Disconnect Between Satutory Rape Laws and Prostitution Laws

Tara M. PrairieIndependent StudyFall 2013Women’s Studies Talk

THE DISCONNECT BETWEEN STATUTORY RAPE LAWS AND PROSTITUTION LAWS

INTRODUCTION:

Recognizing the importance of combating the trafficking of

humans and protecting victims of the crime, President Bill

Clinton signed the federal Trafficking Victims Protection Act1

(TVPA) in October of 2000. Subsequently in 2004, the Department

of Justice drafted a Model Law for states to integrate into their

law. Since then, forty-eight states have enacted human

trafficking legislation with little consistency among them. The

majority of state law emphasizes criminalization and increased

penalties for perpetrators whereas only eighteen states provide

immunities to minors under safe harbor laws.

Because of the inconsistencies between state and federal

laws, some minors engaged in prostitution are still being

1 The Trafficking Victims Protection Act of 2000 (TVPA) is the first of three sections of the Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386, div. A, § 102, 114 Stat. 1466, 1466-91 (2000) (codified as 22 U.S.C. §§ 7101-7112 (2011)).

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prosecuted even in states with safe harbor laws. This phenomenon

occurs despite of the fact states having statutory rape laws that

restrict a minor’s ability to consent to sexual relations. The

news media has reported on a few cases that exemplify this issue.

The articles covered report victims as young as ten years old

being prosecuted for prostitution despite the fact under the

state’s same statutes; they were too young to consent to sex. The

intent of this paper is to study apparent disconnects between

prostitution and statutory rape laws and argue for consistency

amongst state laws. Part I of this paper will provide a history

of domestic minor sex trafficking including an analysis of

federal and state laws. When analyzing state laws, current

conflicting prostitution and statutory rape laws are included in

the analysis. Part II will provide a critique of approaches,

statutes and cases including considerations that are missing from

opinions or legislative history. Part III of this paper details

recommendations for further policy, legislation, etc. This paper

argues that current federal and state laws with the exception of

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a few do not provide enough protection to minors who are victims

of trafficking. Without consistency in the laws, minors will

continue to be treated as criminals instead of victims of

exploitation.

I. HISTORY OF HUMAN TRAFFICKING LAW IN THE U.S.:

a) FEDERAL

The TVPA represents the accumulation of a long-standing

history of anti-sex trafficking laws in the United States. The

goals of the TVPA involve a three-pronged approach: prevention of

trafficking, prosecution of traffickers, and protection of

trafficking victims. Under § 7104, a list of economic

alternatives to prevent and deter human trafficking provides a

platform for states to implement initiatives to enhance economic

opportunity. Some of the economic alternatives include: (1)

microcredit lending programs, (2) assuring access to education

for all children, or (3) creating an educational curricula on the

dangers of trafficking. In regards to prosecution of traffickers,

to strengthen prosecution and punishment, § 7109 added the

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criminalization of “trafficking” and “sex trafficking of children

by force, fraud or coercion2. Prior to the act, penalties were

random and often weak since the state prosecuted traffickers

under statutes criminalizing lesser offenses such as prostitution

or kidnapping.3 Currently a trafficker faces fines and fifteen

years to life imprisonment if they used force, threats of force,

fraud or coercion to traffic an individual of if at the time of

the offense, the person trafficked was less than fourteen years

old.4 If the trafficker did not use force, threats of force,

fraud or coercion to traffic an individual or if at the time of

the offense, the person trafficked is between the ages of

fourteen and seventeen; the trafficker faces fines and ten years

to life imprisonment.5

International victims who qualify can apply for a T-visa

under the TVPA, which would allow them to stay in the United

2 Trafficking Victims Reauthorization Act of 2003 (TVPRA 2003), Pub. L. No. 108-193, 117 Stat. 2875, 22 U.S.C. 7101 note (2011) amending 18 U.S.C. § 1591.3 John Tanagho, New Illinois Legislation Combats Modern-Day Slavery: A Comparative Analysis of Illinois Anti-Trafficking Law With its Federal and State Counterparts, 38 LOY. U. CHI. L.J. 895, 953(2007).4 18 U.S.C. § 1591(b)(1) (2011).5 Id. § 1591(b)(2).

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States for three years and potentially become citizens afterward.

Applicants first must meet the definition of a victim of “a

severe form of trafficking in persons” which involves three

potential conditions. Victims can either (1) be induced by force,

fraud or coercion into sex trafficking; (2) under the age of 18;

or (3) “the recruitment, harboring, transportation, provision, or

obtaining of a person for labor or services, through the use of

force, fraud, or coercion for the purpose of subjection to

involuntary servitude, peonage, debt bondage, or slavery.”6 If a

victim fits this definition, they must assist in every reasonable

way in the investigation and prosecution or be unable to

cooperate due to physical or psychological trauma. Additionally,

they need a bona fide7 and approved T visa application; or have

their presence in the United States ensured by the Attorney

6 22 U.S.C. §§ 7102(8)(B) & 7105(b)(1)(C)7 Federal regulations consider a “bona fide” application to be one “the Service has determined that there appears to be no instance of fraud in the application, the application is complete, properly filed, contains an LEA endorsement or credible secondary evidence, includes completed fingerprint andbackground checks, and presents prima facie evidence to show eligibility for T nonimmigrant status, including admissibility.” 8 C.F.R. § 214.11(a) (2011).

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General and the Secretary of Homeland Security in order to assist

in the prosecution of traffickers.8

With more than $200 million authorized to help combat human

trafficking, through resources and initiatives, the Trafficking

Victims Protection Reauthorization Act (TVPRA) 2003 had the

ability to assist potentially 18,000 - 20,000 victims trafficked

into the United States. The act afforded victims the right to

bring Federal civil suits against traffickers for actual and

punitive damages. Additionally, TVPRA 2003 encouraged state and

local law enforcement agencies to participate in the detection

and investigation of human trafficking cases. The TVPRA of 20059

followed which directed the Secretary of Labor, acting through

the Bureau of International Labor Affairs, to "carry out

additional activities to monitor and combat forced labor and

child labor in foreign countries."

