5


The Legal System

The legal system responsible for addressing the victims, survivors, and offenders of sexual exploitation and sex trafficking of minors comprises two justice systems that operate in different but related realms: the adult criminal justice system and the juvenile justice system. Both systems encompass federal, state, county, local, and tribal law enforcement agencies; police officers and investigators; probation officers; parole officers; corrections officers; prosecutors and defense attorneys; victim advocates; and judges. The adult criminal justice system encompasses the individuals and systems responsible for the detection and apprehension, prosecution and defense, and punishment and rehabilitation of individuals who are suspected or convicted of criminal offenses. In contrast, although the juvenile justice system performs some functions parallel to those of the adult criminal justice system with respect to juvenile offenders, it was originally established to respond to the developmental differences between adolescents and adults, specifically to focus on treatment as the means for rehabilitation rather than enforcement and punishment (NRC, 2013). Thus, the actors in the adult and juvenile systems often bear the same labels but have different albeit related functions and roles.

As part of its charge, the committee was asked to review selected efforts in law enforcement to prevent commercial sexual exploitation and sex trafficking of minors and to intervene with victims and offenders. This chapter describes how the legal system—specifically law enforcement personnel, attorneys, the juvenile justice system, and in some instances the adult criminal justice system—interacts with the victims and survivors of commercial sexual exploitation and sex trafficking. It also describes what



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5 The Legal System The legal system responsible for addressing the victims, survivors, and offenders of sexual exploitation and sex trafficking of minors comprises two justice systems that operate in different but related realms: the adult criminal justice system and the juvenile justice system. Both systems encom- pass federal, state, county, local, and tribal law enforcement agencies; police officers and investigators; probation officers; parole officers; corrections officers; prosecutors and defense attorneys; victim advocates; and judges. The adult criminal justice system encompasses the individuals and systems responsible for the detection and apprehension, prosecution and defense, and punishment and rehabilitation of individuals who are suspected or convicted of criminal offenses. In contrast, although the juvenile justice sys- tem performs some functions parallel to those of the adult criminal justice system with respect to juvenile offenders, it was originally established to respond to the developmental differences between adolescents and adults, specifically to focus on treatment as the means for rehabilitation rather than enforcement and punishment (NRC, 2013). Thus, the actors in the adult and juvenile systems often bear the same labels but have different albeit related functions and roles. As part of its charge, the committee was asked to review selected ef- forts in law enforcement to prevent commercial sexual exploitation and sex trafficking of minors and to intervene with victims and offenders. This chapter describes how the legal system—specifically law enforcement personnel, attorneys, the juvenile justice system, and in some instances the adult criminal justice system—interacts with the victims and survivors of commercial sexual exploitation and sex trafficking. It also describes what 197

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198 Commercial Sexual Exploitation and Sex Trafficking of Minors is known about how traffickers, exploiters, and purchasers interact with law enforcement and the adult criminal justice system. Since law enforce- ment often is the first point of contact with the legal system for the victims, survivors, and offenders of commercial sexual exploitation and sex traffick- ing, the chapter includes noteworthy examples of current law enforcement practices and describes existing challenges and opportunities. The chapter concludes with the committee’s findings and conclusions about the role of law enforcement in preventing, identifying, and responding to commercial sexual exploitation and sex trafficking of minors in the United States. This chapter should be read with some caveats in mind. First, several of the studies, reports, and efforts cited in this chapter (Clawson et al., 2006; Farrell et al., 2008, 2012) describe law enforcement responses to human trafficking broadly, and are not specific to commercial sexual exploitation and sex trafficking of minors. Second, while this chapter describes a range of law enforcement task force models and activities, it should be noted that participation in task forces is only one way for law enforcement agencies to address human trafficking. Finally, multisector and interagency task forces are covered in greater detail in Chapter 10. Current law enforcement practices with victims Law enforcement personnel often are the first to respond to commercial sexual exploitation and sex trafficking cases. Their knowledge and ability to identify victims, investigate cases, and make appropriate referrals is crucial to the development of an overall response to commercial sexual exploita- tion and sex trafficking of minors in the United States. Law enforcement personnel at all levels—local, county, state, and federal—may encounter these cases and need to be prepared to respond appropriately. Federal Law Enforcement Practices Although only 9 percent of law enforcement agencies in the United States operate at the federal level, a considerable amount of activity related to the commercial sexual exploitation and sex trafficking of minors takes place at this level. The Federal Bureau of Investigation (FBI), for example, responds to commercial sexual exploitation and sex trafficking of minors in several ways. Three significant areas of FBI activity are described briefly in the subsections that follow: the Innocent Images National Initiative Unit, the Crimes Against Children Unit, and the Innocence Lost National Initiative.

