Prop. 35 CASE Act Undermines Victims' Rights

Professor Kathleen Kim, Kevin Kish and Cindy Liou

This op-ed originally appeared in Pacific Standard.

This November, voters will consider Proposition 35, also known as the "CASE Act" for "Californians Against Sexual Exploitation." The name of the law is designed to draw automatic support: Who, after all, would be in favor of sexual exploitation? The initiative's supporters, who include concerned citizens and former Facebook executive, Chris Kelly, are committed to increasing fines and prison sentences for certain forms of sex trafficking, and their intentions are beyond reproach. Unfortunately, what the CASE Act actually does is to tinker inexpertly with California's comprehensive laws combating all forms of human trafficking, laws that have served as a model for states across the nation. For over a decade, we, the authors have collectively assisted hundreds of trafficking survivors assert their rights in criminal, civil and immigration actions. Our experience informs us that by taking a predominantly criminal enforcement approach and conflating human trafficking with sexual exploitation, the CASE Act, however unwittingly, will change our current anti-trafficking laws in ways that disempower the actual survivors of human trafficking.

When the 13th Amendment to the United States Constitution was adopted in 1865, our nation made a simple promise of commanding power: "Neither slavery nor involuntary servitude... shall exist within the United States, or any place subject to their jurisdiction." That promise is still being tested. Every year, the State Department estimates that tens of thousands of men, women and children are trafficked to this country - and between the states - and put to work against their will. California is a major point of entry and a destination for traffickers and their victims, who are forced to work not only in the sex industry, but also in garment factories, agricultural fields, construction sites, hotels and restaurants, and as domestic servants in our neighbors' homes.

Some contemporary trafficking cases involve conditions much like the chattel slavery abolished by the 13th Amendment, in which human beings were bought and sold as property. Still more cases involve psychological coercion, deception or fraud: depriving people of liberty by convincing them that harm could come to them or their loved ones if they stop working.

In 2005, a unique alliance of California legislators and advocates came together to confront this injustice and extend the promise of the 13th Amendment to the victims of modern forms of unfree labor. Social workers, lawyers and law enforcement officials - all of whom worked directly with human trafficking survivors - authored the California Trafficking Victims Protection Act, California's comprehensive anti-human trafficking law. The law criminalized human trafficking, but that was not its only aim: As important, it advanced the rights of human trafficking survivors through a victim-centered, human-rights framework by providing them with access to social services, a path to immigration relief under federal law, mandatory restitution and a robust civil cause of action. Prop 35 will roll back these protections.

First, Prop 35 requires prosecuted traffickers to pay up to $1.5 million dollars in fines to unidentified governmental agencies and non-governmental service providers, in addition to existing criminal fines. Yet the law does not set aside any of this money for the actual victims of trafficking, whether in the form of restitution in a criminal case or damages in a civil action. If all human traffickers were multi-millionaires, this requirement would be of little concern. But most are not. The mandatory fine will therefore deplete or eliminate trafficker's assets that under current law go directly to the victims of forced labor. Prop 35, in its laudable determination to ensure that traffickers do not profit from their crimes, has the perverse effect of making traffickers "judgment proof" and diverting money away from trafficking survivors.

Second, Prop 35 revises the penal code to create a hierarchy of penalties for trafficking-related offenses, increasing sentences for sexual exploitation to levels drastically higher than those for labor trafficking. California's existing law was carefully designed to provide a range of potential sentences for convicted traffickers, giving prosecutors and courts the discretion to determine sentencing enhancements based on the facts of each case, which can range from situations of physical bondage to far more subtle forms of coercion.

Crucially, existing law was designed to ensure that all forms of trafficking are viewed and punished with equal seriousness, no matter where or in what industries the victims are forced to work. Prop 35 obliterates this carefully calibrated system, replacing the considered judgment of the legislature and advocates who work with survivors with a sentencing regime that prioritizes some forms of trafficking over others. This is a result that the drafters of California's anti-trafficking laws sought to avoid. Again, the supporters of Prop 35 cannot be faulted for their desire to see sex traffickers punished severely for their crimes, but the creation of an arbitrary sentencing hierarchy denigrates the experience of victims of forced labor who toil in sweatshops and fields instead of in brothels and on the streets.

Finally, by conflating sexual exploitation with human trafficking, Prop 35 misconstrues both types of abuse. Certainly, some victims of trafficking are also victims of sexual exploitation, particularly in cases of commercial sex trafficking. But sexual exploitation refers to a broad category of criminal conduct that includes non-commercial sexual assault and abuse. Human trafficking - defined by state law as the deprivation of personal liberty for the purposes of obtaining forced labor or services, including sexual labor - is a distinct phenomenon in the ignoble lineage of slavery, debt bondage and involuntary servitude.

Before the passage of California's landmark anti-trafficking statute, many trafficking cases could be prosecuted only by invoking a panoply of different laws - labor code violations for non-payment of earned wages, tort claims of false imprisonment and invasion of privacy - that did not, alone or together, accurately recognize human trafficking as a unique crime involving unique harms. This type of clarity matters. Accurately defining different crimes allows us to better identify and remedy the harms suffered by victims, and to fashion just punishments for perpetrators. Prop 35 ignores the specific legal and social dimensions of both sexual exploitation and human trafficking, to the detriment of victims of both.

There are many issues affecting victims of both trafficking and sexual exploitation that would benefit from the attention and resources devoted to this misguided initiative. The federal Trafficking Victims Protection Act, originally passed in 2000, provides vital legal protections for survivors but its funding appropriations expired in 2011. It has been awaiting reauthorization by Congress for nearly a year. On the state level, voters can support legislation like AB 1899 which will allow certain survivors of trafficking, domestic violence and other serious crimes to qualify for in-state tuition and financial aid programs. Or AB 2466, which allows courts to freeze assets held by traffickers so that they cannot hide or transfer property once they have been indicted. Most directly, those concerned about human trafficking in California can volunteer their time and talent with organizations that provide shelter and services to survivors across the state.

Any revision of California's anti-trafficking laws should advance the rights of survivors. Despite the best intentions, Prop 35 does not pass that test.

Kathleen Kim is a professor at Loyola Law School, Los Angeles, a civil rights attorney on behalf of human trafficking survivors and a co-author of AB 22. Kevin Kish is director of the Employment Rights Project at Bet Tzedek in Los Angeles and provides civil legal representation to exploited workers and human trafficking survivors. Cindy Liou provides comprehensive legal services to human trafficking survivors as the coordinating attorney of the Human Trafficking Project at Asian Pacific Islander Legal Outreach in San Francisco.