Sex trafficking of children is a brutal form of human trafficking and child sexual abuse. Experts estimate that up to as many as 300,000 children are at risk of exploitation in prostitution every year. Pimps target the vulnerable, such as runaway and homeless youth or children who have been abused or neglected. And while the prostitution of a child is a form of human trafficking under U.S. federal law, many states still do not offer legal protections for minor victims, appropriate penalties to curb demand, or services to care for these severely victimized children. In many cases, these victims are treated as criminals or delinquents, which results in further harm to the child. The law should protect child victims of prostitution and punish the abusers.
Two elements are required for a complete safe harbor law. The state law should:
1. Prevent minor victims of sex trafficking from being prosecuted for prostitution.
Criminal prostitution statutes must remove the burden of criminal responsibility from children and ensure that legal mechanisms are in place for the state to take temporary protective custody. A practical prerequisite for such legislation is to:
- Define trafficked and prostituted children as victims of abuse and neglect, triggering a child protective response.
- Grant immunity from prosecution for prostitution if the arrested person is under 18; or
- Divert arrested children from juvenile delinquency proceedings to child protection proceedings.
2. Protect child victims of sex trafficking by providing them with specialized services.
Child victims of sex trafficking and some child victims of labor trafficking who have been sexually abused have needs that may include: safe housing, long-term housing, mental health care, access to GED or other remedial education, and life skills learning. Experienced practitioners have found that mainstream programs of the child abuse and neglect system routinely fail these children. The law should require protection and recovery programs for child victims such as:
- Placement in programs that treat such children with respect and dignity and do not stigmatize these victims because of their involvement in commercial sex;
- Mentorship by survivors of the same crime or, when that is not possible, by other caring professionals who are familiar with the special trauma associated with commercial and non-commercial sexual abuse.
- Protocols that ensure immediate placement of these victims in appropriate, pre-identified locations, without undue questioning from untrained law enforcement officers or other officials.
Current Policy on the Sex Trafficking of Minors
New York (2008) enacted the Safe Harbor for Exploited Children Act, which recognized that children in prostitution are not criminals or delinquents but victims of a brutal form of child sex trafficking and child sexual abuse who need specialized services. This watershed law catalyzed passage of similar “Safe Harbor” bills in other states. Illinois, Massachusetts, Minnesota, New Jersey, Ohio, Vermont, and Washington have complete safe harbor provisions by providing either immunity or diversion for children engaged in prostitution and establishing services or plans for services. Connecticut, Michigan, and Tennessee have passed laws that protect minors from prosecution. In Florida, children that have been sexually exploited are included as children in need of services. In addition, the Texas Supreme Court recently ruled that children involved in prostitution are victims, not criminals (see below).
Landmark Decision: Texas Supreme Court Rules In Matter of B.W. (2010) Children in Prostitution are Victims, Not Criminals
- Thirteen-year-old B.W. flagged down the car of an undercover officer and offered to engage in oral sex for twenty dollars. She was arrested for prostitution.
- The trial court (Family Court) found her guilty of Class B misdemeanor of prostitution; she admitted that she had "knowingly agreed to engage in sex . . . for a fee," and received a sentence of 18-months’ probation.
- The Court of Appeals affirmed the judgment, and the case was appealed, the Texas Supreme Court agreed to review her case.
- The Supreme Court of Texas reversed the Court of Appeals by a 6-3 decision.
The Supreme Court of Texas argued in its decision:
1. “Because a 13 year old child cannot consent to sex as a matter of law . . . B.W. cannot be prosecuted as a prostitute.”
- The Supreme Court argued that children below the age of 14 cannot understand the significance of agreeing to sex and, therefore, could not satisfy the “knowing” requirement of the statute. The Court cited longstanding common law, Texas statutes, and numerous cases. “The notion that an underage child cannot legally consent to sex is of longstanding origin and derives from common law.”
2. Children cannot be considered guilty of an act that involves their own sexual exploitation.
- “Transforming a child victim of adult sexual exploitation into a juvenile offender was not the legislature’s intent when it enacted the laws on prostitution and delinquent conduct of a child... It is far more likely that the legislature intended to punish those who sexually exploit children rather than subject child victims below 14 years to prosecution.”
- The court also cited legislation that “compelling a child under 18 to commit prostitution was a second degree felony” and harsher penalties for “inducing a child under fourteen to engage in sexual conduct or performance.”
- “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."
3. Prohibiting underage victims of prostitution from being prosecuted will not encourage more exploitation.
- “Pimps and sexual exploiters of children may still be prosecuted for compelling prostitution and other crimes of sexual exploitation even though [the] child may not be prosecuted for prostitution.”
- Treating child prostitutes as victims rather than criminals will also undermine the ability of pimps to play on the child’s fear of police, removing a powerful tool pimps use to assert control.
4. Child victims of prostitution should be provided counseling, rehabilitation, and services instead of being placed in a detention system, ill-suited to the child’s needs.
- The Court argued a child such as B.W. would qualify for State child protective services, which would be better equipped to provide her with proper care and treatment. All quotes from Supreme Court of Texas, In Matter of B.W., June 18, 2010, No. 08-1044