California Voters Think of The Children, Not So Much Of Free Speech Or Common Sense

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71 Responses

  1. andyinsdca says:

    One of the nastier bits of Prop 35 is that it turns prostitutes into sex criminals. They have to register like kiddy rapists now.

  2. Dan Weber says:

    Fascism won't come carrying a cross. It will be saying "for the children."

    http://en.wikiquote.org/wiki/Sinclair_Lewis#Misattributed

  3. Christopher says:

    Thank you for this article! It is truly disgusting how we treat sex offenders as though they are people incapable of behaving in society again, yet let convicted murderers return to their former neighborhoods after their sentence has been carried out. "Think of the children" has become the battle cry of the intellectually lazy, emotionally driven, portions of society who don't want to think things through.

    I used to teach, on behalf of a local university, inside my state's Department of Corrections. One of the facilities I taught at was the home to the state's sex offenders. These men were in prison for everything from child molestation to rape. But, not all of them deserved to be there.

    I think of two cases in particular in which my students will be required, thanks to my state's laws, to register for life as a sex offender. One student of mine, at age 26, was nearing the end of his term. He served four years for statutory rape. He was convicted of having sex with a 15 year-old boy. However, upon researching his case in the local newspaper from his city, it turns out that the 15 year-old in question masqueraded as 18. This young man told my student he was an adult when they met on an adults-only gay dating site. Even the newspaper account of the story mentions, without saying his name or showing a picture, that the young man "had a scruffy beard that made him look older than his years." My student was lied to and misled, yet he is the one who must be punished.

    The second student was convicted of staturory rape as well, for having sex with his 15 year-old girlfriend when he was 18. He was a senior in high school and she was a sophomore. Just weeks after he turned 18, and days before she turned 16 (my state's age of consent), her parents walked in on them having sex. He was a high school student with his high school girlfriend. Now, thanks to my state's Draconian punishments, he will be labeled as a sex offender for life.

    The hysteria surrounding sex-based crimes has gone from protecting the innocents to punishing even the appearance of guilt.

  4. Colin says:

    Wow. Just wow. In principle, I have no issues with harsh prospective punishments against real sex offenders. However for some reason we continue to define down sex offense to ever more absurd levels. Registering as a sex offender due to a streaking? That is insane.

    First of all, how can a misdemeanor offense result in (effectively) a permanent punishment? That is (or should be) a felony level penalty!

    Second, how is this not a violation of the ex post facto prohibition? They are effectively increasing the punishment for many people who have already been convicted. If someone had been in jail for 7 years on a 10 year run for B&E, and the legislature decided that 20 years was the new penalty, you couldn't hold him for 13 more years.

    These extreme cases are disgusting, not only for what they do to people, but also for what they allow the power-hungry and complacent to do to our system.

  5. PiperTom says:

    It's "not how a free people should act." True, and ergo Americans have largely forgotten how a free people should act.

  6. NM says:

    I think we (anyone involved with criminal justice, the media, civil rights) did a really terrible job telling people exactly how stupid this was. With all the campaigning on 30,32, 34, 36, etc, 35 just got lost in the tide. I didn't see one ad regarding it (on either side) and a couple of short blurbs from a couple of newspapers saying "vote no" buried somewhere in the back.
    Instead voters walked into the polling place with knowing how they'd vote on basically everything else and saw a proposition who's blurb basically said "human trafficking bad." Of course they voted yes.
    Can we blame them for being ignorant and still voting on it? Probably, but at this point we should know that unless we are really loud about something being terrible, people are always going to vote yes on something like that.

  7. TJIC says:

    The older I get the more I realize that the "art" of politics is 99% building coalitions, and 99% of the art of coalition building is deciding who the out-group victim is.

    Jews are no good any more for demagoguing against – that trick got used up last century.

    So now we go after sex "criminals", recreational drug users, guitar manufacturers, unpasteurized milk vendors, and others.

    Tricks to picking an out-group:

    1) make it a small group, to minimize chances that the voters have friends in that group ("engineers" are bad, but "owners of guitar making firms" are good.

    2) make it a weird ugly strange group, to minimize chances that the voters can easily empathize with them – soccer moms are bad, but back-to-the-land lunatics are good.

    3) make sure that enforcement will cost a lot and the cash will rain on all sorts of in-the-coalition people: there should ideally be armed raids to let the cops play soldier, there should be huge court cases to let the prosecutors grandstand, there should be innocent victims who need counselling so the social workers have something to do.

    4) iterate the game as often as you can – we're going to run out of money soon, and any Gestapo raids or rigged prosecutions that are scheduled for after 2025 or so have a lesser chance of taking place at all.