8 22 U.S.C. § 7105(E)(i)9 Trafficking Victims Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558, 22 U.S.C. 7101 note (2011).

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In 2008, President Bush signed the William Wilberforce

Trafficking Victims Protection Reauthorization Act10 (WWTVPRA)

which includes a provision that specifically applies to children

trafficked into the United States. Section 235 of the act

requires the examination of “specialized needs” of an

unaccompanied minor during an asylum proceeding. Minors

determined to have “specialized needs” become eligible for

placement and services until the child is placed in a permanently

adopted home or becomes eighteen years of age whichever comes

earlier. Individuals likely to encounter unaccompanied minors

through their employment, including law enforcement, are required

to receive training to indentify and work with the population.

Additionally, Section 103 grants the President power to establish

and carry out programs to prevent and deter trafficking in

persons utilizing technical assistance. Such programs would help

foreign governments to invest, identify and carry out

inspections; provide information in the native language of

10 William Wilberforce Trafficking Protection Reauthorization Act, Pub. L. No.110-457, 122 Stat. 5044, 22 U.S.C. 1701 note (2011).

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immigrant populations; and, the legal framework to ensure that

(a) foreign migrant workers are afforded the same rights as

national citizens, (b) labor recruitment firms are regulated, and

(c) domestic workers are protected under labor rights laws.

At present, President Obama has not signed any legislation

affecting human trafficking specifically. He did recommit the

United States’ goal of ending human trafficking and dedicated the

month of January to National Human Trafficking Awareness Month.

The federal laws up to this moment, while admirable in their

goals have received criticism for not providing real, measurable

results in prosecution, prevention and protection. Additionally,

criticisms exist that as applied; the laws still perpetuate anti-

immigration sentiment even if that was not the intent of the

legislature in drafting the laws. While there is a “model law’ to

provide states with guidance on how to implement anti-human

trafficking laws in their legislature, it is provided simply as a

template for states to use if they choose. This has resulted in a

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very broad spectrum of anti-trafficking laws and inconsistency on

how they are applied nationally.

b) MODEL STATE ANTI-TRAFFICKING CRIMINAL STATUTE (MODEL LAW)

In 2004, the Department of Justice (DOJ) drafted the Model

State Anti-Trafficking Criminal Statute (Model Law) to provide

guidance to states and encouraged legislatures adopt it. The

Model Law largely mimics the TVPA and provides three separate

criminal provisions: involuntary servitude, sexual servitude of a

minor and trafficking for forced labor or services. The Model Law

then follows the TVPA in that methods of gaining control over a

victim, the means by which exploitation is achieved and the form

of underlying labor and services. The Model Law detours from the

TVPA in that it provides a unitary definition on trafficking by

fully integrating labor and sex trafficking into one crime.11 The

DOJ merged “forced labor and services” and exploitation into the

definition of trafficking. Implementing a single unitary

definition ensures similar treatment at sentencing for both sex 11 Melynda Barnhart, Sex and Slavery: An Analysis of Three Models of State Human Trafficking Legislation, 16 WM. & MARY J. OF WOMEN & L. 83 (2009).

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and labor traffickers by placing emphasis on the means rather

than the form of exploitation. However, while the Model Law was

drafted to be a template for states to utilize, there is little

consistency amongst states on how they implement the law into

their own statutes. Even within the states themselves, laws can

conflict, i.e. statutory rape and prostitution laws on how they

apply to minor victims of trafficking.

c) ANALYSIS OF CURRENT STATE LAW

Excluding Pennsylvania and Colorado, which have no

documented anti-sex trafficking laws, the remaining forty-nine

states (including D.C.) all have laws criminalizing sex

trafficking. Of those states, thirty-three do not provide any

type of protections to minors who are victims of trafficking. The

Georgia legislature failed to pass a bill that would mandate a

minimum age for prosecution of prostitution; essentially

decriminalizing minor victims.12 Further, fifteen of the thirty-

three states not only fail to decriminalize minors but also fail

12 GA House Bill 582, Georgia General Assembly, http://www1.legis.ga.gov/legis/2009_10/fulltext/hb582.htm

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to provide increased penalties for soliciting or pandering a

minor. In Arizona the age of consent is eighteen however, there

is no distinction or immunity for prostituted minors. Their

prostitution law only provides that it is “unlawful for a person

to knowingly engage in prostitution.”13 North Carolina is the

only state in the nation that confirms that girls are prosecuted

in their state for prostitution. Though the age of consent is

sixteen, North Carolina’s prostitution law specifically states,

“no girl (emphasis added) or woman who shall be convicted under

this Article shall be placed on probation or on parole in the

care or charge of any person except a woman probation officer.”14

No specific cases were found indicating that a child had been

prosecuting under North Carolina law. Nevertheless, with no laws

providing immunity or protection to minors, children can and have

been prosecuted for prostitution even when they are not old

enough to consent to sexual relations under their state’s

statutory rape laws.

13 ARIZ. REV. STAT. § 13-3214 (LexisNexis 2011)14 N.C. GEN. STAT. § 14-208 (LexisNexis 2011)

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Ms. Magazine15 covered human trafficking in an article last

year and showed a picture of a ten-year-old girl’s shackled feet

as she faced prostitution charges in Atlanta juvenile court even

though the age of consent is sixteen in Georgia. The article did

not confirm the case name but did cover the lack of support a

bill to decriminalize minors received from certain groups.

Conservative Christian groups in Georgia opposed the bill because

they feel that, “some boys and girls know the law, defy the law

and decide to choose prostitution as a way to make money.” 16

Other states, Texas and New York have published cases that have

resulted in minors obtaining protections through either decisions

or subsequent statutes.

d) STATES WITH IMMUNITY

Only eighteen states have enacted legislation to protect

minors arrested for prostitution which include Arkansas,

California, Connecticut, Florida, Illinois, Kansas, Kentucky,

Louisiana, Massachusetts, Michigan, Minnesota, Nebraska, New

15 Carrie Baker, Jailing Girls for Men’s Crimes, MS., Summer 2010, at 29.16 Id. at 28.

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Jersey, New York, North Carolina, Ohio, Tennessee, Vermont, and

Washington.17 Texas through the State Supreme Court case, In the

Matter of B.W.18 also provides immunities to victims of child sex

trafficking. For purposes of this paper, the results of high

profile juvenile prostitution cases in New York and Texas will be

analyzed since they had very different results.

i) NEW YORK

New York’s “Safe Harbor for Exploited Children Act” is held

as the standard for minor sex trafficking legislation. One of the

cases that garnered attention to lead advocates to fight for

change is In Re Nicolette R.19 At the time of her arrest for

prostitution, Nicolette R. (appellant) was incapable of

consenting to any sexual act pursuant to Penal Law § 130.5(3)(a).

