Jane Fonda as a streetwalker in Klute & Cambodian child prostitute -- does all "sex trafficking" deserve the same legal treatment?

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This is an article on Proposition 35 in California, which lays down heavier sentences on human trafficking offenders. But is this law comprehensive enough to cover every aspect and – more importantly – protect the victims? Greg Diamond comments on the manifold technicalities surrounding the matter:

Motherhood, apple pie, and fighting human trafficking

Early polling suggests that Proposition 35 looks like a sure winner in November — buoyed by voters who haven’t read or understood it but who like its title.  Unfortunately, either through accident or design, Prop 35 is badly drafted — potentially turning even misdemeanor offenses dealing with prostitution, solicitation, non-marital sex, sex with minors, “sexting,” pornography, obscenity, and extortion into major, multi-year felonies.
One doesn’t have to think that such activities should be legal to think that they should be addressed with some sense of punishment being proportional to the crime.  It must be fixed before it enters our Penal Code.
Prop 35  is a joint effort of Californians Against Slavery and the Safer California Foundation. Californians Against Slavery bills itself this way:

A nonprofit, non-partisan human rights organization dedicated to ending human trafficking in our state. Our mission is to defend the freedom of every child, woman and man by empowering the people of California to fulfill our obligation to stop human trafficking.

Now there is a group that is hard to oppose!  Not many people outright celebrate slavery these days.  And human trafficking, the prototypical example is where women are imported into the U.S. with false promises of legitimate work, held captive, and forced into prostitution for the benefit of American men.  This is about as offensive as a practice can get.  (Of course, “human trafficking” has another meaning as well: prostitution in any form, which is less offensive.  This ambiguity will, as we’ll see, create problems.)

The group’s leader, Daphne Phung, was inspired to create Prop 35 by MSNBC’s excellent documentary on human trafficking, “Sex Slaves in America,” the transcript for which is available here.  Please do read it.  If such activities were legal and Prop 35 addressed only such horrors, I’d support it.

The Safer California Foundation bills itself this way:

… dedicated to supporting efforts to protect Californians from all forms of criminal exploitation. Created by Chris Kelly, former Facebook Chief Privacy Officer and a Silicon Valley attorney and philanthropist, the Safer California Foundation looks forward to the day when every neighborhood in California is as safe as our most secure neighborhoods today.

You may remember Chris Kelly as a well-funded 2010 Democratic candidate for Attorney General who lost to Kamala Harris in the primary.  His address — business, probably — is listed as being in Garden Grove. He provided the lion’s share of funding for Prop 35, $1.66 million.  (Perhaps I’ll be excused for suspecting that once Prop 35 passes, he’s not going to let us forget that, either.)  As “criminal exploitation” is better known as “crime,” the above description is about as vague as they come: Chris Kelly is against crime.

Prop 35 would enact the “CASE Act.”  CASE stands for “Californians Against Sexual Exploitation,” which is intended as a model law for other states to adopt.  Notice that we’ve gone from opposing “Slavery” — a pretty well-defined concept — to opposing “Sexual Exploitation,” which is a lot broader and more nebulous.  That is our first hint (not counting lavish sponsorship by what the Sacramento Bee calls ”a politically ambitious financial angel”) of the problems with Prop 35.

That notwithstanding, it is hard to imagine a more “motherhood and apple pie” measure than this.  What sort of monster, after all, could argue with opposing modern day slavery?

Here’s what kind of monster: someone who has actually read the bill, rather than just the title, and analyzed what its language would do.  Such a monster may come to view Prop 35 as a “bait and switch” for voters.

Jane Fonda as a streetwalker in Klute & Cambodian child prostitute -- does all "sex trafficking" deserve the same legal treatment?


Surprise!  Current Law Does Punish Pimping Minors.  (Unbelievable!)

The website from which the photo at right came (and I’m taking their word that the girl in question is in fact a child prostitute) begins with these sentences:

Debbie was 15 when she was abducted from her Phoenix home late one night. Four men took her to an apartment from her home 25 miles away and continually raped and abused her. She spent days and days in a dog kennel, where her kidnappers forced her to eat dog biscuits and have sex with any man who came to the apartment. Unfortunately, this is a situation more than 2 million women and children find themselves in around the world annually.