  8. NM says:

    @Colin "Sex offender registries are not punishment" — Judges with no spine.

  9. KevinH says:

    "If someone says "let's add this law to criminalize this bad thing," we say "hell yes!" uncritically. When someone says "let's toughen sentences on these bad people," we say "yeah! the bastards!" And when anyone invokes "for the children" — well, nothing above our brain stems are in the mix at all. The most rabidly anti-government among us clamor for more criminal laws, longer sentences, more government power, more discretion for police and prosecutors.

    That's not how a free people should act."

    I can't think of anything to add to this… Well said!

  10. NM says:

    Also Ken, you also didn't discuss the insane and ridiculous fines that go directly to the people enforcing the new law. Which not only line the right pockets, but threaten to make true human traffickers judgement proof ensuring the people they forced to work never get a cent.

  11. mojo says:

    California is having a psychotic episode.

  12. It worries me that so many people clearly did not read that proposition before voting on it. 35 was AWFUL.

  13. Todd E. says:

    It seems like the evident tool against this is to contact as many sex offenders as possible who are on the outside, and get them to register with as many sites as possible daily, and give them form letters, envelopes, and stamps, and just flood the local authorities with letters noting their registration.

    If you could get a thousand people registering a hundred sites a day like this…not only would it boost the postal service, but it would completely overwhelm the ability of the local authorities to do anything useful with the information.

    Thoughts?

  14. Art says:

    "It seems like the evident tool against this is to contact as many sex offenders as possible who are on the outside, and get them to register with as many sites as possible daily, and give them form letters, envelopes, and stamps, and just flood the local authorities with letters noting their registration."

    This was my first thought as well. Find a bunch of disenfranchised people on the sex offender registry (which should be easy, since I mean it's literally just a list of disenfranchised people), and have them sign up for everything they possibly can. I don't think there could be a single possible stronger opposition to this than getting law enforcement themselves to throw up their arms and declare that it's a massive waste of time.

  15. Wren says:

    The proposition was just so badly written; I voted against it because I took the time to research it and what it would mean. Most people would just look at "let's get tough on sex offenders" and put yes because of course we want to be tough on sex offenders! No matter that it penalizes those who AREN'T actually sex offenders, but are peripherals of. I hope we can get this modified and minimized.

  16. Jack says:

    "It seems like the evident tool against this is to contact as many sex offenders as possible who are on the outside, and get them to register with as many sites as possible daily, and give them form letters, envelopes, and stamps, and just flood the local authorities with letters noting their registration."

    I was thinking this too, but I feel like the police would just use this as another excuse for more legislation. Instead of saying "this is a bad law, lets get rid of this" – they will say "sex offenders register for too many services, we need to limit how much they can do so we can keep tabs on it." People will hear about sex offenders registering for an inordinate amount of services and then go on another witchhunt, further disenfranchising them.

  17. Colin says:

    @NM: I'm not a criminal lawyer (and haven't studied it since the bar), but how is it not a punishment?! That is absurd. "No person shall be … deprived of life, liberty, or property, without due process of law;" Is not the ability to freely travel, establish domicile, peaceably assemble, etc. part of the core of liberty? If you, through your actions and due process, have been stripped of this right, than it is a punishment.

    The law can be a real ass sometimes. Crap like this makes me consider changing my field of practice away from patents…

  18. James Pollock says:

    Colin, being put on a registry isn't a punishment, it's a defense mechanism for the public. In the original form, registry was limited to those who, it was believed, had a very high recidivism rate. Making and publishing the registry allows those who live near or interact with a person extremely likely to re-offend to take appropriate protective measures. That's the core idea, and it works, if accurately applied and administrated.
    Then some yahoo started added things to list of registerable offenses, and we wound up with a registry that has so many people on it, most of whom are not a threat to anyone, that the registry is effectively useless. So, despite the fact that as presently run, sex-offender registries accomplish nothing, there is no natural political constituency to fix them.
    Nevertheless, here's what I'd do to fix the problems:
    1) registration for felonies only
    2) after a second offense
    3) some standard for "likelihood to re-offend" which is strictly enforced
    4) people can get off the list with good behavior (which can be seen as the flip side of "likelihood to re-offend"… "didn't re-offend" is a pretty strong counter-evidence of "likelihood to re-offend".