Originally, at Family Court, Bronx County, Judge Harold J. Lynch

adjudicated appellant as a juvenile delinquent holding “that she

committed an act which if committed by an adult, would constitute

17 2013 STATE RATINGS ON HUMAN TRAFFICKING, WWW.POLARISPROJECT.ORG (July 31, 2013).18 In the Matter of B.W., 313 S.W.3d 818 (Tex. App. Houston 1st Dist., 2008)19 In Re Nicolette R., 9 A.D.3d 270 (1st Dept, 2004)

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http://www.polarisproject.org/


the crime of prostitution.”20 He placed her with the Office of

Children and Family Services in a limited secure facility for a

year without credit for time served. Judge Lynch instead directed

that she be placed at Hawthorne Cedar Knolls as soon as an

opening became available without costs.

The attorneys for Nicolette R. appealed on three issues. The

first issue questioned whether she was properly found to have

committed an act, which if committed by an adult, would

constitute prostitution. The second issue questioned whether the

Family Court properly denied appellant’s motion to dismiss the

petition. The third issue questioned whether the Family Court

erred in failing to consider the least restrictive available

alternative in drafting an appropriate dispositional order.

The Appellate Court held that appellant not holding the

capacity to consent under § 130.05 (3)(a) “was irrelevant to the

issue of whether she was properly found to have committed an act,

which if committed by an adult, would constitute a crime of

20 Id.

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prostitution.”21 The court reasoned that Penal Law § 230 which

defines prostitution contains no age requirement. Further, “there

is nothing in the Penal Law to support the conclusion that §

130.05 (3)(a) was intended to bear any relationship to Penal Law

§ 230 which involves charging a fee for sexual activity.”22

Accordingly, the court held that the Family Court properly denied

appellant’s motion to dismiss the petition.

However, in regards to the third issue, the court agreed

with appellant that the Family Court “erred in failing to

consider the least restrictive available alternative in

fashioning an appropriate dispositional order.”23 They reasoned

that appellant was undeniably in need of special services that

were unavailable at a limited secure facility operated by the

Office of Children and Family Services.

Realizing the need for better laws and services to protect

trafficked girls, organizations such as Girls Educational and

21 Id. at 271.22 Id. 23 Id.

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Mentoring Services (GEMS) started a four and a half year endeavor

to change the law. What resulted was the Safe Harbor for

Exploited Children Act, which became effective April 1, 2010. 24

The Safe Harbor Act recognizes that sexually exploited minors

have individual needs according to gender and appropriate

services should be made available to the extent funding exists.

25 Should a minor be arrested for prostitution, there is a

presumption that they meet the definition of a victim of “a

severe form of trafficking in persons” under § 7105 of the TVPA.

Upon a motion of the victim (respondent), a petition alleging

that the respondent is in need of supervision26 will substitute a

delinquency petition. However, the court has discretion to

continue with a delinquency proceeding under the following

circumstances:

1. if the respondent does not meet the definition of avictim of “a severe form of trafficking in persons”;or

24 N.Y. C.L.S. Soc. Serv. § 447-a-b (LexisNexis 2011).25 Id. § 447-b (4).26 Person in Need of Supervision (PINS) 22 NYCRR § 205.64 (LexisNexis 2011)

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2. if it is found that the respondent has previouslycommitted a prostitution offense under Penal Law §230; or

3. if the respondent had previously been adjudicatedand placed with social services; or,

4. expresses a current unwillingness to cooperate withspecialized services for sexually exploited youth.

New York is ahead of many states by providing the possibility to

obtain immunity; the Safe Harbor Act also fails in comparison to

other state’s protections. Out of the other states that provide

immunity to minors, New York is the only one that grants a court

discretion based on cooperation of the minor. Washington grants

discretion to the court to consider prosecution of subsequent

offenses with the first offense being diverted to the Washington

Department of Social and Health Services for the minor to obtain

services.27

ii) TEXAS

Subsequent to the enactment of the New York Safe Harbor Act,

the Supreme Court of Texas heard In the Matter of B.W.28 in 2010.

Originally arrested and charged for prostitution in criminal

27 WASH. REV. CODE. § 13.40.213 (LexisNexis 2011).28 In the Matter of B.W., 313 S.W.3d 818 (Tex. App. Houston 1st Dist., 2008)

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court, the state re-filed B.W.’s case under the Family Code when

a background check revealed that she was only thirteen. After

pleading true to the allegation that she “knowingly agree[d] to

engage in sexual conduct for a fee”29, the trial court held that

she did engage in such delinquent conduct30 and sentenced her to

eighteen months probation. The trial court denied a motion for a

new trial but granted the respondent permission to appeal. The

court of appeals affirmed the decision and the Texas Supreme

Court granted a petition for review.

The main issue for the court to consider was, “whether the

legislature, by its wholesale incorporation of Penal Code

offenses into the juvenile justice provisions of the Family Code,

intended to permit prosecution of a thirteen-year-old child for

prostitution considering its specific pronouncement that a child

under fourteen is legally incapable of consenting to sex with an

adult.”31 The court held that a child under the age of fourteen

should not be charged with the offense of prostitution because of29 Id. 81930 TEX. PENAL. CODE § 43.02(a) (1).

31 B.W., 313 S.W.3d at 819

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the absence of a clear indication of legislative intent to

subject children to prosecution when they lack the capacity to

consent to sex as a matter of law. The court’s opinion includes

common law precedence, legislative history and case law to

support their decision.

