4


Legal Framework

Law provides the foundation and legal mandate for a response to human trafficking, including sex trafficking, and to commercial sexual exploitation of minors. Legislation can help advance prevention strategies, empower prosecutors and law enforcement to apprehend traffickers and other exploiters of minors, and ensure that services are available to minors who are victims and survivors of commercial sexual exploitation and sex trafficking. This chapter begins with a brief historical discussion to provide context for a review of current laws aimed at addressing commercial sexual exploitation and sex trafficking of minors in the United States. It then reviews relevant federal and state law, focusing primarily on legislation and regulations. Commercial sexual exploitation and sex trafficking of minors in the United States implicate numerous fields of law, including criminal law, juvenile justice, child welfare law, health law, education law, housing law, employment law, constitutional law, and others. While a comprehensive analysis of all laws and regulations at the federal level (including the laws of the District of Columbia) and in the 50 states and the U.S. territories for all of these areas is beyond the scope of any single chapter, the aim of this chapter is to describe the federal and state laws that are most relevant to addressing commercial sexual exploitation and sex trafficking of minors in the United States. The chapter also includes discussion of the interpretation and use of these laws, their strengths and limitations, challenges and missed opportunities, and promising legal interventions. The final section presents findings and conclusions.



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4 Legal Framework Law provides the foundation and legal mandate for a response to human trafficking, including sex trafficking, and to commercial sexual exploitation of minors. Legislation can help advance prevention strategies, empower prosecutors and law enforcement to apprehend traffickers and other exploiters of minors, and ensure that services are available to minors who are victims and survivors of commercial sexual exploitation and sex trafficking. This chapter begins with a brief historical discussion to provide context for a review of current laws aimed at addressing commercial sexual exploitation and sex trafficking of minors in the United States. It then re- views relevant federal and state law, focusing primarily on legislation and regulations. Commercial sexual exploitation and sex trafficking of minors in the United States implicate numerous fields of law, including criminal law, juvenile justice, child welfare law, health law, education law, housing law, employment law, constitutional law, and others. While a comprehen- sive analysis of all laws and regulations at the federal level (including the laws of the District of Columbia) and in the 50 states and the U.S. terri- tories for all of these areas is beyond the scope of any single chapter, the aim of this chapter is to describe the federal and state laws that are most relevant to addressing commercial sexual exploitation and sex trafficking of minors in the United States. The chapter also includes discussion of the interpretation and use of these laws, their strengths and limitations, chal- lenges and missed opportunities, and promising legal interventions. The final section presents findings and conclusions. 143

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144 Commercial Sexual Exploitation and Sex Trafficking of Minors HISTORICAL LEGAL FRAMEWORK and Context Commercial sexual exploitation and sex trafficking of minors in the United States have been regulated by a mix of federal, state, and local laws. Relying on its Commerce Clause powers as enumerated in the U.S. Con- stitution, the federal government has promulgated laws in this area limited to crimes involving interstate and foreign commerce. Federal law has ad- dressed both sex trafficking of minors and transportation for purposes of sexually exploiting children. State and local laws have long regulated pros- titution and other forms of commercial vice, but states have only recently adopted antitrafficking laws. U.S. federal law on sex trafficking of minors dates back to the early 1900s. The White Slave Traffic Act of 1910, commonly known as the Mann Act, criminalized the transportation of women or girls in interstate or for- eign commerce for prostitution, debauchery, or other immoral purposes.1 In its early years, the Mann Act came to be used not only to police the transportation of women and girls for prostitution but also to criminalize actions deemed immoral.2 From 1910 until the 1990s, federal law changed very little in this area except for updating language, for example, to make it gender neutral and acknowledge situations in which men or boys are victims. In the 1990s, public awareness of the problems of commercial sexual exploitation and sex trafficking of minors increased, spurring U.S. government action. The Violent Crime Control and Law Enforcement Act of 1994 included a provi- sion criminalizing sex tourism.3 This provision enabled prosecutors in the United States to prosecute Americans who traveled abroad for the purpose of engaging in illegal sexual activity, including sex with minors. In 1998, President Clinton issued a Memorandum on Steps to Combat Violence against Women and Trafficking in Women and Girls, which com- mitted the U.S. government to undertaking a review of current efforts to address human trafficking and identifying steps needed to strengthen efforts to prevent human trafficking globally.4 This increased interest in and con- cern over human trafficking ultimately resulted in the adoption of the Traf- ficking Victims Protection Act of 2000 (TVPA).5 The TVPA subsequently 1  hite W Slave Traffic (Mann) Act, Ch. 395, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. §§ 2421-2424 (2006)). 2  ee Caminetti v. U.S., 242 U.S. 470 (1917); see also Michael Conant, Federalism, the Mann S Act, and the Imperative to Decriminalize Prostitution, 5 Cornell J.L. & Pub. Pol’y 99 (1996). 3  iolent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, sec. V 160001, 108 Stat. 1796. 4  resident William J. Clinton, Memorandum on Steps to Combat Violence Against Women P and Trafficking in Women and Girls, 1 Pub. Papers 358, 359 (Mar. 11, 1998). 5  rafficking Victims Protection Act of 2000, Public Law 106-386, 114 Stat. 1464 (codified T as amended at 22 U.S.C. § 7101 (2006)).

