The "youngest profession": consent, autonomy, and prostituted children.

• Author: Birckhead, Tamar R.

TABLE OF CONTENTS I. INTRODUCTION II. THE STATUS QUO A. State and Local Law B. Federal Law C. Domestic vs. International Focus III. BACK STORY A. Criminals Not Victims B. Rationales IV. DEFINITIONS A. Prostitution B. Consent C. Autonomy V. PROPOSALS A. Prevention, Intervention, and Rehabilitation B. Decriminalization and Diversion VI. CONCLUSION "I can't remember the first trick but I do remember the pain long after the years of being on the streets," said Paula who began working at a massage parlor at the age of 12. "I remember having to make quotas before being able to come in the house. I remember lonely nights, wishing I was dead, wishing (that) if only my family would have been different, if only my brother didn't sexually abuse me, if only my dad's friend didn't abuse me, my life would be different." She said she had been bought, sold and traded by different pimps eight times, often ending up in hospital emergency rooms with broken bones and beatings. "No one told me that I was a traffick(ing) victim or a domestic (abuse) victim. Not only was I not seen as a victim, but I was seen as a criminal".... (1)

--Statement of former prostituted child, U.S. Congressional briefing on sexually exploited youth

"There's no doubt that it's easier to prosecute someone arrested for prostitution than it is to investigate, indict, and convict the pimp who exploited her.... To do so, however, would only allow this phenomenon to stay hidden in the shadows where it will consume more girls and young women. Ethically and morally, we have to take a different course." (2)

--Statement of Daniel F. Conley, Suffolk County District Attorney, Massachusetts

1. INTRODUCTION

   Children have been prostituted (3) for centuries, if not millennia. (4) Yet, international recognition of the existence and proliferation of prostituted children did not take place until 1996 at the First World Congress Against Commercial Sexual Exploitation of Children in Stockholm, Sweden. (5) The Stockholm Congress was considered a "landmark event" resulting in the formal adoption of an agenda focused on protecting children from sexual exploitation, which as of 2006 had been signed by more than 160 countries. (6) While the United States is a signatory to this global Declaration and Agenda for Action, the bulk of its attention and resources has been directed at the international sex trafficking of adults and children, rather than the growing numbers of preteens and adolescents who are prostituted within its borders. (7)

   This failure to focus on the domestic sexual exploitation of children has been reinforced by the continued criminal liability of minors for prostitution, as the laws of nearly every state subject them to arrest, detention, and prosecution regardless of age or extenuating circumstances, limited only by the vagaries of enforcement discretion rather than by the statutory language itself. (8) Given this legal framework, it is not surprising that police officers, prosecutors, and judges are more likely to view prostituted youth as juvenile offenders (9) rather than crime victims. (10) Many police officers, however, are reluctant to bring prostitution charges against youth, preferring to charge them with criminal offenses other than solicitation out of a belief that secure custody will--at the very least--keep them off the streets. (11) This uncertainty on the part of law enforcement regarding how best to respond to prostituted children has contributed to the lack of a "reliable, consistent" approach that has, in turn, worked to exacerbate the problem. (12)

   The number of prostituted children in the United States is difficult to estimate with precision because of the low-visibility nature of the sex industry, (13) although there is evidence that the total is growing. (14) While the data on which the estimates are based is incomplete and to some extent speculative, (15) an oft-cited study in 2002 found that between 200,000 and 300,000 children were believed to be "at risk" for commercial sexual exploitation. (16) Those minors deemed to be at the greatest risk include children who fall into one or more of fourteen categories, including runaways, (17) thrownaways, (18) victims of physical or sexual abuse, drug users and addicts, homeless youth, female gang members, (19) transgender street youth, (20) and unaccompanied minors who enter the United States on their own. (21) Other studies have estimated that 450,000 children run away from or are thrown out of their homes annually, and that one out of every three of these teens will be "lured toward prostitution within 48 hours of leaving home." (22) Further, the data suggests that the average age of entry into prostitution falls between eleven and fourteen, with some children as young as nine. (23) Likewise, it is estimated that eighty percent of adult prostitutes began their activity when they, themselves, were younger than eighteen. (24) These numbers are compounded by the fact that the United States is both a source country for child sex tourism and a destination country for trafficking of children for sex; research also shows that a large percentage of sex tourists worldwide are Americans. (25)