  19. sorrykb says:

    That's one of the many problems of governing by ballot proposition. We elect and pay supposed professionals to legislate, but then get these faux-populist referenda… argh. (That said, I'm glad at least that the "three strikes" revision passed. Shame about Prop 34 failing.)
    And on top of all the very real problems you mentioned with Prop 35, we ALREADY have good anti-trafficking law in California, carefully and thoughtfully crafted by anti-trafficking advocates, law enforcement, and civil rights advocates. It also bears mentioning that every anti-trafficking advocate I know (from having worked in human rights advocacy, I know more than a few) voted against 35. It's too bad they weren't able to get the word out about just how bad this proposition was.

  20. Gigs says:

    It is becoming more and more apparent that our justice system is not interested in rehabilitation. We have some sort of puritan mindset that those who sin should be punished and shamed for life. It isn't strange that the US has such a high recidivism rate (~67.5% by year 3) considering the lengths we go to ostracize prior felons. If you treat people like an animal, why then be surprised when they act like one?

    Meanwhile, in Norway, they teach people how to live like normal human beings and the positive result is apparent in their low recidivism rates (~20%). It's time to stop basing our justice system based off of how we can best punish offenders, and instead focus on how we can fix them.

  21. En Passant says:

    Ken wrote:

    Will the broad power of the proposition be used in a principled manner to attack real traffickers, or could it be abused and used against people who more closely resemble victims themselves?

    Of course it will be abused. It was intended to be abused.

    But the really scary part is that the legislature can do absolutely nothing to change any of it. It was a statute enacted by popular vote of the electorate. The only way any provision can be overturned is by another another popular vote.

    That feature of California's system can sometimes work in favor of laws giving people more liberty, as it did with Proposition 215 for medical cannabis some years ago. But the downside is remarkably ugly in laws like this one, which will perpetually fund the same political forces which brought it to the ballot.

  22. NM says:

    @Colin
    Because the judges say it isn't.

    @James Pollock
    I disagree with you on the idea that it isn't punishment. In CA, sex offender registry means that you can be restricted from living virtually anywhere that isn't the middle of the Mojave or an industrial zone. It can mean a lifetime on a GPS monitor. It means state prison if you're a day late on registration — registration that must happen ever 30 days to 1 year. If you're homeless, it is almost a certainty you;'ll be back in prison within a year due to the restrictions.
    Rarely enforced, but you also get stricter punishments for non-sex related offenses. Rather than half time, you get 85% time and are more likely to go top state prison instead of county jail.

    The second problem is that it doesn't keep anyone safe, and in fact, creates an illusion of safety. Your child is almost certainly not going to molested by the stranger down the street. Their uncle frank? Much more likely.
    GPS monitoring doesn't protect you because the GPS can be cut off simply. Or just "uncharged" for a few hours (they only hold a charge for 10 hours). It will violate them for going to a McDonalds with a playplace though (I've seen this case)!
    The recidivism rates also don't bear out a danger either. We don't have a publicly accessed registry of murderers, robbers, or 3 strikers.

    Then there is the unintended consequences. If I have a client charged with a sex registry offense, if the DA offers a non-registry offer, especially if it comes with little to no prison, they will leap at, innocent or guilty, because it saves them the scarlet letter. Even if they could get off it after a decade of good behavior, they still would because any amount of time people would see as effective, it would be way to long to go without proper living arraignments, a real job, etc.
    The best part is when a couple of years later after taking this deal, the legislature retroactively makes whatever offense they plead to a sex offender registry offense. Awesome!

    Then there's inaccuracy. A few PD offices ago, I had a client essentially convicted of being gay in Texas in the late 70s. This was called "lewd acts" or something. Guy moved to California more than 20 years ago. Lived peacefully until the mid 2000s when the sheriff discovered someone with a "lewd acts" conviction was living in his county. Knocked on his door and told him to register or go to jail.
    This guy, not being wealthy or questioning authority did it. He registered on his birthday properly for years.
    Then his house burned down.
    A friendly neighbor took him in. Two weeks later he was arrested for failing to update the address change.
    He got his case dismissed, and will always get his case dismissed based on the documentation he has. However, to avoid arrest (being right sucks if you have to do a few days in jail every month), he still has to register. There is not really a process to get him off supervision (there is for persons convicted of two offenses that were removed, but not one for someone who is just wrongfully on the list). File writs, get them ignored, move up the chain.
    Last I checked, his name and picture is still on the website. But they finally removed his address!

    Sex offender registries suck. If we believe they're that dangerous, deal with it on the sentencing end. Once they're out, let them live their lives. Quite frankly, I'd rather live next door to many of my sex offender clients (if not for the decrease in property value due to the website) than many of my clients with multiple robberies and carjackings. Even if I had children.

