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The Proposition Games: Will Prop 35 help curb human trafficking?

In a piece for the The Stanford Daily, Nadejda Marques, manager of the Program on Human Rights at the CDDRL, writes about Proposition 35 (the CASE Act), slated for the November 2012 California Ballot. Californians Against Sexual Exploitation (CASE) hopes to raise awareness of human trafficking and deter traffickers with higher penalties and fines. Critics of Proposition 35 argue that stiffer sentencing is not the core of this complex problem. They defend that efforts should be directed to training police and prosecutors, and funding victim-services providers to protect and enable court proceedings.

If you vote in California, chances are that in November, in addition to national, state and local elective races, you will encounter a host of propositions on the ballot.

Among these is Proposition 35, or the Californians Against Sexual Exploitation Act (known as the CASE Act). Proposition 35 hopes to raise awareness of human trafficking and deter traffickers with higher penalties and fines. Human trafficking is a horrific and growing problem nationally and globally. It constitutes a violation of the most basic human rights to which between four and 27 million people (according to the U.S. Department of State’s 2007 Trafficking in Persons Report), are subjected every year. So an effort to increase penalties for offenders should be viewed as a universal good.

But there is not a consensus on Proposition 35, even among organizations and institutions fighting human trafficking in California. Critics of Proposition 35 argue that stiffer sentencing will not address the core of this complex problem. Civil libertarians raise concerns over provisions that require offenders to register with law enforcement officials long after they have served their sentences. Of course, penalties should reflect the severity of any crime. And when penalties are patently incommensurate with the severity of the offense, they signal a lack of commitment by the state and may fail to deter potential violators. However, focus on increased sentencing can often mask the lack of meaningful effort to address a problem. In the case of human trafficking, this may well be what is happening with Proposition 35.

One of our main challenges is the identification of instances of human trafficking. For example, not all prostitution involves human trafficking, and not all human trafficking involves prostitution. Police and prosecutors are not adequately trained to identify cases of human trafficking, nor are they generally able to investigate potential situations of trafficking proactively. Poor identification of trafficking and victims leads to a weak or no case against perpetrators.

Often, those brought to court are not prosecuted under the existing trafficking laws, but under some other crime or some minor offence. Many times, cases of human trafficking are dismissed because of lack of evidence (which is based almost exclusively on the testimony of the victims). In addition, some judges and prosecutors seem to fail to understand the phenomenon of human trafficking and the psychological effects it causes on victims. Prosecutors rely too often on the testimony of victims, which, given their extreme vulnerability, is difficult, at best, to obtain. Authorities also fail to enable post-trafficking assistance, long-term protection and support. Worse still, some authorities direct prosecutorial efforts at the victims-trafficked persons. Efforts to reorient the work of authorities are more likely to produce the kind of changes needed than stronger penalties.

By initiative of the Program on Human Rights (PHR) and its Student Advisory Board, on Oct. 17, the Stanford Police will offer training for its law enforcement agents on a victims-based approach to human trafficking. The training will include the Human Trafficking Task Forces from the San Francisco and San Jose Police Departments. On Oct. 23, PHR is organizing a discussion panel on Proposition 35 bringing together prosecutors, police officers, service providers and activists to help move the debate toward the needs of victims. Disputes and debates about tangential issues should not be a distraction, nor should they divert the efforts of those who fight human trafficking. We risk undermining the progress and achievements of anti-trafficking legislation and policy while traffickers continue to pursue their criminal trade, very often with impunity.

Nadejda Marques is the manager of the Program on Human Rights at the Center on Democracy, Development and the Rule of Law (CDDRL) at Stanford University. She coordinates the program’s research and activities on human trafficking that focus on policy recommendations to address the multiple dimensions of human trafficking.