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.
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. Constitution, the federal government has promulgated laws in this area limited to crimes involving interstate and foreign commerce. Federal law has addressed both sex trafficking of minors and transportation for purposes of sexually exploiting children. State and local laws have long regulated prostitution 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 foreign 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 provision 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 committed 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 concern over human trafficking ultimately resulted in the adoption of the Trafficking Victims Protection Act of 2000 (TVPA).5 The TVPA subsequently
1White Slave Traffic (Mann) Act, Ch. 395, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. 2421-2424 (2006)).
2See Caminetti v. U.S., 242 U.S. 470 (1917); see also Michael Conant, Federalism, the Mann Act, and the Imperative to Decriminalize Prostitution, 5 Cornell J.L. & Pub. Pol’y 99 (1996).
3Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, sec. 160001, 108 Stat. 1796.
4President William J. Clinton, Memorandum on Steps to Combat Violence Against Women and Trafficking in Women and Girls, 1 Pub. Papers 358, 359 (Mar. 11, 1998).
5Trafficking Victims Protection Act of 2000, Public Law 106-386, 114 Stat. 1464 (codified as amended at 22 U.S.C. 7101 (2006)).
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 authorities. 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 “pandering”), 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 applied 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 provisions in their criminal statutes, often referred to as “age-of-consent” and
6Trafficking 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 Reauthorization Act of 2008, Public Law 110-457, 122 Stat. 5044 (codified as amended in scattered titles of the U.S.C.A. (West, 2010)).
7Trafficking Victims Protection Reauthorization Act of 2005, Public Law 109-164, 119 Stat. 3558 (codified as amended in scattered titles of the U.S.C.).
873 C.J.S. Prostitution and Related Offenses 1 (2012).
973 C.J.S. Prostitution and Related Offenses 1 (2012).
“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 recognizes 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 prostituted 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 adopted “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 enforcement 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 (“Strengthening 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 important programs through 2017.
Law can be used to address various aspects of commercial sexual exploitation and sex trafficking of minors through means that include crimi-
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.
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 prosecutorial 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
1018 U.S.C. 1591 (2012).
1118 U.S.C. 1590 (labor trafficking provision, which does not make any distinction for labor trafficking involving minors).
1218 U.S.C. 1591.
1318 U.S.C. 1591.
1418 U.S.C. 1591.
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 historically 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 prostitution 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, psychiatric, or psychological care; (2) physical and occupational therapy or rehabilitation; (3) necessary 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 proximate 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).
1618 U.S.C. 1593.
1718 U.S.C. 1594.
1818 U.S.C. 1592.
1918 U.S.C. 2421-2423.
2018 U.S.C. 2423(a).
2118 U.S.C. 2422.
2218 U.S.C. 2423(d).
2318 U.S.C. 2423(b).
2418 U.S.C. 2428.
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 preponderance 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 federal 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 services 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
2518 U.S.C. 2423(g).
exploitation and sex trafficking. The committee asked a number of professionals 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 professionals and caregivers attempting to help them.
Federal law provides for services for minors who are victims of commercial 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 number of programs in various states that provide a range of services for victims 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 victims 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 specifically 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
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 Department 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, multidisciplinary 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 nongovernmental 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 commercial 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
2618 U.S.C. 3509.
27The Child Abuse Prevention and Treatment Act, including Adoption Opportunities and The Abandoned Infants Assistance Act, Public Law 111-320.
28Violence Against Women Reauthorization Act of 2013, 1241 (2013) (the TVPA Reauthorization of 2013 was attached as an amendment to VAWA).
2918 U.S.C. 1595.
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.
As noted earlier, federal law has focused less on prevention than on prosecution and victim services. The federal government’s response to human 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 targeting 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) programs 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 intervention 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 trafficking. 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 Department 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
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 specifically 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 Program, facilitate information sharing among law enforcement to help identify 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, subcontractors, and subcontractor employees from engaging in [various] types of trafficking-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 advance 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
30Obama, B. 2012. Strengthening protections against trafficking in persons in federal 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-personsfe (accessed December 17, 2012).
