Trafficking From The Top Down: Why Prop 35 Passed and What It Means

With 81% of the vote, Proposition 35 – a misguided ballot referendum that claims to fight trafficking, but puts the people it aims to protect as well as many others at risk – has passed in California. That’s a far greater margin than expected: 7 million for, 1.6 million against. Coming home last night from an election party, once the California returns started to come in, I was surprised by the volume of the online reaction to Prop 35′s passage: how did this happen? How did so many people end up voting to put even more people in California under police surveillance, into prisons, and onto sex offender registries on a night when the state’s three-strikes law was successfully challenged? People were celebrating the Obama victory, along with a record number of women elected to Congress, and those who voted Yes on 35 were feeling misled. At the same time, those who fear they’ll be targeted by it were outraged, and already getting organized.

First, on what Prop 35′s passage means: I’ve spoken with sex worker advocates, attorneys and victims’ services providers for people who have been trafficked, as well as civil liberties groups on the potential consequences of Prop 35. Though Prop 35′s advocates have claimed it will not target adult sex workers, or young people in the sex trade, we do not yet know how their claims will play out in terms of enforcement. Given how increased penalties for prostitution introduced into trafficking law are applied currently, we have every reason to believe that police will continue to arrest people in the sex trade, no matter what their experience is or how they got there, and that the increased penalties in Prop 35 could be used against them. In fact, this is exactly what happened in Chicago over the last few years as similar “anti-trafficking” laws have been passed, and overwhelmingly, it was sex workers who paid the price – and more specifically, trans women sex workers and sex workers of color.

Already, the ACLU and EFF have filed a class-action challenge in Federal court, on the grounds that Prop 35′s sex offender registry requirements are unconstitutional. They are not challenging the core of bill, which expands the legal definition of trafficking to include the vague offense “sexual exploitation,” and which creates higher penalties for “sex trafficking” than labor trafficking. But even without the sex offender requirements in the bill, Prop 35 is incredibly dangerous.

Now, putting this in context of the good mood around last night’s victories (and how hard it is to square Prop 35 with them): grassroots support may be what put Elizabeth Warren and Sherrod Brown and Tammy Baldwin in the Senate last night, and what gave us marriage equality and decriminalized marijuana in other states, and sent rapey Republicans packing (though, in one case, replacing a “rape is God’s will” Republican with a “the only rape is forcible rape” Democrat).

But the Prop 35 campaign winning should not be understood as that same kind of victory.

Prop 35 is a classic tough-on-crime bill, primarily backed by a single donor and an author with next to zero expertise on the issue. There is no progressive ethic here, no matter how many liberal Democrats and women’s organizations supported this. And I question what actual movement there is supporting Prop 35.

What Prop 35′s backers depended on was not a groundswell of support from people who want to support survivors of trafficking, or from people who have been organizing in their own communities to oppose forced labor. What they counted on was the profund and damning absence of grassroots support for people in the sex trade and people most impacted by criminalization – people who might oppose them – within the organizations they courted, including progressives. And they got that support: from the Courage Campaign, from Planned Parenthood, and many others. This might be the only ballot initiative in which the anti-abortion California Catholic Conference of Bishops sided with Planned Parenthood. (Meanwhile, the US Conference on Catholic Bishops are the ones who have refused to fund anti-trafficking programs that refer survivors to reproductive health care, and have tried to kill healthcare reform over contraceptive access.) All that should be enough to raise liberal hackles. But because it was about sex work and sold as “sex trafficking,” it was not.

What Prop 35′s backers really counted on was a shallow politics of feelings and fear. Who could oppose any measure to “fight sex trafficking”? Once the ballot was framed that way, Prop 35 was a sure win. But some of the over 7 million voters who ticked Yes, who were not familiar with the issues, now regret this. It’s a flaw of the California proposition system, but it’s also a flaw in the electorate, who, like the bill’s author, get their information on the sex trade from Sunday night movies on MSNBC.

This is also why it’s incomplete to characterize Prop 35 as a “moralistic” or “fundamentalist” or “conservative” win. Prop 35′s campaigners made as many appeals to “human rights” as many sex worker activists do. This should be troubling, and this can’t be countered with a sex-positive, or feminist, or even civil liberties agenda alone.

Because Prop 35′s passage isn’t a failure to protect sexual freedom, women’s rights, or free speech. It’s the obscuring of the real violence that people in all kinds of work face when they have little protection or control. It’s failure is in the reliance on police and private charities with absolutely no understanding of the issues, rather than looking for answers learned from first-hand experience, answers that could be found with sex workers & sex worker rights’ activists, labor activists (like the domestic workers’ movement), and (yes) those who support people who have been trafficked and who believe in rights, not “rescues.”

These people don’t need your “help,” California voters. They need you to get out of their way so they can do their work.