Fighting Human Trafficking at Heart of Prop. 35, But Opponents Point to Flaws

By Amy Isackson

Daphne Phung addresses Prop. 35 supporters at a fundraising walk in San Diego. (Photo: Amy Isackson)

Daphne Phung addresses Prop. 35 supporters at a fundraising walk in San Diego. (Photo: Amy Isackson)

As Carissa Phelps got ready for a five kilometer walk to support Proposition 35 one recent Saturday afternoon, she looked out at the San Diego Bay and remembered what led her to walk the streets as a 12-year-old prostitute. “When my step-dad propositioned my sister who was turning 18 to … sell her virginity for her to someone,” she said.

After that she says she dropped out of seventh grade in Coalinga, near Fresno, and ran away. She soon met a pimp named Icey.

Phelps says he seemed nice and offered her a place when she had nowhere else to stay. “All of your friends at school are gone. All of your siblings are gone. Your bike is gone,” she described. “Your clothes are gone and so, you just feel like you’re trash. You eat out of the trash. You beg for a box of macaroni and cheese.”

One night with Icey turned into 10. And so began a criminal life that would take Phelps three years to escape.

It’s stories like Phelps’ that inspired Daphne Phung to quit her job as a corporate accountant and sink her life savings into crafting and supporting Prop. 35.

Phung gave the send off for a few hundred people — including Phelps — who turned out to walk and raise money in support of the proposition.

Phung and former Facebook executive Chris Kelly are the measure’s main backers, and Kelly is the principal funder. He’s donated about $1.8 million. An Alameda County Deputy District Attorney helped write the proposition.

As the walk gets underway, Phung tells me her inspiration for the measure came from an MSNBC documentary about sex trafficking that she saw one night. It tugged at her conscience. “I couldn’t sleep that night. I just felt like, ‘oh my goodness, something needs to be done about it,'” she said. “And I heard this voice, like God was whispering to me, telling me, ‘Daphne, stop complaining and do something about it.’ And I said, ‘Well, what?’ Well, the initiative process.”

Proposition 35 would tackle all kinds of domestic and international trafficking — labor, forced prostitution and the production of child pornography. It raises penalties for traffickers — anyone who forces a person into sex work or other labor.

Right now, sentences range from three to eight years. But they can be more with criminal enhancements.

The new law could put people away for life.

Prop. 35 mandates that police officers take two hours of human trafficking training and forces all sex traffickers to register as sex offenders.

And it requires all sex offenders file their online identities with the authorities, much as Megan’s Law requires that sex offenders provide their physical addresses.

The scope of human trafficking in California is difficult to quantify.

Until now, no agency has counted all arrests statewide, although California’s Attorney General plans to release statistics later this year.

California has had anti-trafficking laws on the books since 2005.

Phung hopes Prop 35 will further deter people, just as the fear of a stiff ticket kept her out of the carpool lane when she was running late in bad traffic. “I had to reason with myself if it is worth it to go to the carpool lane,” she said. “And that is what we are trying to do. I want the traffickers to think twice before they do it.”

However, many law enforcement authorities say they’ve never met a criminal who looked up sentencing laws before committing a crime.

Politically, it’s difficult to oppose a proposition that boosts sentences for sex traffickers.

But many prosecutors, defense attorneys, civil libertarians and legal scholars say existing laws are adequate. While Prop 35 is well-meaning, they say, it has unintended consequences. They say the law actually could put women in danger, make it more difficult to prosecute traffickers and infringe on constitutional rights.

San Diego County’s District Attorney is particularly concerned about changes the measure would make to the evidence code.

One change says that if a human trafficking victim is forced into prostitution by a pimp, the victim cannot be held criminally liable. While this is intended to protect victims from being seen as criminals, Gretchen Means, San Diego Deputy District Attorney, says it could make the law against misdemeanor prostitution unenforceable. That would leave prostitutes on the streets.

“When girls don’t face any liability whatsoever,” she says, “there’s nothing to … keep them safe.”

Means says, in many cases, those misdemeanor prostitution arrests are the only way to get trafficking victims out of their pimp’s clutches and into the system where they can get help.

Meanwhile, others criticize Prop 35’s requirement to register all online names. ACLU legislative director Francisco Lobaco says this move would infringe on free speech. In an informational hearing posted on YouTube, he says, “Because it means that a person who was convicted decades ago of a relatively minor sex offense such as indecent exposure … must now must inform the police of any name he or she uses.”

While most applaud Proposition 35’s intent to protect victims and punish traffickers, many worry the measure’s finer points may have just the opposite effect.

Nevertheless, Robert Fellmeth, a law professor at the University of San Diego, says his support for stiffer sentencing overrides his concerns. “Don’t let the perfect drive out the good,” he says, adding that, if need be, the legislature can amend the proposition.

Listen to the story:

  • seek2find

    KEEP BAD PROSECUTORS LIKE SAN DIEGO DA MEANS AWAY FROM OUR CHILDREN! I have no respect for prosecutors who continue to label children “prostitutes.” This is child and emotional abuse! The child is prostituted, not a prostitute! It’s like calling a rape victim a rapist or slut.