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Legal Framework 145 was reauthorized in 2003, 2005, 2008 and 2013.6 Early iterations of the TVPA focused primarily on international trafficking and foreign victims/ survivors who end up in the United States (Huckerby, 2007). It was not until the 2005 reauthorization of the TVPA that U.S. victims of trafficking were fully recognized and addressed.7 Through the reauthorizations of the TVPA and other related laws, including the Providing Resources, Officers, and Technology to Eradicate Cyber Threats (PROTECT) Our Children Act of 2008, federal law has been further strengthened in several respects, including increases in penalties for perpetrators of child trafficking and related crimes and expansion of services for victims/survivors. Although federal law on trafficking and sex tourism is well developed with respect to commercial sexual exploitation of minors, federal law has no direct provision prohibiting prostitution, as prostitution historically has been considered a local crime to be regulated by state and local authori- ties. Federal law regulates child pornography, but as noted in Chapter 1, a review of child pornography laws is beyond the scope of this study. States and selected cities have a long history of regulating prostitution and related commercial sex activities. Every state and some localities have laws prohibiting or regulating prostitution and related offenses.8 State laws typically prohibit prostitution, solicitation of a prostitute, obtaining a person to be used in prostitution (often referred to in state laws as “pander- ing”), and benefiting financially from prostitution of another (often referred to in state laws as “pimping”).9 With the more recent attention given to human trafficking, states also have adopted antitrafficking laws in recent years. In 2003, the State of Washington adopted the first state antitrafficking law. Today, all 50 states and the District of Columbia have antitrafficking laws, and a number of states have further amended their laws in this area (Polaris Project, 2012). Although most antitrafficking law is relatively new, these laws as ap- plied to minors should be viewed in the broader context of child protection laws. An extensive body of federal and state laws is aimed at protecting children from abuse and exploitation. All states, for example, have provi- sions in their criminal statutes, often referred to as “age-of-consent” and 6  rafficking T Victims Protection Reauthorization Act of 2003, Public Law 108-193, 117 Stat. 2875 (codified as amended in scattered titles of the U.S.C.); Trafficking Victims Protection Reauthorization Act of 2005, Public Law 109-164, 119 Stat. 3558 (codified as amended in scattered titles of the U.S.C.); William Wilberforce Trafficking Victims Protection Reauthoriza- tion Act of 2008, Public Law 110-457, 122 Stat. 5044 (codified as amended in scattered titles of the U.S.C.A. (West, 2010)). 7  rafficking Victims Protection Reauthorization Act of 2005, Public Law 109-164, 119 Stat. T 3558 (codified as amended in scattered titles of the U.S.C.). 8  3 C.J.S. Prostitution and Related Offenses § 1 (2012). 7 9  3 C.J.S. Prostitution and Related Offenses § 1 (2012). 7

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146 Commercial Sexual Exploitation and Sex Trafficking of Minors “statutory rape” laws, specifying in effect that below a certain age, a child cannot legally consent to having sex and must be treated as a victim of a crime (Glosser et al., 2004). Federal law on sex trafficking similarly recog- nizes children as victims (as noted below, for example, “consent” of a child is not a defense for sex trafficking charges under federal law). In contrast, commercial sexual exploitation of minors often has been viewed through the lens of prostitution laws, which have roots in societal efforts to prohibit and prevent commercial vice. As a result, the law in most states allows pros- tituted minors to continue to be arrested and charged with crimes instead of treating sexually exploited minors as victims of crimes. As discussed in detail below in the section summarizing state laws, nine states have ad- opted “safe harbor” laws to ensure that prostituted minors are treated as victims. This change in law is consistent with child protection principles enshrined in many other areas of law. The committee believes that laws on commercial sexual exploitation and sex trafficking of minors and enforce- ment of these laws at the federal, state, and local levels should be based on a child protection framework and that consideration should be given to a range of prosecutorial tools and services for minors that have been used to address other issues of harm against children. Such an approach would be consistent with child protection principles and goals of federal and state laws regulating treatment of minors. SUMMARY OF FEDERAL LAWS Since 2000, when the TVPA was enacted, the federal government has adopted a number of significant pieces of legislation related to commercial sexual exploitation and sex trafficking of minors. Key federal legislation adopted since 2000 in these areas includes successive reauthorizations of the TVPA in 2003, 2005, 2008, and 2013; the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003; the Adam Walsh Child Protection and Safety Act of 2006; the PROTECT Our Children Act of 2008; and the Child Protection Act of 2012. The federal government continues to consider other measures aimed at addressing commercial sexual exploitation and sex trafficking of minors in the United States. President Obama issued an Executive Order (“Strength- ening Protections against Trafficking in Persons in Federal Contracts”) in September 2012 aimed at bolstering prevention and early intervention efforts. In addition, as noted above, the TVPA was reauthorized in 2013, further strengthening the federal government’s response and extending im- portant programs through 2017. Law can be used to address various aspects of commercial sexual ex- ploitation and sex trafficking of minors through means that include crimi-