(I support Prop 34, which will eliminate the death penalty, because it is too costly and sometimes has led to execution of the innocent.  I have to admit, though — if I knew for sure that someone in their right mind had done this sort of thing, I wouldn’t shed a tear at their execution if it came to pass.)

Prop 35 demands our attention with these sorts of lurid and horrific stories of real prototypical human trafficking — usually foreign women lured into the U.S. with the promise of legitimate work, held captive, beaten, and forced into prostitution.  It then uses our revulsion at this abominable practice to induce us to pass a bill that doesn’t necessarily have all that much to do with prototypical human trafficking.

Consider the paragraph above about “Debbie.”  Does it strike you that we already have laws against all of this?  It should — and that should make you wonder what is actually going on here.  Here’s what’s going on here: rather than going after prototypical human trafficking, the law goes after the broader definition of human trafficking: prostitution. Proponents of Prop 35 will disagree with this assertion: on its face, Prop 35 only deals with forced prostitution.  That will raise the question of what constitutes “force.”

As an aside: If you’re wondering why almost no politician will feel able to oppose Prop 35, whatever their private misgivings, look at that last couple of sentences.  What politician wants to parse what constitutes “force” in the activity of prostitution?  Isn’t prostitution bad? The answer is that one can be perfectly comfortable with making all prostitution illegal — and yet not consider it all equally bad. Prostitution involving a 33-year-old woman who engages in it freely and voluntarily as a means of earning income may be bad, but it is clearly not as bad as prostitution involving a 13-year-old girl who can’t speak English held captive and forced into the sex trade. The greater crime should carry the greater penalty; that should be non-controversial.  How does the CASE Act fare by that standard?

One thing that the CASE Act does is to raise the penalties for various crimes as indicated in this table from its FAQ page:

As you can see, a lot of what the CASE Act does is simply increasing sentencing. That’s fine, in prototypical  human trafficking cases (especially including minors) where the accused has had primary rather than incidental involvement — and it’s something that I’ll bet the legislature would happily pass without a ballot initiative. But there’s something about this chart that undermines the credibility of proponents. Can you spot it?

Look in the column listing “current state” penalties for various activities, three and four lines down. And then ask yourself: do you honestly believe that there is currently no state penalty for sexual trafficking of a minor without force?  Really?

There is a penalty for pimping; there is a penalty for kidnapping and false imprisonment; there are penalties for conspiracy and for solicitation to commit statutory rape.  I’m probably leaving others out. So there are two possibilities here: either they authors of this chart are misleading (if not actually lying) — as if their argument that “yes that can be penalized but the specific label ‘sexual trafficking of a minor’ is not used so it doesn’t count” — or what they’re calling “sexual trafficking” is not what we think of when that term is used.

From what I can tell, it’s probably both.


Prop 35 Apparently Creates Big New Penalties against Underage Sex and All Prostitution

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 raised the penalties for commercial sex to an outlandish degree — and defined 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 an 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.”

When examining a criminal law, one useful exercise is to consider the broadest possible expansion of each term and see how many acts it sweeps into its scope.


Redefining “commercial sex”

Here’s a riddle:

Q: Under §6(h)(2) of the CASE Act, what makes a sexual act into a “commercial sex act”?
A: That it occurs on account of anything of value being given or received by any person.

Here’s another riddle:

Q: Gee, does “anything of value” include buying someone dinner?  A ticket to a movie?  A drink?
A: “Anything of value” is not defined — but if it meant “money or its equivalent” it would say so.

Here’s a final riddle:

Q: Do you really think that prosecutors will think that they can get a jury to convict for a 19-year-old boy who takes a 17-year-old girl (or boy) to a concert, leading her to be grateful and to engage in a sexual act with him, under the CASE Act?
A: Maybe not.  But if it’s your son facing 12 years in prison and being branded for life as a registered sex offender as a result of the conviction, would you be more likely to tell him to accept a plea bargain just in case?  And don’t prosecutors like plea bargains to pad their conviction statistics?  And have they ever been known to deploy their prosecutorial discretion somewhat selectively?

