Harboring concerns: the problematic conceptual reorientation of juvenile prostitution adjudication in New York.

• Author: Schwartz, Shelby

In 2003, New York City police arrested Nicolette R., a twelve-year-old girl, for offering oral sex to an undercover officer for forty dollars, (1) Nicolette had already been arrested for prostitution in a different city, but that time her pimp paid her fine and she returned to the streets. (2) This time was different. Prosecutors sought to sentence Nicolette to secure detention, pointing to her lack of remorse and tendency to carry weapons; her defense attorneys argued that she was a child, victimized by sexual predators, and should be set free. (3) First a Family Court judge placed her in a secure juvenile detention center, but later an Appeals Court granted her the right to be placed in a residential treatment facility for emotionally disturbed children. (4) Unfortunately, the only facility that accepted Nicolette had no resources to treat victims of sexual abuse or prostitution. (5) The struggle over Nicolette's fate is not unique; it occurs over and over in New York family courts and throughout the country. Simultaneously too young to consent to sex and in violation of criminal laws banning prostitution, juvenile prostitutes have been trapped in a contradictory system of regulations and left without any resources for their rehabilitation.

Issues of juvenile prostitution tap into the longstanding cultural confusion over management of teenage sexuality. The traditional adjudication of juvenile prostitutes through juvenile delinquency proceedings typifies state responses. In 1920, Mabel Ruth Fernald, who researched female criminal behavior in the early twentieth century, noted that the most common class of convictions for delinquent women was offenses against chastity. (6) Fernald's study tracks women convicted for prostitution, "sexually irregular" women--those who had been sexually promiscuous but not for money or who had "lived with one or more consorts for any length of time"--and "occasional sexual offenders," including women who had "illicit" sexual intercourse. (7) This criminalization of sexual conduct based on its perceived immorality exemplifies one strain of the discourse underlying the debates surrounding the adjudication and treatment of juvenile prostitutes.

An opposing normative view of adolescent prostitutes as victims in need of protection competes with these moral narratives in cultural discourse. We can see this "child-saving" philosophy reflected in traditional state laws setting age of consent requirements. (8) For example, in New York, juveniles aged sixteen years and under cannot legally give consent to sexual acts. Thus, juvenile prostitutes are technically victims of rape during each sex act performed. This peculiar situation has been noted by the New York state courts. (9) The above point does not apply to juvenile prostitutes aged between sixteen and seventeen, however, as they are still below the age of majority and thus technically "juvenile" prostitutes.

New York State has recently attempted to alleviate these tensions through the Safe Harbour for Exploited Children Act (SHA), (10) passed into law on September 25, 2008, and effective April 1, 2010. (11) This Act will convert all family court juvenile delinquency proceedings for prostitution-related offenses into Persons in Need of Supervision ("PINS") proceedings. (12) This change will decriminalize prostitution for juveniles, mandate specialized court services, and prohibit detention.

This Article will argue that, in the midst of the cultural tension surrounding teenagers and sex, New York should promote a more tailored, philosophically--and developmentally-appropriate method of dealing with juvenile prostitutes than the Safe Harbour Act offers. Instead of abandoning traditional theories of juvenile adjudication for a new victim-based theory, New York should instead hold onto the kind of individualized and graduated dispositions for which the juvenile court was created. Part I will provide background material on domestic juvenile prostitution and the traditional approach to adjudication, especially focusing on juvenile prostitution in New York, and on the philosophical bases of juvenile courts and delinquency proceedings. Part II will develop the tensions and identify the problems of working with the victim-centered approach to juvenile prostitution. The federal government created the victim-centered approach for application to internationally trafficked minors, and the Safe Harbour Act applies it to domestic juvenile prostitutes. Part III will suggest that adaptation of addiction treatment models to the juvenile prostitution context, along with varying levels of judicial response, presents a better solution than the Safe Harbour Act. Finally, the Article identifies the need for a richer base of empirical knowledge regarding juvenile prostitution to inform legal responses and treatment models.

