We sat in court and Raquel doodled butterflies and rainbows and wrote a poem about feeling lost. I scribbled down our next court date and told her I would meet her in the lock-up when the court officers led her away.
She was my first young client charged with prostitution. Sitting beside me with long fake nails and extensions in her hair, she looked older than her age of 14, but not much.
The idea that our justice system charges young girls like Raquel with prostitution, and sometimes locks them up — she spent one year in detention — shocked my friends and relatives who were frequently surprised about the realities of the juvenile justice system when I shared moments from my work. Prosecuted, even though they are victims of statutory rape and usually sold by fairly organized adult operators, who post their photos on-line to solicit customers or direct them to certain areas or “tracks.”
Though a minor is too young to legally consent to sex with the person he or she is charged with soliciting, the two state courts that have ruled on the issue about whether prosecutors can still charge the minor with prostitution have come out on different sides. Fortunately, state legislators have begun to pass laws to address this problem.
Since 2008, about a dozen states have enacted different forms of legislation, referred to as “Safe Harbor” laws that address this irrationality in the law. (Michigan had previously changed the age of eligibility for prosecution for prostitution). States that have taken action, such as Illinois, New York, Minnesota, Connecticut, and Massachusetts, recognized the inconsistency in their own laws. Many incorporated, at least partially, the notion born in federal law, the Trafficking Victims Protection Act, that children under 18 who are sexually exploited in this manner are severe trafficking victims.
The passage of these laws is a great achievement as the bills can face difficult opposition. But even in states that have passed safe harbor laws, there are considerable gaps and shortcomings. These shortcomings result from disagreements about how to effectively address trafficking of minors and fear of “decriminalization,” which leads to too much tinkering with the initial bills.
We now have nearly a dozen different versions of state Safe Harbor laws — no two versions of the laws are the same. They vary quite significantly in terms of age eligibility, inclusion of conditions that may exclude a child from protection from prosecution, and inclusion of funding for services.
For example, the laws in Illinois and Tennessee ended the prosecution of all minors under 18 for prostitution outright, but most other laws limit how and when children will be protected from prosecution. And Florida’s law, passed in 2012, is named a “safe harbor” but does not protect minors from prosecution at all. In some states, like Vermont and Georgia, minors must prove that they are “trafficking victims” even though federal law presumes by definition that a minor who is sold for sex is a victim of a severe form of trafficking. And in Washington, one previous arrest for prostitution will bar a minor from protection from prosecution; additionally, in Massachusetts, protection applies only if the prosecutor consents.
While better than nothing, these conditions can exclude those children most in need, undermining the laws and belying the research about this population; research shows that the relationship between children and those who peddle them for their own financial gain are rife with threats and abuse that make it difficult for a juvenile to break free without a sustained intervention.
We know they need comprehensive assistance, yet some laws do not have a funding or service component, and access to help is particularly important when laws place the onus on the child to prove that he or she is “worthy” of protection from prosecution. These caveats can seem minor but in reality, it frustrates the intention and purpose of a “safe harbor” when kids continue to be prosecuted and have no reason to hope for a better situation.
To be sure, state legislatures that have taken action deserve a lot of credit for their courage and foresight. As the effective dates for some of the new state laws approach, legislators can strengthen them by amending provisions that limit which children can get assistance. Likewise, states considering laws now and in the future, such as California, should maintain the Illinois model, which provides for services and does not prosecute minor victims. (Though the November ballot initiative on trafficking in California does not include a safe harbor provision to prevent prosecution of minors, separate legislation is in the works). Legislators should refrain from diluting the effectiveness of safe harbor laws, taking a firm stance about who to prosecute — those who exploit rather than those who are exploited — and channeling the valuable time and resources of courts and prosecutors in a more effective way.
Megan Annitto is an Assistant Professor of Law at Charlotte School of Law where she teaches and researches in the areas of criminal procedure and juvenile justice.