(By the way, that could be your daughter in the above example rather than your son.)

Many sexual activities, including those involving minors, may be facilitated in part by the gift or receipt of “something of value” without being what we’d normally think of as “commercial.” Gift of receipt of “something of value” like a meal or drink, in the course of dating or even a casual encounter, is one way of showing that the potential sexual partner is valued, which in turn is may facilitate sexual activity. I can quote song lyrics to underline the point, but it’s probably unnecessary.

We don’t (unless we are jealous and/or mean) generally call the receipt of a gift that leads to a decision to engage in sexual activity a prostitute, nor do we call the person giving such a gift a john. Even if we did, the stakes under current law would simply be that the giver involved could be charged with solicitation and the recipient with being a prostitute; of such things are sitcom episodes made. It becomes a lot less funny, though, when what’s at risk is being charged with human sexual trafficking and a registered sex offender status.

Under §4 of the CASE Act, though, only the one giving the gift could be charged with a crime; the recipient cannot be charged: “evidence that a victim of human trafficking … 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.”  Furthermore, evidence of any “history of commercial sexual act of a victim of human trafficking … is inadmissible to attack the credibility or impeach the character of the victim.”  (This is a great sort of provision when it comes to rape cases, for example, but in the context of human trafficking it can have some unintended consequences.)


Broadly increasing potential penalties for non-marital sex with adult partners, obscenity, etc.

Under §6 of the CASE Act, a person “is guilty of human trafficking” ”who deprives or violates the personal liberty of another with the intent to effect or maintain a violation of” existing portions of the California Penal Code dealing with:

  • prostitution or “illicit carnal connection with any man” (§266)
  • living or deriving support from the proceeds of prostitution (§266(h))
  • procuring prostitutes (§266(i))
  • transporting minor prostitutes for immoral purposes(§266(j))
  • taking away from guardians a minor for purposes of prostitution (§267)
  • importation, publishing, possession, &c of real or simulated child pornography (§311.1)
  • importation, publishing, possession, &c of obscene material, of real or simulated child pornography, or providing same to minors (§311.2), or using minors to produce such material (§311.4)
  • visually depicting a minor having sex with a person or animal,  experiencing penetration of their vagina or anus, masturbating, engaging in sadomasochistic activity, urinating, defecating, or revealing sexual organs for the purpose of sexual stimulation of the viewer (§311.3)
  • any trafficking in obscene matter (§311.5 — a misdemeanor offense)
  • engaging or participating in, sponsoring, &c, obscene life conduct in public, with or without admission fee (§311.6 — a misdemeanor offense)
  • extortion (§518)

(A quick note about this last one.  ”Extortion” is defined as “the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” So literally, under the CASE Act, one who “deprives of violates the personal liberty of another” — we’ll define that shortly, but extortion necessarily does so — becomes guilty of human trafficking even if there’s nothing sexual about it. That is sloppy, sloppy legislative drafting.)

If “prostitution” and “obscenity” and the like were narrowly defined, this would be as much of a problem. But, as seen above, they aren’t. Take the definition of prostitution in California Penal Code § 266:

Every person who inveigles or entices any unmarried female, of previous chaste character, under the age of 18 years, into any house of ill fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any man; and every person who aids or assists in such inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man,

You can see how the CASE Act may seriously deter patronage of prostitutes overall, even though it’s not being marketed that way. That’s fine if one’s intent is to eliminate prostitution by attaching the potential of extremely severe penalties to it — but, again, that’s not how the CASE Act is being marketed.

Similarly, it may seriously deter non-marital sex, sexual activities (even short of intercourse) involving minors, pornography, obscenity, and anything that is conceivably extortion.  This little proposition has the potential to make a major felony out of all sorts of deviations from sexual probity — and no one seems to realize it or debate it in those terms.

Of course, inducing or engaging in all of these activities is only a problem if it “deprives or violates the personal liberty of another,” which I helpfully put in bold above.  What does that mean?  Luckily for us, this term is defined in §(h)(3):

“Deprivation or violation of the personal liberty of another” includes substantial and sustained restriction of another’s liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out.

