The Double Entendre of Juvenile Prostitution: Victim versus Delinquent and the Necessity of State Uniformity

• Published date: 01 June 2014
• DOI: http://doi.org/10.1111/jfcj.12021
• Date: 01 June 2014

The Double Entendre of Juvenile Prostitution:

Victim versus Delinquent and the Necessity of

State Uniformity

By Ellen B. Fichtelman

ABSTRACT

Under the federal Trafficking Victims Protection Act (TVPA), minors perform-

ing commercial sex acts are deemed victims of human trafficking; however, prosecu-

tors and judges continue to charge and adjudicate minors as prostitution offenders

rather than as sexually exploited youth. To stop the perpetuation and victimization of

sexually exploited children, states must join the movement in reform to match the

standards of the TVPA. The federal law presumes that minors charged with prosti-

tution are victims rather than criminals and are in need of specialized social services.

To protect victims of sex trafficking, states should pass legislation in line with the

TVPA, creating a presumption of immunity for all prostituted minors.

I. INTRODUCTION

Prostitution is one of the very youngest professions; approximately eighty percent

of current adult prostitutes began their profession when they were younger than eigh-

teen1and the average age of entry into the prostitution industry is between eleven and

fourteen.2Domestic Minor Sex Trafficking (DMST) is the commercial exploitation of

America’s children through prostitution, pornography, and sexual performance within

the borders of the U.S.3DMST occurs when a U.S. citizen under eighteen is recruited or

1 Marihug Cedeño, Pimps, Johns, and Juvenile Prostitutes: Is New York Doing Enough to

Combat the Commercial Sexual Exploitation of Children?, 22 Cornell J.L. & Pub. Pol’y 153, 157 (2012).

2Id.; Tamar R. Brickhead, The “Youngest Profession”: Consent, Autonomy, and Prostituted

Children, 88 Wash. U. L. Rev. 1055, 1061 (2011); See Megan Annitto, Consent, Coercion, and Compassion:

Emerging Legal Responses to the Sexual Exploitation of Minors, 30 Yale L. &Pol. Rev. 1, 9 (2011); See Tanya

Mir, Trick or Treat: Why Minors Engaged in Prostitution Should be Treated as Victims, Not Criminals, 51

Fam. Ct. Rev. 163, 165 (2013).

3 Shared Hope Int’l, Domestic Minor Sex Trafficking: Child Sex Slavery in Broward and Dade Counties,

Florida 1 (2009), available at http://sharedhope.org/wp-content/uploads/2012/09/BrowardsandDadeFlorida

_printerfriendly.pdf

Ellen B. Fichtelman is President of the Florida Association for Women Lawyers of Stetson and a

candidate for Juris Doctor at Stetson University College of Law.

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Juvenile and Family Court Journal 65, No. 3-4 (Summer/Fall) 27

© 2014 National Council of Juvenile and Family Court Judges

obtained for a commercial sex act;4the term “commercial sex act” refers to any sex act

given in exchange for anything of value to the person preforming the act.5Sex trafficking

has traditionally been stereotyped as a problem of third world countries.6But, this

misconception fails to recognize the prevalence of DMST in both urban and rural areas of

the U.S.7Over a decade of research has classified the sexual exploitation of youth as a

national epidemic and one of “the most hidden form[s] of child abuse in the U.S.”8It is

estimated that roughly “40,000 of the estimated 1.6 million American runaway children

are trafficked,”9and that they are predominately products of abusive homes.10

Part II of this paper will address the commercial sex exploitation of U.S. youth and

the facets of the sex trafficking industry. Part III addresses the competing legal practices

surrounding DMST. It will focus on the evolution of the federal Trafficking Victims

Protection Act (TVPA) as well as the status of minors under New York, Illinois, and

Florida state laws. Part III will then address the prosecution of children for prostitution

under these laws. Part IV discusses recommended reforms and solutions for the prosecu-

tion of minors for prostitution. This section will address judicial decision making and

legislative reform.

II. COMMERCIAL SEX EXPLOITATION OF U.S. YOUTH/ THE

CHILD SEX TRAFFICKING INDUSTRY

The sad reality is that pimps exploit youths because it is a profitable industry;11

pimps target vulnerable children because people are willing to pay to have sex with

youth.12 An informal study conducted by the Polaris Project revealed that just one girl

could make $500 to $1000 in one night; a pimp working four girls seven days a week

could make well over $632,000 per year.13 Additionally, some law enforcement officials

suggest that gangs have shifted from drugs to prostitution because selling girls is “just

4 Tyson Elliot, Statewide Human Trafficking Coordinator, Office of Refugee Services., Fla. Dep’t

of Child & Fams., Presentation by Florida’s Center for Child Welfare: Domestic Minor Sex Trafficking (Sept. 8,

2011), available at http://centervideo.forest.usf.edu/summit11/sextraffic/sextraffic.html

5Id.

6 Sarah Primrose, Note, Killing the Messenger: Intersection Between Sex Trafficking, Planned

Parenthood & the Marginalization of Youth Victims, 22 U. Fla. J.L. & Pub. Pol’y 299, 300 (2011).

7Id. (explaining the current culture of sex trafficking affects a wide variety of people, not just the

poor or teenage runaways).

8 Study: Child Sex Abuse “Epidemic” in U.S., CNN.com (Sept. 11, 2001), available at: http://

edition.cnn.com/2001/LAW/09/10/child.exploitation/index.html.

9 Janelle Zabresky, Student Author, Creating a Safe Harbor for Florida’s Children: An overview of

Florida’s Legislative Evolution in Domestic minor Sex Trafficking, 40 Fla. St. U. L. Rev. 415, 417 (2013).

10 See Wendi J. Adelson, Child Prostitute or Victim of Trafficking?, 6 U. St. Thomas L.J. 96, 112

(2008) (noting that most runaways leave abusive homes and turn to sex trade as a means of support from their

traffickers).

11 Polaris Project, Domestic Sex Trafficking: The Criminal Operation of the American Pimp,available

at http://www.dcjs.virginia.gov/victims/humantrafficking/vs/documents/Domestic_Sex_Trafficking_Guide

.pdf (last visited Nov. 3, 2012).

12 Cedeño, Supra n. 1, at 163.

13 Polaris Project, Supra n. 11.

28 | JUVENILE AND FAMILY COURT JOURNAL / Summer/Fall 2014