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The Legal System 199 Innocent Images National Initiative Unit The Innocent Images National Initiative Unit, part of the FBI’s Cyber Division, started in 1995. Its focus is on crimes against children that are facilitated through the use of technology such as computers, digital cam- eras, and audio equipment, including online sexual exploitation of children, activities by traffickers and exploiters who entice minors through online activities, and online entities that profit from crimes against children (DOJ, 2009, 2010; FBI, 2012a, undated). More than 300 FBI special agents work on cyber crimes against children and participate in a number of multisec- tor efforts aimed at fostering federal, state, and local interagency coopera- tion and collaboration. These efforts include the Project Safe Childhood Initiative and the Department of Justice–funded Internet Crimes Against Children Task Forces, described in more detail below. (See Chapter 10 for further discussion of multisector and interagency efforts to address com- mercial sexual exploitation and sex trafficking of minors.) Crimes Against Children Unit Established in 1997, the FBI’s Crimes Against Children Unit, housed within the agency’s Violent Crime Section, has oversight over a variety of crimes against children, including child abduction and interstate transpor- tation of and obscene matter involving children (DOJ, 2009). A further responsibility of this unit that is germane to this report is oversight over the sexual exploitation and sex trafficking of children. More than 100 special agents in the FBI’s 56 field offices are designated as crimes against children coordinators. It is from this unit that the Innocence Lost National Initiative, described below, originated (DOJ, 2009). Innocence Lost National Initiative Innocence Lost is a national initiative launched by the FBI in 2003. Working together with the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice and the National Center for Missing and Exploited Children, this initiative specifically addresses domestic sex trafficking of minors in the United States through 47 dedicated task forces and working groups that meet regularly (FBI, 2012a). The task forces generally are headed by an FBI special agent and include represen- tatives of law enforcement agencies at the local, state, and federal levels; prosecutors; representatives of U.S. Attorney’s Offices; social service provid- ers; and others. Those participating in the groups receive regular training provided by the National Center for Missing and Exploited Children in conjunction with the FBI regarding the nature of sex trafficking, including

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200 Commercial Sexual Exploitation and Sex Trafficking of Minors characteristics and behaviors of victims and related topics. In addition, task force members and working groups share information gathered that is sug- gestive of sex trafficking of minors. Leads on sex trafficking of minors also originate from local law enforcement operations and observation, Internet monitoring, and tips reported directly to the National Center for Missing and Exploited Children’s 24-hour CyberTipline (see Box 5-1). If appropri- ate, a federal-level investigation of domestic sex trafficking of minors may be initiated as a result of these collaborations and leads (DOJ, 2009). An important tool used by Innocence Lost is a database of information on both children who have been exploited through force and/or coercion and exploiters, first deployed in 2008 (DOJ, 2009). Data are available to authorized local law enforcement agents and FBI personnel only through the shared Law Enforcement Online network. This database provides infor- mation on interstate movement, names, aliases, and physical characteristics BOX 5-1 Use of Tips from the Public and Electronic Service Providers to Enhance the Law Enforcement Response to Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States The National Center for Missing and Exploited Children’s (NCMEC’s) CyberTipline is an Internet-based reporting tool operated in partnership with the Federal Bureau of Investigation (FBI), Immigration and Customs Enforce- ment, the U.S. Postal Inspection Service, the U.S. Secret Service, military crimi- nal investigative organizations, the U.S. Department of Justice, and the Internet Crimes Against Children Task Force program, as well as other state and local law enforcement agencies (Allen, 2012). Reports to the CyberTipline are made by the public and by U.S.-based electronic service providers (i.e., companies that provide electronic communication services or remote computing services to the public) as required by federal law* (NCMEC, 2013). CyberTipline reporting cat- egories include, among others, possession, manufacture, and distribution of child pornography; online enticement of children for sexual acts; child prostitution; and sex tourism involving children (NCMEC, 2013). According to the National Center for Missing and Exploited Children, since 1998 the CyberTipline has received more than 1.6 million reports of suspected child sexual exploitation. Information gathered via the CyberTipline is shared with law enforcement and prosecutors to assist them in detecting, investigating, and prosecuting child sexual exploitation crimes. *18 U.S.C. § 2258A. SOURCES: Allen, 2012; NCMEC, 2013.