Justice Harriet O’Neill, who wrote the opinion writes, “the

notion that an underage child cannot legally consent to sex is of

long standing origin and derives from the common law.”32 No state

follows the original common law rule of age ten and Texas like

the majority of states follows a two-step scheme. A two-step

scheme differentiates between sexual relations with an older

teenager and sex with a young child. The fundamental reasoning

for the distinction “is that younger children lack the capacity

to appreciate the significance or the consequences of agreeing to

sex, and thus cannot give meaningful consent.”33 Texas courts

share this sentiment and ruled that “a child under fourteen

cannot legally consent to sex.”34

32 Id. at 820.33 Id.34 May v. State, 919 S.W.2d 422, 424 (Tex. Crim. App. 1996).

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Justice O’Neill noted that the legislature also incorporated

this reasoning into the Texas Penal Code. A promiscuity defense

in regards to sexual assault or indecency with a minor does not

apply to children under fourteen.35 Additionally, both the sexual

assault and prostitution statutes provide harsher penalties when

crimes under the statutes involve children up to the age of

eighteen in some cases.36 She states that, “in passing these

statutes, the Legislature has expressed both the extreme

importance of protecting children from sexual exploitation, and

the awareness that children are more vulnerable to exploitation

by others even in the absence of explicit threats or fraud.”37

Besides the overwhelming treatment of B.W. as a victim instead of

a criminal, another interesting and unique aspect of this case is

the interaction between the majority and dissent opinions.

35 TEX. PENAL CODE § 22.021(a) (2) (B).36 Id. § 22.011(e) sex under any circumstances with a child under seventeen; § 43.03, .05 compelling a child under eighteen equates to a second-degree felony; § 43.25(e) imposes harsher penalties for inducing a child under fourteen to engage in sexual conduct or performance; and, § 20A.02 imposes a harsher penalties for trafficking a child under eighteen for purposes of prostitution or sexual performance.37 B.W., 313 S.W.3d at 821.

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When writing the majority opinion, Justice O’Neill carefully

laid out the dissent’s38 arguments as well as the majority’s

responses. The first argument presented by the dissent is that

since the Penal Code makes it a crime to cause a child under the

age of eighteen to engage in prostitution, the Legislature surely

envisioned the prosecution of children under the age of fourteen

for prostitution. The majority responds that not only does the

Penal Code apply to all children whether six or sixteen but that

it is well established that a person may be prosecutedfor compelling prostitution and other crimes of sexualexploitation even though the child herself is notprosecuted for prostitution39. See Waggoner v. State, 897S.W.2d 510, 513 (Tex. App.--Austin 1995, no pet.)(stating “[t]he actual commission of the offense ofprostitution is not a prerequisite to the commission ofthe offense of compelling prostitution”) (citing Davis v.State, 635 S.W.2d 737, 739 (Tex. Crim. App. 1982)).

The second argument of the dissent is that Texas’ statutory

rape laws do not render a minor incapable of consenting to sex

but that the laws merely eliminate the affirmative defense to the

38 Chief Justice Jefferson, Justice White, Justice Medina, Justice Green, and Justice Guzman joined Justice O’Neill in the majority opinion. Justice Wainwright filed the dissenting opinion and was joined by Justice Johnson and Justice Willett. 39 B.W., 313 S.W.3d at 821.

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crime of child rape. The dissent also references the original

common law age of ten in arguing that B.W. should be prosecuted.

The majority again responds with references to legislative

history and intent. All fifty states revised their statutory rape

laws by increasing the minimum age with Texas being seventeen.40

Therefore, while the idea of minors having reduced capacity to

consent to sex has been around since common law, states

recognized minors older than the original, common law age of ten

needed protection from exploitation. The majority also looks to

court decisions of other states to support their opinion. More

specifically, they quote Justice Kogan’s concurrence in Jones v.

State41, who stated that minors “. . . may unwittingly “consent” to

something . . . that will never leave them. I think most

concerned adults and experts in the field would agree that this

40 New Jersey is the only state with a minimum age of thirteen. The majority of states have minimum ages of either 14 or 16. (http://www.hhs.gov/opa/familyplanning/toolsdocs/statutory_rape_state_laws_lewin.pdf). 41 B.W., 313 S.W.3d at823 (citing Jones v. State, 640 So.2d. 1084, 1089 (Fla. 1994)).

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http://www.hhs.gov/opa/familyplanning/toolsdocs/statutory_rape_state_laws_lewin.pdf

http://www.hhs.gov/opa/familyplanning/toolsdocs/statutory_rape_state_laws_lewin.pdf


lack of prudent foresight continues in youths well into the teen

years.”42

The dissent provides a third argument that by not

prosecuting minors charged with prostitution prevents them from

obtaining child protective services. The majority counters this

statement by pointing out the fact that even lacking a report or

investigation, a law enforcement officer does not require a court

order to take possession of a child. The only requirement is that

a “person of ordinary prudence and caution would believe there is

an immediate danger to the physical health or safety of the

child, or that the child has been a victim of sexual abuse.”43

The majority then asserts that a thirteen-year-old girl offering

sex for money probably falls within this standard. They offer

that lack of criminal prosecution would in fact not place young

children back on the streets but in comparison under child

protective services custody, victims have access to a full range

of counseling and treatment options.

42 B.W., 313 S.W.3d at 823. 43 B.W., 313 S.W.3d at 825 (citing TEX. FAM. CODE § 262.104(a) (1) & (3)).

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The final argument the dissent proffers is that the “long

and sad history of delinquent behavior”44 is indicative of B.W.’s

mental capacity to commit prostitution. The majority counters

with the holding from the United States Supreme Court, which

states that juveniles “are more vulnerable or susceptible to

negative influences and outside pressures . . . [i]t is difficult

even for expert psychologists to differentiate between the

juvenile offender whose crime reflects unfortunate yet transient

immaturity, and the rare juvenile offender whose crime reflects

irreparable corruption.” 45 The majority goes on to argue that

B.W.’s behavior embodies the mass of children raised in an

abusive or neglectful home that have discipline and/or fighting

problems and often run away from home. They further state that

runaways raised in homes of abuse and neglect are the children

most at risk of being victimized and exploited as prostitutes.

