Prop 35: The tragedy of what could have been, by John Vanek

Last week I was one of three guests on this KCBS radio program.  It was prerecorded, with all of us interviewed separately, so none of us had a chance to reply to the others’ comments.  But when Chris Kelly (the major financial backer of the initiative, with approximately $2 million donated) commented that to his knowledge no trafficking survivor in California has received a civil award from their trafficker, I was perplexed to say the least.  Kelly repeated his statement during a panel discussion at USC last Tuesday, and this issue of civil judgements also appeared in this article where Kelly states, “I wish they could point to a case where a victim has sued a trafficker.  I haven’t seen one.”

Also quoted in this article, Nola Brantley, executive director of Oakland-based Motivating, Inspiring, Supporting and Serving Sexually Exploited Youth (MISSSEY) stated, “I’ve never met one girl that was able to sue her exploiter and get restitution, never.”  This is indeed sad since MISSSEY has served over 700 sexually-exploited girls.

But civil awards to survivors of trafficking are not that rare; my colleagues representing trafficking survivors have collected wages-owed, restitution, and additional damages for clients in San Francisco, Santa Clara, Los Angeles, and elsewhere.  Mr. Kelly would have known this if he had just sat down with these attorneys and service providers.

I don’t blame Kelly so much for not knowing the status of anti-trafficking efforts, I blame him for not asking!  This issue of civil remedies is just one example of what can occur when we don’t invest our time and effort in a collaborative approach to a complex issue like human trafficking, and this is the real tragedy of Proposition 35.  If the initiative passes next week, attorneys and legislators will go to work in an attempt to undo the elements of Prop 35 which will inhibit survivors from collecting everything they are due from their traffickers, and fighting the challenges created by Prop 35′s changes to the evidence code.  Human trafficking will remain a crime for which prison time is not mandatory; prosecutors and judges (the other two legs of the tripod, along with law enforcement, which is responsible for the justice system response) will still not receive the training they need; and other meaningful changes will remain, well, unchanged.

California Against Slavery and Chris Kelly could have invited a broad cross-section of anti-trafficking professionals and asked, as a multidisciplinary group, what changes to current law would be most productive to aid survivors, prosecute offenders, train all elements of the justice system, and raise public awareness.  But they chose not to.  This collaborative process is not new to anti-trafficking professionals; it is promoted by the U.S. Department of State as the 4 P Paradigm for responding to human trafficking: Prevention, Protection, Prosecution, Partnership.

How hard is it to get a large cross-section of anti-trafficking professionals in one room?  Pretty easy; this year California Attorney General Kamala Harris put together a Human Trafficking Word Group and held three day-long meetings, one each in Sacramento, San Francisco and Los Angeles.  I attended the first two, where over 40 individuals attended.  The list of subject matter experts involved in the work group has over 100 names.  It should be noted, the attendees and their organizations paid their own expenses to be part of this work group.  With a budget over $2 million, CAS and Chris Kelly could have held similar meetings if they had chosen.

If they had done so, Prop 35 might be endorsed by agencies like CAST (Coalition to Abolish Slavery and Trafficking), Asian Pacific Islander Legal Outreach, Polaris Project, ATEST (Alliance to End Slavery and Trafficking), the California Partnership to End Domestic Violence, the California Coalition Against Sexual Assault, and the Not For Sale Campaign; all organizations active in providing direct assistance to victims, advocating for legislative change, or both.  Community Solutions, a provider of services to survivors in the South Bay Area is publicly opposed to the initiative.

And if CAS and Chris Kelly had asked for broader and informed input, maybe organizations like the SAGE Project and Chab Dai USA would still be endorsing Prop 35.  Instead, both organizations have rescinded their endorsements.  The Los Angeles Times, San Francisco Examiner, Sacramento Bee, Fresno Bee, Santa Cruz Sentinel, Riverside Press-Enterprise all oppose Prop 35, a result of their concerns over the way the initiative is written.

