HUMAN TRAFFICKING AND PROSTITUTION COURTS: PROBLEM SOLVING OR PROBLEMATIC?

• Author: Kendis, Becca

CONTENTS INTRODUCTION I. COMMERCIAL SEX INVOLVEMENT: KEY TERMS, IDEOLOGIES, AND REGULATORY SCHEMES A. Key Terms Defined 1. Trafficking 2. Commercial Sexual Exploitation 3. Sex Work B. A Note on Overlap and Fluidity of Key Terms C. Ideological Understandings of Agency and Victimization D. Regulatory Approaches and the Harms of Criminalization II. PROBLEM-SOLVING COURTS A. Emergence of the Problem-Solving Court Model B. Human Trafficking and Prostitution Courts III. COMMON CRITIQUES OF PROBLEM-SOLVING COURTS APPLIED TO HTPCS A. Eligibility: Over- and Under-Inclusion 1. Problem-Solving Courts 2. HTPCs B. Coercion 1. Problem-Solving Courts 2. HTPCs C. Increased Criminal Justice System Involvement 1. Problem-Solving Courts 2. HTPCs IV. ARE HUMAN TRAFFICKING AND PROSTITUTION COURTS AN EFFECTIVE SOLUTION? A. Factors Underlying Commercial Sex Involvement B. Limitations and Reasons for Concern V. ARE HUMAN TRAFFICKING AND PROSTITUTION COURTS AN EFFECTIVE WORKAROUND TO A BROKEN SYSTEM? CONCLUSION INTRODUCTION

Wendy was full of gratitude on the day she graduated from CATCH Court, "a program for victims of human trafficking, prostitution, and sexual exploitation" in Franklin County, Ohio. (1) After experiences of physical and sexual violence, the court helped her to heal. She explained, "I turned from a caterpillar into a beautiful butterfly... And I have [CATCH Court] to thank for giving me a place where I could open up and grow and get rid of the ugliness that was holding me back." (2)

Jenna successfully completed a similar program in one of New York City's Human Trafficking Intervention Courts, but did not share the same positive assessment of her experience. Unable to balance the time-consuming, court-mandated treatment sessions with her class schedule and responsibilities as a single mother, she ultimately had to drop out of college. (3) "The sessions hampered my ability to create a better environment for myself and my children so I wouldn't have to rely on sex work." (4)

Over the last several decades, public interest in human trafficking has increased, (5) and federal and state governments have responded with a number of different legal and extra-legal strategies. Human trafficking and prostitution courts (HTPCs), (6) which adopt key principles from the popular problem-solving court model, have been hailed as an innovative and humane approach to addressing human trafficking and prostitution in state courts. Similar to other problem-solving courts (e.g. drug courts, veterans' courts, and mental health courts), HTPCs typically adopt a collaborative and interdisciplinary approach, "take into consideration the needs of victim-defendants and seek to address such needs as a way to intervene in and prevent further trafficking exploitation" or further criminal justice system involvement.7

While media outlets often focus on stories of victimization and expressions of gratitude from successful graduates of these specialized court programs, not every participant is happy about their involvement. (8) Critics have characterized these programs as "less problem-solving than problematic" due to their tendency to "encourage special interest control of criminal courts, foster undesirable police and judicial practices, and fail to meaningfully address societal problems," specifically the criminalization of prostitution. (9)

In order to analyze the effectiveness of HTPCs, it is necessary to identify the problem that they are trying to solve. There exists a great deal of variation in HTPCs' mission statements and frameworks. Rather than attempt to analyze each, this Comment will consider HTPCs' effectiveness in addressing two broadly defined problems: (1) human trafficking and commercial sexual exploitation, and (2) the current "system that penalizes and incarcerates those engaged in prostitution while providing them little assistance." (10) This framing reflects two common views regarding HTPCs and other problem-solving courts: some view problem-solving courts as direct interventions to the broader problem, (11) while others view these programs as "stopgap measure[s]" or "workarounds" to ineffective and inappropriate laws, policies, and procedures. (12)