These children are the most in need of serious treatment.

Additionally, the majority says that, “if B.W.’s prior CPS

44 B.W., 313 S.W.3d at 825.45 Id. (citing Donald P. Roper, Superintendent, Potosi Correctional Center v. Christopher Simmons, 543 U.S. 551, 569 & 573 (2005)).

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temporary placement was inadequate to treat her, then that

placement should be reviewed and her level of care increased.”46

The majority’s willingness to treat B.W. as a victim not a

perpetrator of child prostitution is very promising to Texas

protecting victims of minor sex trafficking.

Most recently, the Texas Juvenile Probation Commission

(TJPC) references In the Matter of B.W. in their report47 to the 82nd

Legislature. The report is the result of House Bill 400948 which

was passed by the 81st legislature and required the TJPC to

prepare a report evaluating alternatives for children accused of

engaging in acts of prostitution beyond the juvenile justice

system. The report not only investigated options available in

Texas but compared safe harbor laws of other states as well. The

report notes the arguments made in B.W. particularly in regards

to diversion related issues. More specifically, the debate

surrounding the victim or criminal argument; lack of access to

46 B.W., 313 S.W.3d at 826.47 VICKI SPRIGGS, TEXAS JUVENILE PROBATION COMMISSION, ALTERNATIVES TO JUVENILE JUSTICE FOR YOUTH INVOLVED IN PROSTITUTION: REPORT TO THE 82ND LEGISLATURE (January 2011). 48 H.R. 4009, 81st Leg. (Tex. 2009).

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services juveniles may receive if they were labeled as a

delinquent; and, decriminalizing child prostitution could create

a market for underage prostitutes. The report does not provide

any conclusions to these arguments. It does conclude that, “if

Texas is to divert sexually exploited youth from the juvenile

justice system in a comprehensive manner, training on responding

to and identifying DMST49 youth, collaboration across child

serving agencies, law enforcement, and NGOs; and an expansion of

services outside of the juvenile justice system must take

place.”50 Overall, the report is a very neutral look at the issue

of minor sex trafficking with conclusions on what needs to be

done with no real guidance on how to implement recommendations.

It however, is a good start and in combination with the decision

of B.W., can have a positive effect on the way minor sex

trafficking victims are treated in Texas. This is more than what

is available in the thirty-two states that provide no immunities

49 DMST stands for Domestic Minor Sex Trafficked. 50 SPRIGGS, TEXAS JUVENILE PROBATION COMMISSION, supra note 53, at 18.

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to minors and even some states that have enacted safe harbor

laws.

II. A CLOSER LOOK AND CRITIQUE

a) CRITIQUE OF NEW YORK SAFE HARBOR LAW

The focus of the critique involves New York since their safe

harbor law is held as a model for other states and a recent

family court case seems to go against the intent of safe harbor

laws in general. New York’s Safe Harbor Act grants courts

discretion to consider a minor’s cooperation with social services

in order for a minor to obtain supervision versus a delinquency

finding. Should a minor express “a current unwillingness to

cooperate with specialized services for sexually exploited

youth”51 the court has the discretion to continue with a

delinquency proceeding. The broad reach of the court’s discretion

is exemplified in a recently published case, In the Matter of Bobby

P.52

51 N.Y. C.L.S. Soc. Serv. § 447-b(2) (LexisNexis 2011).52 In the Matter of Bobby P., A Person Alleged to be a Juvenile Delinquent, No. 9944-10, slip op. at 1 (N.Y. Fam. Ct. June 1, 2010).

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Bobbi P. (respondent) was charged with committing acts

which, were she an adult would constitute the crimes of

prostitution, resisting arrest, obstructing governmental

administration in the second degree and false impersonation. The

respondent filed an order directing the substitution of a

delinquency petition with a petition that she is person in need

of supervision (PINS). At the time of the hearing, she was

fifteen-and-a half years old. In an unrelated proceeding,

respondent’s parents had their rights terminated when she was

twelve years old making her a ward of the state. The respondent

herself had her rights as a parent terminated at the age of

fourteen with her infant daughter placed in a separate foster

home then respondent. Bobbi P. had no prior juvenile delinquency

or PINS adjudications that would disqualify her under the safe

harbor law however; she was also, what the court and social

services considered a “habitual runaway.”53 She had a history of

running away from foster homes and the Girls Education and

Mentoring Services (GEMS) program facility. The respondent also

53 In the Matter of Bobby P., No. 9944-10, slip op. at 3.

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apparently failed to assist the District Attorney’s office in the

prosecution of a pimp.

In its opinion, the court wrote, “while respondent has no

prior juvenile delinquency or PINS adjudications which would

disqualify her from seeking relief under Family Court Act §

311.4(3), this court has serious doubts as to respondent’s

current willingness to accept and cooperate with specialized

services for sexually exploited youth.”54 The court went on to

hold that a PINS petition was not appropriate at the stage the

case was in for juvenile delinquency proceedings. The court

provided the following examples to support their reasoning:

“respondent’s extensive history, her behavioral pattern, her

choice to engage in the “street life”, even at the cost of

temporarily losing custody of her own infant child, and her

demonstrated lack of sound judgment and maturity.”55 The court

went on to say that, an outcome other than juvenile delinquency

might be appropriate at a later stage in the proceedings.