31Executive Order 2(1)(a).
abuse or exploitation of young people living on the streets or in unstable housing” (ACF, 2013). The congressional mandate of the Street Outreach Program requires the Family and Youth Services Bureau to serve sexually exploited runaway and homeless youth who are vulnerable to sex trafficking (U.S. Department of State, 2010b). As part of this program, the Family and Youth Services Bureau provides funding to support organizations that offer a range of services aimed at reducing vulnerability to exploitation, including street-based outreach to youth, counseling and treatment, emergency housing, and follow-up support (ACF, 2013). Opportunities exist for further development of programs aimed at addressing both children’s and adolescents’ vulnerability to sexual exploitation and sex trafficking, as well as programs aimed at reducing demand.
Stakeholders and Coordination
Efforts to prevent, identify, and respond to commercial sexual exploitation and sex trafficking of minors involve numerous sectors of society. Multisector and interagency coordination is discussed in detail in Chapter 10. This section briefly describes how the law in this area implicates numerous sectors and aims to foster interagency collaboration.
The federal legislative framework delegates responsibilities for human trafficking-related activity to a number of agencies, including the Department of Justice, the Department of Homeland Security, the Department of Health and Human Services, the Department of Labor, the Department of Defense, the Department of State, and the Department of Education, as well as the U.S. Postal Inspection Office, the Federal Trade Commission, and the U.S. Probation Office (U.S. Department of State, 2010b). Numerous state and local agencies also are involved in efforts to address commercial sexual exploitation and sex trafficking of minors. The high number of agencies involved in such efforts highlights the importance of effective coordination and collaboration across agencies at the federal level, as well as among federal, state, and local entities.
Coordination within agencies also is an important issue.32 Within the Department of Justice alone, for example, numerous offices are involved in efforts to address sex trafficking of minors, including the Office of the Deputy Attorney General; the Federal Bureau of Investigation, including the Crimes Against Children Unit and the Innocent Images National Initiative; the U.S. Marshals Service; Interpol Washington; the U.S. Attorney’s Offices; the Criminal Division’s Child Exploitation and Obscenity Section;
32See, e.g., California Alliance to Combat Trafficking and Slavery Taskforce (2007) (finding that within the state of California, “the delivery of and access to victim services are not always well coordinated”).
and the Office of Justice Programs (including the Office of Juvenile Justice and Delinquency Prevention; the National Institute of Justice; the Office for Victims of Crime; the Bureau of Justice Statistics; and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking) (DOJ, 2010).
To facilitate coordination of antitrafficking efforts, Executive Order 13257, issued in February 2002, established a cabinet-level President’s Interagency Trafficking Task Force, which is tasked with coordinating implementation of the TVPA and other related activities.33 This task force is not focused specifically on addressing trafficking of minors; its scope includes all forms of human trafficking and U.S. efforts to respond both domestically and internationally.
Subsequently, the PROTECT Our Children Act of 2008 established a mandate to create and implement a national strategy for preventing child sexual exploitation. In August 2010, the Department of Justice issued its first national plan, the National Strategy for Child Exploitation Prevention and Interdiction: A Report to Congress (DOJ, 2010). This plan reviews the Department of Justice’s work to date and establishes broad goals for improving government responses to child sexual exploitation. It represents a starting point for coordination of related efforts, although a comprehensive strategy would incorporate all agencies working to address commercial sexual exploitation and sex trafficking of minors.
In addition, the TVPA requires the U.S. attorney general to develop a model state antitrafficking law, which could help close gaps in various state laws and facilitate coordinated responses to cases involving multiple jurisdictions. Of note, the TVPA reauthorization of 2013 amended that mandate to require that such model state laws include “safe harbor” language that “treat[s] an individual under 18 years of age who has been arrested for engaging in, or attempting to engage in, a sexual act with another person in exchange for monetary compensation as a victim of a severe form of trafficking in persons; prohibits charging such minors with the crime of prostitution; and requires that they be referred for comprehensive services.”34 (Safe harbor laws are discussed in greater detail later in this chapter.)
SUMMARY OF STATE LAWS
All states have laws addressing various aspects of commercial sexual exploitation and sex trafficking of minors. A large number of state laws
33Executive Order 13257—President’s Interagency Task Force to Monitor and Combat Trafficking in Persons, effective date February 13, 2002.
