Proposition 35 rendered unconstitutional

In Opinion

Proposition 35 is under fire.

The American Civil Liberties Union (ACLU) and San Francisco-based Electronic Frontier Foundation have jointly filed a suit against the proposition supporting two plaintiffs—currently anonymous—arguing it infringes on First Amendment rights.

For those unfamiliar, Proposition 35 expands the requirements to monitor registered sex offenders. A report from the McGeorge School of Law from the University of the Pacific in November 2012 stated, “Changes to Section 290 California Penal Code, Sex Offender Registration Act, anyone convicted of human trafficking, ‘labor’ or ‘sexual’, to register as a sex offender.”

The CASE Act, as it is known, is retroactive and applies to all people convicted of human trafficking since July 1, 1944.

Registrants will now have to report their Internet providers and identifiers, user names and email, to local law enforcement.  Registrants are also required to report any comments or blogs posted.

ACLU argues that this directly infringes registrant’s right to anonymous free speech. Although it is not specifically outlined this way in the Constitution, there are many previous cases pertaining to this topic.

“Requiring people to give up their rights to speak freely and anonymously about civic matters is unconstitutional,” says Electronic Frontier Foundation attorney Hanni Fakhoury.

This rule applies to all sex offenders, regardless if it was something minimal like indecent exposure, which doesn’t always involve another person. The organizations argue that to put harsh sentencing such as your right to free speech, based on classification of a single group, is a slippery slope.

Punishments like these that include blanket assumptions need to be done on a case by case basis pertaining to circumstantial evidence.

Another angle to view the changes made upon the Sex Offenders Registration Act would be to argue that Proposition 35 is breaking the Single Subject Rule; defined as “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.”

Proponents may argue that the two topics between human trafficking and requirements of registered sex offenders are interweaved and count as one.

In fact, in 2011, legislation failed to change requirements to registered sex offenders very similar to the changes made in the CASE Act.

Proposition 35 also expands the definition of human trafficking, but the changes made to the definition are too vague. The 14th Amendment prohibits federal or state legislatures to enact laws that violate the Fair Notice Requirement in the Due Process Doctrine, “An enactment will be void-for-vagueness if its prohibitions are not clearly defined.”

The expansion made to the definition of human trafficking now includes acts like sex with a minor, prostitution, pornography and “sexting.” Sharing any materials displaying naked photos or sex acts can also be considered human trafficking.

Non-coerced prostitution and pornography can be considered human trafficking and, even worse, it can expand to their family members as well.  The new definition expands “punishment to any who shares in proceeds of trafficking.”

If these acts are deemed as human trafficking than anyone who is supports a convicted “trafficker” may be convicted as a sex offender as well.

On top of all this, the Act also prohibits the defense of using any prior history of victim’s convictions of prostitution or sexual conduct during court proceedings. This revision restricts a defendant’s right to a fair trial as outlined in the Due Process Doctrine in the 14th Amendment. Defendants will no longer be able to use consensual sexual history, or the victim’s sexual history for defense which may be crucial evidence needed to pursue their fundamental right to freedom.

The problematic undertow that precedes Proposition 35 has yet to gain a volume of attention. This may be due to people and organization’s resistance to speak out for fear of bad publicity regarding such a touchy subject.

Although the measure means to do well and we can all agree to harsher punishment for these crimes; it does not give state legislature right to bypass the steps set forth by the founding fathers to get it.

Put simply, Proposition 35 is unconstitutional and riddled with negligence of lawmakers. If it is not revised, it is a fair assumption that the pending cases, opened after merely two days of enactment, will not be the last to emerge.

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  • Thank you for recognizing the hideous nature of this proposition. No one wants others to be trafficked or abused, including sex workers. However, when we (sex workers) are considered to be victims of trafficking even when we say we are not, how can society help the real victims? Decriminalize consenting adult commercial sex so that resources can be made available for those who are victims of any type of violence, coercion or abuse, including the 243,800 victims of reported violent rapes and sexual assaults (in 2011) where the police managed to apprehend a mere 14,943 (or 6%) of the alleged rapists.

    It would not help one single child victim of a pedophile priest to arrest consenting adult homosexuals, including priests who have sex with other adults. Why would anyone think that it helps victims of child sexual abuse or sex trafficking to arrest the non violent, non abusive clients, employers and family members of adults who choose to engage in commercial sex?

  • Rudy101

    I thought it was a little off that they could put two distinct ideas on the same proposition. One is sex trafficing as a sex offense and the other that sex offenders had to give their email addresses to the State. One certainly could be for one section of the proposition and agains the other.

    Also, making the law retroactive to 1944 seems to be a clear violation of the prohibiton on ex-post facto laws of the U.S. Constitution. They are saying that a person 20 years old in 1944 who committed a crime, NOW has to register and their neighbors need to know about their conviction when he is now 89 years old.

    The lesson learned? It doesn’t matter what your conviction is, in 50 years you could be finding out there are major new consequences that if you don’t abide by will land you in prison.

    The problem with propositions that need voter approval is they have to write the proposition in such a way as to be understood and write it in a minimal way so as it can be read quickly.

    Many times it is impossible to outline the true ramifications of a law as it is presented in a proposition.

    The whole thing is going to go down in a flame…