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.