34Violence Against Women Reauthorization Act of 2013, Sec. 1243 (2013) (the TVPRA of 2013 was attached as an amendment to VAWA).
have either a direct or indirect bearing on the commercial sexual exploitation and sex trafficking of minors without necessarily mentioning those terms. A much smaller subset of these laws contains specific provisions that address sexual exploitation or sex trafficking of minors or the particular situation and needs of those minors who have been victimized. As discussed earlier in this chapter, many of the relevant laws were enacted before the problem of minors being sexually exploited or trafficked was recognized, but nevertheless are being or could be used to address cases of commercial sexual exploitation or sex trafficking of minors. Other laws, especially those that address the problem more explicitly, were enacted or amended more recently. The various laws that are relevant directly or indirectly at the state level, which are discussed in this section, include those pertaining to human trafficking; prostitution; juvenile delinquency; status offenses and runaway and homeless youth; criminalization of sex with a minor; child abuse reporting; health care; child welfare and foster care; education, housing, and employment; and safe harbor. Additional state laws may also be relevant, such as those that criminalize the depiction of minors in advertisements for commercial sex acts in print or on the Internet,35 but they are beyond the scope of the discussion in this chapter. Also, although a full discussion of the laws of the U.S. territories and Puerto Rico with respect to commercial sexual exploitation and sex trafficking of minors is beyond the scope of this chapter, there is no question that the problem is an important one in these places as well and that their local laws are relevant and evolving (Hernández and Angueira, 2010). Additionally, although the problem of commercial sexual exploitation and sex trafficking is important for Native American populations (Pierce and Koepplinger, 2011), a discussion of the relevant laws that are applicable on Indian reservations is beyond the scope of this chapter.
Finally, salient characteristics of the state laws relevant to commercial sexual exploitation and sex trafficking of minors include both wide variations and strong similarities. This is true in virtually all of the categories of laws discussed in this section. The committee notes that although some generalizations are possible, the existing variations make it difficult or impossible to characterize what states have done in a singular way. Throughout this section, examples of state laws that represent the range of approaches to each issue are cited. Where it is possible to describe trends or indicate how many states generally have enacted a particular type of law, terms such as “many,” “several,” “a few,” or “a very few” are used.
35E.g., Wash. Rev. Code 9.68A.104.
Every state has enacted one or more statutes that address human trafficking with respect to the criminalization, prosecution, and punishment of perpetrators; the provision of civil remedies for victims; and/or the provision of services to victims and survivors. Statutes address either labor trafficking or sex trafficking or both. As of March 1, 2013, 49 states and the District of Columbia had enacted anti-human trafficking criminal statutes that encompass sex trafficking offenses (Polaris Project, 2012).36 Most states’ human trafficking laws have specific provisions related to sex trafficking of minors. Several organizations have created databases to track enacted human trafficking laws or pending legislation (Polaris Project, 2012); in addition, at least one database of human trafficking case law has been created (University of Michigan Law School Human Trafficking Clinic, 2013). It is noteworthy that the vast majority of the state human trafficking laws are new enough that their implementation is very much a work in progress, as discussed later in this chapter. Indeed, not all antihuman trafficking activities authorized by state law have necessarily been funded, thus hampering full implementation.
Provisions of state human trafficking laws addressing the prevention of human trafficking, including sex trafficking of minors, are scarce. The main prevention-oriented provisions that do exist relate to human trafficking task forces,37 training of various state law enforcement personnel and other state employees,38 and public awareness campaigns.39 These laws often include nothing specific about trafficking victims who are minors, but there are a few exceptions. For example, Maryland requires that its Department of Education, “in collaboration with the Department of Health and Mental Hygiene, shall provide awareness and training for Directors of Student Services in local education agencies on human trafficking, including strategies for the prevention of trafficking of children.”40
A much more extensive array of prosecution-related provisions appear in state human trafficking laws. The laws criminalize a variety of acts, in-
36As of July 31, 2012, Wyoming was the only state that had not adopted a human trafficking law. Effective February 27, 2013, Wyoming enacted a law that includes sex trafficking offenses. 2013 Wyo. Sess. Laws 91, adding Wyo. Stat. Ann. 6-2-701–6-2-710. Pennsylvania’s human trafficking law does not include sex trafficking, but an amendment to that law has been introduced that includes sex trafficking offenses. S.B. 75, 197th Gen. Assem., Reg. Sess. (Pa. 2013).
