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.

Prof. Kathleen Kim's dual impact on human trafficking

In Yusaf v. Tija, the California Court of Appeal upheld a lower court judgment holding an employer liable for violating the California Trafficking Victims Protection Act (a civil provision). Associate Professor Kathleen Kim authored this statutory provision. She also provided technical support to the plaintiffs in Yusaf and co-authored this amicus brief in the case.

Following is the summary of the argument in the amicus brief:

In 2000, the federal government passed the Trafficking Victims Protection Act ("TVPA"). TVPA §102(a), 22 U.S.C. §7101(a) (2000). The TVPA, as amended, was designed to eradicate human trafficking through the implementation of a three-part strategy involving (1) benefits and services to victims; (2) punishment of offenders; and (3) establishment of a mechanism to monitor and eliminate trafficking worldwide. Congress knew at the time it drafted the TVPA that in order to succeed in its goal of eradicating human trafficking the federal government needed to enlist the participation of both domestic state, and international, governments.

As a result, and at the encouragement of the federal government, several states adopted their own anti-trafficking laws. Five years after the passage of the TVPA, on September 21, 2005, the California state legislature adopted the California Trafficking Victims Protection Act ("CA-TVPA") which was modeled after the federal TVPA. Cal. Penal Code §236.1 (West 2005). The issue of preemption raised by the appellant is an unusual theory given the backdrop against which the TVPA was enacted. Is the TVPA meant to preempt the very state anti-trafficking laws it encouraged the creation of? Given the legislative intent, and consistent language of the two statutes, it is clear that the TVPA does not preempt California's anti-trafficking laws. The 2008 amendment to the TVPA explicitly states that the TVPA shall not preempt any state criminal laws. TVPA §225, 22 U.S.C. §7101 (2008). There is no clearer indication of congressional intent than the express language of the statute which prohibits preemptions of the CA-TVPA. Furthermore, preemption of the CA-TVPA would be inconsistent with the federal government's implementation of the federal TVPA. Ever since the passage of the TVPA in 2000 the federal government has encouraged state legislators to adopt their own anti-trafficking laws. For example, the Department of Justice set forth a model state anti-trafficking statute to encourage states to enact state level anti-trafficking laws. If Congress intended to preempt state anti-trafficking laws, the federal government would have more explicitly promoted one uniform legal standard that could be applied across the board. Instead, the federal government has done the opposite. It has encouraged states to craft state level anti-trafficking laws with the flexibility to accommodate the unique qualities of existing laws in those respective states.

In addition, California adopted the CA-TVPA with the federal TVPA in mind. The CA-TVPA is consistent with the federal TVPA and even incorporates the TVPA by reference.

Finally, non-physical psychological coercion as a means of forcing labor is explicitly prohibited by the federal TVPA and therefore does not preempt the CA-TVPA's similar prohibition of psychological coercion. Based on the foregoing, preemption of the CA-TVPA would be wholly inconsistent with the explicit intent of Congress and the conduct of the Department of Justice, the federal agency charged with overseeing the implementation of the federal TVPA.