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The Legal System 201 BOX 5-2 The Innocence Lost National Initiative’s Operation Cross Country: A Federal, State, and Local Law Enforcement Response to Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States In June 2012, the Federal Bureau of Investigation (FBI) announced that the Innocence Lost National Initiative’s Operation Cross Country, a 3-day law enforce- ment effort, had led to the recovery of 79 victims of commercial sexual exploitation and sex trafficking of minors (see www.fbi.gov; www.justice.gov; or www.ncmec. org for more detail about the Innocence Lost National Initiative). In addition, local and state law enforcement had arrested 104 exploiters and traffickers on a variety of prostitution-related charges (FBI, 2012b). This effort was the sixth such nation- ally coordinated law enforcement operation conducted to respond to commercial sexual exploitation and sex trafficking of minors in the United States (FBI, 2012b). Through Operation Cross Country, local law enforcement officers gather information on and make arrests for violations of local and state laws related to prostitution and solicitation in their respective jurisdictions. FBI agents, in part- nership with U.S. Attorney’s Offices and the U.S. Department of Justice’s Child Exploitation and Obscenity Section, use information gathered from these local arrests to file federal charges, as appropriate (FBI, 2012b). Through Operation Cross Country and the Innocence Lost National Initiative, the FBI has worked with more than 8,500 local, state, and federal law enforcement officers and agents representing more than 400 separate agencies (FBI, 2012b). According to the FBI, these efforts have led to the identification of and assistance to more than 2,200 minors exploited through prostitution and sex trafficking (FBI, 2012b). Investigations of these crimes have led to 1,017 convictions of exploiters and traffickers and the seizure of more than $3.1 million in assets (FBI, 2012b). SOURCE: FBI, 2012b. of identified exploiters and victims. It includes images and audio files (DOJ, 2009). The Innocence Lost National Initiative often is seen as successful in providing a federal law enforcement-based mechanism for responding to cases of commercial sexual exploitation and sex trafficking of minors. As of June 2012, more than 2,100 children had been removed from exploi- tive circumstances such as sex trafficking; more than $3.1 million of real property, money, and vehicles had been seized; and approximately 1,010 convictions (including life sentences) of exploiters and others engaged in and benefiting from the sex trafficking of minors had been secured (FBI, 2012a). The Innocence Lost National Initiative also conducts periodic law enforcement activities in collaboration with state and local law enforcement agencies. (See Box 5-2 for a description of one such activity.)

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202 Commercial Sexual Exploitation and Sex Trafficking of Minors State and Local Law Enforcement Practices As discussed in Chapter 4, law enforcement has found it challeng- ing to view behavior by youth that is technically criminal (prostitution) as part of the victimization of youth by the perpetrators of a more seri- ous crime (commercial sexual exploitation or trafficking) (Farrell et al., 2008). The committee is encouraged that an increasing number of police departments are moving away from arresting young victims suspected of engaging in prostitution and focusing on investigating exploiters and traf- fickers (Fassett, 2012; Gavin, 2012; Goldfarb, 2012). A review of case files from six police agencies in major U.S. cities indicates that police viewed 60 percent of youth involved in prostitution as victims and 40 percent as offenders (Halter, 2010). Similarly, researchers determined from a survey of case investigators that police considered 69 percent of youth involved in prostitution to be victims rather than offenders (Wells et al., 2012). Police were more likely to consider a youth to be a victim if she or he cooperated, if police identified an exploiter, and if the youth came to the attention of police through a report rather than through an arrest (Halter, 2010). The committee heard anecdotal evidence from several sources that police struggle to balance treating youth involved in trafficking as victims and ensuring that the youth will cooperate in investigations of traffickers and purchasers. Police report that their greatest challenge in investigating trafficking cases is lack of victim cooperation (Clawson et al., 2006; Farrell et al., 2008). As noted in earlier chapters, youth involved in sex trafficking often do not identify themselves as crime victims (Fassett, 2012), which may make them hesitant to cooperate with police investigations. Some police agencies and officers have responded to this hesitation by detaining youth to ensure their cooperation (Bortel et al., 2008; Brickhead, 2011; Bryan, 2012; Puig-Lugo, 2012). However, secure detention deprives youth of opportunities that are vital to healthy development, including access to activities that lead to self-efficacy and critical thinking, connections with peers who exhibit prosocial behavior and value academic success, and ad- equate health and mental health care (NRC, 2013). In addition, during its site visits and public workshops the committee heard expert testimony that secure detention can be an additional trauma and is therefore especially harmful to minors who are victims of commercial sexual exploitation and sex trafficking (Puig-Lugo, 2012; Serita, 2012; Sherman, 2012). As dis- cussed in Chapter 4, some police agencies believe that detaining youth has the additional benefit of protecting them from further involvement in traf- ficking (Farrell et al., 2012; Fassett, 2012; Letot Center, 2012). Other police agencies have stopped arresting juveniles for prostitution, and instead work to build cases against traffickers with the voluntary participation of victims or without victim participation (Gavin, 2012; Hersh, 2012; Hooven et al.,

