Another California Ballot Initiative To Be Wary Of

PORN VALLEY—No, this time it's not anything sponsored by AIDS Healthcare Foundation. It's Proposition 35, which qualified for the statewide November ballot in May with over 500,000 signatures—and it might just be very bad for adult producers and performers, though in different ways.

Prop 35 would enact into law the Californians Against Sexual Exploitation (CASE) Act, and according to its supporters, its purpose is to "increase[] prison sentences and fines for human trafficking convictions"; "require[] convicted human traffickers to register as sex offenders; and "require[] registered sex offenders to disclose Internet activities and identities."

Trouble is, that's not all it does, in part because it's a very poorly drafted measure that appears to go far beyond what its creators intended.

A large part of the problem, aside from the fact that the new law could easily target prostitutes and associates who have willingly chosen their professions and have not been coerced or deceived about them in any way, various sections of the law target California Penal Code Sec. 311 — "Obscene Matter" — which would define any producer that knowingly or unknowingly "causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor... to engage in a commercial sex act" (like acting in an adult movie or internet scene) as a "human trafficker" and require that the producer be "punish[ed] by imprisonment in the state prison [for] five, eight or twelve years and a fine of not more that five hundred thousand dollars ($500,000)."

However, if the above-noted offense "involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person," then the punishment is increased to 15 years to life in prison and a fine of not more than $500,000.

As if that weren't enough, the Act also wants to amend Section 236.4 of the Penal Code so that if a person is convicted of the offenses noted above, "the court may, in addition to any other penalty, fine, or restitution imposed, order the defendant to pay an additional fine not to exceed one million dollars ($1,000,000)"!

Obviously, adult movie and internet producers, being well aware of existing child pornography laws, studiously avoid using minors, but even the federal recordkeeping and labeling law (18 U.S.C. §2257) doesn't trigger a prison sentence if a minor, using a good-looking fake ID, manages to sneak into an adult production—but this poorly-written law doesn't distinguish between whether it's the producer who must commit the "fraud" or "deceit" to be punishable, or the "victim" him/herself!

And lest anybody mistake the "take no prisoners" (for want of a better term) attitude of this law, Section 236.1(f) of the Penal Code would be amended to read, "Mistake of fact as to the age of a victim of human trafficking who is a minor at the time of the commission of the offense is not a defense to a criminal prosecution under this section."

Hell, this law is so poorly written that it doesn't matter if the minor is simply having sex with an adult who is the minor's boy- or girlfriend—it's still a crime: "Consent by a victim of human trafficking who is a minor at the time of the commission of the offense is not a defense to a criminal prosecution under this section." Congratulations, anyone who's had sex with a "person under 18 years of age," as this law defines "minor": You're a "human trafficker" and eligible for a prison term that far exceeds the punishment for even an actual rape!

And of course, as a post on points out, one effect of this law will be to put the "fear of god" into anyone who hires a young-looking (or, really, any) prostitute, on the off-chance that if she (or he) is actually underage, that hour of bunga-bunga could easily cost the client his (or her) house, car and entire savings account in fines.

"I don't know whether the furthest reaches of this law as written would pass muster in court," the author warns. "I am confident that a lot of people will, in order to avoid the worst consequences of the law, plead guilty to almost anything to escape that possibility. So the question is less 'what will happen in court' than 'what will happen to people desperate not to find out what happens to them in court.'"

There are a few other possible bombshells in the CASE Act that should be noted. For instance, a "commercial sex act" is defined as "any sexual conduct on account of which anything of value is given or received by any person"—but it never defines what "anything of value" is. A meal? A ride home? Good publicity? Who knows?!? And in the maze of definitions of terms like "coercion" (which might include voluntary drug use), "duress" and "threat of unlawful injury"(?), who knows what combination of circumstances could turn an otherwise consensual coupling into a major felony?

Perhaps of interest are the backers of Prop 35. The vast majority of the funding for the measure—a whopping $1,860,000—came from Christopher M. Kelly, formerly the Chief Privacy Officer for Facebook and failed candidate for California Attorney General in 2010. The only other contribution that even comes close to that was from the Peace Officers Research Association of CA Political Issues Committee, which donated $107,000. The Act's sponsor/author is Daphne Phung, founder and executive director of the anti-trafficking group California Against Slavery, who donated about $13,000 on her own or others' behalf to the initiative... and who also supports causes such as "Lobby President Obama to keep partial birth [aka "late term"] abortion illegal" and "Regulate the pornography industry," where she claims, "The continuing exposure of the brutality of the pornography industry is being ignored by congress. Please write your congress member and senate."

So Prop 35, which enjoys wide bipartisan support among activist groups in California and is likely to pass in November, really needs to be rewritten, either by its sponsors or by the legislature. We can only hope someone recognizes that fact and does the rewrite before it's too late.

(Hat tip to attorney Michael Fattorosi for calling this issue to our attention.)

The text of the CASE Act is available here.