Under Proposition 35, you'd be surprised
SEX 2012 Anabelle was 20 when she was kicked out of her parents' house. The way she tells it, she was suffering from mental health issues and desperate for money. So she agreed to work in the sex industry — for a man who said that she would be doing masturbation shows that wouldn't involve physical contact with customers.
But the man put up ads on Craigslist advertising sex with her. He sexually assaulted her. "I was in a situation that really coercive," Anabelle, who asked us not to use her real name, recalled on the phone with me, voice shaking.
"He took me by his place but he also took me to a hotel room that he had rented," she said. "I definitely felt like I was being held. He was around except when I was with a customer."
"I don't know how long he was intending to keep me there."
She didn't have to find out. Anabelle was able to escape. But the trauma and shame would stay with her.
"The next day I started peeing blood and I went to the ER, but I didn't let them do a pelvic exam. It wasn't clear if it came from an infection or some other thing, so I didn't tell them what had happened," she recalled.
Anabelle sees herself as a victim of sex trafficking. Stories like hers are driving Proposition 35, a statewide ballot measure called the Californians Against Slavery and Exploitation (CASE) Act.
But Anabelle isn't supporting the CASE Act. And her arguments — and those of sex workers and their supporters — paint a very different picture of a law that could hurt the people it's supposed to protect.
The CASE Act would increase prison sentences for sex trafficking. It would mandate that convicted traffickers register, for life, as sex offenders, and would require that registered sex offenders hand over any online usernames and passwords to law enforcement.
It would also increase penalties for trafficking in humans for non-sexual purposes, as well as extortion, although neither of those are mentioned in summaries of the law or pro-Prop. 35 materials.
The act defines a person as "guilty of human trafficking" if that person "deprives or violates the personal liberty of another with the intent to effect or maintain a violation of" several parts of the California Penal Code that already exist.
"Traffickers, driven by greed, are instigating rape and torture on children and women, and treating people like lifeless and soulless things," says the CASE act website. And the stated intent of the act, to increase penalties for people who commit crimes like these, would garner little opposition.
But the CASE Act may go much farther. The ballot initiative was sponsored by billionaire and former Facebook Chief Privacy Officer Chris Kelly, who ran unsuccessfully for attorney general last year. It never got the rigorous review by legislative staff attorneys that other California bills go through. In fact, the Legislature already rejected a version of the CASE Act, citing concerns that it may have unintended consequences.
Greg Diamond, plaintiff's attorney who opposes Prop. 35, calls those consequences a "parade of horribles." Take the clause about deprivation or violation of personal liberty.
The act defines that phrase as "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."
All of the words on that list, of course, have their own legal definitions. Coercion, for example, is defined in part as "the provision and facilitation of any controlled substance to a person with the intent to impair said person's judgment."
So if a prostitute shares a joint with fellow worker, she could be guilty of providing a controlled substance, meaning she could be guilty of coercion, meaning she could be guilty of depriving personal liberty. That means triggering the harsh penalties for trafficking. And even if the person isn't likely to be convicted, the possibility of a draconian sentence could force her to accept a plea bargain.
Opponents say the same "parade of horribles" could lead to a person who drops a sex worker off at work, holds money for a fellow sex worker while he or she is at an appointment, or "unwittingly has a 17-year-old prostitute as a roommate suddenly meeting the standards" for human trafficking, Diamond said.
Everyone guilty of "human trafficking" would be subject to long prison sentences and seizure and freezing of assets.
Sex workers are already adversely affected by laws against pimping and pandering. California Penal Code 266(h) includes in the definition of pimping: "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, or from money loaned or advanced to or charged against that person."
That was written in reference to people who use the money a sex worker earns for themselves — that's what pimps do, right? But sharing money is also what partners, family, and friends do.
"The pimping statute in California is so broadly defined that it includes all our domestic partners, our domestic relationships," Maxine Doogan, president of the Erotic Service Providers Union, told the Guardian. "Our children are pimps under that legislation."
Prop. 35 would expand those laws, bringing pimping under the category of human trafficking, with all the expanded penalties that entails.
It's "an unnecessary expansion of pimping and pandering laws," said Rachel West of the US Prostitutes Collective in a statement against the measure. "Sex workers are already being wrongly prosecuted for working together as is anyone who associates with sex workers — boyfriends, husbands, even drivers and anyone hired by a woman for protection against attack."
"It seems to me that anybody who is involved in the milieu is in danger," Diamond said.
Then there's the issue of fines. The Yes on Prop. 35 campaign estimates that the law would bring in around $1.5 million, money that would be directed at "victim services."
The money would be distributed through California's Victim-Witness Assistance Fund. And 30 percent of that money would go to law enforcement agencies for "prevention, witness protection, and rescue operations," according to Section 8 of the CASE Act.
The other 70 percent would be reserved for grants for nonprofits and public agencies that provide services like housing and counseling.
It was this section of the bill that made Anabelle most wary.
"I'm concerned about the services, I would hope they would be voluntary and not mandated by the courts," she said.
As for law enforcement, she said, "with sex work still being illegal, if you give more money to law enforcement to fight trafficking, it gives more money to sex workers being arrested."
Prop. 35 isn't meant to further criminalize prostitution; it's supposed to deal solely with victims of sex trafficking and the people who force them to engage in commercial sex against their will.
But sex workers rights organizers say that they will be collateral damage in the fight against sex trafficking.
"I've heard of sex workers charged as pimps when they pass phone numbers to a fellow worker, or when they share an apartment with a fellow worker," said Carol Leigh, an activist with Bay Area Sex Worker Advocacy Network.
"In practice, in the way it's written, it expands the fees and sentences that can be applied to anyone depending on how the police want to enforce it," said Deirdre Wilson, program coordinator at the California Coalition for Women Prisoners.
Instead, Wilson said, lawmakers should "spend money to actually create viable resources for housing, recovery treatment, single mothers, vocational training, and jobs — things that people need to survive."
Sex workers rights advocates have always argued for decriminalization, saying that if they weren't afraid to reveal their work to police, they could be allies in identifying people who were being trafficked or otherwise exploited within their industry.
Anabelle, who now works in sex workers rights advocacy, agrees.
Decriminalization would "enable sex workers to actually help people without being in fear of arrest themselves," she said. "It would remove the fear of arrest from victims, because that's a big thing that keeps people from speaking out about it.
"I was afraid that if I went to law enforcement, I might be arrested," she said.
Assemblymember Tom Ammiano has free-speech concerns about the bill. The law would require people, whose crimes had nothing to do with the Internet, to turn over their online usernames and passwords, which may be unconstitutional.
"Requiring someone to turn over every email and username that they have has a chilling effect on their free speech," said Ammiano aide Carlos Alcala, who also mentioned that Ammiano has been working on a tiered approach to the sex offender registry that takes into account the severity of the crime.
Prop. 35 is well-funded and likely to win. What Californian isn't against slavery and exploitation? But State Sen. Mark Leno, who is working on legislation to address sex trafficking without the problems in Prop. 35, advises that there's often more to the picture when it comes to these initiatives:
"I always suggest, beware of billionaires who want to save your life," Leno said.