By Tabitha Woodruff, 2012 Juris Doctorate candidate, the Ohio State University Moritz College of Law, woodruff.115@buckeyemail.osu.edu
The Trafficking Victims Protection Act (TVPA) of 2000 formally recognized all child prostitutes as victims of sex trafficking under federal law. Sex trafficking is considered a severe form of trafficking, and so children recognized by the federal government as victims of sex trafficking are provided a wide range of services and precluded from prosecution for prostitution.
This policy shift remedied the stark contradiction between statutory rape law and criminal prosecution of child prostitutes. Under statutory rape law, any child who has had sexual contact with an adult is considered a victim. The policy underlying statutory rape law insists that children are unable to give legal informed consent to sexual activity because they are often cognitively incapable of thinking through the full consequences of their actions, and so are incompetent to make such decisions. They are also easily influenced, manipulated, and taken advantage of, so the law automatically recognizes any adult who has sex with a child as a rapist. However, if the adult hands the child money after the sexual activity, the child is now considered a criminal for activity that, in any other circumstance, the child could not consent to.
Child prostitutes taken into custody under federal jurisdiction are thus precluded from criminal prosecution and linked to a multitude of various services. In contrast, child prostitutes taken into custody under state jurisdiction are criminally charged with prostitution and sentenced. Unfortunately, New York, Washington, Vermont, Minnesota, Illinois, Tennessee and Connecticut are the only jurisdictions to recognize this contradiction between federal and state law, remedied through the Safe Harbor for Exploited Child Act.
Treatment of Juvenile Prostitutes under Federal Law
Since the passage of the TVPA, the federal government has established various task forces around the country to rescue persons from sex and labor trafficking. When federal authorities uncover a situation where a child is working as a prostitute, it is considered sex trafficking regardless of whether or not the child was “forced” to be a prostitute. That child, now officially recognized by the federal government as a “victim of severe trafficking,” cannot be criminally prosecuted for prostitution:
“The TVPA creates regulations to deal with girls detained for juvenile prostitution in the context of their status as trafficking victims, and thus their immunity from prosecution for sex-related crimes. First, it forbids detention in ‘facilities inappropriate to their status as crime victims,’ meaning that they will no longer be processed through the juvenile detention systems or held with other minor detainees. Instead, federal agents must place them in facilities for crime victims, such as shelters for victims of domestic violence or other kinds of abuse.” (Schwartz 257).
The child is then provided with a wide range of services, including:
“victim housing, medical care, protection from retribution, and a special allowance to remain in the country regardless of immigration status…short-term and immediate services such as language assistance, secure emergency shelters, medical, dental and mental health services, food, clothing, and legal assistance, to long-term services such as life skills training, employment assistance, continued legal assistance, independent permanent housing, and ongoing mental health services.” (Brittle, 1346-7).
Any foreign child brought into the country for prostitution is handled by the federal government, since federal jurisdiction was established when national and state borders were crossed. Unfortunately, federal jurisdiction cannot reach many American children suffering the same fate, who are often prostituted without crossing any state or national borders. These American child prostitutes, in contrast to foreign child prostitutes, face a much harsher fate.
Ohio: Systemic Criminal Treatment of Child Sex Trafficking Victims
In Ohio, child prostitutes are arrested and criminally prosecuted for either solicitation, loitering to engage in solicitation, or prostitution under Ohio Revised Code §§ 2907.24, 2907.241, and 2907.25 respectively. A child convicted under these statutes is categorized as a “delinquent child,” which is defined by Ohio R.C. § 2152.02(F) to include
“Any child, except a juvenile traffic offender, who violates any law of this state or the United States, or any ordinance of a political subdivision of the state, that would be an offense if committed by an adult.”
