By:  Noam Perry, Justice Studies Visiting Professor

There are many ways in which the existing policies against human trafficking could be improved.  New policies should be evaluated based on how well they actually prevent trafficking, empower trafficked victims, and secure their human rights.  Prop. 35 will do none of those.

If passed, Proposition 35 would increase prison terms for human traffickers, require sex traffickers to register as sex offenders, impose on them criminal fines that would fund services for trafficking victims, and mandate law enforcement training on human trafficking.  Who could oppose this?  I do, and so do local human rights organizations like the Ella Baker Center, the California Civil Rights Coalition, and the San José Peace & Justice Center.  Others have already argued that, even from a law enforcement perspective, the risks resulting from this proposition outweigh its potential benefits.  What I argue here is that this proposition, while indeed well intentioned, impedes human rights instead of fortifying them.

First, Prop. 35 has unintended consequences that would compromise the rights of trafficked victims.  The most glaring oversight on the part of its drafters has to do with the well intentioned idea of funding anti-trafficking programs using mandatory criminal fines on traffickers.  As recently argued by attorneys who have been defending the rights of victims, these fines would actually limit the ability of victims to receive compensation through suing their traffickers in civil court.  While no one argues that traffickers should not pay for their criminal acts, the criminal justice system has a bad record of exploiting the victims further, bullying them into assisting in the prosecution of their traffickers, either by arresting them or abusing their status as undocumented noncitizens.  In contrast, civil cases are driven by the desires and best interests of victims, and lead to better compensation for them.  The largest cases in the country, sometimes involving more than a hundred victims, are fought in civil cases.

Second, Prop. 35 would also significantly compromise the rights of adults working in the sex industry.  Sex workers, who are always marginalized and silenced during discussions “sex trafficking,” oppose this initiative as it would further their marginalization and would make them even more vulnerable to violence and harassment by law enforcement.  Even people who do not agree with their positions must realize that Prop. 35 covers activities that do not amount to actual “sexual slavery,” such as the distribution of obscene materials depicting minors, even when the person doing so has no actual contact with the minors.  There is growing evidence worldwide that these kinds of “tough-on-crime” anti-trafficking policies end up causing more harm than good, especially hurting the people they purport to help.  Any anti-trafficking policy must be informed by the lived experience of sex workers.

Lastly, Prop. 35 diverts attention from the worst human rights abuses.  It furthers the already prevalent conflation of “human trafficking” with “prostitution.”  State and local law enforcement agencies in the U.S. are already too narrowly focused on human trafficking in the sex industry, while neglecting to investigate slavery conditions prevalent in other economic sectors, like agriculture and domestic work.  Prop. 35 would further this unjust divide, and would make it easier for police departments to seem as if they are “cracking down on trafficking,” when really all they do is investigate the cases that are easiest to pursue.  This violates the human rights of victims of labor trafficking to be equally protected from violence and abuse.

There are many ways in which our response to human trafficking could be improved, and Prop. 35 does have some good points.  For example, there is no doubt that victim service providers are in dire need of more funding, and in the current budgetary climate, using funds extracted from convicted traffickers is not a bad way to do so.  But the proposition has no language indicating which organizations would qualify to benefit from these funds.  Without such language there is risk that funds would be distributed in a way that again prioritizes sex trafficking over labor trafficking, or in a way that excludes organizations that advocate for sex workers rights.  Likewise, training for law enforcement is a good idea, as research shows that it increases the identification and investigation of human trafficking cases.  But Prop. 35 is silent on the kind of training that law enforcement agents would be mandated to undergo.  If it follows from the spirit of the proposition, this training would only focus on sex trafficking of minors.  We must ensure that this training helps police departments identify and investigate cases they have so far failed to respond to – primarily trafficking of workers in domestic work and agriculture.

Early polls indicate that Prop. 35 is going to pass.  My guess is that most voters are not aware of the complexities outlined above, and will vote based on their gut reaction to the title of the proposition (again, who on earth could be for human trafficking and sexual exploitation?).  This brings me to the most dangerous outcome of this proposition, i.e. its potential to suppress better policies.  Consider, for example, the recent attempt to pass a Domestic Workers Bill of Rights in California, which was vetoed by Governor Brown.  This bill would have amended current labor laws that deny domestic workers the basic rights and protections that workers enjoy in any other economic sector.  Had it passed, this bill would have prevented human trafficking better than any crime control policy, by removing the discrimination that makes individuals vulnerable to exploitation in the first place.  If Prop. 35 passes, human rights-based initiatives like this would be even more difficult to pass, as the legislature and public would be under the (false) impression that California is successfully dealing with human trafficking.

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