It's difficult to oppose Proposition 35, a measure that purports to stop a crime as despicable as human trafficking. But the proposition is overbroad and misdirected.
Daphne Phung, founder and executive director of Californians Against Slavery and the major sponsor of Proposition 35, deserves high praise for shining a spotlight on human trafficking. Phung believes this form of modern slavery, including forced labor and the sexual exploitation of women and children, is rife in California. But reliable statistics are impossible to find.
Law enforcement agencies do not collect data about trafficking in a uniform or consistent manner. There is little agreement on the definition, on exactly what human trafficking is.
In its analysis of Prop. 35, the Legislative Analyst's Office stated that as of Oct. 11, 2011, only 16 people were being held in state prison for human trafficking. While that might indicate that current law and enforcement is not strong enough, it could also be an indication that the crime may not be at a crisis level at least not yet.
The proposition would also increase state prison sentences and fines for human trafficking, roughly raising state penalties to federal levels. If that were all it did, it might merit support. But it goes beyond that.
To protect victims, the proposition alters the evidence code, making inadmissible evidence of commercial sexual activity of a victim of human trafficking "to prove the victim's criminal liability "
That seems fair on its face, but some prosecutors worry that the initiative's broad wording will undermine their ability to prosecute traffickers.
It also makes the "commercial sexual act of a victim inadmissible to attack the credibility or impeach the character of the victim in any civil or criminal proceeding." In doing so, the proposition may also deprive accused traffickers of a fair trial, making it vulnerable to constitutional challenges.
Proposition 35 also requires those convicted of human trafficking, including some who may not have committed any sexual offense at all, to register as sex offenders. They, along with existing sex offenders, would have to report their Internet online screen accounts and identifiers. The Legislature has rejected such proposals in the past because they impose a costly and burdensome requirement on local law enforcement agencies.
California's sex registry has more than 90,000 names. Police and sheriff's departments are unable to keep track of all the data currently required. Proposition 35 would mandate that they capture online screen names for tens of thousand of registrants. Depending on how they use the Internet, registrants targeted could have dozens of screen names.
Finally there's this. Most human trafficking is prosecuted at the federal level because the crime often involves transporting victims over state and international borders. Victims are lured into the sex trade or slavelike conditions in sweatshops or janitorial service or farms as they attempt to escape grinding poverty, political upheaval and violence in their home countries. Many victims actively resist rescue because they fear deportation. They don't want to be returned to the hellish conditions from which traffickers lured them in the first place.
The federal government dispenses special visas that allow victims of trafficking to stay in this country and rebuild their lives, but hundreds who apply each year are denied. In 2007, a state task force urged Congress to study why so many victims were denied visas and what can be done to change that.
More than enhanced penalties, changes in the evidence code or an expanded state sex offender registry, victims of human trafficking need safe harbors, and assurance that if they are rescued they won't be deported.
That said, Phung and her supporters including Chris Kelly, who previously worked as Facebook's chief privacy officer have helped spark an important debate on how best to combat trafficking now and in the future.
We would urge Phung and Kelly to return to the Legislature and seek changes to state law outside of the initiative process. In particular, current state law requires prosecutors to prove that a minor was forced to engage in sex work. Federal law deems that if a minor was engaged in sex work, he or she was forced to do so. California should have the same provision in law. We suspect that Phung will have much broader support in the Legislature next time to advance her cause.