37E.g., Conn. Gen. Stat. 46a-170 (multidisciplinary Trafficking in Persons Council addresses issues for adult victims and their children, but not child victims).
38E.g., Cal. Penal Code 13519.14(c) (training should include measures for identifying and communicating with victims, but there is no specific mention of child victims).
39E.g., Tex. Gov’t Code 402.035.
40Md. Education Code Ann. 7-432.
cluding, in some cases, “sexual servitude of a minor”41 or “sex trafficking of children.”42 For example, Delaware’s human trafficking law provides that “a person is guilty of sexual servitude of a minor when the person knowingly . . . recruits, entices, harbors, transports, provides or obtains by any means, a minor under 18 years of age, knowing that the minor will engage in commercial sexual activity, a sexually explicit performance, or the production of pornography; or . . . causes a minor to engage in commercial sexual activity or a sexually explicit performance.”43 Delaware defines “commercial sexual activity” as “any sex act on account of which anything of value is given, promised to, or received by any person.”44 This definition is similar to that used in federal antitrafficking law, as discussed earlier in the section on federal laws, as well as in other state laws.45 Similar to federal law, some state laws do not require coercion or deception to establish sexual servitude as a sex trafficking violation when the victim is a minor.46
Other violations that can be prosecuted under state human trafficking laws include “patronizing a human trafficking victim” or “patronizing prostitution.”47 These provisions overlap with those of other state criminal laws, such as those discussed below in the section on prostitution. The interaction between the different provisions of state laws and similar or overlapping provisions of federal law may create challenges with respect to enforcement, as discussed below in the section on interpretation and use of laws.
Penalties vary across jurisdictions and may include fines, incarceration, asset forfeiture, restitution, and other payments to victims. For example, Idaho’s law includes a provision requiring that “in addition to any order for restitution . . . , the court shall order the defendant to pay an amount determined by the court to be necessary for the mental and physical rehabilitation of the victim or victims.”48 Not every penalty is included in every state’s trafficking law. The remedies provided for in those laws, especially the criminal penalties, may be in addition to or higher or lower than those imposed under other state criminal statutes, such as those outlawing prostitution or criminalizing sex with a minor. In Alabama, for example, the crime of human trafficking in the first degree, which includes sexual servitude of a minor, is a Class A felony and carries the penalty of imprisonment
41E.g., Ala. Code 13A-6-152; 11 Del. Code Ann. 787(b)(2).
42E.g., D.C. Code 22-1834.
4311 Del. Code Ann. 787(b)(2).
4411 Del. Code Ann. 787(a)(2).
45E.g. Al. Code 13-A-6-151(b)(2); 7 DC Code 22-1831(4); 38 Mo. Rev. Stat. 566.200(4); R.I. Gen. Laws 11-67-6.
46E.g., Ga. Code Ann. 16-5-46.
47E.g., Vt. Stat. Ann. 2654.
48Idaho Code Ann. 18-8604(2).
for life (or for not more than 99 years or less than 10 years),49 whereas the crime of promoting prostitution, which includes profiting from prostitution of a minor under age 16, is a Class B felony and carries the penalty of imprisonment for not more than 20 years or less than 2 years.50 Enhanced sentencing may apply if a violation includes rape, violence, multiple victims, or victims who are children.51 As discussed in Chapter 3, the harms resulting from sex trafficking and commercial sexual exploitation of minors of all ages have not been fully documented; there is at least reason to believe, however, that adolescents of any age, as well as younger children, may suffer severe harm. This likelihood is reflected in state laws that impose increased penalties when a victim is under age 18, whereas other laws provide for increased penalties only in the case of younger victims. In Arizona, for example, the crime of sex trafficking carries a higher penalty if the victim is under age 18 (versus being an adult), but even greater penalties if the victim is under age 15 or under age 12.52
Some state laws provide that victims of human trafficking are not criminally liable for sex acts performed as a result of their victimization.53 These provisions are especially likely to be found in the safe harbor laws discussed below.