54 Id. at 9.55 Id. at 10.

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While the court leaves the potential of a PINS determination

open, I feel their opinion and holding fall short on more than

one account. First, while citing the TVPA, the court fails to

take into consideration seven years earlier; the TVPRA 2003

exempted the assistance requirement for immigrant minors under

the age of 18.56 Though the exemption applies to immigrants, if

the federal government felt the need to protect unaccompanied

immigrant minors, would that need not apply to their own citizens

who are victims of domestic trafficking? The court’s holding

disregards the Safe Harbor Act’s Sponsor Memorandum referenced in

the opinion. The Sponsor’s Memorandum provides a lens into what

the life of a trafficked child is like. Most victims’

experiences, starting as young children, involve a history of

physical, psychological and sexual abuse. Additionally, many grow

up surrounded by family dysfunction and stark poverty. Assembly

member William Scarborough goes on to note that New York’s

response has been to prosecute these already exploited youth but

56 TVPRA 2003, 8 U.S.C. 1101(a)(15)(T)(i)(III)(cc) and In the Matter of Bobby P., No.9944-10, slip op. at 7-8.

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that criminalizing victims is “ineffective as arresting,

prosecuting and incarcerating victimized youth serves to re-

traumatize them and to increase their feelings of low self-

esteem.”57

Additionally, the Safe Harbor Act is alone in comparison to

other state safe harbor laws in that it grants courts discretion

to continue with a delinquency proceeding if the minor victim is

not cooperative with social services. While Washington grants

courts discretion to prosecute for subsequent offenses, it and

the other states grant immunity to minors and divert there cases

so victims can obtain safety and services to help them

potentially rehabilitate. Prosecution makes the process of

rehabilitation more difficult and does little to serve as a

deterrent since victims are often re-trafficked upon their

release. Instead, all victims should have access to services to

meet the needs of exploited youth outside of the juvenile justice

system. To limit protection only to prosecutorial witnesses or

those willing to cooperate with social services, the state closes

57 In the Matter of Bobby P., No. 9944-10, slip op. at 7.

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their eyes the hundreds or thousands more who are victims of

trafficking.

Secondly, the court fails to document or consider other

factors that may keep Bobbie P. from cooperating with the

attorney general or specialized services for sexually exploited

youth. Its seems the court is quick to blame lack of cooperation

on Bobbie P’s choice of the street life or apathy versus well

documented tactics of abuse, coercion, violence used on victims

by traffickers to prevent them from seeking outside help or

acting as a witness against them in court. The Texas Supreme

Court recognized in B.W. that “children are the victims, not the

perpetrators, of child prostitution. Children do not freely

choose a life of prostitution, and experts have described in

detail the extent to which they are manipulated and controlled by

their exploiters.”58 If New York applied the TVPRA 2003 revisions

and provided immunity to minors under 18, law enforcement may

have greater assistance or cooperation on behalf of the victim

outside any health issues. Even if victims have suffered from

58 B.W., 313 S.W.3d at 826.

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psychological trauma, by obtaining services they need, could help

in their ability to assist officers.

Finally, while the court is critical of respondent’s ability

to cooperate with social services programs saying she is “unable

or unwilling”, they fail to provide or acknowledge any potential

critiques of the social service programs the respondent has

participated. Access to social services is a key element in

aiding victims however equally important is the ability to

recognize limitations programs may have in their ability to

assist unique individuals such as trafficked minors. According

to a legislative brief regarding sex trafficking of minors,

“experienced practitioners have found that mainstream programs of

the child abuse and neglect system routinely fail these

children.”59

For child welfare services, each state has fourteen areas of

compliance to meet which involve seven areas devoted to system

requirements and seven areas devoted to children. The areas

59 JULIE JANOVSKY, HUMAN TRAFFICKING LEGISLATIVE ISSUE BRIEF: SEX TRAFFICKING OF MINORS AND“SAFE HARBOR”, WWW.POLARISPROJECT.ORG (July 23, 2010).

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relating to children are further divided into three categories:

safety, permanency, and well-being. In 2004, the first state

assessments known as Child and Family Services Reviews were

completed and reported that all fifty states and territories

failed to meet all areas of child welfare standards. The median

compliance of the fourteen areas was six and not one state met

federal requirements for providing permanency and stability for

children.60 Online, the Children’s Bureau under the

Administration for Children and Families61 confirms that in

response to the grim results of the first review, states were

required to create and implement Program Improvement Plans.

Results of the 2007 and 2008 Child and Family Services Reviews62

report that states underestimated the time required to design and

implement Program Improvement Plans so efforts have been gradual.

States face challenges with other mandates and most recently the

60 Delilah Bruskas, Children in Foster Care: A Vulnerable Population at Risk, 21 JCAPN 70, 72 n.2 (2008).61 Child and Family Services Reviews Factsheet, Children’s Bureau, http://www.acf.hhs.gov/programs/cb/cwmonitoring/recruit/cfsrfactsheet.htm (Historic Site, last visited July 26, 2010).62 2007 and 2008 Child and Family Services Reviews, http://www.acf.hhs.gov/programs/cb/cwmonitoring/results/agencies_courts.pdf. (Historic Site, last visited July 26, 2010).

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economic crisis. Another challenge is lack of collaboration from

other invested groups such as the judicial system or law

enforcement in designing and implementing Program Improvement

Plans.

It appears that many of these programs struggle to operate

and separately to adequately provide for the safety and well-

being of children in need of their services. This is not to say

that Bobbie P.’s treatment she received was inadequate but it was

not even questioned by the court. Instead, they placed the blame

solely on her shoulders to bear. In comparison, Justice O’Neill

referencing the appellant’s delinquent behavior, wrote in the

majority’s opinion, “these children are also the ones most at

risk of being victimized by pimps and exploited as prostitutes,

and are the most in need of serious treatment. If B.W.’s prior

CPS temporary placement was inadequate to treat her, then that

placement should be reviewed and her level of care increased.”63

Children should not be labeled delinquent because of their

63 B.W., 313 S.W.3d at 826.

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inability to adapt to environments that may not or cannot provide

the individualized attention they may require.

b) VACATING CONVICTIONS IN NEW YORK

New York is one of fourteen states that have enacted

statutes permitting courts to vacate64 the convictions of human

trafficking victims.65 Under the law, if a survivor meets three

elements – 1) was a victim of human trafficking, 2) was charged

with the enumerated crimes, and 3) those charges are a result of

having been trafficked; the Judge must grant the motion to

vacate. Additionally, the law not only requires a Judge to vacate

the conviction(s), but also requires the Judge to dismiss the

accusatory instrument, ensuring that the case will not revert to

its pre-trial status. Further, the court in New York v. G.M.

determined there was “a very compelling narration of the

circumstances surrounding all of her arrests, demonstrating that

they were a product of years of brutal, physical, psychological,

and sexual violence by her husband, which resulted in her being

64 Black’s Law defines vacate as “to nullify or cancel; make void; invalidate.” Black’s Law Dictionary 1292 (8th ed. 2005).65 N.Y. CRIM. PROC. LAW § 440.10(1)(i) (McKinney 2010).

