The notion is both sickening and unconstitutional, but it’s also part of California’s political process dating back to 1911. The Golden State is one of 24 states that use the initiative process.

The issue arises as several other groups in the past month have submitted paperwork to the state Attorney General’s office to get the ball rolling on a wide range of ballot measures. After the paperwork is signed, supporters must collect 365,000 signatures to put their issue before voters.

There are currently 33 measures filed with the AG for the 2016 ballot.

The state’s largest service employees union, the SEIU, submitted a request to the state AG’s office in late April for a measure that would boost the minimum wage statewide to $15 an hour by the year 2021.

Another group seeks to curtail the state’s often-generous alimony law.

Then there’s the aforementioned “Sodomite Suppression Act.”

The latter effort has put the state’s system of proposition-as-change in the national spotlight. State Attorney General Kamala Harris is seeking more time to figure out how to refuse the measure without violating the rights of the gay-killing advocate, who lists his name as Matthew McLaughlin.

Most scholars say Harris can’t halt it; the law allows even something as unconstitutional as murder to be put to a vote.

Every election year, “a lot of people will come up with an initiative idea and throw it into the system, and you have a lot of crackpots,” said Kenneth Miller, associate professor of government at Claremont McKenna College, who developed the Miller-Rose Institute Initiative Database of all statewide initiatives approved by voters through 2014.

“Most of the things that succeed are done by interest groups, trade association, labor unions, business groups,” Miller said.  “Usually not individuals at large.”

Among states using the ballot to enact statewide policy change, California voters are second only to Oregon in the number of measures approved, 121.

California voters have passed around 35 percent of measures since 1911, when the state approved the initiative process.

Many times these initiatives stem from a group or individuals who are sure that the state Assembly will never pass legislation to address their issue or grievance. Unless otherwise worded, propositions can only be undone by another voter-approved initiative or a legal challenge.

“Most states that use this approach to lawmaking were the western states, which at the time were a lot more politically fluid,” Miller said. “They were just starting to become states and didn’t have entrenched systems.”

Challenges to initiatives

A passed initiative doesn’t mean unchallenged, and California has by far the most challenges to voter decided propositions, with 78 percent being taken on post-passage, according to an analysis of data by CalWatchdog.com.

Since the ‘70s, around half of those challenges have been at least partially successful.

By far the most challenges have come to “Jessica’s Law,” approved with 71 percent of the 2006 vote. The law prohibited all sex offenders from living within 2,000 feet of schools and parks, with the goal of keeping them away from children. Nine legal objections have been made. It has so far survived, but one case led to a state Supreme Court ruling in March that it went too far and made it unconstitutionally difficult for convicts to find a place to live.

Its legacy continues to be cited; this session, eight bills cite the proposition in supporting various amendments to the law it created.

The second most frequently challenged proposition, from 1920, allowed non-citizens the right to own property. It was approved by 75 percent of voters. Of the five challenges, three failed, one succeeded in part and the other got rid of the measure’s effect altogether.

The most recent legal challenge to a proposition came regarding 2012’s Prop. 35, which passed with 81 percent of the vote, the highest margin ever for a state proposal. It provided for stringent penalties for human traffickers, though a camp in opposition contended that it peripherally targeted sex workers.

A federal court halted implementation of the measure, and last month the court prolonged the stay until September.

Legal foes, including the ACLU of Northern California, say they will seek a permanent injunction against the voter-approved law if legislation addressing the measure isn’t approved by September.

Prop. 213 in 1996 was approved by 77 percent of the voters and restricted lawsuits by uninsured motorists and drunk drivers. That measure was challenged twice in state court and upheld.

“Crackpots” not going anywhere

The “crackpots” pushing homicidal notions like sodomite suppression will probably be around for some time. Polls indicate California residents feel they are better at lawmaking than their elected officials.

Miller said that doesn’t seem to impede legislative efforts to alter or clarify the process.

Assembly Bill 535, introduced in February, seeks to create more specific language for initiatives. Assembly Bill 1457 would make a minor housekeeping change to a legal provision governing people collecting signatures for an initiative petition.

“You can imagine that state lawmakers would like to maintain a monopoly on lawmaking and not open it up to outsiders,” Miller said.

Added John Matsusaka, executive director of the Initiative and Referendum Institute and the University of Southern California: “Why some states allow the initiative and others do not, that is something of a mystery. Legislators usually dislike the initiative, so the puzzle is how so many states managed to adopt the process in the first place, given that it usually took a first action by the legislature.”

Steve Miller can be reached at 517-775-9952 and avalanche50@hotmail.com. His website is www.Avalanche50.com

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.

By Joseph Perkins 

Chris Kelly deserves a lot of credit. He’s the former Facebook executive who co-authored Proposition 35, the Californians Against Sexual Exploitation Act, which proposes to ramp up punishment of  sex traffickers. 

Kelly told the San Jose Mercury-News that his interest in the issue was piqued during his time at Facebook, where he served as Chief Privacy Officer. He was shocked, he said, at what sexual predators thought they could get away with because of the anonymity the Internet offers. 

That’s why I’m disappointed with Prop. 35, which, much to his credit, Kelly has bankrolled with $1.86 million out of his own pocket. It fails to hold accountable those that enable online sex trafficking of under-age girls (and boys). 

Like Backpage.com, a website owned and operated by Village Voice Media, which also happens to publish SF Weekly, LA Weekly and OC Weekly. It was identified last year by the nation’s 50 state Attorney’s General as an online “hub” for sexual trafficking in minors. 

Indeed, the “adult” section of Backpage.com has classifieds not only for San Francisco, L.A.and Orange County, but for more than 30 cities and counties throughout the Golden State. And the advertisements for “escorts” in every one of the cities and counties include girls that almost certainly are juveniles, who are blatantly selling their sexual services. 

What I find particularly outrageous is Village Voice Media’s defense of its facilitation of online child sex trafficking. The company’s thinking, with respect to the ads that appear on Backpage.com, “is very libertarian,” said company CEO Jim Larkin. 

Well, it is libertarian to oppose government bans on advertising of lawful products and services, like cigarettes, liquor, guns, gambling. And it is arguably very libertarian to oppose restrictions on advertisements of products and services that some think ought to be legal — like adult prostitution. 

But not even the very, very libertarian go so far as to defend online sex trafficking of the under-aged, a niche dominated by Backpage.com. 

Now, I do not know why Kelly, who has expressed concern about the Internet being used by sex traffickers, did not include a provision in Prop. 35 that would crack down on companies doing business in California that knowingly enable such trafficking. 

It may be because Kelly, a Democrat, who ran unsuccessfully for state Attorney General against Kamala Harris,  did not want to alienate Village Voice Media, whose three California “alternative” weekly newspapers boast readerships he will need if he decides to run again for statewide office. 

Or it may be because the former Facebook exec would much prefer to concentrate law enforcement exclusively on pimps trafficking in young girls — proposing prison sentences of 15 years to life for child sex traffickers and fines of up to $1.5 million — while ignoring companies that enable such trafficking. 

Indeed, that not only gives a free pass to Backpage.com, which reportedly accounts for 70 percent of all online prostitution ads, but also other Internet companies used by sex traffickers, including Craigslist, Twitter and, yes, even Facebook. 

I very much want to support Prop. 35, not the least because I consider myself a Californian against sexual exploitation. But I find it hard to vote for a measure that allows Backpage.com, etc., to continue to profit from their online facilitation of child sex trafficking.