Proposition 35: NEUTRAL

Prohibits Human Trafficking; Expands Penalties; Revises Law; Trains Law Enforcement

Proposition 35 is important because it addresses human and sexual trafficking—a problem of substantial and growing concern in California. On the other hand, its provisions present a double-edged sword that could adversely affect constitutional rights and civil liberties while increasing mandatory sentences for a variety of existing crimes. 

Specifically, passage of Proposition 35 would expand the definition of human trafficking to include forced labor and services unrelated to the sex trade and remove the need to prove force to prosecute sex trafficking of a minor, identified as a barrier to prosecuting trafficking under current law. It would also prohibit the use of sexual history to impeach or prove criminal liability of trafficked victims, raise penalties for human trafficking to make them commensurate with federal standards, and require human trafficking training for police officers. The money accrued from the increased penalties would fund victims’ services. Finally, Proposition 35 would require that a person convicted of trafficking register as a sex offender and mandates that all sex offenders disclose Internet accounts to law enforcement. This final provision is aimed at the problem of identifying the websites used to recruit young girls to become sex workers.

The supporters of Proposition 35 recognize that victims of human trafficking are among society’s most oppressed and powerless people and that society as a whole benefits from squelching this destructive industry. A broad array of individuals across various sectors—business, criminal justice, law enforcement, non-profit organizations, and some prominent progressive politicians—have built a coalition to support Proposition 35 with the aim of securing more protection than current state law and policing provide.

Post-biblical Jewish traditions and simple human decency are clear on the need to prevent the sale of human beings’ bodies and their brutal physical and emotional exploitation. The more complicated question is which policies can most effectively accomplish this goal. Proponents claim that state-level action is necessary because, despite strict federal laws, federal prosecution is too difficult and costly to serve as an effective remedy or deterrent. Proposition 35’s multifaceted approach seems promising. For example, law enforcement training programs instituted in Orange County have increased prosecution for trafficking and begun to improve the relationship between victims and police. It is also important to note that Proposition 35 overcomes the common shortcoming of some anti-trafficking policies that either treat all prostitutes as trafficking victims or as criminals.

However, there are several major weaknesses in Proposition 35. First, legislating criminal punishment through the ballot box has often produced grave consequences and deprives us of the relative safeguard of laws enacted by the legislature through a deliberative process. For example, its imprecise definition of a commercial sex act can be construed to wrongly implicate behaviors and activities as trafficking. Furthermore, Proposition 35 would classify all traffickers as sex offenders (which may be an inaccurate label for those involved with sweatshops, for example) while expanding the categories of offenses that subject perpetrators to mandatory, lifetime sex offender registration. Additionally, this initiative in certain instances would undermine the constitutional right of the accused to confront and cross-examine witnesses.

Second, in many highly publicized cases, public reaction can reflect the sensationalized presentation of the facts of a case, resulting in undue influence on salient public policy or pressure on certain judicial action. When this happens, the implications for the criminal justice system and civil liberties can be both profound and insidious. This misalignment is possible as a result of Proposition 35. For example, Proposition 35 would legislate new Internet restrictions that imperil the free speech rights of those classified as sex offenders—whether or not their crime involved computer-related conduct. With regard to sentencing, Proposition 35 would create a number of new crimes, while simultaneously increasing penalties for a variety of existing crimes, many of which would carry long mandatory sentences. Heavy minimum penalties prevent rehabilitation and reintegration. This consequence is important given the reality that trafficking investigations often result in the arrest of many minor players while overseas kingpins who run the operation remain at large, potentially creating adverse effects on immigrant communities. 

Finally, a shift in resources and increased costs may not be warranted given other budget problems for state and local government. Because of these strong concerns, Bend the Arc takes a NEUTRAL position on Proposition 35.

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