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The Legal System 203 2012). Neither of these approaches has been evaluated for effectiveness from the perspective of either advancing police investigations or protecting victims’ interests. However, an approach that addresses youth consistent with the developmental characteristics of adolescents and focuses on treat- ment as opposed to punishment is consistent with the science behind and the purpose of the reform efforts under way in the juvenile justice system (NRC, 2013). Police agencies vary widely in their perception of the prevalence of trafficking. Among a random sample of state, county, and municipal law enforcement agencies, nearly 60 percent thought domestic sex trafficking was nonexistent, and only 6 percent thought it was a widespread or oc- casional problem (Farrell et al., 2008). Respondents to surveys of larger agencies and those with experience with trafficking are more likely to view domestic sex trafficking as a problem. Respondents from only 25 percent of agencies serving 75,000 or more people (Farrell et al., 2008) or within cities with known human trafficking activity (Clawson et al., 2006) viewed domestic sex trafficking as nonexistent. Even more dramatic, among re- spondents from agencies participating in a human trafficking task force, none perceived domestic sex trafficking to be nonexistent, while 38 percent viewed it as a widespread or occasional problem (Farrell et al., 2008). Police agencies can take several steps to prepare to handle cases of com- mercial sexual exploitation and sex trafficking of minors: dedicating a unit or personnel to handle cases, training officers about trafficking, developing protocols for trafficking cases, and participating in human trafficking task forces. In a multivariate regression model, whether an agency had special- ized personnel, training, and protocols was among the strongest predictors of whether the agency had investigated a case of human trafficking (Farrell et al., 2008). Agencies with a dedicated unit or personnel appear to be more likely to investigate cases of human trafficking, although the causal relationship between dedicated staff and cases is not clear. In a random sample, nearly 44 percent of agencies with dedicated staff had investigated a human traf- ficking case, compared with 5.7 percent of agencies without a specialized unit (Farrell et al., 2008). However, the officers most likely to contact trafficking victims are patrol officers rather than those in specialized units (Farrell et al., 2012), highlighting the importance of educating all officers about trafficking. Despite their importance for dealing with commercial sexual exploita- tion and sex trafficking of minors, few agencies have dedicated human traf- ficking units or personnel. Only 4 percent of a random sample of agencies reported having such specialized units or personnel, although that number increased to 16 percent for agencies serving 75,000 or more people and to 77 percent for those involved in a trafficking task force (Farrell et al.,

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204 Commercial Sexual Exploitation and Sex Trafficking of Minors 2008). Of the four cities the committee visited, only Chicago and Boston have dedicated units. However, 37 percent of agencies in a nonrandom sample indicated they had a unit whose duties would include addressing hu- man trafficking cases; these units included vice, narcotics, organized crime, special victims/sexual assault, crimes against persons, child exploitation, and detective bureaus (Wilson and Dalton, 2008; Wilson et al., 2006). Agencies whose officers receive training in human trafficking also ap- pear to be more likely to investigate such cases, although the causal rela- tionship between training and cases likewise is not clear. Approximately 20 percent of agencies with trained officers had identified a human trafficking case, compared with 4.4 percent of agencies without such officers (Farrell et al., 2008). Agencies increasingly are training officers to address human trafficking. This was the case for approximately 18 percent of agencies in a random sample, increasing to 39 percent of agencies serving 75,000 or more people and more than 90 percent of agencies involved in a traffick- ing task force (Farrell et al., 2008). Police reported that training was most needed on the following topics: methods for identifying and responding to trafficking, methods for identifying victims, and understanding trafficking laws (Clawson et al., 2006). As mentioned previously, police report that their greatest challenge in investigating trafficking cases is lack of victim cooperation (Clawson et al., 2006; Farrell et al., 2008), and many officers report challenges in communicating with victims (Clawson et al., 2006; Farrell et al., 2012); therefore, training needs to include a significant focus on working with victims of trafficking (Farrell et al., 2012). Local law enforcement officers may also need training in the roles of federal law enforcement and victim services providers in trafficking investigations; 90 percent of a convenience sample of local and state investigators indicated that they did not understand those roles. A nonrepresentative sample of federal stakeholders indicated that local law enforcement needs training in obtaining victim testimony, corroborating stories, obtaining physical evidence, and following paper trails (Clawson et al., 2006). Officers can be trained in a variety of ways, including events sponsored by the federal government, victim service providers, and local and state law enforcement (Clawson et al., 2006). The committee is unaware of evaluations of any police training curricula related to commercial sexual exploitation and sex trafficking of minors; however, the need for and value of such training was consistently mentioned in testimony before the committee. Agencies with a policy or protocol for trafficking cases appear to be more likely to investigate cases of human trafficking, although the causal re- lationship between having a policy or protocol and cases again is not clear. Approximately 26 percent of agencies with such a policy or protocol had identified a human trafficking case, compared with 5.6 percent of agencies without one (Farrell et al., 2008).

