This election season, California’s ballot will include 12 statewide initiatives and referenda, many of which have indirect effect on the work of sexual violence victims and their advocates. While CALCASA has not taken formal support or opposition to any of the initiatives, there are a number that we urge our members to pay close attention to. The following is a primer on types of initiatives along with a list of those initiatives that we believe are either related to the work of CALCASA members, or have been marketed as such. We hope you take these observations into consideration, and that you vote on Nov. 4th.
Different types of Propositions
You will notice that following the title of each proposition there is an indication of the type of proposition. There are three types of propositions, bond acts, constitutional amendment and statutory initiative. Bond acts are put to voters after having been passed through the legislature so these have already been vetted in part. The reason voters are required for passage is that they refer to public funding of state programs. Constitutional amendments alter the State Constitution and therefore require consent of the voters. Finally, the statutory initiative is a form of direct democracy where citizens bypass the state legislature (ostensibly in cases where they believe the legislature has failed to address the issue at hand).
Waiting Period and Parental Notification Before Termination of Minor’s Pregnancy (Constitutional Amendment)
The proposed initiative, if enacted as a constitutional amendment, would:
- Provide exceptions for medical emergency or parental waiver.
- Permit courts to waive notice based on clear and convincing evidence of minor’s maturity or best interests.
- Mandate reporting requirements, including reports from physicians regarding abortions on minors.
- Authorize monetary damages against physicians for violation.
- Require minor’s consent to abortion, with exceptions.
- Permit judicial relief if minor’s consent is coerced.
Among other arguments, supporters suggest that if a minor becomes pregnant because of sexual violence or predation, a sexual predator may be missed, because the abortion clinic may not report the sexual crime. This argument flies in the face of current mandated reporting law which requires medical care providers (including those performing abortions) to report abuse such as that noted above to law enforcement agencies.
Proposition 4 represents the third time that California voters will have considered the issue of a parental notification/waiting period for abortion. The two previous, unsuccessful, initiatives were California Proposition 85 (2006) and California Proposition 73 (2005).
Arguments against the initiative state that:
- Mandated parental notification laws don’t work. No law can mandate family communication.
- Some teenagers can’t go to their parents because they fear being kicked out of the house, beaten, or worse.
- Prop 4 may force these teens to delay medical care, turn to self-induced abortions, or consider suicide.
- If a teen chooses to go to another adult, her parents would automatically be reported to authorities and an investigation would ensue.
Perhaps most important to CALCASA members, is that the “rape and abuse” clause written in to the initiative requires that a victim go through one or more legal processes to “prove” such abuse. The potential chilling effect for sexual assault victims to seek services are compounded by the possible negative implications in prosecuting these crimes. For these and other reasons, CALCASA has concerns regarding this initiative.
Nonviolent Offenders. Sentencing, Parole and Rehabilitation (Statute)
The proposed initiative, if enacted as a statutory initiative:
- Requires California to expand and increase funding and oversight for individualized treatment and rehabilitation programs for nonviolent drug offenders and parolees.
- Reduces criminal consequences of nonviolent drug offenses by mandating three-tiered probation with treatment and by providing for case dismissal and/or sealing of records after probation.
- Limits court’s authority to incarcerate offenders who violate probation or parole.
- Shortens parole for most drug offenses, including sales, and for nonviolent property crimes.
- Creates numerous divisions, boards, commissions, and reporting requirements regarding drug treatment and rehabilitation.
- Changes certain marijuana misdemeanors to infractions.
Supporters argue that this would reduce pressure on overcrowded and expensive prisons and create treatment options for people with drug problems. They argue that this is consistent with voter-approved Proposition 36, which provided treatment, not jail, for nonviolent drug users.
Opponents have argued that this initiative would let numerous violent criminals back into our communities. This argument seems inconsistent with the language of the initiative which clearly spells out non-violent offenders.
Criminal Penalties and Laws Public Safety Funding (Statute)
Proposition 6, if enacted would:
Require new state spending on various criminal justice programs, as well as for increased costs for prison and parole operations. This funding would come from California’s General Fund, reallocating funds currently spent on K-12 Education, Higher Education, Health and Human Services, Business, Transportation and Housing, and Environmental Protection
- Deems any youth 14 years or older who is convicted of a gang-related felony as unfit for trial in a juvenile court and prosecuting these youths as adults.
