Decriminalizing victims of sex trafficking.

• Author: Dempsey, Michelle Madden

ABSTRACT

Despite the United States' commitment to decriminalizing victims of sex trafficking and the obvious injustice of subjecting these victims to criminal penalties, the majority of jurisdictions throughout the United States continue to treat sex trafficking victims as criminals. This essay argues that the criminal law must abandon this practice. Part One presents a brief account of definitional and conceptual debates regarding what counts as sex trafficking. Part Two explains why we must decriminalize its victims. Part Three outlines four methods of decriminalizing sex trafficking victims, and defends what has come to be known as the "Nordic model" as the most effective means of achieving decriminalization.

INTRODUCTION I. WHAT COUNTS AS SEX TRAFFICKING? A. Child Prostitution B. Prostitution Induced by "Force, Fraud or Coercion" C. Prostitution Induced by "Abuse of Power or a Position of Vulnerability" D. Conceptual Debates II. WHY WE SHOULD DECRIMINALIZE VICTIMS OF SEX TRAFFICKING A. Our Obligations Under International Human Rights Law Require It B. We Tell Other Countries to Do It C. Principles of Criminalization Require It III. FOUR METHODS OF DECRIMINALIZING VICTIMS OF SEX TRAFFICKING A. Safe Harbor Laws for Children: An Incomplete Solution B. Screening and Diversion Upon Arrest: Too Little, Too Late C. Decriminalizing Everyone Involved in Commercial Sex: A Failed Experiment D. The Nordic Model: Decriminalizing Victims, Without Increasing Trafficking CONCLUSION INTRODUCTION

Generally speaking, a properly functioning criminal justice system spends most of its resources targeting those who victimize others, and aims to provide some measure of protection, vindication, or at least expressive support to those who are victimized. (1) Whatever the resolution of debates as to whether any so-called "victimless crimes" may justifiably be criminalized, the following remains true: in cases where someone is indeed victimized, the criminal law should generally seek to punish the victimizer, not the victim. (2)

These general observations about the proper function of the criminal justice system, while uncontroversial, have not held true when it comes to sex trafficking. Instead, the criminal law too often penalizes victims, rather than those who victimize them. (3) Specifically with regard to criminal laws prohibiting prostitution and related activities like solicitation, police and prosecutors spend far more time and money targeting those who sell sex, often under conditions amounting to sex trafficking, rather than targeting those who profit from or drive demand for the commercial sex markets where trafficking takes place. (4)

While this situation is beginning to change in some states and localities in the United States, the vast majority of jurisdictions continue to criminalize victims of sex trafficking. (5) Despite U.S. ratification of international agreements requiring the decriminalization of sex trafficking victims, thirty-two states within the U.S. continue to treat child victims as criminals, and no states have comprehensively decriminalized adult victims of sex trafficking. (6)

The continued criminalization of sex trafficking victims in the United States is a tragedy, an embarrassment, and a breach of our obligations under international law. The future of criminal law in this country must confront this issue and move swiftly toward decriminalizing victims of sex trafficking. This essay provides a roadmap for doing so, by identifying what counts as sex trafficking, explaining why we should decriminalize its victims, and outlining four methods for so doing.

1. WHAT COUNTS AS SEX TRAFFICKING?

   The question of what counts as sex trafficking has been hotly contested and continues to generate tremendous debate. (7) Three points are widely accepted. First, sex trafficking involves commercial sexual exploitation. Second, sex trafficking "is a gendered phenomenon whose victims are overwhelmingly women." (8) Third, sex trafficking includes both international and domestic cases, in which there is no border crossing. (9)

   Beyond these limited points of agreement, however, there is no 'one size fits all' description of sex trafficking, and persistent disagreement surrounds the scope and size of this phenomenon. (10) In particular, there remains a substantial lack of clarity and agreement about the nature of exploitation and the conditions under which commercial sex amounts to commercial sexual exploitation. (11)

   While this section does not attempt a final resolution to the complex issues that underpin these debates, it does seek to identify points of agreement and illuminate considerations that may prove relevant to identifying what counts as sex trafficking.