   The number of prostituted children who are criminally prosecuted for these acts is equally difficult to estimate. According to figures kept by the United States State Department, because of a lack of "uniform data collection" among federal, state, and local law enforcement agencies, the information gathered has been--and continues to be--incomplete. (26) In 2008, the most recent year for which data is available, approximately 1500 youth under eighteen years of age were reported to the Federal Bureau of Investigation as having been arrested within the United States for prostitution and "commercialized vice." (27) Anecdotal evidence suggests, however, that these numbers reflect only a small fraction of the children who face criminal charges as a result of their prostituted status. (28) While many are ultimately charged with less serious offenses than solicitation, the numbers who are initially brought into the juvenile and criminal justice systems for prostitution are significant. (29) For instance, it has been documented that "hundreds" of prostituted juveniles are arrested each year in one Nevada county, and that at any given time half of these girls are in juvenile detention for prostitution-related criminal offenses, which keep them in state custody for an average of two weeks, if not longer. (30)

   Recent public interest in the plight of prostituted children calls to mind the mid-1970s when the mainstream media and popular press first labeled it as a "social problem." (31) Thirty years ago, this construction resulted from a confluence of factors, including growing awareness of child abuse and neglect, the burgeoning children's rights movement, and federal legislation that directed significant funding toward shelters and services for runaways and homeless youth. (32) This period also coincided with a painful economic recession in the United States, characterized by high rates of unemployment, inflation, and spending. (33) A similar pattern may be seen today, as the United States is once again experiencing a major economic downturn with little growth, skyrocketing job loss, and a credit crisis leading to record rates of foreclosures and homelessness. (34) A failing economy inevitably leads to a rise in the number of vulnerable youth, (35) which in turn leads to more children living on the streets and exchanging sex for money, food, and housing. (36) Furthermore, given the proliferation of Internet access and the greater ease with which people can identify and contact youth who are vulnerable to being prostituted, some have said that the situation is worse than ever--both domestically and internationally. (37) While there has been limited legal scholarship produced on the topic, (38) the American media has once again turned its attention to prostituted children. (39) Editorial boards, columnists, and advocates concerned with children's rights are increasingly recognizing parallels and drawing comparisons between the international and domestic selling of sex by youth. (40)

   Due in large part to the issue's "social and legal complexity" and the "scarcity of reliable information on its nature and extent," child prostitution within the United States has historically been a thorny problem for policy makers, as well as the general public, to confront. (41) On the most basic level, there are definitional quandaries and ambiguities. Is it fair, for example, to characterize these youth as knowing offenders who are motivated by the thrill of the activity and who, if harmed, are merely getting what they deserve? (42) or are they innocent victims of commercial sexual exploitation, coerced into an inherently abusive dynamic with predatory adults? (43) What difficulties, if any, are posed by framing the question with these two extremes? Further, if children are not considered culpable for acts of prostitution, does this have significance for other illegal activity committed by minors? Similarly, by exempting children from criminal liability for prostitution, does this perpetuate the notion that adolescents do not or should not have sex or sexual thoughts?

   This Article critically examines the prevalence of laws allowing for the criminal prosecution of minors for prostitution. It argues that rather than maintain a legal scheme that serves to pathologize such juveniles, a more nuanced approach should be developed, in which--at a minimum--criminal liability for prostitution should be consistent with each state's statutory rape and age of consent laws. In order to provide a picture of existing conditions, Part II analyzes the range of ways in which states have addressed the problem of prostituted children and highlights those few that have successfully utilized strategies of intervention and rehabilitation rather than...