When they do address the protection of victims, state human trafficking laws adopt varied approaches. They may delegate to the attorney general and/or the department of health and welfare responsibility for addressing the protection of victims of human trafficking and responding to their needs.54 At least some state laws include procedures for protecting and accommodating the needs of child witnesses who testify when traffickers are criminally prosecuted, although such protection may be limited to young children.55 In some states, crime victims’ compensation funds may be used for victims of trafficking, including children.56 A few state human trafficking laws require or authorize the state to develop a plan for providing comprehensive services to trafficking victims, although they do not necessarily speak to the specific needs of victims who are minors even if minors may be part of the eligible target population.57 In Minnesota, for example, the com-
49Ala. Code 13-A-5-6, 13A-6-152.
50Ala. Code 13-A-5-6, 13-A-12-11.
51E.g., Cal. Pen. Code 236.1(c); 11 Del. Code Ann. 787(b)(2).
52Ariz. Rev. Stat. 13-705, 13-1307.
53E.g., Iowa Code 710A.3; Mass. Gen Laws ch. 272, 57; Or. Rev. Stat. 163.269.
54E.g. Idaho Code 18-8605; Neb. Rev. Stat. 28-832.
55E.g., Ky. Rev. Stat. 421.350 (protection limited to children age 12 or younger).
56E.g., Rev. Code Wash. 7.68.060 (entitlement for victims of commercial sexual abuse of minors).
57E.g., Minn. Stat. 299A.795; Rev. Code Wash. 7.68.360 (development of protocols for services to trafficking victims).
missioner of public safety “may review the existing services and facilities to meet trafficking victims’ needs and recommend a plan that would coordinate the services including, but not limited to: (1) medical and mental health services; (2) housing; (3) education and job training; (4) English as a second language; (5) interpreting services; (6) legal and immigration services; and (7) victim compensation.”58 This Minnesota statute contains a broad list of services, but does not specifically mention children or adolescents.
Further research is needed to determine the extent to which comprehensive plans have been developed and implemented, particularly in states that only authorize but do not mandate such programs. Apart from states with safe harbor laws,59 discussed below, few if any states have enacted a requirement for such a plan that is specific to minors who are victims of sex trafficking. A few states have adopted procedures, such as a victim-caseworker privilege, to protect the privacy of victims and the confidentiality of information about them and the services they have received.60
Every state and many localities have laws prohibiting prostitution, including both the sale and purchase of sexual acts, as well as the facilitation of prostitution by “pimps” and brothel owners.61 These prostitution laws contain widely varying penalties for “prostitutes,” “customers,” pimps, and brothel owners. Many of these statutes are old and contain relatively minor penalties; others have been amended recently to increase the penalties. In Maryland, for example, the crime of prostitution is punishable by up to 1 year in prison or a fine of $500,62 “pandering” (or causing another to engage in prostitution) carries a penalty of up to 10 years in prison or a fine of up to $5,000,63 and “receiving earnings of a prostitute” is punishable by up to 10 years in prison or a $10,000 fine.64 Penalties vary widely from state to state. In Louisiana, the crime of prostitution is punishable, for a first offense, by a fine of up to $500 and up to 6 months in prison.65 In an atypical example, however, if the offense in Louisiana includes a child
58E.g., Minn. Stat. 299A.795.
59E.g., N.Y. Soc. Serv. Law 447-b.
60E.g., Ky. Rev. Stat. 422.295.
61A significant number of cities and towns have municipal codes or ordinances regulating prostitution. A review of those local laws is beyond the scope of this study, but they can play an important role in the response to prostitution generally and the sexual exploitation and sex trafficking of minors specifically. The problem of overlapping jurisdictional authority regarding enforcement is discussed below in the section on interpretation and use of laws.
62Md. Crim. Law Code Ann. 11-306.
63Md. Crim. Law Code Ann. 11-303.
64Md. Crim. Law Code Ann. 11-304.
65La. Rev. Stat. 14:82.
who is under age 14, the punishment is a fine of up to $75,000 or a prison term of 25 to 50 years.66
Laws that prohibit soliciting prostitution or patronizing a prostitute can be used to prosecute individuals who engage in commercial sex acts with minors, sometimes with heightened penalties because of the minor’s age. Massachusetts law, for example, provides that “Whoever pays, agrees to pay or offers to pay any person with the intent to engage in sexual conduct with a child under the age of 18, or whoever is paid, agrees to pay or agrees that a third person be paid in return for aiding a person who intends to engage in sexual conduct with a child under the age of 18, shall be punished by imprisonment in the state prison for not more than 10 years, or in the house of correction for not more than 2 and one-half years and by a fine of not less than $3,000 and not more than $10,000, or by both such imprisonment and fine, whether such sexual conduct occurs or not.”67 Despite the extensive laws on the books in every state supporting the prosecution of individuals who purchase sex with a minor or function as pimps or operate brothels engaged in the sale of sex with young females and males, these individuals have largely escaped accountability for many years (DOJ, 2010). More recently, however, such prosecutions have increased in frequency, although many perpetrators still go unpunished, as discussed in Chapter 5.