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Legal Framework 147 nalization of these acts and prosecution of perpetrators, protection of and assistance to victims and survivors, and prevention. The subsections below examine provisions of federal law in each of these three areas. Federal law adopted to date has focused primarily on criminal law provisions, although it also has addressed protection of and assistance to victims/survivors. In contrast, the law has incorporated comparatively few prevention measures. Also discussed below is the range of entities implicated by efforts to address commercial sexual exploitation and sex trafficking of minors and federal measures designed to enhance coordination among these entities. Criminalization/Prosecution With respect to sex trafficking of minors, federal law provides that “whoever knowingly . . . recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or . . . benefits, financially or by receiving anything of value, from participation in [such] a venture” in order to compel a person to engage in a commercial sex act shall be guilty of sex trafficking.10 “Commercial sex act” is defined as “any sex act, on account of which anything of value is given to or received by any person.” When the victim is a minor, force, fraud, or coercion need not be proven if the victim is trafficked for sex (although force, fraud, or coercion still must be established when a minor is trafficked for forced labor or other forms of exploitation).11 For sex trafficking of a minor, the penalty is a fine and a sentence of 10 years to life in prison.12 If the child was under 14 years of age or “if the offense was effected by means of force, threats of force, fraud, or coercion,” the penalty is a fine and a sentence of 15 years to life in prison.13 Amendments to federal law also have been aimed at enhancing pros- ecutorial efforts to enforce the law and secure convictions of traffickers and other perpetrators of these crimes. For example, federal law on sex trafficking has been amended so that the prosecution need not prove that the defendant knew the victim was under the age of 18 if the defendant had “a reasonable opportunity to observe the [victim].”14 Federal law provides for mandatory restitution for the “full amount of 10  8 1 U.S.C. § 1591 (2012). 11  8 1 U.S.C. § 1591 (including a separate rule for trafficking of minors); 18 U.S.C. § 1590 (labor trafficking provision, which does not make any distinction for labor trafficking involv- ing minors). 12  8 U.S.C. § 1591. 1 13  8 U.S.C. § 1591. 1 14  8 U.S.C. § 1591. 1

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148 Commercial Sexual Exploitation and Sex Trafficking of Minors the victim’s losses”15 as determined by the court,16 and the court shall order forfeiture of any proceeds obtained by the defendant and of any property used in commission of the crime.17 The U.S. government also has sought to criminalize acts that increase vulnerability to or facilitate sex trafficking. For example, confiscation of identification documents with intent to engage in sex trafficking is a crime punishable by a fine or a sentence of up to 5 years or both.18 With respect to commercial sexual exploitation of minors, there is, as noted earlier, no federal law specifically governing prostitution, as it histori- cally has been deemed a state or local crime. In the Mann Act, however, federal law criminalizes travel in interstate and foreign commerce for the purpose of sexually exploiting a minor.19 The transportation of a minor in interstate or foreign commerce “with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense” is punishable by a fine and a sentence of 10 years to life in prison.20 Similarly, persuading, inducing, enticing, or coercing a minor to travel in interstate or foreign commerce to engage in prostitu- tion is subject to a fine, a sentence of up to 20 years, or both.21 Also, any individual who “arranges, induces, procures, or facilitates” such travel for “commercial advantage or private financial gain” shall be subject to a fine, imprisonment of up to 30 years, or both.22 Finally, travel in interstate or foreign commerce for the purpose of engaging in illegal sexual conduct with another person is subject to a fine and a sentence of up to 30 years or both.23 All of these provisions have application in cases of commercial sexual exploitation when interstate commerce is implicated. Federal law also provides for criminal forfeiture of property used to commit or facilitate transporting or coercing a person to engage in prostitution.24 15  Full amount of victim’s losses” includes (1) medical services relating to physical, psychi- “ atric, or psychological care; (2) physical and occupational therapy or rehabilitation; (3) neces- sary transportation, temporary housing, and child care expenses; (4) lost income; (5) attorneys’ fees, as well as other costs incurred; and (6) any other losses suffered by the victim as a proxi- mate result of the offense. Losses shall in addition include the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act. 18 U.S.C. §§ 1593(a)(3) and 2259(b)(3). 16  8 U.S.C. § 1593. 1 17  8 U.S.C. § 1594. 1 18  8 U.S.C. § 1592. 1 19  8 U.S.C. §§ 2421-2423. 1 20  8 U.S.C. § 2423(a). 1 21  8 U.S.C. § 2422. 1 22  8 U.S.C. § 2423(d). 1 23  8 U.S.C. § 2423(b). 1 24  8 U.S.C. § 2428. 1