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trafficked by him.”66 The court confirmed that related non-

prostitution offenses were covered under this law and could be

vacated, i.e. in this case drug possession. 67

While the Sex Workers Project at the Urban Justice Center

(SWP)68 and the Legal Aid Society69 work endlessly to identify and

advocate for victims of trafficking including representing

individuals to get prior sentences vacated; minors such as Bobbie

P. may not be afforded the same opportunities. Juvenile records

are often sealed with limited access. Further, depending on the

situation, minors may not be aware that such a law exists.

III. RECOMMENDATIONS:

a) GENERAL:

66 New York v. G.M., 32 Misc. 3d 274 (Criminal Court of the City of New York, Queens County, April 29, 2011). 67 Also see People v. L.G., 2000QN056893, 2003QN050066 where the court found that the New York State human trafficking law permits courts to dismiss non-prostitution related charges, i.e. weapons possession, related to the trafficking without the consent of the district attorney. John Caher, Judge Vacates Trafficking Victims Non-Prostitution Crimes, NYLJ Online, August 20, 2013.68 This Memorandum was authored by Melissa Broudo, Staff Attorney, and Sienna Baskin, Co-Director of the Sex Workers Project at the Urban Justice Center, with assistance from Juhu Thukral, Yekaterina Blinova, Jennvine Wong, and Moira Meltzer-Cohen. It was issued in April, 2012.69 Jeff Storey, Q & A: Kate Mogulescu, NYLJ Online, July 26, 2013.

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There should be a general presumption on the state level that

any person under the age of 18 arrested for prostitution meets the

criteria for a certification as a victim of a severe form of

trafficking in persons. All states should provide victim

protection and services to minors engaged in prostitution

regardless of their ability to assist as a witness or cooperate

with social services. All individuals who may encounter minors

engaged in prostitution but more importantly, those in the

judiciary, law enforcement, and social services need adequate

training. Specifically, individuals need to be aware of the

extreme maltreatment these children may have suffered and the

potential effect on their ability to interact, be a witness or

cooperate in treatment.

Additionally, I have noticed in other recommendations the

importance of research and data collection emphasized. Research

is an important aspect of a variety of fields and issues however;

it can also be very limited depending on the subjects or

populations included. A recent controversy in the news involved

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the importance of statistically accurate data70 especially when

discussing children at risk versus actual arrests. Still, with

the secretive nature of the crime, data obtained through arrest

records or hotlines would likely be a minimal representation of

actual numbers of prostituted children. If any research is

conducted, it should concentrate on studies that can obtain

adequate data collections such as finding efficacious services or

treatment options.

b) IDEAL SAFE HARBOR LAW - TEXAS:

In regards to legislation, Texas has conducted a

comparative analysis of other states’ safe harbor laws and has a

victim positive decision from their Supreme Court. The state

provides an interesting case since Texas has yet to enact any

safe harbor legislation. In drafting a safe harbor law, I would

recommend to assure all exploited labor receives the same

attention in regards to penalties for traffickers and services

70 Casey McNerthney, Seattle Mayor, Police Target Village Voice Classifieds, SEATTLE POST INTELLIGENCER (July 8, 2011, 6:36 PM), http://www.seattlepi.com/local/article/Seattle-mayor-police-target-Village-Voice-1449770.php.

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and immunities available to victims. Since the Texas Juvenile

Probation Commission referenced California in their report,

California’s definition of trafficking may be helpful, “any

person who deprives or violates the personal liberty of another

with the intent to effect or maintain a felony violation of

Section 266, 266h, 266i, 267, 311.4, or 51871, or to obtain

forced labor or services, is guilty of human trafficking.”72

Minors engaged in prostitution should be defined as victims of

abuse and neglect triggering a protective response instead of a

criminal one. Beyond definitions, a safe harbor law would have to

incorporate criminal penalties, including forfeiture of assets,

and address whether crimes involving minors would result in an

increased penalty; immunity for minors engaged in prostitution;

social services available to minors; and, whether restitution

would be available.

i) CRIMINAL PENALTIES FOR TRAFFICKING OF MINORS

71 These felony sections deal with pimping, enticing or procuring a person into prostitution, and child pornography. 72 CAL. PENAL CODE § 236.1. (a) (Deering 2011).

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Texas already includes trafficking as a felony violation

in its penal code.73 While the minor in B.W. was fourteen,

traffickers face increased penalties for trafficking of a minor

under the age of eighteen. The penalty increases from a second to

first degree felony and mistake of age is not allowable as a

defense. Currently a first-degree felony punishment includes

imprisonment “for life or for any term of not more than ninety-

nine years or less than five years. In addition to imprisonment,

a person adjudged guilty of a first-degree felony may be fined an

amount not to exceed $10,000. Currently twelve states allow

forfeiture of proceeds or property derived from or used for

prostituting a minor, which figuratively could total well over

$10,000. Many states use the money to fund services for victims

and New Jersey74 ensures that money obtained through proceeds or

selling of property help the victim obtain assistance.

Pennsylvania75 is the only state that mandates restitution to the

victim in addition to forfeiture of proceeds and property. Other

73 TEX. PENAL CODE ANN. § 20A.02 (West 2011).74 N.J. STAT. ANN § 2C-13-1 (West 2011).75 18 P.A. CONS. STAT. § 3003 (West 2011).

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states institute a statute of limitations up to ten years to

allow the victim to seek civil remedies. Texas would have to

revise the code to allow for forfeiture of proceeds or property

over the amount of $10,000 in cases of trafficking of a minor.