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The Legal System 205 Several sources suggest that police would benefit from having protocols for investigating human trafficking cases (Clawson et al., 2006; Farrell et al., 2008). Approximately 9 percent of a random sample of law enforce- ment agencies reported having a policy or protocol for responding to hu- man trafficking. The percentage with such a policy or protocol increased to 13.2 percent among agencies that serve populations of 75,000 or more to 100 percent among agencies that participate in a trafficking task force (Farrell et al., 2008). Police have a number of ways to learn about instances of trafficking and build cases against traffickers. A review of sex trafficking case files indicated that nearly 40 percent of cases originated with a tip to law en- forcement, 18 percent with an ongoing investigation, and 12 percent with a law enforcement sting operation (Farrell et al., 2012). Agencies that have investigated cases of trafficking indicated that they are most likely to learn about trafficking cases during the course of other investigations or under- cover operations and from calls for service (Farrell et al., 2008). Agencies participating in federally funded task forces were more likely to perceive information from different investigations as a strong source of information about trafficking cases (Clawson et al., 2006; Farrell et al., 2008). Those agencies listed an alert from victim services as the second most likely source of information about trafficking cases, indicating that they may have a stronger relationship with the victim services community (Farrell et al., 2008). For example, the Boston Police Department, as part of a federally funded human trafficking task force, developed protocols that included monitoring police reports to identify potential victims of commercial sexual exploitation and sex trafficking proactively and maintaining partnerships with social service and other law enforcement agencies to facilitate referrals when appropriate (Farrell et al., 2008). These data may indicate that police most often take a reactive approach to sex trafficking cases, relying on tips or other investigations rather than originating new cases. When trafficking victims are encountered during the course of another investigation, 81 percent of agency respondents indicated that the individual’s demeanor—acting fearful or noncooperative—is very important or important as an indicator that she or he is a trafficking vic- tim. Other indicators frequently mentioned include not having control over identification or travel documents, makeshift living quarters, and frequent movements (Farrell et al., 2008). Challenges Regardless of whether law enforcement operates at the local, state, county, or federal level, many of the challenges associated with identifying, investigating, and effectively responding to commercial sexual exploitation

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206 Commercial Sexual Exploitation and Sex Trafficking of Minors and sex trafficking of minors are the same, as discussed at length in the preceding section. This section summarizes some of the major challenges for law enforcement in efforts to respond to the victims and survivors of these crimes. One barrier to responding appropriately and effectively to victims and survivors of commercial sexual exploitation and sex trafficking of minors is the failure of law enforcement personnel to recognize these crimes as press- ing criminal offenses (Clawson et al., 2009). As noted above, many law enforcement officials, especially those in smaller agencies and those whose agency is not involved in a task force devoted to this issue, do not identify commercial sexual exploitation and sex trafficking of minors as a problem affecting their communities. Law enforcement officials often have a difficult time identifying minors involved in commercial sexual exploitation and sex trafficking. They are likely to rely on an individual’s demeanor (acting fearful or noncoopera- tive), as well as the indicators of not having control over identification or travel documents, makeshift living quarters, and frequent movements, to identify trafficking victims. Criminology research indicates that adolescents of color often do not trust the legal system, believing that they and mem- bers of their racial/ethnic group will not be treated fairly (NRC, 2013). This lack of trust complicates the challenges of relying on victim coopera- tion as a means of determining whether or how to proceed with a case. As noted above, uncooperative behavior may be indicative of trafficking/ exploitation, yet lack of cooperation is the main feature that discourages law enforcement from working with victims and pursuing trafficking cases. Halter (2010) identifies characteristics that are associated with law enforce- ment personnel viewing a child or adolescent as a victim. Specifically, if the victim cooperated, if police identified an exploiter, and if the victim came to the attention of police through a report rather than through police action, police were more likely to regard the child or adolescent as a victim. While the movement toward viewing these youth as victims rather than offenders is promising, this is a high threshold that most victims would not meet. Responses to identification also vary widely. The committee is encour- aged that an increasing number of law enforcement agencies are moving away from arresting youth suspected of engaging in prostitution toward treating them as victims, connecting them with services, and focusing on investigation and prosecution of those who exploited them (Gavin, 2012; Goldfarb, 2012). Yet clearly improvement is sorely needed as many law enforcement personnel continue to view these youth as offenders and to arrest them as such (see the discussion of this issue in Chapter 4). A review of case files from six police agencies in major U.S. cities indicated that 40 percent of law enforcement personnel continue to perceive such youth as offenders (Halter, 2010). Others may arrest victims to “encourage” them