    Arresting a child for prostitution (when she can’t legally consent to sex) is a violation of her civil/human rights, Ms. Gretchen! Ms. Gretchen labels kids as “prostitutes” and wants to violate their civil rights to coerce them to testify? It’s like arresting a Domestic Violence woman so she’d testify against her husband. ***Ms. Gretchen should be REMOVED from her position as prosecutor and from working with children!*** Our kids don’t need prosecutors like her.

    And to say Prop 35 “leave prostitutes on the streets.” The kids are already on the streets in San Diego, and in increasing number! Obviously, Ms. Gretchen’s tactic isn’t working. Drug dealers are moving from selling drugs to kids at rapid rate. Keeping things as-is definitely isn’t working. VOTE YES ON 35!!!! PROTECT OUR CHILDREN! ARREST TRAFFICKERS, NOT KIDS!

  • Roma Guy

    Excellent report. I have been debating this initiative within myself. Thanks for the guidance.

  • http://www.facebook.com/people/Kath-Rogers/556387988 Kath Rogers

    I am excited to vote Yes on Prop 35 to help stop human trafficking in CA. As the president expressed in his speech yesterday, human trafficking is a rampant human rights abuse that must be stopped.

  • Guest

    Vote Yes on

  • Ginger Shaw

    Thank you for this balanced discussion of Prop 35. 892,000 California citizens have endorsed and say “VoteYes on 35″, as well as Police Officer associations representing most of California’s law enforcement officers. Ms. Means, they have recognized the existing state laws and the use of those laws by prosecutors, have been grossly inadequate in protecting our communities and providing justice and care for minor victims… not “prostitutes”. Mr. Lobaco…the FBI states that over 95% of all cases of child sex trafficking involves the internet. These traffickers infringe upon personal liberty … which I’m pretty sure constitutionally overrides free speech.

  • Mike

    Several victims advocates have also spoken out against Prop 35. Even the author of the current anti-trafficking law has criticized Prop 35. There is more to human trafficking than just sex trafficking. Human trafficking is a crime of labor exploitation. Domestic workers and agricultural workers get trafficked too. The authors of this proposition are well meaning, but it isn’t a good law. http://www.insidebayarea.com/elections/ci_21594453/victims-advocates-oppose-prop-35-human-trafficking-measure?source=most_emailed

  • Hope Francis

    Prop 35 increases
    the penalties for sex trafficking AND forced labor. Details are available
    at http://www.VoteYesOn35.com and on the Secretary of State website at: http://vig.cdn.sos.ca.gov/2012/general/pdf/35-title-summ-analysis.pdf. Prop 35 will
    strengthen California’s trafficking and forced labor laws to meet federal
    standards. Yes, the penalties for trafficking children are higher under Prop
    35. Criminals who manipulate, terrorize
    and sell innocent and vulnerable children for sex are enjoying huge profits
    with little risk, so much so that gangs are getting involved because selling
    children is more advantageous to them than the cost and risks of selling drugs.
    Prop 35 is a comprehensive law that will provide the significantly
    stronger penalties and fines necessary to reverse this trend. It will also close the loop holes and provide
    the prosecutorial tools required to put the traffickers away for a significant
    length of time and take away the huge profits they accumulate from selling
    children for sex. Law enforcement organizations, prosecutors, and child
    protection organizations throughout California have endorsed Prop 35 for this
    reason.

  • http://www.facebook.com/henryfung619 Henry Fung

    I was fortunate enough to be able to attend the San Diego walk and to hear from Carissa Phelps. Having been a survivor, attorney, and advocate, Ms. Phelps is uniquely qualified to speak on this issue. I also read her recently published memoir, Runaway Girl. Her story is as harrowing as it is inspiring, and the book furthermore provides an illuminating account of the reality of the child sex trafficking that goes on in our state and in our nation.

    One of the more haunting aspects is how badly the system failed a 12-year-old Phelps. As the book’s title suggests, she was a runaway, disinclined to trust law enforcement. The cops who apprehended her along with Icey unfortunately didn’t do much to convince her they were on her side. They never even asked her for her side of it, instead treating her like a prostitute, even though she was a child. It is precisely that sort of deficient grasp of the mechanics of human trafficking–incorrectly regarding children as “prostitutes” instead of victims–that sends girls running from the law and back onto the streets.

    That is why I am voting “YES” on Prop 35. Not only will it adjust the evidence code to reframe those exploited in sex trafficking as the victims that they are, but it will mandate training for law enforcement, helping police to better recognize and respond to victims.

  • Guest in CA

    Prop 35 will give law enforcement and prosecutors the tools they need to protect VICTIMS of human trafficking. It will make available harsher penalties to those who EXPLOIT humans for profit. Human trafficking is a human rights issue – vote YES on 35!!!

  • dman101
  • dman101