  23. Kelly says:

    Who funded this proposition and why? Has there been an epidemic of human trafficking in California that has eluded media attention but resonated in the legislature?

  24. David says:

    Among all registered sex offenders in California, what percentage consists of "rapists and child molesters" and what percentage consists of "boyfriends and girlfriends convicted of statutory rape and people convicted of minor crimes questionably classified as sex crimes"?

  25. Roscoe says:

    The proposition states that anyone who violates the personal liberty of another with the intent to obtain forced labor or services is guilty of trafficking. (Cal. Penal 2361(a) (as amended)). According to the proposition both of these goals (i.e. violating personal liberty and obtaining forced services) can be accomplished by fraud or deceit. (Cal. Penal 2361(h)(3) and (5)) (as amended)).

    I guess this means that anyone who hires me to perform legal services without intending to pay his bill is a human trafficker. Cool. Maybe the proposition isn't so bad after all.

  26. Ken says:

    Does your representation qualify as "services"?

  27. NM says:

    @ Kelly
    Chris Kelly (donated 2.5 million), formerly of facebook, who thinks this is the path to being elected Governor or Attorney General. (To her partial credit, current AG Harris did not support the law, but did not openly oppose it).
    Pretty much every politician and interest group on both sides of the aisle.
    The only party to openly oppose was Peace and Freedom (Roseanne Barr). The libertarian groups did not oppose either.

  28. Trebuchet says:

    Meanwhile, my state (Washington) still has a "civil commitment" law which allows sex offenders to be kept in prison indefinitely after completing their sentences, based on the judgement of a panel of bureaucrats. Last I heard, maintaining one's innocence after conviction is a sure ticket to civil commitment.

  29. NM says:

    @Trebuchet
    We have that in California too. They are entitled to periodic hearings and even jury trials, but they're largely a sham.

  30. Jeremy says:

    This election was the first one where I was truly afraid of continuing to live in California. It seems a lot like Ayn Rand's worst nightmare these days. So many people here honestly believe you can vote yourself into a better life instead of just working for it. So many voters don't spend 10 minutes to assess the situation their state is in and how it got there.

  31. Roscoe says:

    Ken – It depends on who you ask.

  32. Chris R. says:

    This is why we have a Constitutional Republic in the US, so voters don't make these idiotic judgements based on a bills title. Seriously, I tried explaining 35 to some friends once I read up on it but people were generally unwilling to even listen at first. I go "are you a perv" stares too. Luckily the EFF and ACLU have already jumped on this one, but really they shouldn't have to. The Prop system in California is broken badly.

  33. Jeremy says:

    James Pollock • Nov 8, 2012 @10:51 am

    Colin, being put on a registry isn't a punishment, it's a defense mechanism for the public.

    So Hester Prynne wasn't given a punishment when she was dragged from her home, and legally forced to wear an "A" on her chest anywhere she went simply for the crime of committing adultery? It was a defense mechanism for the public?

  34. Jeremy says:

    The fact that Obama has done absolutely nothing to turn back the tide on this puritaniccal wave of sex crime expansion and general invasion of the government into our lives… to the point that now clothing-optional beaches are all but outlawed in a nation that considers itself the freest in the world, tells me all I need to know about where America is headed.

    And voters think they have choice… lol.

  35. En Passant says:

    NM wrote Nov 8, 2012 @12:07 pm:

    Chris Kelly (donated 2.5 million), formerly of facebook, who thinks this is the path to being elected Governor or Attorney General.

    Chief Privacy Officer at Facebook when Facebook launched Facebook Beacon.

    Facebook Beacon (2007-2009) was discontinued in ignominy after numerous class action lawsuits by plaintiffs outraged at their privacy being violated by the program.

  36. @manybellsdown The question isn't whether they read it but rather did they understand it. Newspapers are supposed to be written for someone with an 8th grade education in mind but ballot initiatives seem to be written in such legalese it is sometimes hard to decipher that if you vote against something that you are actually voting in favor of it.

  37. John Thacker says:

    This very real problem of putting people convicted of statutory rape on sex offenders list is why I don't go nuts over lawmakers using the official FBI term of "forcible rape" in laws; the exception seems to be including these cases. (No excuse for other stupid comments said by politicians, though.)

    http://www2.fbi.gov/ucr/cius2009/offenses/violent_crime/forcible_rape.html

    "Forcible rape, as defined in the FBI’s Uniform Crime Reporting (UCR) Program, is the carnal knowledge of a female forcibly and against her will. Attempts or assaults to commit rape by force or threat of force are also included; however, statutory rape (without force) and other sex offenses are excluded."