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The Legal System 207 to assist in prosecution—this despite current efforts in some states and ju- risdictions to work with prosecutors to pursue cases against exploiters that are “victim-driven, not victim-built” or “evidence-based,” an approach that entails relying on voluntary participation of victims or building cases that do not require victim participation (Gavin, 2012; Hersh, 2012). For such “evidence-based” approaches to work, law enforcement inves- tigators must be aware of techniques that can be used to gather additional evidence so that cases are not completely dependent on victim testimony. A nonrepresentative sample of federal stakeholders indicated that local law enforcement needed training in investigating cases of commercial sexual exploitation and sex trafficking of minors in the United States. Specifically, officers needed training in obtaining victim testimony in ways that do not coerce or further harm the victim, corroborating stories, obtaining physical evidence, and following paper trails (Clawson et al., 2006). As discussed earlier, training in these areas is vitally important and is associated with an investigation’s being launched at all. Opportunities Each of the challenges described above suggests opportunities to im- prove understanding of and response to commercial sexual exploitation and sex trafficking of minors in the United States. These opportunities relate to perceiving the urgency of these problems, identifying victims, deciding whether to arrest victims, addressing a lack of victim cooperation, and handling cases of these crimes appropriately. Training As discussed above, law enforcement agencies increasingly are training their personnel to recognize and respond to human trafficking. The Chi- cago Police Department, for example, provides roll-call training to its line officers to alert them to the fact that victims can be found in a variety of circumstances, such as massage parlors, brothels, escort services, and strip clubs, not just on the street (Walker, 2012). One area in which training is vital is recognizing the existence and se- riousness of commercial sexual exploitation and sex trafficking of minors in the United States. Such training can change departmental culture and re- sponse to these crimes. In Dallas, for example, each of the 3,700 officers in the police department has received 3 hours of training in how to recognize and identify “high-risk” victims—children and adolescents most likely to become victims of commercial sexual exploitation or sex trafficking. This training was credited with changing departmental culture and increasing

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224 Commercial Sexual Exploitation and Sex Trafficking of Minors The Judiciary and Victims/Survivors The judiciary can promote an appropriate response to commercial sexual exploitation and sex trafficking of minors in two ways: by recogniz- ing and treating juveniles involved in trafficking or prostitution as victims rather than delinquents or criminals, and by providing adequate sentences for traffickers and purchasers of sex. As discussed in detail in Chapter 4, the committee recognizes that many states continue to criminalize juvenile prostitution, and therefore judges may continue to see youth charged with prostitution in their courtrooms. But judges have considerable discretion over how they approach these cases. The committee was encouraged to hear about three examples of courts that treat youth charged with prostitution as crime victims in need of services. These programs have not been formally evaluated, so the committee does not intend to endorse them by including them here. Nonetheless, these programs appear to be a positive develop- ment worthy of evaluation and further exploration. Midtown Community Court STARS Program The Midtown Community Court in New York City has jurisdiction over all prostitution offenses in Manhattan for children and adults aged 16 and over.7 Judges and attorneys noticed that girls and women8 arrested for prostitution often had significant service needs that were not being met as they cycled between the street and the legal system. More than 80 percent of them reported past victimization, including childhood sexual abuse and sexual and physical assault, and many of the adults had been trafficked as children (Schweig et al., 2012). The court recognized that these past vic- timizations had led many women and girls into trafficking and prostitution, and that instead of treating the women as criminals, the court should help them receive services. In conjunction with the Center for Court Innovation, the Midtown Community Court developed the Services to Access Resources and Safety (STARS) program to address the physical, sexual, and emotional trauma experienced by defendants with a history of abuse and trafficking. Through 7  n I New York State, everyone over age 15 is considered an adult who can be tried in criminal court. Therefore, 16- and 17-year-old youth arrested for prostitution in Manhattan are taken to Midtown Community Court. The New York safe harbor law, described in Chapter 4, does not apply to 16- and 17-year-olds. According to the Center for Court Innovation, at least 300 16- and 17-year-olds were arrested in New York State for prostitution or loitering for the purpose of prostitution during 2005-2010; at least 50 percent of those youth were convicted of a crime or violation (Bryan, 2012). 8  oys and men can also be arrested for prostitution and related offenses; however, the B director of the Midtown Community Court noted to the committee that in the past year, the court saw no males for prostitution-related offenses.

