What is Wrong with The CASE Act?

June 11, 2012 at 7:50am

To avoid being place on the CASE Act organization mailing list, you can download the text of the act here:

CASE ACT  http://www.bayswan.org/CASEAct_InitiativeText.pdf  Please visit http://againstthecaseact.com/ for more info.

 

Here is a preliminary, informal analysis by Cynthia Chandler from Justice Now (http://www.jnow.org/), an individual analysis, not an official document from Justice Now:

 

This is extremely problematic. It has an expansive definition of commercial sex that is way beyond how prostitution is defined. Frankly, in our capitalist society, I think you would be hard pressed to find any sex that isn't commercial under this.

 

It also has a broad definition of a person who aides/persuades a minor into commercial sex as a trafficker--almost any friend could be a trafficker if supportive of any broadly defined commercial sex.

 

The penalties are upped for convictions, including defining people deemed traffickers as sex offenders and requiring that they register for life among other limits. It erodes criminal defense options by prohibiting evidence of the "victim's" prior convictions or behavior. This point is significant because wouldn't it be relevant to whether someone is coerced to determine if the conduct was out of their ordinary course of behavior?

 

Also, it creates a statutory structure to funnel lots of money into policing and agencies that work with police against trafficking. It renders it impossible to undo this system of funding and system of system of state working against trafficking without huge legal reform, so, it hurts the decrim long-term strategy for sure. Similarly, it mandates that all police in the field get anti-trafficking training, so it institutionalizes this view of commercial sex as trafficking into the police culture state-wide.

 

This is culturally and economically significant as all departments will have officers trained under this dogma and will have to pay people to do the trainings (quite a racket, I think).

 

Regarding the state's financial reliance on criminalization of sex work, the Act specifically creates a mechanism whereby police departments will be funded through fines collected through crimes defined through this act. As such, it creates a mechanism whereby the state becomes financial dependent upon the maintenance of the legal schema created.

 

Generally also there is lots of conflation of the needs of women and girls, the need of people who are enslaved with all people in the sex industry, etc. and there is a vilification of the internet in that it blames that media for an alleged rise in trafficking. ultimately, this vilification is unhealthy for the one industry our state has going for it at this economic time. also, the stats cited for defining the problem are utterly unsubstantiated.

 

(Editor's Note: I requested further comments, regarding impact in the context of adult sex work, as well. Noting that although the law puts forth the target of trafficking in general and child sex trafficking, it WIDELY expands the concept of duress, etc.)

 

Regarding pimping issue and domestic partnership issue, the definition of what it means to benefit from the work of a person who is "trafficked" and under 18 is extremely wide. While it targets minors, it will still impact families; many people are mothers before they are 18.

 

The Act also criminalizes people benefiting from situations of force/duress, and the definition of duress is very broad, and when taken with the fact that under the Act one cannot introduce evidence of the victim's prior history of sex work, it makes it very hard to defend against a charge of duress--the state could argue that the person was pushed into sex work under duress (i.e., a threat of negative financial harm, for example) and then accusations of someone creating the situation of duress or benefiting from it could not be readily defended because the law also bars introduction of evidence that the victim was doing something they normally do.

 

So, in practice, charges of benefiting from a situation of duress could be applied very widely. That the language of the Act is arguably over broad, and prevents a defense against an element of a crime it creates, and because the sentencing stakes are so high, leads to the likelihood of cost (financial and human) in appeals and other challenges to the law.

 

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Additional feedback from two attorneys noted that the 'up to a million dollar fine' is 'bizarre.' The fine, combined with the broad definitions of duress and commercial sex can work against adult commercial sex in general. From my personal experience I have seen sex workers charged with 'pimping' just for referring one client, in the common practice of overcharging to compel a plea.  One's adult children and parents can be charged as 'pimps' under the current 'pimping' law,  and there is also potential leeway in this legislation.  In addition I was told that the legislation is very sloppy, and badly written. As noted above, I see that the statistics are not at all corroborated (and widely considered false) so that passing this legislation would mean that these untruths would be enshrined in California law.

 

 

I also note that organizations like API Legal Outreach and CAST, which are focused on abuse in all sorts of labor and contexts including sex work (and part of the Freedom Network-http://www.freedomnetworkusa.org/members/index.php) have not endorsed this initiative, so it should be clear that this very problematic, even from some mainstream anti-trafficking perspectives. That said, I believe the anti-trafficking framework is problematic (as implemented in most of the world) and leads to problems just like The CASE Act.