- Necessitate that all occupants who are recipients of public housing subsidies submit to annual criminal background checks and lose housing if convicted of a recent crime.
- Increase penalties for several crimes, including violating gang injunctions, using or possessing to sell methamphetamine, or carrying loaded or concealed firearms by certain felons.
- Eliminate bail for illegal aliens charged with violent or gang-related felonies.
- Establish as a crime the act of removing or disabling a monitoring device affixed as part of a criminal sentence.
- Change evidence rules to allow use of certain hearsay statements as evidence when witnesses are unavailable.
- Requires a majority vote to add
- Require a 3/4 vote to amend.
CALCASA’s concerns regarding this initiative are largely limited to the provisions regarding monitoring devices. This provision is “clean-up” language, and serves to clarify electronic supervision policies including those passed in Proposition 83, Jessica’s Law. While intended to fix GPS provisions in past initiatives, this provision fails to completely fix those problems. Furthermore, the magnitude of this initiative (not unlike that of Proposition 83, from the same author) is so broad that it is more appropriately situated in a legislative process where professional policymakers can evaluate and provide analysis.
Limit on Marriage (Constitutional Amendment)
Proposition 8 is a proposed amendment to the California constitution which if passed into law would be known as the California Marriage Protection Act. If it passes, it will amend the state constitution to say “Only marriage between a man and a woman is valid or recognized in California”.
California first explicitly defined marriage as a state between a man and woman in 1977. That year, the California State Legislature passed a law that said that marriage is a “personal relation arising out of a civil contract between a man and a woman”. In 2000, voters passed ballot initiative Proposition 22 with a margin of 61%, which changed the California Family Code to formally define marriage in California between a man and a woman. Prop. 22 was a statutory change via the initiative process, not a constitutional change via the initiative process.
In 2004, San Francisco Mayor Gavin Newsom performed same-sex marriages in his city, which were subsequently judicially annulled. This case, and some others, eventually led to a May 15, 2008 decision of the California Supreme Court, which by a 4-3 vote struck down Proposition 22. The justices argued that the limitation of marriage to opposite-sex couples enacted in 1977 and 2000 was similar in important respects to the laws struck down 60 years ago by the court (Perez v. Sharp, 1948) that had restricted marriage to same-race couples. At the time, the majority of the public was opposed to mixed-race marriage, but the court ruled that civil rights of a minority should be subject to the law, not the whims of the majority.
CALCASA’s concern regarding Proposition 8 relates to our work as allies and as advocates who believe that oppression in all its forms, plays a fundamental role in the persistence of sexual violence in our culture. Anything that undermines the status of an already marginalized class of people inherently serves to further oppress them. That oppression comes in the form of sexual violence, creating obstacles to service, and reduced public support for providing service and advocacy to often-underserved populations. CALCASA supports the work of many of our colleagues and sister organizations who work tirelessly as allies and or who identify as part of the queer community who would be affected by this initiative.
Criminal Justice System, Victims’ Rights, Parole (Constitutional Amendment and Statute)
California Proposition 9, or the Victims’ Rights and Protection Act of 2008, also known as Marsy’s Law or “Nicholas’s Law”, is an initiative in California that would alter laws governing victim’s rights in California. If passed, it will amend the California Constitution to add new provisions regarding victims of crimes.
Provisions of Proposition 9
- Provisions requiring the payment of restitution to victims.
- Any funds collected by a court, or law enforcement agencies, from a person ordered to pay restitution would go to pay that restitution first, in effect prioritizing those payments over other fines and obligations an offender may legally owe.
- Provisions regarding the notification and participation of victims in criminal justice proceedings.
- Provisions that expand victims’ legal rights.
- Provisions that affect how parole is granted and revoked; this includes lengthening the parole hearing wait for lifers from five to 15 years.
- Limits the use of state-paid defense lawyers in revocation proceedings to indigent offenders.
CALCASA’s concerns regarding Proposition 9 relate both to the policy approach and the way it is written. Many provisions of the initiative including important victims rights are already law. Duplication of these statutes may have negative implications and require later “clean-up” legislation. Furthermore, the “tough on crime” approach does not necessarily lead to better outcomes for victims.