The Impact of Safe Harbor Legislation on Court Proceedings Involving Sex Trafficked Youth: A Qualitative Investigation of Judicial Perspectives

• Published date: 01 July 2020
• Date: 01 July 2020
• Author: Christine Leistner,Sarah Ascienzo,Ginny Sprang,Jennifer Cole
• DOI: http://doi.org/10.1111/fcre.12415

THE IMPACT OF SAFE HARBOR LEGISLATION ON COURT

PROCEEDINGS INVOLVING SEX TRAFFICKED YOUTH: A

QUALITATIVE INVESTIGATION OF JUDICIAL PERSPECTIVES

Ginny Sprang, Jennifer Cole, Christine Leistner, and Sarah Ascienzo

The passage of the Trafficking Victims Protection Act (TVPA) facilitated the conceptual shift in reframing youth involved in

sex trafficking as victims, rather than criminals. Many states have passed legislation in the form of Safe Harbor laws to pro-

tect sex trafficked juveniles from criminal charges and provide rehabilitative services (Polaris, 2015). Nevertheless, limited

research has examined the impact of Safe Harbor laws and the role juvenile and family court judges play in how minor vic-

tims of sex trafficking are treated by the court system. Consequently, the purpose of this qualitative study was to examine

juvenile and family court judges’knowledge and perceptions of Safe Harbor legislation and identify legal challenges when

presiding over cases involving sexually exploited youth. Semi-structured interviews were conducted with a national sample

(N= 82) of family and juvenile court judges. Findings suggest that respondents perceive Safe Harbor laws to have positively

affected both attitudes and practices, although several challenges and unintended negative effects were identified.Furth er,dis-

positional issues, difficulties with case identification, legal and policy issues, and challenges with interagency collaboration

were identified as ongoing issues to address. Legal implications as well as practice and policy considerations based on the

study findings are discussed.

Practitioner’sKey Points:

This article highlights lessons learned from the implementation of Safe Harbor legislation in a national sample of

juvenile and family court judges.

Emerging dispositional and legal issues and corresponding remedies and innovations from around the country are

highlighted.

Study findings point to some important community collaborations and partnerships that can enhance the potential

gains of Safe Harbor legislation.

Keywords: Safe Harbor legislation; domestic child sex trafficking; judicial perspectives; child sex trafficking in the court

system; disposition of child sex trafficking cases; juvenile court; family court.

The majority of detected human trafficking cases (55%) that occur in North America involve

commercial sexual exploitation, and children represent 19% of all trafficked victims in North Amer-

ica (United Nations Office on Drugs and Crime [UNODC], 2016). Sex trafficking of minors (STM)

occurs when a person under the age of 18 is induced to engage in commercial sex. To date, many

states have passed legislation in the form of Safe Harbor laws to protect sex trafficked juveniles

from criminal charges and provide rehabilitative services to victims (Polaris, 2015). Limited

research has considered the role juvenile and family court judges play in how human trafficking vic-

tims, in general, and specifically victims of STM, are treated by the court system. Judges have con-

siderable discretion and authority over the outcome and treatment of the minors involved in these

crimes (Institute of Medicine & National Research Council [IOM & NRC], 2013b). Judicial person-

nel need a greater understanding of the impact of human trafficking victimization on individuals to

Corresponding: sprang@uky.edu

[Correction added on 08 August 2020, after first online publication: Jennifer Cole, Christine Leistner, and Sarah Ascienzo

have been added as co-authors.]

FAMILY COURT REVIEW, Vol. 58 No. 3, July 2020 816–831

© 2020 Association of Family and Conciliation Courts

allow them to more appropriately contextualize victims’experiences and behavior ((Farrell,

McDevitt, & Fahy, 2012). Understanding juvenile and family court judges’knowledge of Safe Har-

bor legislation in addition to their attitudes towards youth involved in commercial sex may provide

insight into court decision-making processes and outcomes. This qualitative study examined judges’

perceptions of the impact of Safe Harbor laws on the way cases of sex trafficking are handled in the

court system (for those residing in states with this legislation), and all judges’perceptions of the

greatest legal issues related to cases of juveniles who were involved in commercial sex.

