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

Abstract

Minors performing commercial sex acts are deemed victims of human trafficking according to the Trafficking Victims Protection Act. However, prosecutors and judges continue to charge and adjudicate American minors as prostitution offenders instead of treating them as sexually exploited youths. These victims have typically suffered from sexual abuse, poverty, and other trauma and are especially vulnerable to pimps and traffickers. They suffer from physical and sexual violence, as well as psychological and emotional problems, thus deserving specialized social services in order to recover their lives. In order to stop the perpetuation and revictimization of sexually exploited youth, states should join the movement in passing Safe Harbor laws, modeled on existing New York law. The law presumes that minors charged with prostitution are victims and children in need of social services and allocates discretion in carefully defined circumstances when a judge concludes a minor charged with prostitution is not capable of rehabilitation by services alone. Several states have passed Safe Harbor legislation which functions to identify minors involved in prostitution as victims of commercial sexual exploitation. In order to best protect victims of sex trafficking, states should follow the progress made by New York and pass Safe Harbor statutes that will create a presumption of immunity for prostituted minors, thus providing discretion to allocate social services or order a juvenile delinquency petition depending on the circumstances of the case.