All of the organizations and newspapers mentioned oppose human trafficking.  The reasons they do not support Prop 35 is because of the unintended consequences – all of which could have been avoided.

CAS (and, in particular, their founder and executive director, Daphne Phung) brought passion and commitment to the cause.  Chris Kelly brought $2 million and the ability to hire signature gathers to get the initiative on the ballot.  But they forgot to bring together the people who could have made Prop 35 both powerful and consequential.  They brought financial capital, but forgot the social capital.  They had the resources at hand, but made the decision not to use them.  Now the issue is in the hands of the public, most of whom have very little, if any, understanding of the complexity of human trafficking in California.

If Prop 35 passes the damage will have to be undone.  The best we can hope for is that it will fail, and nothing will have changed.  Which is very sad.  CAS and Chris Kelly had a great opportunity to make real impact but have missed it.  And that is tragic.

SAGE and Chab Dai Rescind their endorsements of Prop 35! We must ask ‘why’?, by John Vanek

This past week two organizations, each with a long history of working with survivors of human trafficking RESCINDED their prior endorsement of Prop 35!

The SAGE Project (Standing Against Global Exploitation) last Monday informed California Against Slavery / Prop 35 campaign that their board of directors was rescinding their endorsement and requesting that their name be removed from the CAS website.  The SAGE Project has a long history of work assisting victims of human trafficking and was founded in 1992 by Norma Hotaling, herself a survivor of human trafficking and commercial sexual exploitation.

Chab Dai (“joining hands”) was founded in Cambodia in 2005, and now works also in Canada and the United States to address human trafficking and exploitation through coalition building, advocacy and research.  This past Wednesday I received word of their decision to rescind their endorsement and of their request to have their name removed from the CAS website.

When two organizations of this caliber rescind – take back – their endorsements, we must take notice!  What possible agenda could they have, if not simply being concerned about the potential negative impacts of Prop 35?  Both of these organizations deserve great respect for taking a courageous stance.

We also need to understand that due to the emotional nature of this proposition, a non-endorsement (or taking “no position”) can be a very powerful statement.  We must ask ourselves, “Why are some organizations not endorsing Prop 35?”

I cannot speak to these organizations’ reasons for not endorsing, but I do ask myself, why?

CAST (Coalition to Abolish Slavery and Trafficking), which has supported prior legislation addressing human trafficking.  (CAST is quoted in this article as having concerns about unintended consequences.)

Polaris Project, a national organization, but which also works on legislation and training at the state level.

California Partnership to End Domestic Violence, and California Coalition Against Sexual Assault, collaborative groups which are involved in supporting legislative efforts.

Community Solutions, another long-time provider of assistance to survivors and deeply involved in collaboration with a host of other anti-trafficking organizations has publicly stated their opposition.

Food for thought…

And also this past week, the San Jose City Council decided to take “no position” on Prop 35, when three weeks ago they were prepared to endorse the initiative.  They changed their mind after receiving input from anti-trafficking experts with experience in providing services to survivors, civil and immigration assistance to trafficking survivors, and the need for a multidisciplinary, collaborative response.

Finally, as we get closer to election day more newspapers are opposing Prop 35.  Again, ask why?  Could it be that by waiting to take a closer examination and by reaching out to experienced anti-trafficking organizations for input they realized the harmful consequences buried beneath the emotional response of higher prison sentencing?  You decide.  (Click here for editorials.)

There can be no agenda in opposing Prop 35.  It is opposed because it is NOT a good initiative.  Vote NO on Prop 35.

Ways to learn more about the response to human trafficking in California, and the implications of Prop 35, by John Vanek

Human trafficking is very complex subject, and the response to human trafficking is even more complex.  It is the very complexity that makes discussing Prop 35 so difficult, especially in limited news bites: to really understand the impacts of Prop 35 (whether you consider them positive or negative), you must first understand the complexity of human trafficking and the work of anti-trafficking experts.  Voting in favor of Prop 35 simply because, for example, it raises prison sentencing and this will reduce the incident of trafficking (in the opinion of Prop 35 supporters) does an injustice to both the victims, and those who assist victims.  If you really care about this issue, there are opportunities to learn more.

