Precedent or problem? Alameda County's diversion policy for youth charged with prostitution and the case for a policy of immunity.

AuthorSully, Janet C.

TABLE OF CONTENTS INTRODUCTION I. CURRENT LEGAL RESPONSES TO CSEC EXPLOITATION A. Current Policies in Alameda County and California B. Policies in Other States II. LEGAL SUPPORT FOR A POLICY OF IMMUNITY IN ALAMEDA COUNTY A. Statutory Rape Laws in California B. Prostitution Laws in California C. The Federal Trafficking Victims Protection Act III. POLICY ARGUMENTS IN SUPPORT OF IMMUNITY A. Protecting CSEC Youth from Wrongful Prosecution 1. Protecting All Youth Who Are True Victims 2. Protecting Youth Regardless of Age 3. Protecting Youth Regardless of Their Cooperation with the Court 4. Protecting Youth Trapped in Exploitation B. Preventing Harm to CSEC Youth 1. Harm Caused by Criminal Detention 2. Indirect Harms C. Eliminating CSEC Prosecution 1. Freeing Police Resources 2. Obtaining Youth Cooperation with Law Enforcement IV. COUNTERARGUMENTS CONCLUSION INTRODUCTION

When Tasha was only thirteen, her mother died of a drug overdose. With no other relatives and nowhere to go, Tasha moved in with a family friend. Although she had a home, the situation soon turned abusive. Struggling with the trauma of her mother's death and her abusive home life, Tasha was desperate for stability. When she began dating an older man, Tasha thought she had finally found the love and support she so badly needed. After a few months, however, Tasha's boyfriend told her that if she wanted the relationship to continue, she would need to do her part to contribute. If they could save up enough money, he said, they could buy a nice house and start a family together. Although she was too young to hold a job, the man explained, she could easily make a few hundred dollars per night working as a prostitute. He knew a number of places to easily recruit her plenty of customers.

Soon enough, Tasha realized that she was trapped. Despite her boyfriend's promise to start a family together, he kept all of the money she earned working the streets. No longer attending school, Tasha had nowhere to turn and no one to ask for help. Leaving was not an option. She had no money, and she feared that if she tried to exit prostitution, her boyfriend would kill her. (1) If she went to the police, she would face criminal charges for prostitution. (2)

Unfortunately, Tasha's situation is not uncommon. Commercial sexual exploitation (3) of minors is a rapidly growing phenomenon. (4) In 2005, Congress updated the Trafficking Victims Protection Act (TVPA) to explicitly provide youth like Tasha with immunity from criminal charges for prostitution. (5) Recently, a number of states have begun to adopt similar policies, often called "safe harbor" laws, limiting the prosecution of such youth. (6) Nonetheless, only two states have provided these youth complete immunity from prosecution, (7) and many states have yet to create any safe harbor policy at all. (8)

California has one of the largest populations of commercially sexually exploited children (CSEC). (9) In the United States as a whole, an estimated 150,000 to 300,000 youth are involved in prostitution per year. (10) Due to lack of reporting, officials have not yet compiled solid estimates for the state of California. (11) The Federal Bureau of Investigation (FBI) considers the metropolitan areas of Los Angeles, San Diego, and San Francisco to be some of the largest CSEC markets in the United States. (12) Within the San Francisco metropolitan area, the problem is especially acute in Alameda County. For example, in Oakland, the largest city in Alameda County, police estimate that about 100 CSEC youth are involved in prostitution on any given night. (13)

Despite its large CSEC market, (14) California lacks a safe harbor policy. In 2008, California implemented a pilot program in Alameda County, allowing minors arrested on charges of prostitution to enter a diversion program in which they receive rehabilitative services and counseling, rather than accepting a conviction for prostitution. (15) Many government and law enforcement officials support the pilot program, claiming it is the only effective method of physically breaking youth away from pimps and their former lifestyles to provide them with the services they need in order to successfully leave prostitution. (16) Furthermore, many officials hope to see the pilot program adopted as the official statewide policy. (17) Many would like to see the program replicated in other parts of the country. (18)

Leaders of various community organizations providing services to these youth, however, support an alternative policy, which would grant youth under eighteen immunity from prosecution. (19) Unlike diversion, immunity would not subject youth to detention by law enforcement, court proceedings, or mandatory rehabilitative programs. (20) Rather, CSEC youth would face no criminal charges, and they would be free to pursue voluntary rehabilitative services. (21)