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Legal Framework 149 It bears noting that the provisions of the Mann Act—which criminalize transportation of minors for illegal sexual activity and travel with intent to engage in such activity—provide an affirmative defense for individuals charged with traveling in interstate or foreign commerce to engage in illicit sexual conduct with a minor: “the defendant must establish by a prepon- derance of the evidence, that the defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years.”25 The committee notes that this provision is inconsistent with federal antitrafficking law—which does not require prosecutors to prove that the defendant knew the victim was a minor—and therefore the protections of the Mann Act are not as strong as those of fed- eral antitrafficking law. Overall, however, federal law has been strengthened significantly in the past dozen years to facilitate prosecutorial efforts and ensure lengthy sentences for perpetrators of such exploitation of minors. Protection of and Assistance to Victims/Survivors Federal law provides a number of measures designed to protect and assist both domestic and foreign victims of human trafficking. Victim and support services are discussed in detail in Chapter 6. This section briefly describes the legal framework related to assistance programs for victims and survivors. In accordance with the committee’s statement of task, this section focuses on services provided or available to minors who are U.S. citizens or lawful permanent residents and are victims of commercial sexual exploitation or sex trafficking. The committee recognizes that in addition to foreign children trafficked into the United States, there are undocumented children, many of whom have resided in this country for years, who are vulnerable to or victims of commercial sexual exploitation or sex trafficking within the United States. All minors are deserving of protection, and these other populations of minors merit further study, although they are beyond the scope of this study (see Chapter 1 for a discussion of this and other aspects of the study scope). The federal provision of services and the funding of state or local ser- vices for victims are managed through a number of federal agencies. The Department of Justice, the Department of Health and Human Services, and other agencies each play a role in U.S. efforts to identify, protect, and respond to child and adolescent victims of commercial sexual exploitation and sex trafficking. In the course of this study, the committee identified no resource that provides a comprehensive detailing of all federal programs or federally funded programs available to minors who are victims of commercial sexual 25  8 1 U.S.C. § 2423(g).

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150 Commercial Sexual Exploitation and Sex Trafficking of Minors exploitation and sex trafficking. The committee asked a number of profes- sionals working on these issues whether such a source is available, but it appears that such a source either does not exist or has not been made available to key stakeholders. The committee observes that this difficulty in ascertaining services and programs available to child victims presents potential obstacles for children and adolescents seeking to access services after the trauma of sexual exploitation or sex trafficking and for profes- sionals and caregivers attempting to help them. Federal law provides for services for minors who are victims of com- mercial sexual exploitation and sex trafficking. It does not establish a uniform response, but supports programs in various states. This section provides examples of such programs. The Department of Justice’s Office for Victims of Crime funds a num- ber of programs in various states that provide a range of services for vic- tims of human trafficking generally, including “the victim’s basic needs for shelter, food, and clothing as well as case management, information and referral, legal assistance and advocacy, medical and dental services, mental health assessment and treatment, job skills training, transportation, and interpretation services” (Office for Victims of Crime, 2013). A number of challenges are associated with the delivery of and access to all of these services, as discussed later in this chapter. Another program available to vic- tims of human trafficking generally is the U.S. Domestic Notification Pilot Program, established by the Department of Health and Human Services’ In- Reach Campaign. This program notifies suspected trafficking victims who are U.S. citizens and lawful permanent residents of the benefits and services for which they may be eligible (U.S. Department of State Office to Monitor and Combat Trafficking in Persons, 2008). As descriptions of and data on these and other federal programs are not always disaggregated by age, it is difficult to know the extent to which minors who are victims are able to access and benefit from these services. The committee heard consistently from victim and support service providers that many, or perhaps even most, minors who are victims of commercial sexual exploitation or sex trafficking do not access or benefit from these services. Federal law also includes a number of other measures aimed specifi- cally at assisting minors. The committee was unable to ascertain whether these other measures are actually made available to all minors in all cases of commercial sexual exploitation and sex trafficking or how effective these measures have been. The 2008 reauthorization of the TVPA authorized the Department of Health and Human Services to appoint independent child advocates for child trafficking victims. More generally, federal law provides alternatives to live testimony for child victims and witnesses in order to

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Legal Framework 151 minimize trauma and retraumatization.26 In certain cases, guardians ad litem can be appointed for child victims or witnesses to help ensure that their best interests are accounted for during proceedings. Also, the Child Abuse Prevention and Treatment Act (CAPTA) authorizes states to create citizen review panels to review cases of child maltreatment.27 The U.S. government identifies these and other measures as part of the safety net available to child victims of sex trafficking (U.S. Department of State Office to Monitor and Combat Trafficking in Persons, 2012). However, the extent to which these measures are utilized in child trafficking cases is unclear, and it is therefore difficult to gauge their overall impact. More recently, the TVPA reauthorization of 2013 authorized the De- partment of Health and Human Services (specifically the Assistant Secretary for Children and Families) to issue up to four grants to entities (i.e., states or units of local government) that “[have] developed a workable, multi- disciplinary plan to combat sex trafficking of minors,” with the requirement that two-thirds of the funding be used for residential care and services for minor victims and survivors of sex trafficking provided by nongovernmen- tal organizations.28 The committee views this as a positive step in support of pilot programs to serve the needs of victims and survivors of commercial sexual exploitation and sex trafficking of minors. Overall, a range of services and legal protections for victims of com- mercial sexual exploitation and sex trafficking of minors appear to be supported by federal law. Accessing these services is complex, however, because many of the services for minors are made available through general social services programs, rather than being explicitly identified as available to minors. Moreover, a dearth of monitoring and evaluation of these laws and related programs makes it difficult to determine what percentage of victims access which services, the extent to which services meet the needs of individual victims, and the impact of such services on exploited minors’ short- and long-term recovery. Finally, although not related to direct services, federal law now includes a civil remedy for victims of trafficking.29 This law enables a victim of sex trafficking to pursue a civil action against a perpetrator. Whether a victim pursues a civil lawsuit depends on a number of variables, including concern about the potential for retraumatization of the victim. Additional challenges exist for minors, who need an adult to file any civil claim on their behalf. To date, there have been very few civil lawsuits against traffickers on behalf 26  8 1 U.S.C. § 3509. 27  he T Child Abuse Prevention and Treatment Act, including Adoption Opportunities and The Abandoned Infants Assistance Act, Public Law 111-320. 28  iolence Against Women Reauthorization Act of 2013, § 1241 (2013) (the TVPA Reau- V thorization of 2013 was attached as an amendment to VAWA). 29  8 U.S.C. § 1595. 1