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The Legal System 225 the STARS program, case managers at the court screen each client for a his- tory of trafficking and trauma. If the case manager identifies such a history, the client is referred to on-site services, including a multisession counseling group that covers such topics as staying safe on the street, trauma regula- tion, and healthy relationships. Girls aged 16 to 19 are often referred for services to Girls Educational and Mentoring Services (GEMS) and other off- site service providers (Bryan, 2012). Successful completion of the STARS program serves as an alternative to adjudication or detention. The director of the Midtown Community Court credits collaboration among the presid- ing judge, the Legal Aid Society defense attorney who represents many of the girls and women, and the district attorney for the success of the STARS program (Bryan, 2012). Queens County Prostitution Diversion Court The Queens County Prostitution Diversion Court provides alternatives to incarceration for people arrested for prostitution-related offenses in Queens County, New York. In 2010, the Diversion Court heard 66 percent of prostitution cases in the county (Serita, 2012). Like the Midtown court, the Queens County court hears cases for people over age 16. The Queens County Prostitution Diversion Court began in 2004 when Judge Fernando Camacho noticed that many defendants in his court had a history of trauma, and some did not appear to be engaging in prostitution voluntarily (Schweig, 2012). He partnered with GEMS (see above) to provide services to girls under age 21 and with the Mount Sinai Sexual Assault and Violence Intervention Program for women over age 21 (Bryan, 2012; Serita, 2012), among other organizations. When the court identifies girls and women as victims of abuse or trafficking, it diverts them to services at one of its partner organizations instead of placing them in detention or confinement. Los Angeles County STAR Court In 2011, the Los Angeles County Juvenile Court received funding for the Succeed Through Achievement and Resilience (STAR) Court, a collab- orative court designed to provide enhanced supervision of youth arrested for prostitution and collaborate with the Probation Department to improve services to those youth.9 Instead of engaging youth arrested for prostitution in an adversarial court process, the STAR Court works with the district attorney and defense counsel to defer prosecution while youth are engaged in treatment. The court meets weekly with the youth and their service pro- 9  he T probation portion of the program is described in more detail above in the section on juvenile justice.

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226 Commercial Sexual Exploitation and Sex Trafficking of Minors viders (including the district attorney, defense counsel, physical and mental health care providers, and victim service providers) to monitor and facilitate progress. The court plans to work with the school district to address edu- cational needs and help youth approaching age 18 find transitional housing (Los Angeles County Juvenile Court, 2011). After successful completion of a treatment program, the court dismisses prostitution charges. The court’s grant includes funding for evaluation. Criteria for evalu- ation include number of days in custody and/or placement; number of redetentions, rearrests, and violations; successful completion of counseling; and school attendance and grades. Outcomes for participants in the STAR program will be compared with those for other youth arrested for pros- titution who do not receive special services (Los Angeles County Juvenile Court, 2011). Criminal Justice and Offenders The TVPA appears to have provided the judiciary with additional meth- ods for dealing more harshly with those convicted of commercial sexual exploitation and sex trafficking of minors. For example, research indicates that the passage and reauthorizations of the TVPA resulted in increased prison sentences for those convicted of these crimes. Adams and colleagues (2010) found that the average sentence given following a conviction of com- mercial sexual exploitation or sex trafficking of minors in 1999 (prior to passage of the TVPA) was 53 months, while the average sentence following reauthorization of the TVPA in 2005 was 80 months. Adams and colleagues (2010) also offer insight into characteristics of cases that lead to longer prison sentences for offenders involved in com- mercial sexual exploitation and sex trafficking of minors. Findings indicate that offenders who went to trial instead of taking a plea bargain were sen- tenced to an average of 61 more months in prison. It was also found that nonwhite offenders received sentences that were an average of 16 months longer than those received by similarly situated white offenders. In addition, offenders with less than a high school education were sentenced to longer terms in prisons than those with some college completed. Finally, Adams and colleagues (2010) found that sentences received by offenders charged with child sexual exploitation were an average of 47 months longer than the sentences of those charged with child prostitution or child pornography. A study of men who purchased sex (Durchslag and Goswami, 2008) found that they viewed the following as deterrents: • being embarrassed in front of their families, • being embarrassed in front of their work colleagues,

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The Legal System 227 • being fined, and • having their property (e.g., automobile) confiscated. In addition, Cedeno (2012) notes that individuals who purchase sex are most deterred if • they are required to register as sex offenders, • their photo/name is made public, and • they are incarcerated. While the information yielded by these studies is helpful, additional re- search is needed to understand effective deterrents for different types of exploiters. For example, one recent study suggests that individuals who habitually buy sex are less likely to be deterred by legal sanctions than those who purchase sex infrequently (Yen, 2008). Findings and Conclusions The committee’s review of the literature and its careful consideration of expert testimony revealed several themes related to the role of the legal system in preventing, identifying, and responding to commercial sexual exploitation and sex trafficking of minors in the United States. This chap- ter has highlighted a range of noteworthy and emerging efforts and drawn lessons from approaches to related and overlapping problems. The chapter also has highlighted a number of opportunities represented by current and emerging practices at various points in the legal system. However, the com- mittee emphasizes that evaluation of these and future efforts is crucial. In addition, the committee formulated the following findings and conclusions: 5-1 Law enforcement personnel at all levels often are the first to respond to commercial sexual exploitation and sex trafficking cases involving minors. Consequently, their knowledge and abil- ity to identify victims, investigate cases, and make appropriate referrals is an important part of developing an overall response to these problems. 5-2 Many law enforcement personnel and agencies continue to ar- rest and charge minors with prostitution. 5-3 Few law enforcement agencies have specific protocols to follow when commercial sexual exploitation and sex trafficking of mi- nors are suspected or disclosed.