As noted earlier, prostitution statutes in most states can be, and often are, applied to minors who engage in sex acts. Prosecution of minors for the commission of commercial sex acts can occur either under adult criminal statutes in adult court—in states that treat some individuals under age 18 as adults for purposes of criminal prosecution, transferring them to adult court—or in juvenile court, as discussed further in the section below on juvenile delinquency. Arrest and prosecution of minors for prostitution can occur even though other laws of the state provide that minors cannot legally consent to sex, and minors are, at least in common-sense terms and in the view of the committee, victims rather than perpetrators. As the committee learned through expert testimony at its site visits and workshops, the scenario in which minors engaged in commercial sex acts are treated as perpetrators rather than victims has been a recurrent one (Fassett, 2012; Guymon, 2012; Nasser, 2012), although it is slowly being supplanted in some states by an alternative approach. A recent trend away from treating minors as perpetrators is represented by new legislation in several states, discussed below in the section on safe harbor laws. In lieu of or in addition to being arrested or prosecuted for prostitution, minors who engage in commercial sex acts may be arrested and charged with lesser offenses,
66La. Rev. Stat. 14:82.
67Mass. Gen. Laws Ch. 272 53A.
such as loitering or truancy, and related offenses that are incident to their exploitation, such as drug possession. These arrests introduce victims of commercial sexual exploitation and sex trafficking to the juvenile court or criminal court system and can establish or expand their criminal record. Understanding the consequences of arrest and prosecution for victims, some organizations have urged states and jurisdictions to refrain from charging minors with prostitution or lesser and/or related offenses. For example, the American Bar Association’s Child Trafficking Policy calls for “not charging children under the age of 18 with the crimes of engaging in prostitution or soliciting themselves, loitering with the intent to engage in prostitution, or status offenses that are incident to their trafficking situation” (ABA, 2011).
Juvenile delinquency laws are the mechanism for arresting, prosecuting, and adjudicating most offenses that would be crimes for adults. In contrast, status offenses are crimes for juveniles only and would not be crimes for adults. Juvenile delinquency offenses are prosecuted under the jurisdiction of the juvenile court, which is where minors charged with prostitution or other related offenses usually are processed. However, some states have either lowered the age generally at which an individual is considered an adult for purposes of the criminal law or established procedures for transfer of some cases from juvenile to adult court for specific offenses. The age at which juveniles can be prosecuted as adults or transferred to adult court varies among states and in many states is younger than 18. Since the 1990s, the trend in a number of states has been to prosecute youth at younger ages, including automatic transfer to adult court, direct file options, and use of prosecutorial discretion.68 The transfer of minors to adult court has increasingly been criticized (Mathis, 2007).
A 2013 National Research Council report on juvenile justice reform explains the importance of understanding adolescent development when crafting juvenile justice policies (NRC, 2013). The report succinctly summarizes the disadvantages of the punitive approach that has become prevalent in juvenile justice systems in recent decades:
the juvenile justice system’s heavy reliance on containment, confinement, and control removes youth from their families, peer groups, and neighborhoods—the social context of their future lives—and deprives them of the opportunity to learn to deal with life’s challenges. For many youth, the lack of a positive social context during this important developmental period is further compounded by collateral consequences of justice system
68See Jonathan Todres, Maturity, 48 Houston L. Rev. 1107, 1134, n. 128-132 and accompanying text.
involvement, such as the public release of juvenile records that follow them throughout their lives and limit future educational and employment opportunities. (NRC, 2013, p. 2)
Many of the findings and recommendations presented in the National Research Council’s report are relevant to understanding both how the juvenile justice system has treated victims of commercial sexual exploitation and sex trafficking and the principles that should guide future juvenile justice responses.