On October 23rd, Stanford University’s Program on Human Rights will host a panel discussion on Prop 35.

On October 24th, USC Annenberg Center on Communication Leadership and Policy will host a panel discussion.

And on November 1-2 the Global Forum on Human Trafficking presented by the Not For Sale Campaign will include a discussion of the proposition.

Also, for some excellent background on the creation of anti-trafficking law in California, read this article from the Pacific Standard written by three experts in anti-trafficking law, including Kathleen Kim (author of a post on this blog) and Cindy Liou (who will be on the Stanford panel).

We owe it to the victims of slavery to really understand this complex dynamic, and to vote with knowledge as well as passion.

Prop. 35 tackles child sex-trafficking, by Ami Carpenter

(This opinion originally appeared in U-T San Diego, and is contributed with the permission of the author.)

Nine years ago, the FBI identified San Diego as a “High Intensity Child Prostitution Area.” Child prostitution is also known as commercial sexual exploitation of children, in which a child is exploited for sexual purposes to financially benefit one or more parties. Experts estimate that the average age of children being prostituted in San Diego is between 14 and 18 years old, and girls as young as 12 are being prostituted on National City Boulevard and El Cajon Boulevard.

Proposition 35 or “Californians Against Sexual Exploitation Act” (CASE Act) proposes new state legislation to strengthen laws to combat human and child sex trafficking, and stiffen penalties for traffickers. Prison time is increased for child sex traffickers, as well as fines up to $1 million for anyone who “causes, induces, persuades or attempts to cause, induce or persuade, a person who is a minor” to engage in a commercial sex act. Jail time increases 15 years to life when offenders use force. Prop. 35 requires human trafficking training for law enforcement and would require sex traffickers to register as sex offenders. Criminal defense counsel can no longer use a victim’s sexual history to impeach or prove criminal liability of trafficked victims.

Prop. 35 has been endorsed by elected officials and the California Democratic Party, the California Republican Party, the California Teachers Association, and hundreds of organizations including law enforcement organizations, advocacy and faith organizations and local retailers and service organizations. The statute is not without criticism, however.

First, according to guidelines authored by the Polaris Project, CASE contains problematic language that is out of line with federal legislation. Among instances, CASE does not augment the term “commercial sex act” with “sexually explicit performance,” a clause covering a broader range of acts including forcing trafficked women into “exotic dancing.” CASE’s definition of “coercion” is overly narrow, lacking reference to blackmail, holding of passports/immigration/government identification documents, or threatening to cause financial harm. Also no mention is made to criminal liability of business entities – the support structure of trafficking networks. For example in San Diego County, prostitution of children and adults is moving from the street into hotels.

Second, aspects of Prop. 35 actually make it more difficult to prosecute traffickers. For one thing, Penal Code 266 – Pimping and Pandering – is not included in the proposed statute. Pimps are traffickers, but current penalties under 266 are much lighter; jail time between three, six and eight years for convictions involving minors, or a fine not exceeding $10,000.

Another difficulty for prosecutors involves changes to the California laws that govern how and what evidence can be received by the court. Section 1161 (a) potentially bars misdemeanor prostitution prosecutions that permit law enforcement, in partnership with victim service organizations, to remove victims from their traffickers. Section 1161 (b) prevents prosecutors from using past commercial sex history to attack the credibility of a victim. This sounds reasonable enough, however, victims often recant on the stand when they have to speak the truth in front of their trafficker. Evidence of exploitation often emerges when detectives “attack the credibility” of the story that “nothing happened” by referring to prior arrests, previous statements to detectives and other evidence of commercial sex acts.

Ami Carpenter is an Assistant Professor at the Joan B. Kroc School of Peace Studies at University of San Diego. She holds a PhD from George Mason University and has taught courses on international, community and organizational conflict prevention and resolution at George Mason University (Arlington, Virginia), National Taurida Vernatsky University (Simferopol, Ukraine), and California State University (Dominguez Hills).