(This is what statutory analysis is like, by the way.  Now we have to look through a bunch of other stuff.)


Turning “commercial sex acts” into “human trafficking”

How likely is it, though, that someone giving a minor a gift that results in a agreement to perform a sexual act could be charged with involvement in freaking human sexual trafficking? Well, it depends on the definitions assigned to a set of related terms like “force,” “coercion,” and “duress.”

With a long list like “force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person,” the chain is as weak as its weakest link. Many of these terms for how one could engage in deprivation of liberty are defined in the statute; I’ll just pick out a few of them.

Let’s start with “coercion,” defined in  §(h)(1):

Coercion includes any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; the abuse or threatened abuse of the legal process; debt bondage; or the provision and facilitation of any controlled substance to a person with the intent to impair said person’s judgment.

So sharing drugs with someone could be enough for “coercion.” That does happen in some relationships, doesn’t it?  (I’m not sure whether, for someone under 21, alcohol would be considered a “controlled substance,” but I wouldn’t be surprised. Marijuana certainly is.) What interests me, though, is the phrase “serious harm” — how is that defined? Check  §(h)(8):

“Serious harm” includes any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all of the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor, services, or commercial sexual acts in order to avoid incurring that harm.

So if a woman without many resources stays in a relationship with a man — not someone who is abusing her physically or psychologically, mind you, just some guy — feels that she has to stay in the relationship because of a “pattern” (meaning it need not be intentional) that would mean that if she left him she would suffer psychologically or financially, that could constitute “serious harm.” Or if a high school junior dating a high school senior is worried about breaking up because of the prospect that he will tell others at school that she was performing oral sex on him, that also counts as “serious harm.” And if either the man or the boy are providing the woman or girl with drugs that impair judgment — that too could be “serious harm.”

Of course, “serious harm” only puts one in jeopardy for arrest for “human trafficking” if it leads to “commercial sexual acts,” so maybe this shouldn’t be worrisome. Unfortunately, as we’ve seen, the term “commercial sex acts” can also be stretched to include sex that involves gift or receipt of “anything of value.”

I think I won’t bother going over the definitions of “fear,” “deceit,” “duress,” and the rest. (Well, OK, I can’t resist — “duress” is defined to include an “implied threat of hardship.”  How often does that happen?  Prop 35 could almost be entitled the “Don’t You Dare Break Up With Your Girlfriend” Act.)


OK, seriously — could people really get prosecuted for all of this?

The first question is whether someone could get arrested for it.

One problem with a law that may literally be broad enough to take

  • production of obscene materials
  • any sex act (not just intercourse) with someone underage, even if you’re underage too
  • rooming with someone you should realize is engaged in commercial sex acts (broadly defined)having sex with a prostitute who (whatever his or her appearance) may turn out to be underage (and “she looked like she was 25? is explicitly ruled out as a defense in the CASE Act itself)
  • creating a situation where a financially dependent lover or one worried about her reputation or one to which you’ve provided marijuana, does not feel that she can exit a relationship without “serious harm”,

and turn them from non-crimes or misdemeanors or in some cases penalties with little punishment into arrests for human freaking trafficking (with the punishments set forth above) is that it gives the police a lot of discretion. Remember, you could now be arrested on suspicion of “human trafficking”; it doesn’t have to be something that your partner demands of the police.

Now, you’re looking at a prospect of many years in jail, having to register as a sex offender, having to notify the government every time you create a new internet account — it’s all in there — and more.  And you’re waiting for word to get out that you’ve been arrested for human trafficking – like the people who kidnapped that 15-year-old in the paragraph with which this story begins.

Let’s say the prosecutor comes to you and says “OK, we’re willing to put aside the human trafficking charge if you’ll plead guilty to this misdemeanor” (“which we otherwise couldn’t prove,” the prosecutor will not add.) What are you going to do?

I don’t know whether the furthest reaches of this law as written would pass muster in court. I am confident that a lot of people will, in order to avoid the worst consequences of the law, will plead guilty to almost anything to escape that possibility. So the question is less “what will happen in court” than “what will happen to people desperate not to find out what happens to them in court.”