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152 Commercial Sexual Exploitation and Sex Trafficking of Minors of sex trafficking victims. The committee believes that civil lawsuits merit further exploration and that efforts to identify and remove barriers faced by child and adolescent victims in bringing such claims against those who exploited them are warranted. Prevention As noted earlier, federal law has focused less on prevention than on prosecution and victim services. The federal government’s response to hu- man trafficking in general and trafficking of minors in particular has relied in part on the deterrent effect of criminal law (Clawson et al., 2006). Aside from the threat of criminal sanction, most federal law and programs tar- geting prevention center on public awareness campaigns. Federal law and programs aimed at the root causes of commercial sexual exploitation and sex trafficking of minors have focused primarily on other countries. Federal law has established a limited number of programs that target prevention. These programs can be grouped into two categories: (1) pro- grams aimed at raising awareness about the problem of human trafficking among both key stakeholders and the general public, and (2) measures aimed at enhancing the government’s and other stakeholders’ capacity to identify potential cases of human trafficking, thereby facilitating early in- tervention and prevention of future cases. In the first category, a number of federal measures are aimed at raising awareness about the problem of human trafficking generally. In 2000, the TVPA established the State Department’s Office to Monitor and Combat Trafficking, which, among other things, produces an annual Trafficking in Persons Report that assesses countries’ progress in addressing human traf- ficking. Although the primary focus of the Office to Monitor and Combat Trafficking is international, since 2010 the Trafficking in Persons Report has included a section reviewing U.S. government efforts to address human trafficking within its borders and territories (U.S. Department of State, 2010a). In addition, the federal government, including both the Depart- ment of Justice and the Department of Health and Human Services, funds training programs for law enforcement personnel, social service providers, health professionals, and other stakeholders. In 2004, the Department of Health and Human Services launched the Rescue and Restore Campaign, which established local groups in a number of cities to help raise awareness (ACF, 2012). The U.S. government also has funded state- and local-level task forces to coordinate on-the-ground responses (OJJDP, 2013; U.S. Department of State Office to Monitor and Combat Trafficking in Persons, 2012). Finally, in 2010, the Department of Education published a Fact Sheet providing the education community an overview of the trafficking of minors and its effect

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Legal Framework 153 on U.S. schools (U.S. Department of Education Office of Safe and Healthy Students, 2007); describing how to identify, report, and help victims; and listing resources and publications that schools can use to raise awareness. Together, all of the above strategies are intended to enhance awareness and understanding of human trafficking. Some of these programs specifi- cally address minors, while others are more general in their focus. In the second category, the federal government has supported programs aimed at early intervention and prevention. Federally funded coordinated task forces, including the Internet Crimes Against Children Task Force Pro- gram, facilitate information sharing among law enforcement to help iden- tify potential traffickers and possible victims (OJJDP, 2013). The federal government has collaborated with Polaris Project to establish the National Human Trafficking Resource Center, which operates a national hotline for reporting potential human trafficking cases (Polaris Project, 2013b). This hotline has the potential to facilitate early intervention in cases and prevent further exploitation of minors. The center also serves as a clearinghouse to help survivors connect with services. In September 2012, President Obama issued an Executive Order that “expressly prohibits Federal contractors, contractor employees, subcontrac- tors, and subcontractor employees from engaging in [various] types of traf- ficking-related activities,” including misleading and fraudulent recruitment practices; charging of recruitment fees; and confiscation or destruction of identity documents, such as passports.30 The Executive Order also requires contractors and subcontractors to develop compliance plans, inform their employees of rules about not engaging in trafficking-related activities, and provide a means for employees to report trafficking activities without fear of retaliation.31 Although the Executive Order is intended primarily to ad- vance prevention and early intervention efforts aimed at labor trafficking, its language is not limited to labor trafficking. Moreover, these regulations might suggest other legislative approaches that could engage commercial- sector entities as partners in addressing commercial sexual exploitation and sex trafficking of minors. More broadly, few programs have been adopted at the federal level specifically to address the root causes of commercial sexual exploitation and sex trafficking of minors in the United States. One example is the Street Outreach Program of the Department of Health and Human Services’ Youth Development Division. The aim of this program “is to prevent the sexual 30  bama, B. 2012. Strengthening protections against trafficking in persons in federal O contracts. Executive Order § 2(1)(a), (September 25, 2012). http://www.whitehouse.gov/ the-press-office/2012/09/25/executive-order-strengthening-protections-against-trafficking-persons- fe (accessed December 17, 2012). 31  xecutive Order § 2(1)(a). E