  38. Ed Borg says:

    In California, statutory rape (PC section 261.5) is not an offense which requires registration under PC section 290. Indecent exposure (PC section 314, which is a 290 offense) requires a lewd intent, which makes it extremely unlikely that one could be convicted for streaking in college 20 years ago (unless you had a crappy lawyer). The "I had sex with my 17 year old girlfriend on prom night" story is conventionally the explanation registered offenders offer for their presence on the registry, just as 8 out of 10 drivers stopped for DUI say "two beers, officer" when asked how much they've had to drink. And it's about as accurate.

    Don't get me wrong, I voted against 35, because it is badly drafted and unnecessary. I think it passed solely because it got very little attention, what with 30, 32, 37, 38, 39, and the presidential election, so that the first time most people really saw it was on the ballot, they read the title, and voted for it. I think it's bad law and I wish it hadn't passed. This legislation fills a hole that wasn't there.

    But the examples Ken uses are just not reflective of the law in California, which is unusual for him.

  39. MathMage says:

    It doesn't help that the supporters include just about every recognizable name in California politics as well as both the Democratic and Republican parties, while the most prominent opposition was the Exotic Services Legal Research Project. -_- The first hint that something has gone wrong is when both the Democratic and Republican party support something; it's true of 35, and it's true of 40 where some incredibly stupid politics led the government to need the voters' rubber stamp on their districting.

  40. Lago says:

    Yes. Thank you. Just sent this to a friend who voted yes on this one.

  41. James Pollock says:

    NM said: "I disagree with you on the idea that it isn't punishment. In CA, sex offender registry means that you can be restricted from living virtually anywhere that isn't the middle of the Mojave or an industrial zone."
    You've confused cause and effect. The law that puts you on a registry doesn't limit your ability to live anywhere you want. The law that says you can't live anywhere you want limits your ability to live anywhere you want.
    (From there, you go on to attack positions I didn't take.)
    As for your point that we don't have registries for murderers, the reason that we don't is that murderers kill for a variety of reasons, meaning that many murderers (or manslaughterers, or negligent homiciders) have a very low likelihood of murdering again. The conventional wisdom at the time sex-offender registries were invented is that most sex-offenders* are driven by deep psychological problems that were effectively untreatable. We recognized that some murderers(, robbers, burglars, and other felons) are ALSO unable to stop their criminal behavior, and passed "habitual criminal" laws and sentencing rules to deal with them (Generally, you don't need a registry of them because they're all in prison for life).

    *back then, "sex offenders" was a MUCH more limited category. As I noted before, one of the biggest problems with sex-offender registry is that the definition of "sex offender" has expanded to widely to take in an extremely large number of people who are no threat whatsoever to the public. A list with a couple of actually dangerous people mixed in with hundreds or even thousands of people who are not defeats the purpose of the registry in the first place.)

  42. John Thacker says:

    Ed:

    You may be right about California. There are other states where these cases do occur because the laws are less well-drafted.

  43. NM says:

    @Ed Borg
    Lots of people have been plead to 314.1 for streaking type activities because during a period when it was non registrable (mid 80s-2005), people were plead to it at arraignment without legal counsel so they can get out of jail.
    Another case where people get convicted of 314s: masturbation in jail. Until extremely recently prisoners having consensual sex in prison were required to register as sex offenders. (Overturned on 2011 on equal protection grounds).
    Similarly 261.5 does not require registration but can be a registry offense if ordered. And it is ordered way too often, particularly if you take a case to trial.
    There's also a fair number of people with transfer ins that probably shouldn't be registrable under the law, but they still are required to register because they don't have the resources to fight.

    @James Pollock
    Quite frankly, CA sex offender law has been overbroad since the 40s. The difference is that now the information is easily accessed and the punishments are far worse.

  44. Jon says:

    I don't think it had as much to do with the actual detail of the law as it did with the quality of the arguments for and against:

    http://voterguide.sos.ca.gov/propositions/35/

    The _official_ CON argument involves some kooky argument about veterans who happen to be the children of sex workers…. and one of the other arguments in the voter guide bemoans the fact that a landlord who tells an underage tenant to sell her body to make rent becomes a "pimp" in the definition of the law.

    Bottom line, I don't think it is the strength of the law, but rather the absurdity of the arguments on this one. Plus it probably helped that a "YES" vote was advocated by both R and D, afaik.

  45. ShelbyC says:

    Hookers on the sex offender registry? That should come in handy, since they kicked them off Craigslist.