I. SEX TRAFFICKING OF MINORS IN THE U.S.

Sex trafficking of minors (STM) is not a new social ill; however, our understanding of it has

changed dramatically in the last decade (Reid, 2010). The passage of the Trafficking Victims Pro-

tection Act (TVPA) began the conceptual shift in reframing this social ill by defining individuals

under the age of 18 who are made to perform commercial sex acts as per se victims of severe sex

trafficking (22 USC § 7102; 8 CFR § 214.11(a)). In these cases, force, fraud, or coercion do not

need to be proven as they do for adult victims of sex trafficking or any aged victim of labor traffick-

ing because minors cannot give consent to commercial sex activities (Brittle, 2008).

Many youths exploited in commercial sex have a history of child maltreatment, involvement in

child welfare, and involvement with the juvenile justice system (IOM & NRC, 2014; Polaris, 2015).

Research has found that the majority of youth who are exploited in commercial sex had prior child

welfare involvement (Gragg, Petta, Bernstein, Eisen, & Quinn, 2007) due in part to exposure to sex-

ual abuse (Medrano, Hatch, Zule, & Desmond, 2003; Nixon, Tutty, Downe, Gorkoff, & Ursel, 2002;

Stoltz et al., 2007; Tyler, Holt, Whitbeck, & Cauce, 2001; Walker, 2002). Many youth who have

been trafficked in commercial sex were runaways or truant before and/or after the trafficking began

(Greene, Ennett, & Ringwalt, 1999; Nadon, Koverola, & Schludermann, 1998; Smith, Vardaman,

& Snow, 2009), and are likely to be involved with the adult or juvenile justice system. This may

occur directly because of their involvement in commercial sex or for status (e.g., truancy, runaway,

beyond control) or public offenses that are related to their involvement in commercial sex (Gragg

et al., 2007; Smith et al., 2009; Mitchell et al., 2013; Reid, 2010).

Youth in the U.S. are first introduced to commercial sex through peer networks, in-person or

online direct recruitment by a trafficker (i.e., pimp), family member exposure, and/or kidnapping

(Ijadi-Maghsoodi, Cook, Barnert, Goboian, & Bath, 2016). The majority of STM occurs with the

involvement of traffickers who recruit and maintain control over the exploited youth (Ijadi-

Maghsoodi et al., 2016; Smith et al., 2009). According to research conducted by Shared Hope Inter-

national (Smith et al., 2009), the traffickers are family members, friends, boyfriends, and strangers

of whom the child views “as their protector but who in fact are managing and benefitting from the

sexual exploitation of the child”(p. 7). Exploited youth enmeshed in commercial sex often feel

forced into exchanging sex to meet basic needs (e.g., food, shelter) and form romantic/emotional

attachments to their traffickers, both of which are situations that are difficult to escape (Gibbs,

Hardison Walters, Lutnick, Miller, & Kluckman, 2015). Traffickers’use of psychological coercion

tactics to manipulate results in the youth, believing their traffickers are caring for but not exploiting

them (Hopper & Hidalgo, 2006; Smith et al., 2009; Brittle, 2008). This coercive dynamic prevents

youth from disclosing their exploitation, even when asked by law enforcement, court personnel, or

service providers. Even if victims do perceive themselves as being exploited, they may not disclose.

The literature documents multiple factors including: having a traumatic bond with the trafficker;

fear of retaliation, or being viewed as a criminal offender; and the belief that no one can help them

(Clawson, Dutch, Salomon, & Grace, 2009; Goodman & Laurence, 2014; Hersh, 2013; IOM and

NRC, 2013a; Smith et al., 2009).

Many state laws were enacted following the federal TVPA by including youth (under age 18)

induced to perform commercial sex acts as victims of human trafficking (Global Rights, 2005;

Polaris Project, 2010). Even after these laws were implemented however, juvenile victims of sex

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