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228 Commercial Sexual Exploitation and Sex Trafficking of Minors 5-4 Many law enforcement personnel do not recognize commercial sexual exploitation and sex trafficking of minors as serious problems. As a result, they may fail to identify victims of these crimes and may be uncertain about how to handle these cases. 5-5 Task forces are one approach used by the legal system to identify and respond to commercial sexual exploitation and sex traffick- ing of minors. Additional research is needed to identify specific task force strategies and components that can increase the reach and effectiveness of this approach. 5-6 Although efforts to train personnel within the legal system to address human trafficking have increased, the majority of per- sonnel in the system have not been trained to recognize and respond to suspected or confirmed cases of commercial sexual exploitation and sex trafficking of minors. 5-7 Pursuing cases that are “victim-driven, not victim-built” can reduce the need for the legal system to depend on cooperation by victims and survivors of commercial sexual exploitation and sex trafficking. 5-8 Juvenile justice personnel need training in identifying victims of trafficking who are in the system on charges unrelated to prostitution through intake screenings, runaway and homeless programs, and programming in juvenile detention centers. 5-9 Diversion programs need to be established so that youth identi- fied as victims of commercial sexual exploitation and sex traf- ficking can receive treatment as part of their rehabilitation or in lieu of punishment. 5-10 The judiciary, juvenile justice agency personnel, and prosecutors should refer youth identified as victims of commercial sexual ex- ploitation and sex trafficking to appropriate treatment services. 5-11 The Trafficking Victims Protection Act and new state laws have provided prosecutors and judges with additional tools for in- vestigating, prosecuting, and sentencing exploiters, traffickers, purchasers, and solicitors in cases of commercial sexual exploi- tation and sex trafficking of minors. In addition, prosecutors can use a range of existing laws to pursue convictions and more substantial sentences.

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The Legal System 229 5-12 Research on the effectiveness of the overall response of the criminal justice system to exploiters and traffickers and to solici- tors and purchasers is limited. Therefore, additional research is needed to determine effective punishments for both exploiters and traffickers and solicitors and purchasers who engage in the commercial sexual exploitation and sex trafficking of minors. References Adams, W., C. Owens, and K. Small. 2010. Effects of federal legislation on the commercial sexual exploitation of children. Juvenile Justice Bulletin 1-10. Allen, B., L. Gharagozloo, and J. C. Johnson. 2012. Clinician knowledge and utilization of em- pirically-supported treatments for maltreated children. Child Maltreatment 17(1):11-21. Allen, E. 2012. Workshop presentation to the Committee on the Commercial Sexual Exploi- tation and Sex Trafficking of Minors in the United States, on The National Center for Missing and Exploited Children, January 4, 2012, Washington, DC. Belknap, J. 1995. Law enforcement officers’ attitudes about the appropriate responses to woman battering. International Review of Victimology 4(1):47-62. Bortel, A., M. Ellingen, M. C. Ellison, R. Phillips, and C. Thomas. 2008. Sex trafficking needs assessment for the state of Minnesota. Minneapolis, MN: The Advocates for Human Rights. Brickhead, T. R. 2011. The “youngest profession”: Consent, autonomy, and prostituted chil- dren. Washington University Law Review 88(5):1055-1115. Bryan, C. 2012. Workshop presentation to the Committee on the Commercial Sexual Ex- ploitation and Sex Trafficking of Minors in the United States, on the Center for Court Innovation, February 29, 2012, Washington, DC. Buzawa, E. S., and C. G. Buzawa. 1996. Domestic violence: The ciminal justice system re- sponse. Thousand Oaks, CA: Sage. Castro Rodriguez, G. 2012. Site visit presentation to the Committee on the Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States, on the Youth Justice Institute, May 11, 2012, San Francisco, CA. Cedeno, M. 2012. Pimps, johns, and juvenile prostitutes: Is New York doing enough to com- bat the commercial sexual exploitation of children. Cornell Journal of Law and Public Policy 22(153):153-179. Clawson, H. J., and N. Dutch. 2008. Identifying victims of human trafficking: Inherent challenges and promising strategies from the field. Washington, DC: U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation. 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. Fair- fax, VA: Caliber Associates, Inc. Clawson, H. J., N. Dutch, S. Lopez, and S. Tiapula. 2008. Prosecuting human trafficking cases: Lessons learned and promising practices. Fairfax, VA: ICF International. Clawson, H. J., N. Dutch, A. Solomon, and L. Goldblatt Grace. 2009. Human trafficking into and within the United States: A review of the literature. Washington, DC: U.S. Depart- ment of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation.

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