Notice that as a “delinquent child,” a child prostitute is recognized as a criminal, not as a victim. Once recognized as a “delinquent child” they are subject to sentencing under R.C. §§2152.18 and 2152.19, which apply only to delinquent children. The juvenile court system gives judges great leniency in deciding the sentence of a juvenile offender under these statutes based on that particular child’s situation. A delinquent child’s sentence may include any one or any mix of the following:
· Commitment to a detention facility for up to ninety days,
· Commitment to the temporary custody of a school, camp, institution, or any other facility operated for the care of delinquent children,
· Community service,
· Probation,
· House arrest,
· Requirement to work or remain in an education, vocational, or treatment program,
· Alcohol or drug use monitoring, assessment, counseling, or treatment program,
· Curfew,
· Suspension of driver’s license or permit,
· Commitment to the custody of the court,
· Treatment instead as an “abused, neglected, or a dependent child”.
Juvenile court judges are precluded from sentencing a delinquent child to any jail, workhouse, or corrections facility intended for adults, although a delinquent child may be held in one for up to six hours under R.C. §2151.311 directly following arrest.
Similarly situated children convicted for similar offenses are supposed to have comparable sentences throughout the state, and judges are expected to make these comparisons. However, because a child’s family situation, criminal and academic record, and prostitution situation can vary greatly, child prostitutes can face vastly different sentences. Some child prostitutes are committed to a secured facility, others put on probation, while still others are put into counseling and foster care.
An informed intuitive judge may choose to recognize a child prostitute as an “abused child” instead of as a “delinquent child.” An “abused child” is defined by R.C. §2151.031 to include, among other definitions:
“any child who: (A) Is the victim of “sexual activity” as defined under Chapter 2907 of the Revised Code, where such activity would constitute an offense under that chapter, except that the court need not find that any person has been convicted of the offense in order to find that the child is an abused child.”
As victims of statutory rape (R.C. §§2907.04 & 2907.05), all child prostitutes arguably fit this definition more appropriately that the definition for a delinquent child. It takes little analysis to note: “Juvenile prostitutes are technically victims of rape during each sex act performed.” (Schwartz 236). If a child prostitute is fortunate enough to be recognized by a judge as an “abused child” under the law, different rules govern how the state can handle this child. According to R.C. §2153.353(A)(1) and (2):
“(A) If a child is adjudicated an abused, neglected, or dependent child, the court may make any of the following orders of disposition: (1) Place the child in protective supervision; (2) Commit the child to the temporary custody of a public children services agency, a private child placing agency, either parent, a relative residing within or outside the state, or a probation officer for placement in a certified foster home, or in any other home approved by the court.”
Hence, an abused child is presumed to be a victim, not a criminal. Furthermore, an abused child may not be held in a detention facility under R.C. §2151.312(B)(2).
If an adult is convicted for compelling prostitution (pimping) under R.C. §2907.21, the persons that the convicted adult compelled into prostitution should not be convicted of prostitution. For the rare occurrences where children are arrested alongside the pimps who are trafficking them, these children sometimes are allowed an affirmative defense to any charges under R.C. §§2907.24, 2907.241, and 2907.25. Unfortunately, when adults are convicted of solicitation under §2907.24 or statutory rape under R.C. §§2905.04 or 2907.05 after purchasing sex from a child, the child is not given the same affirmative defense to the prostitution charges. Adults purchasing sex from children are rarely charged with statutory rape and are instead primarily only charged with solicitation according to SAGE director Norma Hotaling (Heiges 444).
New York Model: A Shift toward Alliance with the Federal Policy
The Safe Harbor Act for Exploited Children was signed into law in New York on September 25, 2008. Through this legislation, New York officially adopted a state model in-line with the federal model for handling child sex trafficking victims. The Act made three major changes: (1) created the definition “sexually exploited child” to be used for child prostitutes instead of the delinquent child definition, (2) mandated the creation of catered social service programs for child sex trafficking victims, and (3) changed a charge for child prostitution from a criminal delinquency charge into a person in need of supervision (PINS) charge (Schwartz 260).