Proposition 35: A shotgun approach to a complex issue, by John Vanek

Let’s compare California’s history addressing human trafficking-related law with the approach taken by California Against Slavery and their CASE Act initiative.

Including 2005′s Assembly Bill 22 (Lieber), which established the crime of human trafficking in the state, there have been seventeen trafficking-related bills passed by the legislature.  With the exception of the 2007 bill which established Human Trafficking Day, the others each address specific areas affecting California’s response to this heinous crime.  Seventeen bills passed within seven years should be evidence enough that the legislature is paying attention to human trafficking, and to those who are working to assist victims and reduce in the incidence of trafficking in California, by carefully expanding the laws.  This approach takes into account that human trafficking (both the driving factors and the areas of response) are filled with complexity.  It is a thoughtful and collaborative approach that so far has avoided unintended consequences harmful to trafficking victims or the broader response.

California Against Slavery clearly wants to reduce the incidence of trafficking in California, but their initiative is so broad, touching on so many elements, the potential for unintended or unforeseen consequences is tremendous.

Examining the CASE Act, we find:

• Two different changes to the California Evidence Code which, in the opinion of some prosecutors, could make charging PC 236.1 more difficult, and open ground for court challenges upon appealing any conviction.
• A change to, and broadening of, the definition of human trafficking which conflates human trafficking and sexual exploitation.
• Increases the sentencing structure upon conviction for human trafficking, but does not place human trafficking on the list of non-probation eligible offenses, meaning, those convicted of human trafficking could still avoid prison.  (This comes as a surprise to many supporters of the CASE Act.)
• Give the courts authority to fine those convicted of human trafficking up to $1,000,000, with 30% going to the law enforcement agencies prosecuting the offense and the remainder to the State for funding victim-services providers, making these funds unavailable for the victims to receive as wages-owed, restitution, or damages.
• Mandates those convicted of human trafficking for sex exploitation register as Sex Offenders.  This conflates sex predators and those who exploit for commercial gain; both terrible acts, but two very different things.
• Adds to the list of information sex registrants must report to police, information related to their internet service providers, internet identifiers, and any additions or changes.
• Mandates training for law enforcement.

This last element, frankly, has me shaking my head.  The CASE Act imposes “a minimum of two hours of training in the course or courses of instruction…as described in subdivision (a)…“  (This is referring to the subdivision, passed as part of California’s initial human trafficking law, which addressed the training law enforcement should receive on human trafficking.  The initial law did not impose the length of training, only the content.)

Subdivision (a) states the courses of instruction, “…shall stress the dynamics and manifestations of human trafficking, identifying and communicating with victims, providing documentation…required by federal law, collaboration with federal law enforcement officials, therapeutically appropriate investigative techniques, the availability of civil and immigration remedies and community resources, and protection of the victim.“  That is a lot of complex information to put into that “minimum of two hours”!  While I am a huge supporter of training, Californians must also realize that law enforcement staffing is critically low in many areas of the state, and imposing this structure will be very costly and could prove counter-productive.  (There are other, better, training options, including the Human Trafficking of Minors course; an 8-hour course offered 18 times a year across the state.  It is free for attendees (funded by a grant from CalEMA), is taught by a cadre of experienced practitioners, and has proven effective for both detectives working on human trafficking cases and patrol officers.)

So there are eight different ways (at least) Prop 35 impacts the multidimensional response to human trafficking in California, many with the potential for harmful unintended or unforeseen consequences.  This shotgun approach to a complex dynamic is the wrong way to improve the response to human trafficking.

Daphne Phung, the executive director and founder of California Against Slavery, likes to say Prop 35 is, “Just the start”, and that the law can be changed in the future.

Perhaps.  But why create bad law in the first place?