This Note argues that Alameda County should replace its current diversion program with a policy of immunity. Part One describes Alameda County's current policy of diversion and outlines alternative programs used in other states. Part Two presents various legal arguments as to why immunity is the most appropriate policy for combating CSEC exploitation in Alameda County, given the context of California state laws. Part Three presents various policy arguments as to why immunity is the most appropriate approach in this part of the country, given the distinct manner in which CSE C exploitation occurs in Alameda County. Finally, Part Four considers and responds to concerns that critics have voiced regarding immunity.

Various scholarly articles have analyzed many of the possible benefits and drawbacks that accompany alternative policies regarding CSEC exploitation. Much of this work is theoretical and considers the issue in a general context. (22) This Note is unique in that it considers how advantages and disadvantages of certain policies unfold specifically in Alameda County. This Note focuses on Alameda County because it is the epicenter of the CSEC market within the United States, and other jurisdictions are looking to Alameda County for an answer. (23) By adopting a policy of immunity, as advocated by this Note, Alameda County would implement a policy that fits appropriately within state laws and the nature of the local CSEC market. In doing so, it may persuade other policymakers to consider similar factors when deciding upon a policy appropriate for their own jurisdictions.

  1. CURRENT LEGAL RESPONSES TO CSEC EXPLOITATION

    1. Current Policies in Alameda County and California

      Because CSEC exploitation has become a growing problem in Alameda County and the rest of California, government and law enforcement officials have begun to take steps to combat this issue.

      Various police departments, for instance, have created task forces specifically dedicated to curtailing exploitation. In 2004 and 2005, the United States Department of Justice provided grants to fund six regional task forces in California, led by local police departments and nongovernmental organizations, to focus on human trafficking. (24) Today, there are nine such task forces throughout the state, in the East Bay, Los Angeles, San Francisco, Orange County, San Diego, San Jose, Riverside, Sacramento, and Fresno. (25) The East Bay regional task force, led by the Oakland Police Department (OPD), received a federal grant in 2006 to focus on human trafficking, including CSEC exploitation. (26) In addition, Assembly Bill 499, passed in 2008 and renewed by Assembly Bill 799 in 2011, implemented a diversion program in Alameda County for CSEC youth arrested on charges of prostitution. (27)

      Under the pilot program, if Tasha was arrested in Alameda County on suspicion of prostitution and deemed to be involved in or at risk of exploitation by a pimp, she would be temporarily detained. During this time, she would be housed with other girls who had been arrested on other violent and nonviolent charges. (28) In some ways, Tasha's experience as a CSEC youth arrested for prostitution would differ from that of youth arrested on other charges. For example, before her court hearing, Tasha would receive an advocate from Bay Area Women Against Rape who would support her during interrogation. (29) She would also receive services from local nonprofit groups. (30)

      In other ways, though, Tasha's experience would be much the same as that of youth arrested on other charges. During the two week period pending her court hearings, Tasha would be housed in "cinderblock cells containing only [her] clothes, a sink, and two platform beds." (31) The cells are part of larger units, each of which has "several cells arranged on two floors surrounding an open common area with fixed tables." (32) Like all other youth in juvenile detention, Tasha would have to wear the clothing given to her by the detention center, and she would not be allowed to move about freely. (33) When walking down the hall, Tasha would be required to clasp her hands behind her back, like "invisible handcuffs," and "[v]isitors ... [would have to] stand against the wall until [she] pass[ed]." (34) Later, once the initial stages of the proceedings against Tasha had commenced, the court could release her to the community and drop prostitution charges, as long as she agreed to enter a "diversion program." (35)

      Unfortunately, many CSEC youth like Tasha are ineligible for diversion, and they are instead prosecuted for prostitution. For example, girls who have had multiple arrests and who have endured years of commercial sexual exploitation may be ineligible for diversion. Likewise, girls who are less willing to cooperate with the courts may not be allowed the option of diversion. Instead, the prosecutor will generally charge them with a misdemeanor, often involving a sentence of ninety days in detention. (36)

    2. Policies in Other States

      Alameda County's diversion policy can be categorized as "conditional diversion," in which "youth...

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