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.