Proposed Initiative for Berkeley
Below is a working document of the proposed ballot item. Use this as a template to begin an initiative in your area to decriminalize. Contact for further info.
Shall the City of Berkeley help stop violence against women, demand that the State of California repeal laws that prohibit private consensual adult sexual behavior and that treat women unfairly, make enforcing those laws a low police priority, and cease wasting vital funds?
WHEREAS, Persons should never be forced into having sex or doing any other act against their will, whether by force or fraud, and whether they are adults or children.
WHEREAS, Laws that make criminals of adults for having consensual sex have a profound effect on the safety and well being of those adults, with all that imports for the dignity of the persons charged. When victims of such laws receive criminal convictions, collateral consequences always follow; and
WHEREAS, Such consequences include the marginalizing of those individuals, negatively impacting their safety and access to health education and services, and preventing them from obtaining other employment due to the stigma and status of a criminal conviction; and
WHEREAS, The State of California, and the City of Berkeley face a severe financial crisis, and should not allocate precious resources for the senseless enforcement of victimless crimes; and
WHEREAS, Persons who provide sexual services should have the right to report any crimes perpetrated against them, and any crimes they witness, without fear of subjecting themselves to prosecution for admitting to being sex workers; and
WHEREAS, The harms of such sanctioned discrimination are best evidenced by the brutal hate crimes perpetrated against prostitutes and women. A recently convicted serial murderer confessed that he "picked prostitutes as my victims because I hate most prostitutes ... and because I thought I could kill as many of them as I wanted without getting caught." Prostitutes are human beings. Criminalizing their work implies they are second class citizens -- subhuman -- and thus legitimate targets of physical violence and hatred; and
WHEREAS, Persons who provide sexual services should have the right to declare sex work as a legitimate vocation and source of income to financial institutions including lending organizations, credit facilities, and the California Franchise Tax Board; and
WHEREAS, The American Law Institute promulgated a Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail; and
WHEREAS, Article I of the Constitution of California decrees that all people are by nature free and independent and have inalienable rights. Among these are pursuing and obtaining safety, happiness, and privacy; and
WHEREAS, The Supreme Court of the United States has recently lauded "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex," that people "are entitled to respect for their private lives," and the "State cannot demean their existence or control their destiny by making their private sexual conduct a crime."
NOW THEREFORE BE IT RESOLVED by the City of Berkeley that a new chapter 12.27 is added to the Berkeley Municipal Code to read as follows:
The unjust laws criminalizing consensual sexual activity among adults in private whether for money or any other consideration must be repealed.
Brutal hate crimes routinely perpetrated against prostitutes reveal how such laws disenfranchise and foster discrimination against persons, especially women, and do more to harm Berkeley citizens than protect them.
We demand the reform of sex laws, and the return of our basic freedoms of life, liberty, and the pursuit of happiness.
The ordinance codified in this chapter will:
A. Reduce crime perpetrated against persons for engaging in consensual adult sexual activity by making it possible to report such crimes to the police, whether as a victim or a witness;
B. Reduce the current expenditure of public funds for senseless enforcement of prostitution laws; available funds should be used for needed community services, not harassment;
C. Decrease tensions between the police and members of the community who are made to feel like criminals as a result of engaging in consensual adult sexual activity;
D. Instruct the city government to support efforts toward the repeal of prostitution laws.
For purposes of this Chapter, "prostitution" means any consensual sexual activity among or between adults whether for money or any other consideration.
For purposes of this Chapter, nonconsensual sex acts, whether perpetrated by fraud, threat of force, or force, as well as any sex acts perpetrated against minors are not "prostitution," and are referred to instead as "criminal sexual acts," collectively.
For purposes of this Chapter, "prostitution laws" mean the portions of Sections 266, 266d, 266e, 266f, 266h, 266i, 315, 316, 318, 647, 647(b), 653.20, 653.22, 653.23, and 653.28 of the California Penal Code which criminalize sexual activity among or between consenting adults whether for money or any other consideration.
For purposes of this Chapter, "prostitution laws" does not mean the portions of those Sections, or any other Sections of California law that prohibit criminal sexual acts as defined in this Chapter.
12.27.030 Efforts to decriminalize prostitution in California.
It is the desire of the people of Berkeley that laws prohibiting or regulating consensual sexual activity between or among adults be repealed in California. In this context, the people of Berkeley fully support the present statewide efforts to repeal prostitution laws. The City Council is directed to lobby in favor of the repeal of these laws.
12.27.040 Law enforcement priority of prostitution statutes.
The City Council shall seek to ensure that the Berkeley police department gives lowest priority to the enforcement of prostitution laws. If other portions of the Berkeley Municipal Code require "lowest priority" enforcement levels, such as the enforcement of marijuana laws, this section shall not be construed to elevate enforcement efforts against those acts. Instead, this section shall be interpreted to require equally low priority for the enforcement of "lowest priority" acts.
12.27.050 No expenditure of funds for enforcement of prostitution statutes.
The City Council shall not expend or authorize the expenditure, nor shall any expenditure be made by the city, of locally collected funds for any activity or activities performed by any employee or agent of the city, including but not limited to members of the Berkeley Police Department, directed towards enforcement of prostitution laws.
12.27.060 Berkeley police department reporting requirement.
The city council shall ensure that the Berkeley Police Department reports semi-annually to it and the Berkeley Police Review Commission regarding all prostitution law enforcement activities, if any, engaged in by the Berkeley Police Department, and by county, state, and federal, and/or other law enforcement agencies within Berkeley.
If any provision of this ordinance, or the application of such provision to any person or circumstance, shall be held invalid by any court, the remainder of this ordinance to the extent that it can be given effect, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the sections of this ordinance are severable.
BE IT FINALLY RESOLVED, that the City Clerk is directed to transmit this resolution to all City departments, the courts, the Governor and the Attorney General of the State of California, to all members of the California Congressional delegation, the United States Attorney General, and the President of the United States of America.