California voted “yes” on Prop 35; experts, police and sex workers disagree on impact
on November 19, 2012
On November 6, Californians passed Proposition 35, also known as the Californians Against Sexual Exploitation Act, which will increase the penalties for convicted human traffickers, mandate law enforcement training in identifying and handling trafficking victims, and require convicted traffickers to disclose their Internet service providers, screen names and email addresses to law enforcement. Proposition 35 also changed California’s evidence code, which regulates evidence that can be used in court, to prevent a trafficking victim’s sexual history from being discussed in a courtroom when he or she sues their traffickers.
Backers argued that Proposition 35 would protect women and children who are being forced into prostitution or other forms of sexual exploitation and allow victims—especially children—to confront their abusers in court. “When I drafted this, I wanted to do two things: I wanted to recognize the severity of the crime and I also wanted to recognize the victims as victims, not as criminals,” said Daphne Phung, the initiative’s author and the founder of California Against Slavery, a nonprofit group that was a major proponent of the Yes on 35 campaign.
But now that voters have passed Proposition 35 by a whopping 81 percent, there is little agreement among law enforcement agencies, legal experts and sex workers about how the initiative will affect adults who voluntarily choose to work in the sex industry, especially with regard to the owners of indoor places of work, like brothels, escort services and massage parlors.
During the campaign, sex workers, as well as some anti-trafficking organizations and civil rights groups, opposed Proposition 35, citing concerns like the mandatory disclosure of Internet habits and identities for convicted traffickers. The day after it passed, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed a lawsuit to block the implementation of the Internet disclosure provision.
Staffers at the ACLU and the EFF, a San Francisco-based non-profit organization focusing on Internet civil liberties, argue that Proposition 35’s wording is overly broad when it comes to mandating disclosure of electronic information for anyone convicted of human trafficking. According to a press release published November 7 by both organizations, the proposition’s restrictions on anonymous online speech for convicted traffickers is problematic. The organizations also claim that the proposition will punish all registered sex offenders, regardless of whether their charge was related to the Internet.
“It seems to grab at a wide swath of people who don’t necessarily have an offense related to the Internet, related to minors or related to sex trafficking,” said Rebecca Jeschke, digital rights analyst for the EFF. “It means that people are giving up their ability to speak easily, anonymously and freely online.”
So far, a San Francisco federal court seems to agree. On November 8, U.S. District Judge Thelton Henderson, the same judge who is hearing the arguments over whether the Oakland Police Department should be placed in federal receivership, placed a temporary restraining order on the proposition’s requirement that registered sex offenders turn over their Internet Service Provider information to the police. Plaintiffs would “suffer the potential loss of their ‘ability to speak anonymously on the Internet,’ which is protected by the First Amendment,” the order reads.
A hearing on whether a preliminary injunction should be placed on this section of the proposition will be held in U.S. District Court in San Francisco on November 20.
Another big legal question is who could be prosecuted under the new law once Proposition 35 goes into effect. The full text of Proposition 35 details the new penalties for convicted human traffickers, currently defined under state and federal law as those who violate other people’s personal liberty to obtain forced labor, or to force them to commit a felony crime, such as prostitution. Under Proposition 35, the definition of human trafficking would be expanded to include the creation and distribution of obscene materials that depict minors. It would also eliminate the need for prosecutors to prove that force or coercion of the minor by a pimp was involved in cases of child exploitation. The enhanced penalties include a higher fine of $1 million, the possibility of life in prison and mandatory sex offender registration.
But some sex workers and legal experts say the proposition has loopholes that could snag people who might not fit the stereotype of a human trafficker. Instead, they argue, it may punish people in the sex industry who work to keep adult sex workers, who voluntarily choose to work in the industry, safe.
“I knew that it would pass,” said Shannon Williams, 46, a sex worker in the Bay Area and member of the Sex Worker Outreach Project, a national organization that lobbies for policies that reduce the stigma of sex work as an occupation and that protect sex workers from violence. “It’s going to have a lot of really negative repercussions, not only for the victims of sex trafficking, but for a lot of unintended people.”
A pimp is defined by state law as “any person who, knowing another person is a prostitute, lives or derives support or maintenance, in whole or in part, from the earnings or proceeds of the person’s prostitution.” Under Proposition 35, this definition of a pimp now falls under the umbrella of human trafficking. This is a concern for sex workers who say they are afraid that anyone who benefits from their sex work can be arrested as a pimp and be charged with human trafficking, which now carries a stiffer penalty than a charge of pimping. This could include brothel owners, massage parlor owners and, some sex workers say, even their dependent family members and roommates.
“It targets everybody’s relationships, no matter what your relationship is,” said Maxine Doogan, president of the Erotic Service Providers Union, an organization that lobbies for better working conditions within the sex industry, and a major player in the No on 35 campaign. Doogan said she is afraid her son could be charged with trafficking since he benefits from her income.
Another concern for Williams—and several other sex workers who spoke with Oakland North for this article—is that the increased penalties of trafficking would force many owners of indoor sex work locations like brothels, massage parlors and escort services to close shop, forcing the men and women who work there to find other, possibly more dangerous places to work, like the streets, hotels and hot tubs. Work in these places, Williams said, increases the chances of encountering predators or violent criminals who might rape or rob sex workers.
“Not everyone has the resources to have their own apartment to work indoors,” Williams said. “So there are business arrangements where someone who does have the resources to do that runs a three-bedroom apartment, and then sex workers can rent those rooms. It’s much cheaper than hotels and much safer than hotels and it’s safer than working on the streets. It’s safer than working by yourself—you’re working with a group of people.”
