Why You Should Vote No On Prop 35
Voting time is just around the corner and this year, no less than thirteen California-wide propositions will be on the ballot. Among them is Proposition 35, which would put into effect the Californians Against Sexual Exploitation Act. This act is being billed as an effort to combat human trafficking and sexual slavery by increasing prison sentences and fines for human trafficking convictions and requiring convicted human traffickers to register as sex offenders, giving up not only their addresses and places of work, but internet service providers and internet identities.
At first glance, this seems like good news. I care deeply about human trafficking and modern slavery; in fact, before running this site, I did media outreach in an effort to combat human trafficking and labor abuse in the United States. This role made me deeply aware of the abuses suffered by many in this country, not only in terms of sexual slavery, but many other forms of slavery. While I want to applaud the interest politicians and civilians have taken in these issues, I am critical of a lot of initiatives: some strike me as attempts to incur favor with voters without actually helping victims, and the rest, however well intended, either tend to completely ignore other victims of slavery (by putting so much emphasis on sex trafficking) or spread resources for victims woefully thin by lumping other crimes into legislation (such as those that also target non-coerced sex workers).
I look at the successful effort to shut down the Craigslist adult services section, for instance, and ask myself of the victors: what have they actually accomplished? I still see solicitation ads in other sections where, unlike the adult services section (which required posters to pay a small fee) offer law enforcement no paper trail to follow. Ashton Kutcher’s DNA Foundation put the heat on the Village Voice‘s Backpage and achieved similar praise for the effort — despite the fact that Kutcher and the organizations he partnered with (one of which is outright against pornography and another which targets sexuality educators as perverts who must be silenced) make no distinction between sexual trafficking and prostitution.
It might not sound like a big deal to you, given that prostitution is illegal already, but it matters. To quote E. Benjamin Skinner, author of several works on the topic of modern slavery: “The West’s efforts have been, from the outset, hamstrung by a warped understanding of slavery. Though eradicating prostitution may be a just cause, Western policies based on the idea that all prostitutes are slaves and all slaves are prostitutes belittles the suffering of all victims.”
The inability to see the differences between sex work and sexual slavery thwarts efforts and taxes resources set aside for identifying, freeing and protecting actual victims of slavery, because those working to help victims become diverted with matters of consensual prostitution, which should be handled by local law enforcement as necessary, and which, though prostitution is a crime in most of the U.S., are nowhere as severe as slavery of any kind.
What’s more, targeting sex workers makes it harder for them to come forward about abuse, murder, and other crimes — including knowledge of sexual slavery and trafficking. Sex workers could be our allies. There are many examples around the world where decriminalization and legalization have not only not brought down fire and brimstone from the heavens, but actually helped communities. Look at Brazil — when the U.S. offered them $40 million in aid, Brazil refused because of the U.S.’s requirement that all recipient countries make an anti-prostitution pledge. Pedro Chequer, Brazil’s AIDS commissioner said at the time, “Sex workers are part of implementing our AIDS policy and deciding how to promote it. They are our partners. How could we ask prostitutes to take a position against themselves?” Brazil’s commitment to collaborating with sex workers has resulted in one of the most successful and aggressive AIDS prevention programs in the developing world.
Even if you don’t agree it might benefit humanity at large to decriminalize prostitution, would you agree that all prostitution — consensual and among adults — should be treated, charged and penalized as human trafficking? Let me spell that out with the ambiguous terms of the CASE Act in mind: should someone who gives something of value to someone and then has sex with him or her be charged with human trafficking?
Yes, the initiative is that ambiguous. But it doesn’t end here, so I ask you: should people who benefit (parents, siblings, children, roommates!) from the earnings of “commercial sex acts” (any sexual conduct connected to the giving or receiving of something of value) be charged with human trafficking? Should someone who creates obscene material that is deemed “deviant” be charged as with human trafficking? Should someone who profits from obscene materials be charged with human trafficking? Should people transporting obscene materials be charged with human trafficking? Should a person who engages in sex with someone claiming to be above the age of consent or furnishing a fake ID to this effect be charged with human trafficking? What if I told you the sentences for that kind of conviction were eight, 14 or 20 years in prison, a fine not to exceed $500,000, and life as a registered sex offender?
I would back an initiative that made penalties more severe for perpetrators of actual sexual trafficking, especially if it came with a subsection protecting the victims, as CASE does. But the ambiguity and breadth of this initiative makes it impossible to support.
From Greg Diamond’s I Despise Human Trafficking, but I Oppose the Badly Drafted Prop 35 on The Orange Juice Blog:
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 a 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.”
Read the whole thing for more problems Diamond (who is an employment lawyer in California) has with the CASE Act.
You can read the act for yourself below. The sections referring to the California penal code can be deciphered with this handy legal online tool.