Part I of this Comment, provides context by defining terms used to describe commercial sex involvement and addressing prominent ideologies regarding agency and victimization in commercial sex. Part I also summarizes the four approaches to regulating commercial sex and outlines the negative impacts of the United States' approach on individuals involved in the sex industry. Part II provides additional background by describing the evolution of the modern problem-solving court and placing HTPCs in this context. Part III applies common critiques of problem-solving courts to the HTPC model. Part IV analyzes the effectiveness of HTPCs as a direct intervention to commercial sex involvement, ultimately finding that these courts do not seem to adequately address all the factors underlying involvement and barriers to exiting the sex trade. Part V considers HTPCs' effectiveness as a "stopgap" solution to the harms created by the current system. The conclusion argues that both frames--HTPCs as a solution to trafficking and exploitation and HTPCs as a workaround to the broken system--are problematic. Finally, this Comment ends with a call for systemic change and identifies a space for HTPCs in a new system.

1. COMMERCIAL SEX INVOLVEMENT: KEY TERMS, IDEOLOGIES, AND REGULATORY SCHEMES

   1. Key Terms Defined

      1. Trafficking

         Although awareness of human trafficking is on the rise and the term is seemingly becoming an increasingly common part of our vocabulary, there are still numerous misconceptions about what human trafficking is and who counts as a victim. (13) Even among individuals, interest groups, and entities that focus on addressing human trafficking, there are significant debates over how the term should be defined. (14) These debates have influenced the construction of legal definitions of human trafficking, (15) which not only are important for the purposes of prosecuting perpetrators but also impact eligibility for government funding, service provision, and legal protections for victims. (16)

         As defined by the federal Trafficking Victims Protection Act (TVPA) of 2000, (17) human trafficking includes both sex and labor trafficking. (18) Victims of "severe forms" of human trafficking include:

      1. adults who are induced into performing a commercial sex act through the use of force, fraud, or coercion;

      2. minors who are induced into performing a commercial sex act, regardless of the existence of force, fraud, or coercion; and

      3. individuals of any age who are "recruit[ed], harbor[ed], transport[ed], provided], or obtainfed]... for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." (19)

         While a number of victim services and benefits are available only to individuals fitting within the parameters of this definition, (20) the TVPA also recognizes adult sex trafficking victims who have not been induced by force, fraud, or coercion under a broader definition of "victim[s] of trafficking." (21)

         All fifty states have enacted legislation addressing human trafficking since the TVPA became law in 2000. However, the content of these laws vary from state to state, reflecting different criminal justice priorities. (22) Definitions of human trafficking differ across states as well, although many states have adopted the TVPA's language. (23) For the purposes of this Comment, however, the terms "human trafficking" and "sex trafficking" will generally align with the federal definition of "severe forms of trafficking in persons." Furthermore, any discussion of sex trafficking victims will refer to individuals over the age of majority, unless otherwise indicated.

      2. Commercial Sexual Exploitation

         Many individuals engaged in the sex industry are subjected to forms of exploitation that do not fit cleanly under legal definitions of trafficking that require a showing of force, fraud, or coercion. (24) Commercial sexual exploitation (CSE) is a term that has been used "to describe those who sell or trade sex to meet survival needs, or in which vulnerability is exploited by a buyer, trafficker, or pimp." (25) While this definition overlaps with legal definitions of sex trafficking victimization, CSE has been employed as an umbrella term that also encompasses experiences falling somewhere between sex trafficking and voluntary sex work on a continuum of victimization and agency.

      3. Sex Work

         The term sex work is typically used to describe voluntary engagement in commercial sex acts. (26) Some sex workers make a fully autonomous choice to engage in this work: they choose sex work over (or in addition to) other employment options, they have control over their own profits and finances, they engage in autonomous decisionmaking in regards to their customers and logistics of the exchange, (27) they feel free to stop engaging in sex work at any time, and they do not experience force, fraud, or coercion of any degree. (28) Often, however, sex workers face limited or constrained control in at least some of these areas. The term "sex work" has also been used to "describe those involved in commercial sex as a form of labor, regardless of whether commercial sex involvement is a constrained choice or to meet survival needs or whether any vulnerability is present." (29) This broader definition overlaps with CSE. This Comment will attempt to limit use of the term "sex work" to fully autonomous engagement, while recognizing that this line is rarely clear.

   2. A Note on Overlap and Fluidity of Key Terms

      The application of these terms to individuals and their unique circumstances can be incredibly complicated. As already noted, there is a great deal of overlap between these different categories of commercial sex involvement. People...