Prop 35. toughens sex crime penalties

Oct. 26, 2012

By Dave Roberts

When Dellena Hoyer first started turning tricks, she was 12 years old. She told her story to a joint legislative safety committee informational hearing in August on Proposition 35, which seeks to increase penalties for human trafficking and sex crimes.

“I’m a survivor and advocate for children who are being trafficked,” said Hoyer. “Thirty-eight years ago I was trafficked right on the corner outside. I was put in that hotel, sold and traded. And nobody did anything, nobody said anything. When [police] seen me out there, they handcuffed me, they told me I was a prostitute and charged me with prostitution. I was put in the foster care system. I ran away because I was put in the home with parents who groomed me and sold and traded me and my brothers. [My brothers] died before they were 45 from drug addiction and trauma.

“I’m alive and walking and talking and thinking straight. I shouldn’t be. I was beaten, I was kidnapped, I was tortured, I was transported from state to state. Because I looked so young, I was put in a brothel. When that pimp went to prison for a double homicide, his mother prostituted me. Neither one of those people were prosecuted. And another pimp took over and sold and traded me. And that went on and on and on until I was 30 years old. Because as an adult, that’s the only life I knew. I was arrested 62 times on average per year for 12 years. Twenty-one years ago somebody took me and said I didn’t have to live that way, that I didn’t have to be a prostitute.

“I didn’t choose that as a child. It wasn’t my dream. It was my dream to be a professional dancer. I was brainwashed. I believed what those people told me that there was nobody that was going to help me. And if I did [seek help], they were going to kill me. I believed that, and that’s what those children believe today. Here I am today to tell you we’ve got to do something. We’ve got to take a stand. We’ve got to help these children. These people who claim to be pimps are child molesters. And they need to be prosecuted.”

Selling and buying children for sex is a multi-billion-dollar industry, according to Alameda County Deputy District Attorney Sharmin Bock. She told the committee it will eventually surpass illegal gun and drug sales in profitability.

“Why sell drugs that you can only sell once, when you can sell your child over and over again?” said Bock. “And with trauma bonding, these children don’t leave, they stay. Gangs are now leaving the sale of guns and drugs, and are selling children because it is so incredibly profitable. It is a big business in California. It requires laws that actually meet the challenge.”

Increased penalties

Human trafficking, sexual exploitation of children and prostitution are, of course, already illegal. But few people have been sent to state prison for human trafficking — only 18 inmates were incarcerated as of March, according to legislative analyst Lia Moore. But that number could increase significantly if Prop. 35 passes. It would do several things:

* Expand the definition of human trafficking to include violating the liberty of a person with the intent to commit felonies with the creation and distribution of obscene materials depicting minors. Prosecutors would no longer have to show that force or coercion of minors occurred.

* Significantly increase the criminal penalties for human trafficking. The penalty for labor trafficking crimes would more than double to a maximum of 12 years from the current five years. Sex trafficking of an adult would quadruple to a maximum of 20 years from the current five. Sex trafficking of minors that involves force or fraud would be punishable by a maximum life term in prison. Fines could be as much as $1.5 million for human trafficking offenses.

* Seventy percent of the funds collected from these fines would provide support services for victims of human trafficking, with the rest going to law enforcement and prosecution agencies for human trafficking prevention, witness protection and rescue operations.

* A defendant could no longer claim as a defense being unaware of a minor’s age.

* All law enforcement agencies must provide training on how to handle human trafficking cases and complaints.

* Convicted sex offenders would be required to provide their user names, email addresses and Internet providers to local police and sheriffs’ departments.

The aim

The aim of Prop. 35 is to prevent what happened to Dellena Hoyer and Leah Albright-Byrd from happening to others.

“I’m a 10-year survivor of sex trafficking,” said Albright-Byrd. “I was first exploited at the age of 14 here in Sacramento. Some of the things that made me vulnerable to being preyed upon by predators in our community was coming from a domestically violent and abusive environment that I sought to escape from. I ran away at the age of 14. At that point, a man who was a drug trafficker began to suggest that I be prostituted so that I didn’t have to go back home. He explained that he loved me more than my parents did. He used a variety of tactics to manipulate me and coerce me into staying in the environment that I was in. I was punched, I was slapped, I was kicked, I was dragged from cars, spit in my face and told that I would always be a ho.