  46. En Passant says:

    Jon wrote Nov 8, 2012 @6:07 pm:

    I don't think it had as much to do with the actual detail of the law as it did with the quality of the arguments for and against: …

    Very strange — the Secretary of State Voter Guide website you linked has very highly abridged pro/con arguments that are very different from those found in the official voter pamphlet also published by the Secretary of State.

    Even the parties making the pro/con arguments are different from those in the published voter pamphlet in some cases.

    That seems to be true for all the propositions. I'm surprised that the Secretary of State would permit (or possibly require) different arguments, and even different proponents and opponents in the two publications.

    Whatever the reasons, I think the practice stinks. Voters should be able to get consistent information from the Secretary of State whether published on the intarwebz or paper.

  47. Dreampod says:

    I have to admit that my first thought regarding that requirement is that it wouldn't be very hard to 'borrow' the scripts primarily used by comment spammers to create and register accounts with minimal human imput (mostly captchas) and register to 'comment' on thousands of sites a day. At which point you fax it to them so that they are forced to transcribe all that data. Get a couple dozen "sex offenders" doing that to a particular precinct and wait for the inevitable explosion.

  48. No Name Given says:

    "Forcible rape, as defined in the FBI’s Uniform Crime Reporting (UCR) Program, is the carnal knowledge of a female forcibly and against her will. Attempts or assaults to commit rape by force or threat of force are also included; however, statutory rape (without force) and other sex offenses are excluded."

    "Sexual attacks on males are counted as aggravated assaults or sex offenses, depending on the circumstances and the extent of any injuries."

    What idiot came up with that? Sex coerced by force or threat of force is rape, regardless of the victim's gender…

  49. kmc says:

    We love to just pile on law after law after law, don't we? We start with the basic assumption that everything "bad" (to be interpreted individually) can be fixed, and then we go on to the assumption that it can be fixed with a law. Those two initial conditions produce, as far as I can tell, a perpetually self-propelled system. … Maybe we need to give all incoming legislators a short course on basic feedback theory?

  50. ParatrooperJJ says:

    There's a FL man on the sex offender list for urinating in public.

  51. naught_for_naught says:

    Here is a partial breakdown of the vote as I see it (blocks not mutually exclusive, they don't add up tp 105%):

    35% of voters don't read past the title of the initiave: "Human Trafficking. Penalties. Initiative Statute." They will always vote for harsher penalties regardless of the crime. 35% can only see the issue as framed by L&O: SVU, and they know that we have to do something. 35% first heard about the initiave while they were in the voting booth and made up they're minds on the spot — after all who is not going to vote strict penalties for human traficking, whatever that means.

  52. M. says:

    Well, best of luck enforcing that.

    I say this sarcastically, of course, because, like most Internet predator "safeguards," this is asinine. Jesus, people, just teach your kids not to have meatspace meetings with Internet people unless you're present.

  53. James Pollock says:

    "What idiot came up with that? Sex coerced by force or threat of force is rape, regardless of the victim's gender…"
    Probably the idiot who noticed that only women have vaginas, so only women can have their vaginas forcibly penetrated. Forcible sodomy is a different crime (because, for a long time, most states prohibited ANY sodomy, consensual or not).

  54. M. says:

    @James Pollock: It's also quite possible for a woman to rape a man.

  55. Jeremy says:

    James Pollock • Nov 9, 2012 @11:25 am

    Probably the idiot who noticed that only women have vaginas, so only women can have their vaginas forcibly penetrated.

    Rape is about power, physical configuration of the sexes actually has little to do with who has the unequal distribution of power in a sexual encounter. With over-the-counter drugs it's not only possible, but easy for any woman to force intercourse on a man. A roofie and a little viagra and that's all she needs to grab power.

  56. M. says:

    That's why I'm a socialist: You're getting equal rights rather you want them or not!

  57. James Pollock says:

    "A roofie and a little viagra and that's all she needs to grab power."

    Perhaps. But neither of these things existed when the statute was written. Yay for progress! Any kind of statistics for how often this might be happening?

  58. M. says:

    No. Are you saying it doesn't?

  59. ShelbyC says:

    "It's also quite possible for a woman to rape a man."

    Sure, but no matter how much I wear revealing clothing, drink too much, and act like I want it, it never seems to happen to me.

  60. M. says:

    Even if it never actually happened, it would be worth including in the law for the sake of equality. I'm not going to go into all my thoughts behind it, but it's worth saying that I almost did it myself once.

  61. M. says:

    @James Pollock: Sorry, my last reply to you came out much snippier than was necessary.

  62. James Pollock says:

    "No. Are you saying it doesn't?"

