person suggesting a minor engage in prostitution, or pornography, or stripping, even if the persuader isn’t involved in or profiting from the enterprise in any way, even if they’re just a friend – they would become a serious felon, and a designated sex offender with all that entails. The same would go for a man patronizing a prostitute who he doesn’t know is 17. (And many of the offenses in the long list are just misdemeanors in themselves.)

What on earth is the point of this? Why widen the net to people not involved in criminal enterprises at all, to conduct that may be bad but is not coercive or exploitative? This appears to be an especially mindless example of “tough on crime” thinking: with the offense description as broad as possible, that prosecutors can go after whoever they think is the bad apple, and put them in jail practically on the state’s say-so.

It’s either that or at least very bad drafting. Or both, because the last Penal Code section in the list, 518, is not sex-related at all, but is the crime of extortion: “the obtaining of property from another, with his consent… induced by a wrongful use of force or fear.” So if Prop 35 passes, people recruiting minors into non-sexual extortion plots would be sex offenders as well. (Did they mean that kind of scheme where a minor gets someone into bed so a confederate can “discover” and blackmail them? If so, they should have said so.)

A problem with initiatives is that if there are drafting errors, the Legislature will have difficulty fixing them as they are discovered in practice. This is at least a statute, not a constitutional amendment, so the Legislature can amend it, but only “in furtherance of its objectives.” Again, this is open to a lot of interpretation. We could well expect lawsuits depending on precisely what amendments the Legislature may decide on — an even greater waste of time.

I have an idea why the text is so broad and clumsy: because Californians Against Slavery went off on their ego-boosting journey without actually trying to learn about trafficking and what would be useful in combating it. Their head, Daphne Phung, apparently got started in the movement by watching an MSNBC Dateline report in 2008. And John Vanek, former head of San Jose PD’s human trafficking task force, says that they have gone about their work with little to no interest in what the rest of the community combating trafficking has to say:

California Against Slavery and Chris Kelly could have invited a broad cross-section of anti-trafficking professionals and asked, as a multidisciplinary group, what changes to current law would be most productive to aid survivors, prosecute offenders, train all elements of the justice system, and raise public awareness. But they chose not to…. If they had done so, Prop 35 might be endorsed by agencies like CAST (Coalition to Abolish Slavery and Trafficking), Asian Pacific Islander Legal Outreach, Polaris Project, ATEST (Alliance to End Slavery and Trafficking), the California Partnership to End Domestic Violence, the California Coalition Against Sexual Assault, and the Not For Sale Campaign; all organizations active in providing direct assistance to victims, advocating for legislative change, or both. Community Solutions, a provider of services to survivors in the South Bay Area is publicly opposed to the initiative.

And if CAS and Chris Kelly had asked for broader and informed input, maybe organizations like the SAGE Project and Chab Dai USA would still be endorsing Prop 35. Instead, both organizations have rescinded their endorsements. The Los Angeles Times, San Francisco Examiner, Sacramento Bee, Fresno Bee, Santa Cruz Sentinel, Riverside Press-Enterprise all oppose Prop 35, a result of their concerns over the way the initiative is written.

Finally, just surmising, this initiative appears to be on the ballot largely because of one person’s political ambitions. Out of its $3.7 million raised, $2.4m of that comes directly from Chris Kelly, former Facebook chief privacy officer and unsuccessful primary opponent of Kamala Harris; Kelly has little distinguishing himself as a politician apart from a brief earlier foray into politics in the 90’s and, now, a large fortune. There’s a distinguished history of aspiring politicians getting behind uncontroversial initiatives, like Schwarzenegger with after-school programs in 2002. Why should Kelly worry about what those in the field think, if it’s just something to pin on his lapel during his next race?

Kelly’s vanquisher, AG Harris, has convened a statewide workgroup on human trafficking which brought in all the experts and stakeholders left out by Kelly’s CAS, and apparently is set to recommend a number of changes in criminal and civil law. I say leave it to them, and vote no on 35.

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