“I remember working for escort services in the late ’90s, being exploited on the Internet, having customers call and ask for girls that look as young as 12 years old. And a girl whose virginity was sold for $1,000 at the age of 12. Pimps continue to exploit girls in my community. I got a phone call a couple months ago from a homeless youth shelter in Sacramento, and was informed that the young lady in the home that my pimp grew up in and was allowed to exploit us in is now being exploited. So it’s a cycle that continues to unfold. I’m 28 years old — 14 years from the time I was first exploited — and nothing’s changed.”

Opposition

Although Prop. 35 might seem like a slam dunk — how could anyone oppose preventing kids from being sexually exploited? — several people did speak against the measure at the hearing. Senator Mark Leno, D-San Francisco, who chairs the Senate Budget Committee, said he’s concerned about the costs of incarcerating more people.

“The measure does propose to expand the definition of human trafficking,” said Leno. “And in simple terms, that extension of definition is to include pornographers who deal in under-age participants. So if we can say that there are hundreds if not thousands of child pornographers in the state of California, and let’s say we were to capture 10 percent of them with this broader definition, we could easily be talking about 200 new convictions for sex trafficking under this measure if it’s effective.

“And we’ve got extension of terms for prison. We are doubling, quadrupling, there’s significant increases. So, let’s say conservatively an extra 10 years of prison time for 200 new inmates. That’s 2,000 years of time at approximately $50,000 a year; $50,000 times 2,000 years — that’s $100 million over 10 years. And if that 200 inmate figure grew to 500, we are talking closer to $25 million a year or a quarter billion dollars over 10 years. If the intent is to lock up more people for longer periods of time — and I’m not suggesting these are not very bad people who need to be attended to by law enforcement — but I just think you might want to give more thought to this broader definition.”

Susan Israel, a public defender in San Bernardino County, speaking on behalf of the California Public Defenders Association, said she applauds the bravery of the trafficking victims who spoke and acknowledged that it’s a problem that needs to be addressed.

“However, [Prop. 35] as it is written is entirely overbroad and does not address the real issues that can help prevent human trafficking,” she said. “For example, it gives extraordinarily broad definitions of coercion. It speaks of the deprivation or violation of the personal liberty of another. The courts have been struggling for 200 years over the definitions of personal liberties. The law, as written makes, it rife with uncertainty and certainly will encourage litigation.”

An example of Prop. 35’s overbroad nature provided by Steve Munkelt, representing California Attorneys for Criminal Justice.

“Let’s imagine Saturday night date night,” he said. “We have an 18-year-old boy and a 17-year-old girl. They head out to a movie. He buys her a movie ticket, he buys her popcorn, they enjoy the show. Afterwards, he drives her to a romantic location. They share a beer while they talk. They get a little close, they start kissing, a little touching in sexually sensitive areas. And he says, ‘You know, I’d really like to take a picture of your breasts. You’re really terrific. I’ll take out my cell phone. I promise I’ll never show it to anybody.’ But he knows he’s definitely going to show it some of his buddies. So she agrees, she consents.

“He’s facing 15 to life under this statute. Because he gave her something of value: a movie ticket and popcorn. Consent is not a defense [allowed under Prop. 35]. This is a coerced event because he used a controlled substance to make her more compliant when they shared a beer. And he used fraud by misrepresenting his intent by taking a picture of sexual areas of her body. So, under this statute, he’s facing 15 to life. I hope all of you are sitting there saying, ‘That’s impossible, that’s crazy.’ But that’s how broadly this is written. They have removed the defense of consent. They have removed the requirement of any force or fear being used.”

And not every woman who has professionally provided sexual services considers herself exploited. Maxine Doogan, founder of the Erotic Service Providers Legal and Educational Research Project, said, “I myself have worked as a prostitute for 22 years, and I plan on working as a prostitute for another 22 more.” She provided lengthy testimony that castigated the police for entrapping sex workers and called for the legalization of prostitution.

“Our group opposes Prop. 35 because it relies on the continued criminalization of our labor under the guise of rescuing traffic victims,” said Doogan. “It turns all of our intimate, domestic and economic relationships into traffickers and sex offenders. And we find this completely offensive and inappropriate. Under Proposition 35, we shall expect to see an increased expenditure for cities and counties in the form of prostitution sting operations because of the financial and political incentives for law enforcement to do so based on both the expanded definition of human trafficking in combination with the already existing vague definitions of prostitution-related offenses.”

Not surprisingly, Prop. 35 is expected to pass by a large margin. It had 78 percent support in an Oct. 11 California Business Roundtable poll.