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184 Commercial Sexual Exploitation and Sex Trafficking of Minors The federal Department of Justice’s Office for Victims of Crime funds a number of programs in various states (see the discussion in Chapter 6). Although this is a positive step, these are not national programs, but more in the nature of pilot projects in limited locations. Even in those specific lo- cations, the issues that will inevitably arise with respect to delivery of these services are enormous, and the laws themselves often provide little guidance on the particulars of how service delivery will be accomplished effectively. In addition, not all state human trafficking laws address commercial sexual exploitation or sex trafficking of minors, or when they do mention minors, they may not do so in an optimal way. In the vast majority of states, minors who are victims of commercial sexual exploitation and sex traf- ficking can still be arrested and prosecuted as criminals, rather than being assured of being treated as victims. Even in instances where charges are re- duced to status offenses, responses still fall short of recognizing and treating such children as victims of exploitation rather than as offenders. In addi- tion, existing state criminal laws sometimes are poorly suited to addressing these problems because of definitional, jurisdictional, and procedural issues, as well as other factors. Child welfare, foster care, and dependency statutes are not designed to meet the needs of victims and survivors of commercial sexual exploitation and sex trafficking of minors—a growing concern as safe harbor laws being enacted in an increasing number of states redirect some victims and survivors to the child welfare system. The majority of safe harbor laws are too new for much to be known about how they are working, but early implementation efforts have revealed some issues, such as the limitation of the laws’ protection in some states to minors who are under age 16 rather than age 18. Finally, it is important to note that many laws, particularly at the state level, are still in the process of being implemented, in part because most state-level antitrafficking laws were adopted only in the last several years. The committee believes it is critical to ensure that the laws adopted are implemented fully and that legislatures take steps to appropriate the fund- ing that has been authorized for survivors’ services under existing law. State laws also need to be assessed to identify gaps and weaknesses, particularly in how they address the needs of minors, or fail to do so. CHALLENGES AND MISSED OPPORTUNITIES Many challenges and missed opportunities can be identified with re- spect to the past and future implementation of federal and state laws re- lated to commercial sexual exploitation and sex trafficking of minors. The absence of reliable data on the national prevalence of commercial sexual exploitation and sex trafficking of minors (see Chapter 2) makes it difficult to know what is required to fully implement the laws and take programs

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Legal Framework 185 to scale. The Office of Juvenile Justice and Delinquency Prevention is fund- ing a national prevalence study aimed at addressing this gap. Other gaps in data exist. For example, data frequently are not disaggregated by age, sex, and other criteria that are important to understanding the problem and developing effective responses. Very little monitoring and evaluation of laws, policies, and programs promulgated at the federal level or supported through federal law has been undertaken. The Government Accountability Office has criticized the fed- eral government for the lack of evaluation of its global programs, but simi- lar issues exist in federal responses to domestic sex trafficking (GAO, 2006, 2007). The same is true of many state-level laws, policies, and programs. Assistance to victims continues to be challenged by two significant is- sues. Because commercial sexual exploitation and sex trafficking are clan- destine activities, identifying victims is an ongoing challenge. Moreover, additional resources are needed to ensure that all survivors receive the services necessary to recover fully and reintegrate back into the commu- nity. The committee heard repeated comments about the lack of sufficient resources from stakeholders during its workshops and site visits. Federal law provides funding to train law enforcement, social services, and other professionals who work with children. Although the federal gov- ernment has provided some data on total numbers of individuals trained, it is unclear what those numbers mean in terms of overall progress in train- ing key personnel. No data are provided on the percentage of individuals trained in various agencies, what the training consisted of (reports from the field suggest that most training programs are basic human trafficking 101/raising awareness and little more), what individuals who attended the programs learned, and the impact of turnover rates on training levels in law enforcement departments and social services agencies (Myles, 2012). The lack of monitoring and evaluation of training makes it virtually impossible to answer these questions. Further research is needed to determine whether and how federal law could be modified to ensure the training of all key personnel and to provide for monitoring and evaluation of training initia- tives. (Training of key personnel across various sectors is discussed in the sector-specific chapters that follow.) Other efforts have had mixed results at best. The National Strategy for Child Exploitation Prevention and Interdiction (DOJ, 2010) has been criti- cized as having “no specific objectives, measurable indicators or operational impact” (ECPAT-USA, 2012, p. 8). Also, the Rescue and Restore Campaign is largely decentralized, and thus the productivity of its various chapters differs dramatically among the various cities and states that have chapters. For the most part, the state laws that address commercial sexual ex- ploitation and sex trafficking of minors most directly—human trafficking and safe harbor laws—are too new to know where the greatest challenges