1. DOMESTIC JUVENILE PROSTITUTION AND THE TRADITIONAL ADJUDICATORY REGIME

   This Part will examine the current knowledge about domestic juvenile prostitution in America and assess how these facts fit with the philosophical bases of the juvenile courts that adjudicate and treat juvenile prostitutes when they are apprehended. Juvenile courts use the traditional approach to adjudication, discussed above.

   1. Current State of Domestic Juvenile Prostitution

      Juvenile prostitution in the United States represents a poorly tracked but clearly growing problem.

      1. What Does Juvenile Prostitution in the United States Look Like?

         In 2004, the most recent year for which data are available, approximately 1,800 juveniles in the United States were arrested for prostitution and other forms of commercialized vice. (13) This represents a seven percent increase from 2003 and a forty-four percent increase since 2000. (14) These arrest statistics probably represent a gross underestimate of the number of adolescents involved in prostitution, because in many cases, police do not arrest juvenile prostitutes when they arrest their adult patrons. (15) Frank Zimring has posited that "[a] plausible reason for this pattern is that when older patrons pay underage sex partners or procure for them, the adult is considered the predator and the child (victim) is not arrested." (16) Even though there were only 1,800 estimated arrests across the entire nation in 2004, the New York Office of Children and Family Services (OCFS) estimates that there are 2,500 youth engaged in commercialized sex in New York City alone. (17) A 2001 study reported that between 300,000 and 400,000 children are victims of some form of sexual exploitation each year. (18) The Justice Department estimates that there are between 100,000 and 300,000 adolescents involved in prostitution annually in America. (19)

         Although both boys and girls engage in juvenile prostitution, the vast majority of arrests are of female prostitutes (20). This Article focuses on the state's response to juvenile prostitution and will specifically discuss female juvenile prostitution. Male juvenile prostitution appears generally to take a very different form than female juvenile prostitution, with male juvenile prostitutes more likely to be older and to work without pimps. (21) Based on the observed difference, the treatment of female juvenile prostitution presented here may be inapposite to male juvenile prostitutes; their methods of operation have been documented to be different, and it seems likely that their motivations and reactions will be different as well.

         Sociologists note that most young women who enter into prostitution do so because they are emotionally searching for some form of love or protection that they cannot find at home and which they believe their pimp will give them. (22) As Cheryl Hanna has explained, "we have fundamentally misunderstood what would motivate a girl to say yes the first time someone offers her money or food or drugs in exchange for sex.... Most girls are not motivated by lust or greed or gluttony or wrath or envy or pride or sloth; they are lured by love." (23) The vast majority of adolescents arrested for juvenile prostitution come from family backgrounds of physical, emotional, and sexual abuse in their homes. (24) One study, ordered by the New York State Legislature, estimated that approximately eighty-five percent of these children come from homes involved with the child welfare system and that, in New York City, seventy-five percent had been placed in foster homes. (25) Their entry into prostitution tends to be a matter of necessity in order to meet basic material needs and flee themselves from abusive situations. (26) These young women do not possess the developmental capacity to recognize that they most likely are moving from one abusive and exploitative situation into another. One pimp commented that "[t]he goal is to get the girls as dependent as possible .... If they mess up, there is a price to pay, and they know it is a heavy price." (27) Adolescent women often enter into prostitution because an older man promises to take care of them in exchange for their willing compliance to his demands; this acquiescence, however rational it seems to them, nearly always devolves into dependence and a chronic cycle of prostitution, drug use, and physical abuse. (28)

         Once involved with a pimp, young girls often feel as if there is nowhere for them to go and no acceptance outside of the world of prostitution. (29) The creation of a community, or even a substitute family, within the narrow social networks of prostitution furthers this feeling. Young girls often call their pimps "Daddy" and refer to other young prostitutes for the same pimp as "sisters." (30) These concurrent senses of inclusion within the group of prostitutes and exclusion from the world of family and institutional structures facilitate the girls' descent into an underworld. Young girls become detached from social structures that could serve to normalize their lives and help them recover from this trauma and abuse. (31)...