I’d be remiss if I didn’t note that the police discretion possible under this law could mean that it could be selectively aimed at gays and lesbians, at political dissidents, at interracial couples, at religious minorities, etc. Someone calls in a tip that they think that “human trafficking” is taking place and we’re off to the races. It’s a really broad law.


The perverse effect of Prop 35 could be less police focus on real prototypical human trafficking

Perhaps the saddest thing about Prop 35 is that by expanding and diluting the meaning of “human trafficking,” it makes it easier for police and prosecutors to ignore the real thing, where it occurs. Why is that? It’s because once relatively minor activities get lumped into the category of “human trafficking,” police and prosecutors can get credit for fighting “human trafficking” by pursuing those minor violations rather than trying to find the people who killed and enslaved that 15-year-old girl in the first example above.

Real human traffickers are likely to be dangerous. What this law does is to create so many “soft targets” that police and prosecutors could get awards for fighting “human trafficking” without ever having to confront anyone who is actually engaged in what you and I currently think of as “human trafficking.”

There is precedent for this.  Marijuana joins heroin, meth, cocaine, PCP, and the like on the DEA’s “Schedule 1? of dangerous “hard” drugs.  Are police more likely to take the risk to break up a meth lab, or to arrest some high school student for having a quarter-ounce of pot, if both lead to their being able to proclaim their success in fighting the “War on Drugs”?

My fear if Prop 35 passes is that we see a lot more bogus “success” against human trafficking while real human traffickers bribe police to look the other way.


Take it back to the workshop and FIX IT before it becomes law

I think that society does need to focus more on fighting real human trafficking. Some parts of the CASE Act strike me as useful; others as worth considering. As a whole, though, it’s an example of sloppy and reckless legislative drafting with little regard for civil rights or for creating perverse incentives.

It didn’t have to be that way. This is why we send laws through the legislature, to allow legislative committee staff to check their every implication and fix the problems before they become law. If a bill is passed as an initiative like this, the ability of the legislature to amend it is constrained.

The Sacramento Bee, in a very sympathetic article about Daphne Phung, the sponsor of the bill, said this:

Phung spent enough time in the Capitol to realize she could not persuade Democrats in the Legislature to approve longer sentences for human trafficking. Lawmakers are trying to reduce the prison population because of the federal court order requiring it and to cut costs.

If ever a red flag existed, this is it. (Yes, the idea that, as with marijuana laws, bogus prosecutions of people for human trafficking could push real criminals out of jail is just one of the many problems I haven’t yet mentioned.)

I would like to credit Daphne Phung with a big success here.  The notion that the legislature would not pursue a normal statute, with the normal protections that process entails, after the preliminary success of Prop 35 in initial polls and endorsements is almost absurd. Congratulations, Ms. Phung, you have gotten the legislature’s attention. That is, no sarcasm here, a serious accomplishment.  The question is: what do we do now?

One possibility is to pass Prop 35.  It seems like few people are reading this law, though, because they think that they can’t politically afford to oppose it due to its title and the horror stories it invokes. That is a dereliction of duty on the part of the political and legal community, who are supposed to be willing to stand up and take a hit if necessary to prevent a dangerous law from getting onto the books. The mere fact that the CASE Act may suddenly change a current misdemeanor into a 12-20 year felony should be of grave concern, shouldn’t it? Doesn’t the way that it turns extortion into human trafficking — read §6(b)! – should give anyone pause.

The other possibility is to take the CASE Act back to the workshop, eliminate the bugs in it, and send it back through the legislature, where the unexpected problems that arise can be more easily fixed.

A final note: By the way, the law also applies these same terms against “human trafficking” to employment situations.  Some workers are held in slavery conditions and that needs to be fought much harder. But there, too, the reach of this law is astoundingly broad. (Just try applying that analysis of “coercion” to a sweatshop.) I expect that, once Prop 35 passes, as a plaintiff’s employment lawyer I’ll be making great use of the CASE Act by charging employers, when appropriate, with coercive human trafficking; if the law gives me that power, I’d be derelict not to use it.  Is that really what the voters of the state want?

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