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186 Commercial Sexual Exploitation and Sex Trafficking of Minors will lie and where missed opportunities are most likely to occur. In efforts to improve the implementation of existing state laws that may be beneficial or to replicate those laws in other states, at least three challenges are likely to be salient. The first will be to overcome the persistent perception that exploited youth are “bad kids.” This challenge was repeatedly identified by service providers and other experts in presentations during the commit- tee’s workshops and site visits. Second is the need for funding to support new and innovative services for this population of youth and to take those services to scale, especially as responsibility shifts from law enforcement and juvenile justice agencies to child welfare and other agencies. Third, to the extent that safe harbor laws or similar provisions are enacted to shift responsibility for sexually exploited and trafficked youth from juvenile jus- tice to child welfare agencies, extensive efforts ultimately will be required to prepare a child welfare system that is not currently equipped to respond to the needs of these youth. PROMISING LEGAL INTERVENTIONS This section summarizes promising legal interventions that the com- mittee identified in the course of this study. The focus is on the committee’s examination of federal, state, and local laws relevant to commercial sexual exploitation and sex trafficking of minors in the United States. Given that the committee’s statement of task also included identifying lessons learned from international responses to these problems, this report also includes an appendix (Appendix B) identifying selected examples of international laws containing noteworthy provisions that address commercial sexual exploitation and sex trafficking of minors. One such example is a law that mandates a “recovery and reflection” period of at least 30 days for any individual who may be a trafficking victim, during which he or she is pro- vided services but not required to make any decision regarding cooperating with law enforcement.90 Identifying promising legal interventions in this area is challenging given that many such laws (particularly at the state level) are relatively new, and little evaluation of their effectiveness has been conducted. The committee believes that federal law on the criminalization of traffickers and others who commercially sexually exploit children is quite strong, with sig- nificant penalties that reflect the nature of the offenses. The committee also believes that safe harbor laws have the potential to reorient how vulnerable and exploited youth are treated in the system. More research is needed to assess the effectiveness of these laws over time, but the committee believes 90  ouncil C of Europe Convention on Action against Trafficking in Human Beings, art. 13 (2005).

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Legal Framework 187 their core principle—that children and adolescents who are survivors of commercial sexual exploitation and sex trafficking must be treated as vic- tims and not criminals—is fundamental and should guide the development of law and policy in this area. In the meantime, the committee urges that such laws be crafted to provide as much protection as possible, such as by extending the reach of their protections to all minors under age 18 rather than limiting them to minors under age 16. The U.S. (federal, state, and local) response to commercial sexual exploitation and sex trafficking of minors is in the very early stages with respect to the development of legal interventions to prevent these crimes from occurring. Training is one aspect of this response. A legal mandate to ensure that personnel who come into regular contact with minors have been trained in these issues, including training in identifying vulnerable or exploited minors and in responding appropriately once such a minor has been identified, would appear to have potential value. To date, however, many relevant personnel have yet to receive any or adequate training. Additionally, the legal mandate for a national strategy has several potential benefits, including facilitating more effective coordination and collaboration among agencies, fostering the development of monitoring and evaluation programs, and improving the government’s capacity to ap- prehend perpetrators and provide services for victims. To date, however, the National Strategy has not been developed or implemented to the point that this potential has been realized. Correspondingly, legal requirements at the state level to develop comprehensive plans for services to victims, survivors, and at-risk youth through a collaborative approach among different sec- tors, including diverse public agencies and nongovernmental organizations, could be beneficial (see Chapter 10 for discussion of such approaches). To date, however, these efforts, to the extent they exist, are too nascent to permit conclusions about their effectiveness. Finally, the committee recognizes that the law has a significant role to play in supporting promising interventions identified in other chapters of this report. Legislation can provide the legal mandate to compel agencies in all sectors of society to adopt and implement promising practices that address commercial sexual exploitation and sex trafficking of minors. FINDINGS AND CONCLUSIONS The committee’s review of the literature and its careful consideration of expert testimony provide a picture of the current legal framework for commercial sexual exploitation and sex trafficking of minors in the United States. Based on its review of the best available evidence, the committee formulated the following findings and conclusions:

