Proposition 35: Prohibition on Human Trafficking and Sex Slavery—Criminalizes the Sex Worker and not the Trafficker, By Cynthia Garrity-Bond
But beyond the sound bites and hyperbole of Proposition 35 resides a poorly written law that further criminalizes and discriminates against sex workers and their consensual adult clients.
The importance of the upcoming November 6 election cannot be overstated. Beyond defeating the Republicans War on Women, maintaining the Affordable Care Act and resuscitating a broken economy, brought on by eight years of Bush’s laissez faire policies, California residents will vote on thirteen propositions. Two of them address criminal justice, Prop 34 “End the Death Penalty” and Prop 36, repeal of the “Three Strikes” law of 1994. Both propositions seek to correct bad laws that are unjust, as well as fiscally exacting on the state. The “Three Strikes” law, in its attempt to be tough on crime, instead gives life sentences to non-violent offenders. To date there are 8,800 prisoners currently serving life terms for a third felony conviction—for some, petty theft or drug possession resulted in a life sentence. The “Three Strikes” law was poorly conceived, written, and implemented, just as Proposition 35, the Prohibition on Human Trafficking and Sex Slavery or Californians Against Sexual Exploitation (CASE ACT) is.
On first read Prop 35 appears to have the best interest of “vulnerable women and children held against their will and forced into prostitution for financial gain of human traffickers.” It will increase prison terms for human traffickers, required traffickers to register as sex offenders, increase fines from convicted human traffickers while directing these funds to “victims’ services so survivors can repair their lives, as well as internet restrictions and registrations. So far so good, right? But beyond the sound bites and hyperbole resides a poorly written law that further criminalizes and discriminates against sex workers and their consensual adult clients.
First, the wording of Prop 35 jumps from human slavery to sexual exploitation of women, read here as the CASE Act, or Californians Against Sexual Exploitation (emphasis mine). Under revised Section 3, the law reads, “[To] strengthen laws regarding sexual exploitation . . .” not human trafficking in slavery, but the vague reference to exploitation. Which begs the question, how is this form of exploitation understood? Is all consensual exchange of sex for money considered exploitative? In Martha Nussbaum’s article, “Whether from Reason or Prejudice”: Taking Money for Bodily Services,” she rightly draws comparisons between the prostitute (as sex worker) and six other forms of labor: the factory worker, domestic servant, night-club singer, masseuse, the hypothetical “colonoscopy artist” and my favorite, the philosophy professor, to which I add, the adjunct professor. Nussbaum’s point is well taken, “most people sell their bodies, or the use of them, for money, and we do not usually object to this circumstance in itself.” Morality aside, Nussbaum’s argument situates itself within a legal framework, by refuting the criminalization of prostitution.
While playing upon concerns of the public over human trafficking in women and minors, Prop 35 expands the definition of the human trafficker to now include sex workers and all those associated with them, including children and domestic partners. Section 236.2, if revised, defines “Commercial sex act” as “any sexual conduct on account of which anything of value is given or received by any person.” Vague? How many of us have had sex after a date that included say, dinner? How is the quantitative value to be measured of what was given or received? Under Section 236.2 sex workers can be labeled as pimps and traffickers. If convicted, these women, who many are mothers, must register as sex offenders. One of the many stipulations sex offenders must adhere to is the distance kept between them and schools. Follow the logic here, what does it mean for a mother (as sex worker) to never be allowed to step foot on their child[rens] school campus?
The language of Prop 35 and its proposed protection of minors as trafficked victims can be very misleading. For example, take consensual sex between a teenager (legally considered a minor if younger than eighteen) and another teenage, here understood as eighteen years or older. Legally, sex between the two has been understood as statutory rape or underage sex, now can be defined, as a “commercial sex act” with the older teen. If convicted as having sex with a minor, that young man/teenager is now a human trafficker. The prison sentence is also stiffer for the teen turned trafficker, “five, eight, or twelve years and a fine of not more than five hundred thousand dollars (Section 3.1). Additionally, “consent by a victim of human trafficking who is a minor a the time of commission of the offense is not a defense to a criminal prosecution under this section, “ (3.e) nor is the mistake of age (3.f). In other words, penalties for statutory rape will be greater than those for rape.
Those opposed to Prop 35 have before than a David and Goliath battle. While various sex worker collectives, activists, journalist, as well as California Coalition for Women Prisoners have voiced their opposition, money and a poorly written law with strong endorsements from the likes of Senator Diane Feinstein to the Marc Klass, President of the KlassKids Foundation as well as police organizations are on the side of Yes on 35. By playing upon the publics concern of human trafficking, Prop 35 criminalizes women, many who are mothers, instead of those actually perpetrating trafficking in persons.
For those who reside in California I urge you to do your homework by researching Prop 35 and see who is set to gain financially and politically from its passage. Initiated by the non-profit California Against Slavery (which morphed to exploitation of women) is primarily funded by one person, millionaire Chris Kelly, former Chief Privacy Officer for Facebook who lost to Kamala Harris in the state Attorney General race. To date, Kelly has donated 1.9 million dollars, perhaps an economical investment for future political endeavors as self-proclaimed architect of CASE.
Here are a few links that hopefully serve to make your vote on Proposition 35 an informed and educated one:
Cynthie Garrity-Bond: Feminist theologian and social ethicist, is completing her doctorate at Claremont Graduate University in women studies in religion with a secondary focus in theology, ethics and culture. For the past two years Cynthie has been teaching in the department of theological studies at Loyola Marymount University where she completed both her BA and MA in Theology. Her research interests includes feminist sexual theology, historical theology with particular emphasis on religious movements of women, agency and resistance to ecclesial authority, embodiment, Mariology and transnational feminisms. Having recently returned from Southern Africa, Cynthie is researching the decriminalization of prostitution from a theological perspective.