John Vanek is a consultant on anti-human trafficking efforts.  He retired in the rank of lieutenant from the San Jose Police Department, where he managed the Human Trafficking Task Force program from 2006-2011.

Analysis of the CASE Act, by Kathleen Kim

Federal laws to combat human trafficking are derived from the 13^th Amendment’s promise to protect freedom of labor by abolishing slavery and involuntary servitude in all its forms.  In 2005, California enacted its own comprehensive anti-human trafficking law recognizing that forced labor, whether in the sex industry, garment factories, agricultural fields, construction, hotels or restaurants, could not be tolerated.  That’s why the authors of AB 22, the California Trafficking Victims Protection Act (CA TVPA), a unique alliance of progressive legislators and advocates who were directly working with human trafficking survivors as social workers, lawyers, and law enforcement, defined human trafficking in the spirit of the 13^th Amendment, as the deprivation of “the personal liberty of another… to obtain forced labor or services.” CA Penal Code Sec. 236.1.

The aim of the law was to not only criminalize human trafficking in California, but more importantly, to advance the rights of human trafficking survivors by providing them with access to social services, immigration and civil relief and mandatory restitution.  The Californians Against Sexual Exploitation (CASE) Act, an initiative on the November ballot, will take these advancements backwards.  The CASE Act states that its primary purpose is “to combat the crime of human trafficking and ensure just and effective punishment of people who promote or engage in the crime of human trafficking.”  Yet, both our federal and our current California anti-trafficking laws already “combat the trafficking in persons” and take the additional step to “protect the victims.” Trafficking Victims Protection Act (TVPA).  Instead of promoting the positive rights of human trafficking survivors, the CASE Act focuses solely on prohibition, pouring more resources into the criminalization of trafficking, while simultaneously taking away protection and relief for victims.

First, the CASE Act circumvents compensation for victims from their traffickers by requiring that prosecuted traffickers hand over up to one million dollars in fines to the state without a set aside for direct victim restitution or civil relief.  While the fines are intended to go to both governmental agencies and non-governmental service providers, this mandatory fine ultimately depletes the source of funds that under the current CA TVPA would directly go to the trafficking victims who would be entitled to hundreds of thousands of dollars in damages for enduring forced labor conditions of little to no pay, restriction of movement and severe psychological and physical abuse.  Unwittingly, the CASE Act makes traffickers judgment proof and impracticable defendants in civil court for the direct victims of their abuse.

Second, the CASE Act misconstrues the nature of human trafficking by conflating sexual exploitation with human trafficking.  Both human trafficking and sexual exploitation are serious human rights abuses that deserve legal enforcement mechanisms specific to the phenomenon of each.  Human trafficking evolves from a lineage of 13^th Amendment abuses including chattel slavery, peonage, involuntary servitude and now forced labor.  When enacting the federal TVPA, Congress recognized that “[t]rafficking in persons is not limited to the sex industry. This growing transnational crime also includes forced labor and involves significant violations of labor, public health, and human rights standards worldwide.”  Although some victims of trafficking are also victims of sexual exploitation, particularly in cases of commercial sex trafficking, sexual exploitation refers to a broad category of criminal conduct that includes non-commercial sexual assault and abuse.  The conflation of trafficking with sexual exploitation, promotes a distorted message about the sociological dimensions of each.  In order to combat trafficking effectively, the laws must address the dynamics of trafficking which involve intricate interactions between global labor migration, poverty, race, and gender.

Finally, the CASE Act disempowers trafficking victims by specifying a hierarchy of penalties for trafficking-related offenses.  Trafficking is a crime of forced labor, yet the CASE Act increases penalties for sexual exploitation at a level much higher than labor trafficking.  The Act provides for five, eight and twelve year sentences for crimes of labor trafficking and increases penalties for sexual exploitation to eight, fourteen and twenty years.  Sexual exploitation of minors receives a sentence of at least fifteen years to life with no similar sentencing enhancement for labor exploitation of minors.  California anti-trafficking laws already criminalize trafficking and punish traffickers in a manner that captures all forms of human trafficking, while giving prosecutors and courts the discretion to determine sentencing enhancements given the facts of the case.  Additional criminal penalties are superfluous.  Moreover, a ballot initiative that creates a sentencing hierarchy, prioritizing some forms of trafficking over others, denigrates the experience of victims of forced labor who are compelled to toil in unconscionable working conditions for hours on end with little to no pay under threat of retaliation if they refuse to comply.

