Tuesday, November 18, 2014

Jailing Lolita: Juveniles as Defendants in Prostitution Cases

“Imagine you’re a teenager . . . and you’re having your worst day, a day when you feel sad or ugly . . . and an older man comes up to you and tells you, with sincerity and warmth ‘you’re so beautiful’ or ‘you’re so amazing.’”  According to Alameda County officials, that’s how countless girls as young as twelve or thirteen are ensnared into juvenile prostitution networks.  Over the last three years, juvenile prostitution has proven to be a burgeoning problem in America’s urban environments.  According to the Department of Justice, over forty percent of all human trafficking cases are related to the trafficking of children for the sex trade.  

States have taken various approaches to dealing with this issue.  In Illinois, the legislature passed the Safe Children’s Act, stating that being beneath the age of 18 is a complete defense to prostitution.  The Texas Supreme Court held in In re B.W. that since children cannot form the requisite mindset to consent, they cannot form the requisite mindset for intent to solicit as a prostitute.  However, these cases are anomalous.  In the majority of cases regarding prostitution, the minors find themselves prosecuted.  In some states, nearly one hundred percent of juvenile defendants in prostitution cases that are found guilty are held either in juvenile detention facilities, or actual prison, despite the array of alternative sentencing options available for judges hearing juvenile cases.  In cases where the juvenile is not held for years in a juvenile facility, many children find themselves turned out on the street, with nobody to go back to other than their pimps.

Now, advocates of continued prosecution of juvenile prostitutes hold that it is necessary to “lock down” these defendants, usually in the service of obtaining evidence for a case against the child’s pimp.  Others hold that policies like Illinois’ blanket ban on prosecuting minors for prostitution effectively “decriminalizes” prostitution for children, and makes it more difficult to fight against prostitution writ large[i]. A much more odious argument comes from Georgia, where a Safe Harbor law that would have provided immunity, as well as community mental health and other aid was rejected by the State Senate after heavy lobbying from the Georgia Christian Coalition and the Georgia Baptist Convention. Sue Ella Deadwyler, a contributor to the ultra-right wing Georgiainsight.org stated that if the law passed, “girls from fourteen to seventeen could decide that [prostitution] would be a great way to make money until they turn eighteen.”  These arguments are, at best, unpersuasive.  So, let’s dispense with them in turn.

First, it goes without saying that it is almost impossible to build a criminal case without witnesses that are willing to testify against a defendant.  Any decent litigator will tell you that cultivating a witness requires a certain degree of mutual trust between the witness, and his or her attorney.  This trust simply cannot germinate with the threat of criminal action being held over a child’s head, especially when juvenile prostitutes are immersed in a culture where pimps rely on brainwashing techniques to ensure reliance and trust in nobody but themselves.  Pimps instill a fear of law enforcement in the children, emphasizing the imminent prosecution that hangs over their heads if they are ever caught by the police.  States that currently prosecute minors for engaging in prostitution feed into this threat.

A stark illustration of this reality can be found in Nevada.  In Las Vegas, there exists no alternative to housing child prostitutes outside of incarceration in juvenile facilities.  These facilities are generally woefully underequipped to deal with the realities of the trauma that these girls face[ii].  Since Nevada law holds that juvenile proceedings are civil, rather than criminal in nature, the girls are not entitled to bail, and the only relief they can be given at the end of their hearings is release.  Release without support, and effectively thrusting the children into the same circumstances that led to their prostitution[iii].  Similarly, even keeping current prostitution laws on the books to “threaten” juveniles into testifying against their pimps belies the abuse that the girls faced, rendering many of them mentally unable to testify against their pimps.

Secondly, the idea that refusing to prosecute minors for prostitution creates a “loophole” that “decriminalizes” child prostitution ignores the vast body of laws that already exist that punish pimps and johns for exploiting and soliciting child prostitutes.  The only “loopholes” that would be created by ending the prosecution of juvenile prostitutes stem from the states’ inability or unwillingness to prosecute johns.

Finally, we get to Ms. Deadwyler, who apparently thinks that these girls willingly enter a life of prostitution because of “the good money.”  In Ms. Deadwyler’s world, the apparent cause of child prostitution is the fact that American Eagle wasn’t hiring one summer.  While it is easy to dismiss Ms. Deadwyler’s (presumably) saliva-flinging rants as general fringe rhetoric, her attitude is shared by a distressingly high number of law enforcement.  A study conducted in 2006 found that “on the whole, police officers do not . . . conceptualize youth involved in prosecution as victims of [commercial sexual exploitation.][iv]” This attitude stems from a pervasive and problematic double standard that society has created by ignoring domestic child prostitution.  With so much focus on human trafficking being international in nature, a climate has been created where “Katya from Ukraine is a victim . . . but Katrina from the Bronx is a criminal.”  A particularly jarring example came from the Bronx Family Court, where a twelve year-old’s prostitution charge was denied appeal, with the judge claiming that the defendant simply needed to learn “proper moral principles.”

With the sudden resurgence in dialogue about sexual assault in the country, and the blowback against rape culture and victim blaming, it should be unfathomable that state governments are codifying victim blaming against children in state law.  A blanket ban on prosecution of juvenile prostitution cases is a small step in the right direction towards protecting the most vulnerable people in the country.  More needs to be done, to work towards counselling and sheltering these girls, but it stands to reason that the very least that society can do is offer juvenile trafficking victims hope, and not handcuffs. 

Travis Nemmer
Staffer, Criminal Law Practitioner

[i] State's Response to Petition for Review at 7, In re B.W., 313 S.W.3d 818 (Tex. 2010)
[ii] Mark Soler et. al., Juvenile Justice: Lessons for A New Era, 16 Geo. J. on Poverty L. & Pol'y 483, 498 (2009)
[iii] Geneva O. Brown, Little Girl Lost: Las Vegas Metro Police Vice Division and the Use of Material Witness Holds Against Teenaged Prostitutes, 57 Cath. U. L. Rev. 471, 507 (2008)
[iv] Girls' Justice Initiative, Girls in the Juvenile Justice System: Perspectives on Services and Conditions of Confinement 1, 6 (2003)

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