The Act defines a “sexually exploited child” as any child who has been the victim of sex trafficking or compelling prostitution; is an abused child as defined by law; or engaged in prostitution or solicitation. This formally recognizes all child prostitutes as victims, not criminals, under the law. A child prostitute may then be charged and convicted of prostitution, but only as a PINS charge, not as a criminal charge. A child may still sometimes be criminally convicted for prostitution or solicitation, however; the court simply “presumes” that a child prostitute is a sexually exploited child. This “presumption” can be disproved if the prosecution can prove that “the juvenile is not a victim of severe trafficking, is a repeat prostitution offender, is already subject to supervision via a preexisting PINS petition, or has expressed an unwillingness to cooperate with treatment.” (Schwartz 264). If this presumption is disproved, the child is again regarded as a delinquent child instead of a sexually exploited child and is subject to criminal prosecution for prostitution or solicitation.
The difference between a delinquency charge and a PINS charge is important; even though a PINS charge is not a criminal charge, it still gives the state the jurisdiction to take the child into custody and follow-up with regular supervision. A PINS child cannot be held in a secured detention facility, although a court may commit them to a shelter, foster care or a parent or guardian’s custody. Any child who is found to be habitually disobedient, frequently truant, dangerous, or out of control may be charged as a PINS child. PINS charges include violating curfew and underage smoking and drinking. The Act added prostitution to this list, changing it from a delinquency charge to a PINS charge for all juvenile cases.
This diversion of child sex trafficking victims from the penal system to the child welfare system necessitates the creation of shelters and social services for victims of child sex trafficking. New York, with little funding to allocate toward such endeavors, did the best it could with what it had. The Act mandated that each locality develop a framework for addressing the needs of child sex trafficking victims by mobilizing pre-existing resources toward this undertaking (Schwartz 262). Although states hoping to adopt New York’s model may be intimidated by the funding implications for providing more comprehensive services to child sex trafficking victims, a long-term perspective on this problem suggests that the establishment of safehouses is not only a financially plausible, but a financially efficient option:
“The legislature and child welfare system may initially balk at the recommendation on the basis that therapeutic safe houses are too expensive. However, a simple cost-benefit analysis performed by the appropriate local legislative agency should put this concern to rest. If the money currently allotted for an abused child for residential placement (including any subsidies provided to foster parents), mental health counseling, medical services, educational resources, and any special needs services is rolled into one lump sum and multiplied by the number of sexually exploited youth, it seems clear that establishing therapeutic safe houses is the most cost-efficient way to provide the services these youth so desperately need.” (Brittle 1373).
Adopting New York’s model is theoretically cost efficient from a comprehensive perspective as well. Providing child sex trafficking victims with a genuine opportunity to escape prostitution is a cheaper, more effective option than discarding them as criminals over and over again throughout their adolescence and on into adulthood. Treating child sex trafficking victims as criminals does not free them from cycle of sexual exploitation as successfully as comprehensive therapeutic rehabilitation can.
Conclusion
Ohio’s hesitance even to propose a comprehensive Safe Harbor for Exploited Children Act is regrettable considering the prevalence of human trafficking, particularly child sex trafficking, within this state:
Toledo is currently number four in the nation in terms of the number of arrests,
investigations, and rescue of domestic minor sex trafficking victims among U.S. cities…Given that the city of Toledo’s population is 298,446 and Lucas County’s is 440,456, this area can be considered to lead the nation for the number of traffickers produced and the number of victims recruited into the sex trade per capita. (Ohio TIP Study Commission 13).
Ohio waited until over 40 states made human trafficking a stand-alone felony under state law before enacting its own comprehensive human trafficking criminal provision. It is in the best interest of Ohio’s children that we not wait to be one of the last states to stop criminalizing our children for their sexual exploitation. Considering the prevalence of Ohio’s child sex trafficking problem, Ohio’s children would be best served if Ohio took the initiative to become one of the first.
Sources
Moira Heiges, Note, From the Inside Out: Reforming State and Local Prostitution Enforcement to Combat Sex Trafficking in the United States and Abroad, 94 Minn. L. Rev. 428 (2009).
Ohio Rev. Code Ann §§2151.01-2152.19 (West 2010).
Ohio Rev. Code Ann §§2907.01-27 (West 2010).
Shelby Schwartz, Harboring Concerns: The Problematic Conceptual Reorientation of Juvenile Prostitution Adjudication in New York, 18 Colum. J. Gender & L. 235 (2008).