    No. But if it doesn't, there's no rush to redraft the statute. I mean, none of our statutes takes into account the rights of space aliens openly living amongst the human population… something that will need to change, if and when there are space aliens living amongst the human population. The absense of such redrafting efforts doesn't reveal the government's secret plan of keeping the space aliens secret, nor does it reveal that the government plans to oppress the space aliens when they show up; it reveals that the need just hasn't come up.

  63. M. says:

    It does happen, though. It tends to go un-reported, for understandable reasons.

  64. bvierra says:

    As a fellow Californian who did not vote for Prop 35 and has a bad habit of talking politics with friends / co-workers, one of the things I noticed was how ill-informed just about everyone was on this prop. The arguments for it were always about direct sex trafficking with absolutely no clue to the other sections of it.

    I think they way this proposition was written up and the summaries that were made were done in a specific way (as almost all are) to just push the point they knew the people would like and to downplay or just outright ignore the other pieces. People that I routinely talk law / politics with thought they knew all about it, yet knew nothing other than about the prison sentences and fines for sex trafficking. It seems as if everyone nodded off after the 1st part and forgot they were reading it when they finally woke up.

  65. Andrew Roth says:

    When I saw the early returns on 35, I was stunned. I then realized that clearly a huge, possibly even decisive, percentage of the electorate didn't have a fucking clue about the actual provisions that they were approving.

    For a gauge of the real size of the authoritarian bloc in the California electorate this year, look at Propositions 34 and 36. Prop 34 narrowly lost, and I doubt that everyone who voted against it was really an authoritarian. Some of them, I suspect, are not the usual rabid hang-em-high asshats who have historically infested right-wing politics in California but rather people who sincerely believe in due process but also want to maintain capital punishment for particularly heinous murders. The results on Proposition 36, however, strongly suggest that the authoritarian turnout was about one third of the voting electorate. Using the returns on these two propositions as upper and lower bounds for the authoritarian vote suggests that between thirty and fifty percent of the voting electorate fundamentally did not understand the scope or purpose of Prop 35.

    I see no credible explanation for the approval of 35 in every county by a margin of AT LEAST 72% other than a badly misled electorate. In every other Penal Code proposition I can recall, the Bay Area has voted differently from the rest of the state; this time, SF had the strongest opposition of any county to 35 (at 28%), while the remaining Bay Area counties had returns much closer to the statewide average. To get an idea of how bizarre the returns were, some of the strongest opposition to Prop 35 came from Glenn County, which is one of the most staunchly conservative counties in the state.

    In effect, the only people paying attention to what was actually on the ballot were a combination of sex workers and other libertines in a handful of coastal counties and libertarians in a handful of rural counties, some of them archconservative.

    I'd really like to see Prop 35 invalidated in its entirety on the basis that the electorate that approved it was too fundamentally ignorant for the result to be legitimate. Case law is probably against me on that, but the process and outcome were so blatantly FUBAR that it would make for a great test case.

  66. johnl says:

    Besides changing business disputes to human trafficking cases, this seems to turn normal parenting into human trafficking. For example, if you change the TV channel if the kid doesn't clean his room, that's depriving him of liberty with the intent of obtaining forced labor services.

  67. Andrew Roth says:

    Todd E.:

    I like your idea of flooding the system. Not long ago I came across a similar proposal to crash the "McJustice" system that prevails in drug trials by convincing drug defendants to go to trial en masse.

    Your proposal would be an appropriate fuck-you to the fools and opportunists who got Prop 35 on the ballot. Everything I've heard about them tells me that they are too arrogant and addled by their own propaganda to imagine their precious legislative tool being turned against them by a class of people they regard as either easily intimidated ex-cons or ignorant victims with no agency.

    Many of the people who have insinuated themselves into the "human trafficking" hysteria are deeply disturbed, pathetically credulous, or of absolutely execrable character. Two of the biggest names in professional "human trafficking" activism are Somaly Mam, who appears to be either delusional or a lying charlatan, and Nicholas Kristof, an unctuous, social-climbing, paternalistic shit who has parlayed a smarmy, condescending, platitudinous "feminist" faux respect for women into a smitten personality cult, mostly consisting of relatively sheltered American women. To be clear, some of these women are themselves of excellent character; a dear friend of mine, one of the most gracious and decent people I know, is quite taken with Kristof's "Half the Sky" shtick; but Kristof's feigned, superficial concern and sincerity and his endlessly intoned platitudes about female empowerment have clearly been widely substituted for critical, independent thinking about the questions at hand (sex, labor policy, foreign policy, etc.), and for that reason he should be given no quarter. To add another, underappreciated, layer of pathos to this sick tale, Kristof is a cutthroat who (along with most of his op-ed colleagues at the NY Times) refused to lift a finger in support of local support staff at the Times' foreign desks when they protested Times management's decisions to deny them pensions. These foreign employees–stringers, fixers, even reporters and photojournalists–are Kristof's colleagues, and he refuses to do fuck-all for them despite being in a position of great influence.