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188 Commercial Sexual Exploitation and Sex Trafficking of Minors 4-1 The body of federal and state human trafficking laws enacted over the past dozen years emphasizes prosecution, provides for some services to victims and survivors, but pays only limited attention to prevention. 4-2 The development of legal interventions to prevent commercial sexual exploitation and sex trafficking of minors in the United States is in the very early stages. 4-3 State laws and regulations that can be used to address the com- mercial sexual exploitation and sex trafficking of minors form a diverse and complex array. Only a limited number directly address commercial sexual exploitation or sex trafficking, but many are nevertheless potentially important elements of a com- prehensive response to these problems. 4-4 The absence of a comprehensive source of information identify- ing the services for victims and survivors established or funded by federal and state law presents obstacles for children and ado- lescents seeking to access services after experiencing the trauma of sex trafficking or sexual exploitation and for professionals and caregivers who try to help them. 4-5 Despite laws in every state that enable the prosecution of indi- viduals who purchase sex with a minor, function as pimps, oper- ate brothels engaged in the sale of sex with young females and males, or otherwise sexually exploit children and adolescents, and despite the hard work of prosecutors and law enforcement personnel in many jurisdictions, individuals who sexually exploit children and adolescents have largely escaped accountability. 4-6 Secure detention often is used as a means of “protecting” chil- dren and adolescents who have been sexually exploited and trafficked from future contact with and pressure from their ex- ploiters and traffickers. Although the protection of victims and survivors is an important imperative, the use of secure detention can expose these youth to violence and other harms from those with whom they are detained, highlighting the need to develop alternative means of protection. 4-7 Child welfare laws in most states do not establish an adequate framework for the legal interventions and supportive services

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Legal Framework 189 necessary to respond to the needs of minors who are victims and survivors of commercial sexual exploitation and sex trafficking. 4-8 Monitoring and evaluation of the implementation of laws, poli- cies, and programs that have been promulgated at the federal and state levels or supported through federal and state law has been sparse and inadequate, and at times completely absent. 4-9 The law has a significant role to play in supporting promising interventions identified in this report. Legislation can provide both the legal mandate to compel agencies and other entities in all sectors of society to adopt and implement promising practices that address commercial sexual exploitation and sex trafficking of minors and the funding necessary to support them in doing so. 4-10 Further research is needed on an ongoing basis to identify gaps and weaknesses in federal and state laws (including the imple- mentation of these laws) and in understanding of how and the extent to which they address, or fail to address, the needs of minors who are victims of commercial sexual exploitation or sex trafficking. 4-11 Further research is needed to examine whether child welfare agencies have the necessary resources and are adequately pre- pared to meet the needs of minors who are victims and survivors of commercial sexual exploitation or sex trafficking in states that have adopted, or are considering adoption of, a requirement for universal or widespread reporting of cases of commercial sexual exploitation or sex trafficking of minors under child abuse reporting laws. 4-12 Further attention is needed to the intersection of laws and the education, housing, and employment needs of both children and adolescents who are vulnerable to and those who have been vic- timized by commercial sexual exploitation and sex trafficking to ensure that their needs are met. 4-13 Existing provisions of state laws criminalizing prostitution have been used to arrest and prosecute minors whose actions fall within the technical ambit of these laws even when these chil- dren and adolescents are in fact victims of commercial sexual exploitation or sex trafficking.

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190 Commercial Sexual Exploitation and Sex Trafficking of Minors 4-14 Children and adolescents exploited in the commercial sex in- dustry or through sex trafficking are victims of crimes. Further attention is required to the continued arrest and prosecution of these youth for prostitution or other sexual offenses related to their exploitation, which has the potential to exacerbate the harm they have suffered. Safe harbor laws and principles merit further consideration in all federal, state, and local jurisdictions. 4-15 Further research is needed to identify and address any obstacles in law or its enforcement that inhibit the prosecution of custom- ers, traffickers, and other exploiters of children. 4-16 Civil lawsuits merit further exploration as a strategy for creating effective remedies for commercial sexual exploitation and sex trafficking of minors. Efforts to identify and remove barriers faced by child and adolescent victims in bringing such claims against the traffickers and other exploiters who have victimized them are warranted. 4-17 It is critical to ensure that, once adopted, laws are implemented fully and that legislatures take steps to appropriate funding that has been authorized for survivor services under existing law. References ABA (American Bar Association). 2011. American Bar Association house of del- egates resolutions: Urges aid for human trafficking victims. http://www.abanow.org/ 2011/07/2011am103a (accessed July 14, 2013). ACF (Administration for Children and Families). 2012. Contact information for coalitions. http://www.acf.hhs.gov/programs/orr/resource/contact-information-for-coalitions (ac- cessed April 10, 2013). ACF. 2013. Street outreach program fact sheet. http://www.acf.hhs.gov/sites/default/files/fysb/ sop_fs_20121105.pdf (accessed April 29, 2013). American Academy of Family Physicians. 2004. Protecting adolescents: Ensuring access to care and reporting sexual activity and abuse (position paper). Journal of Adolescent Health 35:420-423. California Alliance to Combat Trafficking and Slavery Task Force. 2007. Human trafficking in California. Sacramento, CA: California Alliance to Combat Trafficking and Slavery. Child Welfare Information Gateway. 2013. State statutes search. https://www.childwelfare. gov/systemwide/laws_policies/state (accessed April 29, 2013). Clawson, H. J., N. Dutch, and M. Cummings. 2006. Law enforcement response to human trafficking and the implications for victims: Current practices and lessons learned. https:// www.ncjrs.gov/pdffiles1/nij/grants/216547.pdf (accessed April 10, 2013). Coalition for Juvenile Justice. 2012. Deinstitutionalization of status offenders: Facts and resources. Washington, DC: Coalition for Juvenile Justice.

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