Prop-a-Day: Who Likes Sex Trafficking?

by Mark Wilson

California allows citizens to legislate by way of an initiative system that bypasses the General Assembly to pass laws. This initiative system allows a simple majority of voters to do really dumb things. Former California Supreme Court Chief Justice Ronald George has said that it is this initiative system that makes California’s government “dysfunctional.” Hopefully these articles will give Californians more information than can be found in apocalyptic television ads.

Who could possibly be against heightened penalties for sex trafficking? Local alt-weekly San Francisco Bay Guardian, for one. But it’s not that SFBG likes forced prostitution; they’re concerned that the law is overbroad. It isn’t, but one provision makes me queasy.

Proposition 35 increases the criminal penalties for forced sex trafficking. It also adds a provision to the Evidence Code prohibiting the use of a victim’s history of being a human trafficking victim to attack the victim’s credibility. There’s already a similar provision in the Evidence Code that prohibits using a victim’s past sexual history in a rape case, but that’s applicable only to rape cases. The proposition would also require a person convicted of human trafficking to register as a sex offender.

SFBG is concerned that potentially anyone could be hauled in for sex trafficking. For example:

The act defines that phrase as “substantial and sustained restriction of another’s liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person.”

All of the words on that list, of course, have their own legal definitions. Coercion, for example, is defined in part as “the provision and facilitation of any controlled substance to a person with the intent to impair said person’s judgment.”

So if a prostitute shares a joint with fellow worker, she could be guilty of providing a controlled substance, meaning she could be guilty of coercion, meaning she could be guilty of depriving personal liberty. That means triggering the harsh penalties for trafficking. And even if the person isn’t likely to be convicted, the possibility of a draconian sentence could force her to accept a plea bargain.

SFBG ignores, however, the words before “coercion”: “with the intent to effect or maintain a violation of” several Penal Code provisions. Sex trafficking is a specific intent crime, which means that just giving someone a joint isn’t enough to qualify. A person must have given a sex worker a joint with the intent to maintain a violation of” whatever the offense is. SFBG‘s own “parade of horribles” is just as lengthy as the parade that it assigns to supporters of Prop. 35.

Here’s the problem with Prop. 35: wholly unrelated to sex trafficking, Prop. 35 requires that all registered sex offenders who “change[] [their] account[s] with an Internet service provider or add[] or change[] an Internet identifier [. . .] shall send written notice of the addition or change to the law enforcement agency or agencies with which [they are] currently registered within 24 hours.” That’s a little much, don’t you think? Here’s what these words mean:

(a) “Internet service provider” means a business, organization, or other entity providing a computer and communications facility directly to consumers through which a person may obtain access to the Internet. An Internet service provider does not include a business, organization, or other entity that provides only telecommunications services, cable services, or video services, or any system operated or services offered by a library or educational institution.

(b) “Internet identifier” means an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication.

Sex offenders already have plenty of restrictions. When you’re convicted of a litany of sex-related offenses (though, curiously, notPenal Code § 261.5, unlawful sexual intercourse with a person under 18), the State makes you register as a sex offender for the rest of your life while residing in California. Additionally, if you reside on any of the Cal State, University of California, or community college campuses, you have to notify the police there within 5 days of arriving. When you move, you have to register with the police in your new city. If you have multiple residences, you have to register in each jurisdiction where the residences are located. Transients must register every 30 days. Sex offenders have to update their file every year within 5 days of their birthday or risk criminal sanctions.

Certainly some sex offenders should be required to register for life. Others, not so much. Especially in light of the disparate treatment given to violators of § 261.5 and everyone else; in a seminal case from the California Supreme Court called People v. Hofsheier, the Court found that requiring a person to register as a sex offender for “voluntary oral copulation,” while not requiring the same for arguably worse conduct, violates the Equal Protection Clause of the U.S. Constitution. Some people are predators. Other people are just dumb. With the bizarre exception of § 261.5, California’s sex offender registration system takes a cudgel to the problem.

Prop. 35, though well-meaning, takes that even further. Now, a sex offender can be put back into jail for failing to update a screenname within 24 hours. You can vote no on Prop. 35. Human trafficking laws are sufficient as they are.