As the title of the law indicates, the CASE Act is focused on criminalizing sexual exploitation, an important cause, deserving of Californians’ concern.  However, for Californians who want to prevent human trafficking and protect its victims, it’s important to recognize that California’s current anti-trafficking enforcement structure has served as a model for states across the nation because it not only criminalizes traffickers but also protects victims’ rights and access to civil relief.

Kathleen Kim is a professor of law at Loyola Law School, where she teaches and writes in the areas of immigrants’ rights and human trafficking.  Before joining Loyola Law School, Kathleen’s civil rights practice focused on civil litigation on behalf of human trafficking survivors.  She is a co-author of AB 22, the California Trafficking Victims Protection Act, and was a gubernatorial appointee to the California Alliance to Combat Trafficking and Slavery coordinated by the California Attorney General’s office. 

Proposition 35 Devalues the Victims and Their Needs, by Jody Ketcheside

There seems to be a divide among those opposing Proposition 35.  People are opposing it for very different reasons, depending on their back grounds.  I have read opposition from those working in sex trades, attorneys that take issue with the drafting of it and the logistics of it, and then there are people like me who work with victims of human trafficking.  My opposition comes from a place of concern for those that are victims of true human trafficking.  I have come to learn in my years of experience working with this population, that victims of human trafficking are a unique victim population with unique needs.  They come from a place of fear, desperation, and have been “beaten” so far into submission that the inability to gain trust in anyone is almost impossible to break through.  They have been enslaved, beaten, raped, denied hygiene needs, denied food, imprisoned, isolated, and forced to avoid interaction with anyone who might be able to help them.

Since the funding of the Rescue and Restore Victims of Human Trafficking grants by the U.S. Department of Health and Human Services, a great deal of progress has been made in serving this unique victim population, creating a group of people of people who have become specialized in serving them.  Coalitions to combat human trafficking have formed all over the country, bringing service providers and law enforcement together to create a continuum of care for those who have been trafficked.  Great strides have been made in learning to appropriately serve a population whose needs, in my experience, far exceed those of most other victim populations.  Proposition 35 is premature, and assumes that California’s existing law isn’t working.  The war on trafficking is relatively new, with many communities still deciphering the difference between sex trafficking and prostitution, or still digesting the fact that labor trafficking is taking place in their communities.  When so much research and work has taken place to appropriately serve victims of human trafficking, why would Proposition 35 run the risk of lumping people into the category of human trafficking who are not victims of human trafficking, or making a sentencing distinction between labor and sex traffickers?  Why would a child whose picture was circulated by someone who never met the person circulating it be considered a victim of human trafficking?  Why would someone who was a victim of labor trafficking have to see their trafficker put away for less time than a sex trafficking victim?  Slavery is slavery, and the minute we start placing a lesser value on one type of slavery over another, we send the message that one victim is less validated in their experience than the other.  A labor trafficking victim is often sexually abused, not necessarily trafficked, but abused nonetheless.  After all the work that has been done to empower people experiencing slavery in our country, are we really ready to take that from them by valuing one form of slavery as worse than the other?

There are several issues with the way this proposition is written, but my main concern is protecting the integrity of what we, as service providers, have accomplished in the last few years in terms of serving and empowering victims of human trafficking to transition to survivors of human trafficking.

Jody Ketcheside was the founding Program Manager for Central Valley Freedom Coalition under a grant funded to Fresno EOC by U.S. Department of Health and Human Services.  She has 13 years’ experience working in residential settings with victims of both sex and labor trafficking.