Regardless, with economic concern of adequate funding for

services, forfeiture of proceeds and property used or derived

from prostitution of a minor provides an avenue to punish the

trafficker or pimp but also a way to support victim services

and/or restitution.

ii) IMMUNITY AVAILABLE TO MINORS ENGAGED IN PROSTITUTION

The holding of In the Matter of B.W. provides a good starting

point in drafting legislation to provide immunity to prostituted

minors protecting them from prosecution. The majority holding

specifically states,

Our Legislature has passed laws recognizing thevulnerability of children to sexual exploitation, includingan absolute prohibition of legal consent for children underfourteen. In the absence of a clear indication that theLegislature intended to subject children under fourteen toprosecution for prostitution when they lack the capacity toconsent to sex as a matter of law, we hold that a child

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under the age of fourteen may not be charged with thatoffense.76

In regards to age, the age of consent under Texas’ statutory rape

law is seventeen.77 However, traffickers face increased

penalties for trafficking minors under the age of eighteen. The

law should apply to minors under the age of eighteen to reflect

the punishment allotted in the trafficking law and provide

immunity to a greater amount of victims. Immunity should not be

attached to assistance in prosecution or cooperation with social

services. However, victims may be more likely to assist law

enforcement or cooperate with social services if they are granted

automatic immunity.

iii) SOCIAL SERVICES AVAILABLE TO MINORS ENGAGED IN

PROSTITUTION

Child victims of sex trafficking have very specialized needs

and any program would have to be a collaborative effort to be

able to adequately address the varied needs of victims. Safe

houses, medical care (including reproductive health), education, 76 B.W., 313 S.W.3d at 826.77 TEX. PENAL CODE ANN. § 21.11 (West 2011).

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mental health care, life skills learning, and long-term housing

are all things to be considered when establishing a social

services program. Training needs to be in place specific to

individuals who may come in contact or work with trafficked

minors including, law enforcement, teachers, judges, attorneys,

and social workers. The Polaris Project recommends a law require:

Placement separately from other children who havenot experienced the same form of abuse and who maystigmatize these victims because of theirinvolvement in commercial sex;

Mentorship by survivors of the same crime or, whenthat is not possible, by other caring professionalswho are familiar with the special trauma associatedwith commercial sexual abuse; and,

Protocols that ensure immediate placement of thesevictims in appropriate, pre-identified locations,without undue questioning from untrained lawenforcement officers or officials.

While mandatory restitution would be optimal, a program needs to

be in place to help victims understand the process in obtaining

restitution. In Wisconsin, victims can file civil action against

the perpetrator for actual and punitive damages. A statute of

limitations is set for when the victim turns twenty-four.78 A

78 WIS. STAT.ANN. § 940.302 (West 2011).

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legal aid program would need to be in place to protect victims’

tort rights as well.

This is an example of what would be include in an ideal safe

harbor law. Regardless of how well a law reads on paper, if not

applied as intended or applied arbitrarily, a safe harbor law

will not be able to protect all of the minors it was meant to.

For a safe harbor law to truly be a success, a grass roots

community effort needs to be implemented to provide outreach to

the community.

CONCLUSION:

Safe harbor laws and in general, anti-human trafficking laws

belong to a convoluted spectrum of ideas. The only thing states

seem to agree on is that traffickers should be punished to some

extent. However, without consistency between federal law and

state law, trafficking will continue to be a problem. While not

perfect, perhaps the Model Law could be revised to include

immunity language without assistance or cooperation requirements

for international and domestic minors who are victims of 45


trafficking. The DOJ created it as a template to be used by

states however only a few have adopted the full document. Would a

law have to be attached to funding for states to implement it? If

implementing a revised Model Law were attached to funding for

programs dedicated to assisting victims of human trafficking

maybe adoption of the law would be more cohesive?

What is known is that minors exploited into prostitution are

being prosecuted for crimes they are not old enough to consent to

under their state’s statutory rape laws. Not all trial level

cases are published so minors are dependent upon non-profits who

may hear about their story or being in front of a “Justice

O’Neill” who believed that, “children are the victims, not the

perpetrators of child prostitution.”79 Children who are victims

of sex trafficking are not criminals but individuals who deserve

services to help them rehabilitate and find their way in a harsh

world.

79 B.W., 313 S.W.3d at 826.

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RESOURCES

Carrie Baker, Jailing Girls for Men’s Crimes, MS., Summer 2010, at 29.

Melynda H. Barnhart, Sex and Slavery: An Analysis of Three Models of State Human Trafficking Legislation, 16 Wm. & Mary J. of Women & L. 83 (2009).

Delilah Bruskas, Children in Foster Care: A Vulnerable Population at Risk, 21 JCAPN 70 n.2 (2008).

Jennifer M. Chacon, Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 FORDHAM L. REV. 2977 (2006)

Martha Drane, Street Children as Unaccompanied Minors With Specialized Needs: Deserving Recognition as a Particular Social Group, 44 NEW ENG. L. REV. 909 (2010)

Julie Janovsky, HUMAN TRAFFICKING LEGISLATIVE ISSUE BRIEF: SEX TRAFFICKING OF MINORS AND “SAFE HARBOR”, WWW.POLARISPROJECT.ORG (July 23, 2010).

Casey McNerthney, Seattle Mayor, Police Target Village Voice Classifieds, SEATTLEPOST INTELLIGENCER (July 8, 2011, 6:36 PM), http://www.seattlepi.com/local/article/Seattle-mayor-police-target-Village-Voice-1449770.php.

Hussein Sadruddin, Natalia Walter & Jose Hidalgo, Human Trafficking in the United States: Expanding Victim Protection Beyond Prosecution Witnesses, 16 STAN. L. & POL’Y REV. 379 (2005).

Vicki Spriggs, TEXAS JUVENILE PROBATION COMMISSION, ALTERNATIVES TO JUVENILE JUSTICE FOR YOUTH INVOLVED IN PROSTITUTION: REPORT TO THE 82ND LEGISLATURE (January 2011).

John Tanahago, New Illinois Legislation Combats Modern-Day Slavery: A Comparative Analysis of Illinois Anti-Trafficking Law with its Federal and State Counterparts, 38 LOY. U. CHI. L.J. 895 (2007).

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Laura Yeun, New Law Protects Child Victims of Sex Trafficking, MINNESOTA PUBLICRADIO (July 22, 1011) http://minnesota.publicradio.org/display/web/2011/07/22/law-protects-child-victims-of-sex-trafficking/.

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Disconnect Between Satutory Rape Laws and Prostitution Laws

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