Williams challenged the idea that brothel owners are abusive, and said many brothels are owned by women who treat the work as any other business. She knows this from personal experience—her first foray into the sex industry was through working for an escort service. “My boss was the greatest boss I ever had,” Williams said. “She treated her employees really well, she provided safety for us and networking and support and education.”
But even prior to the passage of Proposition 35, Williams noted, her boss was charged with pimping and served a prison sentence.
Casey Bates, deputy district attorney for Alameda County and head of the DA’s sexual assault division, disputed these concerns, saying that Proposition 35 will not affect adult sex workers who voluntarily work in that industry, nor will it affect people with whom they have an ordinary financial relationship.
“I’ve heard people analogize or draw an inference that somehow, their roommate that’s helping them pay the rent where they’re engaging in their trade in providing sexual services consensually to their clients…is tantamount to falling within the purview of section 236.1,” or the human trafficking definition, Bates said. “Unless we’re dealing with a minor, an adult who voluntarily and without coercion engages in this behavior isn’t going to cause their roommate to get into trouble.”
But Bates didn’t eliminate the possibility that the owners of massage parlors, brothels or escort services could now fall under the definition of human traffickers, provided that the DA’s office can show the person is forcing someone to perform sex work against their will. “The notion that the brothel owner is somehow a good person is taken into consideration when charging 236.1 human trafficking,” he said, “in that it still requires that we show that there is this deprivation of liberty with the intent to cause other harm.”
Bates said he doesn’t think the CASE Act will change the way Alameda County prosecutors charge people who formerly would have been charged with pimping and pandering. “The elements of human trafficking are different than the elements of pimping and pandering,” he said. “What I expect is that where all of the elements are present for each of the crimes is that you’ll see that the individual is going to be charged with pimping, with pandering and with human trafficking. And they could be convicted of all three.”
But a person cannot face sentences for all three crimes. “The crime which provides for the greater punishment will be the one that controls,” Bates said.
Overall, he said, the CASE Act is not likely to radically change the way Alameda County prosecutes cases of human trafficking. “In Alameda County, we have been aggressive in prosecuting human trafficking cases for years and years now,” he said. “We’re going to continue doing what we’ve been doing.”
Bates said the Alameda County District Attorney’s office already interpreted existing trafficking laws stringently and did not require prosecutors to prove that a child was forced into sexual exploitation to convict traffickers, as is done in some other counties. “In my mind, the CASE Act has clarified some areas specifically as it relates to what’s necessary to prove a case that involves a minor,” he said.
Like Bates, Phung said voluntary adult sex workers have nothing to fear from the new law because their consent eliminates the possibility of deprivation of liberty. “Proposition 35 is written in a very narrow way to deal specifically with human trafficking,” she said.
Phung says the proposition doesn’t change how human trafficking is defined—only that it clarifies some of the language, which can apply to industries other than the sex industry. “There is human trafficking in legal industries like the garment industry, construction industry, hotels,” Phung said. “They’re all very legal industries. It’s not what the industry is, it’s not what the service is being extracted—it’s how the services are being extracted from these victims and who they’re extracted from.”
But Bill Ong Hing, a professor of law at the University of San Francisco, said Proposition 35’s terminology may cause some legal confusion. Hing, a former member of Governor Jerry Brown’s California Alliance to Combat Slavery and Trafficking Task Force, said it’s very possible that brothel owners, escort service providers and massage parlor owners could be charged with human trafficking under Proposition 35. “One can imagine how the circumstances under which a pimp controls a prostitute or the circumstances under which a brothel owner runs their business, that what they do could very well be interpreted as depriving somebody of their personal liberty,” Hing said.
He also said the term “deprivation of liberty” could be interpreted differently by different judges. “I think it’s pretty vague, to be honest with you, so that’s a problem,” Hing said.
For his part, Bates said that according to the California penal code, it is defined as more than a trivial restriction of a person’s liberty that is obtained through force, fear, fraud, coercion, violence, duress, menace or threat of unlawful injury to the victim.
What both backers and opponents of Proposition 35 agree on is that people who might be arrested for pimping, pandering and human trafficking may plea bargain for the lesser charges of pimping and pandering to avoid the heavy penalties of trafficking.
“What Proposition 35 might result in is a lot more men and women going to prison for prostitution and pimping,” if they plea bargain, Williams said.
Bates said the threat of human trafficking penalties could also cause quicker trial settlements. Rather than face a lengthy trial and the possibility of a jury conviction for human trafficking, a person might plead guilty to pimping and pandering. “It will be a hammer, in that regard,” he said.
Supporters of Proposition 35 say they know the initiative won’t be a “magic bullet” that will stop human trafficking. And its critics point out that while funds from the fines instituted by Proposition 35 will go to law enforcement, prosecutors and nonprofit organizations that combat human trafficking like California Against Slavery, the money will not go to shelters, job training or immigration services for trafficking victims. “There’s really nothing provided to the victims themselves in terms of funding,” Hing said. “Proposition 35 doesn’t provide any resources for them, which I think is a shame.”
Williams said an increase in support and services could turn minors away from sex work—a job she said they often take when they have no other way to support themselves. She said many of the minors doing sex work on the streets have run away from abusive homes. “All of us would wish there were other solutions to their problems, like social services—more shelters, places they can go and get support so that they don’t have to turn to turning tricks,” she said during an interview prior to the November election. “All of us would want that, so let’s do that.”
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