    If Somaly Mam and Nicholas Kristof aren't enough, Daphne Phung, one of Chris Kelly's main allies on Prop 35, had her consciousness raised about sex trafficking, so to speak, by a "Dateline NBC" special. It didn't cross her mind as a problem until that Chris Hansen and company promoted it as a moral panic in their quest to dive headlong from respectable journalism into the gutter.

    The broader implications of this donnybrook for American journalism are pretty scary. It's daunting to consider that the only path to viable reform of the mass media, and hence the only viable way to forestall future moral panics, may be for smaller players, including the samizdat community, to undercut the majors until they become irrelevant. That's certainly one of my goals; I'd like to keep the New York Times and its ilk for their actual reportage, but as a group their columnists are horses' asses.

    In that vein, I suppose I might as well expose my schadenboner (and maybe register it with the civil authorities several hundred times) over Newsweek's apparent death spiral. At least one malicious rag appears to be reaping the wages of sin.

  68. Andrew Roth says:

    Looking at the long game, the best hope to mitigate this sort of tyranny of the majority may be judicial activism. It may take judges establishing an individual right to make consensual sexual decisions, including those involving prostitution, in the fashion of Griswold v. Connecticut and Roe v. Wade. Maggie McNeill has made the same argument about the legalization of sex work. Fabius Maximus has argued that this sort legislation by judicial fiat stirs up generations of acrimony but may be warranted because the human cost of the status quo is unconscionable. Recent jurisprudence doesn't give me much hope in this regard, but I still consider it a goal worth pursuing.

    I'd add the lowering of the age of sexual consent as an appropriate subject for judicial activism. The age of 18, which currently prevails at the national level, is so far removed from the average age of puberty and so divorced from the realities of the intellectual and social maturity of many older teenagers that it mainly serves to add a layer of Kafkaesque nightmares to the lives of young people who are already needlessly infantilized despite overwhelmingly comporting themselves as adults.

    "Dateline NBC" is a perfect manifestation of how bizarre the current age of consent can be. A sober people would recognize it for what it is: a well-connected pervert (Chris Hansen) coopting law enforcement to play gotcha with less powerful men who are attracted to young women and, in at least some cases, get a rush from violating arbitrary laws. The spectacle of women who are actually of legal age posing as jailbait by dressing childishly and feigning semiliteracy would be laughable if it weren't so destructive. After all, Jessica Simpson plays dumb, too. Chris Hansen's brand of schadenfreude wouldn't be nearly so resonant if sexual consent laws weren't so psychotic. I'm pretty sure the marginal allure of sexually mature teens relative to college-age girls would plummet, too; the schtick that Hansen's decoys use would start looking not so much nubile as uneducated and unintelligent.

    The sad thing is that despite the hope that I get from things like the vigorous and eloquent reaction to Prop 35 in this thread, the power and reach of garbage like "To Catch a Predator" repeatedly convinces me that we are a deeply stupid, hypocritical and wicked nation. How to fix that by means other than the consistent, patient application of unpopular but equitable judicial precedents is beyond me.

  69. Jo says:

    And a federal judge agreed with the EFF and the ACLU and blocked the part of the law requiring online ID registration:

    http://blogs.laweekly.com/informer/2012/11/proposition_35_blocked_email_judge_sex_trafficking.php

  70. Very happy to hear the online ID registration provision was blocked. That was the primary provision of Prop 35 that concerned me and the reason I voted against it. I was shocked by the overwhelming support for it. This wasn't buried in the full text of the proposition – it was right on the ballot, right under "extends sentences for sex trafficking." Are people really too lazy to read the things they vote for, or were they seriously imagining we lived in a world where the sex crime registry is dominated by devious child rapists trying to seduce our children online? Does one have to spend $20 million on shiny mailers and TV ads to fight a proposition before anyone notices something might be wrong with it? And the requirement for prostitutes to register as sex offenders is just going to further marginalize a population that is already poor and struggling. And if I want to get another proposition on the ballot to undo this nonsense, that'll cost at least $2 million. This system really needs some checks to save us from the tyranny of the majority.

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