Proposition 35

Proposition 35 — Human Trafficking Penalties Under State Law; Enhanced Sex Offender Registration.

Proposition 35 is a virtual “lock” to pass.  It is supported by Democrats and Republicans and has almost no opposition, save for a few groups of sex workers (more on that later).  But we know PolitoMuse readers don’t “follow the herd.”  We have discerning readers that actually test legislation before they approve it.  We did just that and we didn’t like what we found.  We conclude this is a well-intentioned proposition by well-meaning individuals that is severely flawed.   (A few editorial boards have recently started to “catch-on” to the same idea See Sacramento BeeSF ExaminerLA Times)

The proposition is being financed by $1.86 million from former Facebook executive Chris Kelly (Notice a trend here? Well-intentioned Millionaires are finding pet causes to support and hijacking the California initiative process as a way of demonstrating that support).  At its core, this proposition deals with an important problem – human trafficking – but it does so in a confusing and ultimately ineffective way.  It purports to try to punish human traffickers more harshly, force state police to receive sustained training about the crime, and changes the rules for sex offender registration in a way that we think will cause an administrative and enforcement nightmare.

What “Problem” Are We Trying To Solve?   In-State Human Trafficking?

First, ask yourself  “what is Human Trafficking?”  Most people envision immigrants from far-flung countries being brought forcibly across state lines to work as sex slaves.  But those crimes are usually prosecuted as Federal crimes, not State crimes.  For example, sex trafficking of minors carries a 20 year sentence (much more than what is proposed here).  (18 U.S.C. 1591).   So if we normally prosecute these crimes at the Federal level, why do we need to duplicate these Federal laws at the state level?  Additionally, to the extent there are any inconsistencies between the two overlapping laws, Federal law will Pre-empt state law.  (This Law Review article provides an excellent analysis of the pre-emption of certain state child-prostitution laws by the Federal Trafficking Victim’s Prevention Act.  We think the analysis is equally likely to apply to portions of this proposition).

A Vague Description of “Human Trafficking”
So, given that Federal law already covers cross-border “human trafficking,” what problem are we trying to solve here?  Are we concerned that people are being “trafficked” somehow within the state?   That seems theoretically possible, but if so, what would that look like?  It isn’t really clear, which we think is part of the problem that proponents had in drafting this legislation.  A careful review of the proposed statutory language leaves more questions than answers as to which in-state activities are criminalized by this statute and which remain legal.  We’ve copied portions of the proposed text here to illustrate:

SEC. 6. Section 236.1 of the Penal Code is amended to read:

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).

Section “b” of the provision provides substantially the same text for instances where the victim is forced to engaged in various sex acts as a result of the deprivation of “liberty.”

The proposition then goes on to expressly remove the current definition of “liberty” from existing Penal Code section 236.1  That leaves courts to try to define what falls within a “deprivation of liberty” and what falls outside that definition.  We had no difficulty in finding a problematic scenario:

Your son has house chores to do.  He fails to do them.  You ground your son and forbid him from going to the big game on Friday until he finishes his chores.  Are you a “person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services?”

We think the answer is “yes.”  The point isn’t that District Attorneys are going to be charging parents for enforcing curfews.  The point is that the statute is so vague that laughable examples can be easily identified as serious “chargeable” crimes under the statute.  That kind of vagueness is at worst dangerous (if applied unevenly) and at best a colossal waste of resources as attorneys and courts will spend countless dollars and hours wrestling with the constitutionality of this criminal statute.  (For a useful explanation on the constitutional “void for vagueness” doctrine applied in criminal cases read this article).

Questionable Evidentiary Exclusions

Separately from the real question of whether we need this criminal statute, we also found troublingly vague evidentiary provisions.  One of the provisions provides a fairly straightforward exclusion of the use of a victim’s sexual activity to attack credibility of that witness. That substantially mirrors existing evidence rules relating to sex crimes.  No problem there, although frankly, judges routinely exclude such evidence these days in any case.  The second part is a bit more problematic:

1161. (a) Evidence that a victim of human trafficking, as defined in Section 236.1 of the Penal Code, 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.

Quite frankly, we are not sure what this portion of the proposition was intended to accomplish.  We can read it as creating an affirmative defense to charges of prostitution (i.e., A prostitute claiming to be a victim of human trafficking would be able to exclude any evidence of his or her conduct).  That certainly does not seem to be the intent of the drafters, but it is a legitimate read.

It is also possible (and we think more likely) that it was intended to mean that in a trial for “human trafficking” a prostitute’s status as a prostitute cannot be introduced as evidence that he or she is culpable in the event he or she was engaged in such activity “as a result” of the human trafficking.  Because the definition of “human trafficking” is vague as discussed above, situations where a prostitute is engaging in such activity “as a result” of human trafficking is equally vague.  Moreover, “duress” is already an existing cognizable legal defense to most crimes (certainly prostitution).  There are also a slew of evidentiary provisions that allow for the exclusion of irrelevant or inflamatory evidence (such as evidence of a non-crime like duress induced prostitution).  So, if that is what the authors were aiming for we again ask:  What is the problem this section seeks to “fix?”

In sum, we don’t like this evidentiary exclusion no matter how we read it.  The fact that we can read it in two vastly differing ways however is most problematic.

A Training Requirement & Sex registry

Our final gripes are a bit more nit-picky.  We don’t like that the statute presumes to tell police agencies how to train their officers in perpetuity:  “Every law enforcement officer who is assigned field or investigative duties shall complete a minimum of two hours of training in a course or courses of instruction pertaining to the handling of human trafficking complaints as described in subdivision (a) by July 1, 2014, or within six months of being assigned to that position, whichever is later.” We believe our law enforcement agencies are professionals in a better position to make training decisions than are we.

We also think the changes to all Sex Registry laws are a bit of overkill.  The proposed changes require that “If any person who is required to register pursuant to the Act adds or changes his or her account with an Internet service provider or adds or changes an Internet identifier, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 24 hours. The law enforcement agency or agencies shall make this information available to the Department of Justice. Each person to whom this subdivision applies at the time this subdivision becomes effective shall immediately provide the information required by this subdivision.”  We don’t like this change for two primary reasons.  One, we don’t like the idea of covering the costs of monitoring the Sex Registry or the costs of prosecuting folks who fail to re-register because they didn’t report a change in their Facebook account.  (For a discussion of the costs at the federal level see here).  Two, we don’t like the idea that folks who have already served their time for their sex crimes will get charged with another crime for failing to alert police every time they change their screen-names or email accounts.  Our state already does that with registered offenders who fail to register each year on their birthday, we don’t like the idea of adding this additional requirement.

We agree that human trafficking is a serious problem that needs to be addressed in a serious way.  But this isn’t that way.  It needs to be addressed at the Federal level with cooperation by State agencies (something coincidentally that our A.G. is doing, including announcing property seizure bills that will hit traffickers in the pocketbook).  As to this proposition, we find ourselves agreeing with the few “sex-workers” who oppose this proposition (we’re sure our mothers are so proud), and the slowly increasing number of editorial boards that are taking a close look at the proposed text of the law.  This proposition seems to offer a solution looking for a problem and in the process is creating its own slew of new problems.


  1. #1 by on October 24, 2012 - 7:13 pm

    Really enjoyed this post.Much thanks again. Really Cool.

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