   1. Child Prostitution

      One point of widespread agreement is that the prostitution of children under the age of eighteen constitutes sex trafficking. Indeed, the use of age as a definitional stipulation is the clearest and most well-accepted method of distinguishing those persons who certainly count as victims of sex trafficking (prostituted children) from those who may count as victims of sex trafficking, if other conditions are present (as is the case with prostituted adults). (12) The use of age in clearly demarcating cases of commercial sex as trafficking is widely accepted on grounds that children are typically considered incapable of freely choosing to engage in commercial sex. (13) The widespread agreement on this point has lead states to adopt definitions of sex trafficking that, as a matter of legal stipulation, count underage prostitution as sex trafficking. (14) As such, in cases where children under eighteen years of age are being prostituted, they count as victims of sex trafficking by definition, irrespective of whether they self-identify as victims. (15)

      Legal definitions of trafficking at the national and international levels incorporate the recognition that prostituted children under the age of eighteen years are victims of sex trafficking. In U.S. federal law, the Trafficking Victims Protection Act clearly includes all prostituted children under the age of eighteen within the scope of victims of "severe forms of trafficking." (16) Similarly, the United Nations Protocol for the Prevention, Protection and Prosecution of Trafficking in Persons, Especially Women and Children (hereinafter Palermo Protocol), defines trafficking to include the exploitation of prostitution of children under the age of eighteen years. (17)

      Despite widespread agreement and well-grounded legal recognition that child prostitution counts as sex trafficking, only eighteen U.S. states have laws explicitly prohibiting the criminalization of child sex trafficking victims. (18) These laws, colloquially referred to as "safe harbor" laws, call for a child-protective response to juvenile prostitution, granting full immunity to child victims for prostitution-related offenses and providing for specialized services to assist, rather than punish, these victims. (19)

      In the thirty-two states (and Washington, DC) where "safe harbor" laws have not been enacted, child victims of sex trafficking continue to be treated as criminals, often arrested by police. (20) This failure to identify prostituted children as victims of sex trafficking results in their being adjudicated delinquent or prosecuted in the adult criminal justice system. (21)

   2. Prostitution Induced by "Force, Fraud or Coercion"

      Another area of widespread agreement is that adults who perform a commercial sex act induced by force, fraud, or coercion count as victims of sex trafficking. (22) This definition of adult sex trafficking has been incorporated into the U.S. Trafficking Victims Protection Act (23) and many states' anti-trafficking laws. (24) It also informs the framework for the U.S. State Department's Annual Trafficking in Persons Report. (25)

      Despite large scale recognition that adult prostitution induced by force, fraud, or coercion constitutes sex trafficking, only twenty-nine states require or even encourage law enforcement training to assist officers in identifying trafficking cases. (26) The failure to mandate universal training for law enforcement regarding the identification of trafficking cases results in the continued criminalization of sex trafficking victims. (27) For, without adequate training to identify cases of trafficking, police may mistakenly identify potential victims as simply engaged in the commercial sex trade--"prostitutes"--and thus arrest them and charge them with prostitution-related offenses.

      The failure to screen prostitution cases for evidence of trafficking results not only in the unjust prosecution of victims but also in missed opportunities to prosecute their traffickers. As a recent Urban Institute report observes, "[v]ictims may ... be afraid to identify themselves as victims due to prior interactions with the police. Moreover, in the rare cases where victims do self-identify to law enforcement, they are frequently treated as offenders and arrested." (28)

   3. Prostitution Induced by "Abuse of Power or a Position of Vulnerability"

      One point of debate regarding the definitional scope of sex trafficking, as it pertains to adult prostitution, (29) concerns whether sex trafficking should be understood to extend beyond cases involving the use of "force, fraud or coercion" and encompass cases involving merely an "abuse of power or a position of vulnerability." (30) According to the definition of trafficking adopted in the Palermo Protocol, the answer is clearly yes. (31) In light of U.S. ratification of this Protocol, there is a strong basis on which to argue that jurisdictions within the United States should include cases involving an "abuse of power or a position of vulnerability" within their definition of trafficking. (32)

      Commenting on the breadth of the international legal definition of trafficking and the obligations it imposes on State Parties both to criminalize trafficking and...