Minors can be prosecuted for prostitution offenses, or as customers of prostitutes, either in juvenile court or in adult court if they are above the age for transfer. However, transfer to adult court typically occurs in cases involving violent crimes and felonies (National District Attorneys Association, 2012), and the frequency with which juveniles are transferred to adult court for prostitution offenses is not well documented. Nevertheless, minors are charged with prostitution under the juvenile delinquency laws in many states, although an emerging trend is to move away from doing so, as evidenced by the enactment of safe harbor laws, discussed later in this chapter.
Status Offenses and Runaway/Homeless Youth
Juvenile courts also have jurisdiction over status offenses—those offenses that are crimes for children only (Steinhart, 1996). “Runaway,” “beyond parental control,” and “child in need of supervision” are status offenses that can bring a minor under the jurisdiction of the juvenile court. As discussed in Chapter 3, many minors who are victims of commercial sexual exploitation and sex trafficking have run away from home or are homeless. Thus the laws relating to runaways and status offenders may be used to detain minors, bring them under state control, commit them to a residential facility, and/or provide them with services. This is a mechanism that is sometimes used to provide a way for victims to be confined “for their own protection” for a limited period of time without being charged with a criminal offense. Secure detention and incarceration of status offenders has increasingly been criticized; as of 2011, however, 35 states permitted secure detention of status offenders pursuant to a valid court order (Szymanski, 2011). In some states, youth who are deemed status offenders may not receive court-appointed legal counsel. Federal law and corresponding laws in most states require that states keep detained status offenders separate from delinquent youth (Steinhart, 1996), which could in some cases help avoid exposure of victims of sexual exploitation and sex trafficking to violent youth in detention. Nevertheless, detained status offenders often are not kept separate from delinquent youth (Coalition for Juvenile Justice, 2012; Sedlak and McPherson, 2010). The committee believes that using secure
detention to “protect” sexually exploited and trafficked children is potentially harmful to minors, but also recognizes the significant need to develop alternative means and corresponding policies for providing the necessary protection to vulnerable children and adolescents.
Not all homeless youth are “runaways,” although many fall technically within the definition of status offenders under their states’ laws. Fewer state laws directly address the situation of homeless youth who are not technically status offenders, although some states have statutes that address the question of whether runaway and homeless youth under age 18 can stay overnight in a shelter without parental permission.69 Without legal authorization to be sheltered without parental permission, many minors who are victims of commercial sexual exploitation and sex trafficking confront an insurmountable barrier to securing a safe place to stay. (See Chapter 6 for a more detailed discussion of shelter availability.)
Criminalization of Sex with a Minor
Every state has statutes that criminalize some sex acts with a minor (Glosser et al., 2004). Wide variation exists among these state laws with respect to the specific sex acts that are criminalized, the ages of minors with whom specified acts are illegal, and the age differences between victim and perpetrator that are either required for acts to be criminal or applied in determining the penalties for violations. Misunderstanding of these laws is widespread. For example, the term “age of consent” often is used to refer to a single age in state law below which a minor cannot legally consent to sex, and having sex with a minor is illegal. In reality, many states have more than one age threshold in their laws, depending on the specific circumstances in question (Glosser et al., 2004). In Maine, for example, it is generally illegal to have sex with a minor under age 16; however, consensual or voluntary sex with a minor who is younger than 16 but at least 14 is not illegal if the defendant (partner) is less than 5 years older than the victim (Glosser et al., 2004, p. 59).
Statutes that criminalize sexual intercourse with a minor often are referred to, in colloquial terms, as “statutory rape” laws, although very few statutes use that specific terminology. The statutes that could be considered as falling under that umbrella vary widely. Some, but not all, of the acts involving sex with a minor that violate a state’s criminal code would also trigger a requirement to report the acts as child abuse, as discussed below. This requirement also is widely misunderstood: it is often assumed that if an act involving sex with a minor is illegal under a state’s criminal code, it is automatically reportable as child abuse, but this is not always the case. In
69E.g., Cal. Fam. Code 6924.
California, for example, all sex with a minor under age 18 is illegal under the criminal code; however, the act may be reportable only if the victim is under age 16 and the defendant is more than 5 years older (Glosser et al., 2004, p. 11). The discrepancies are myriad and lead to considerable confusion among mandated reporters and other professionals coming into contact with children and adolescents who are victims of commercial sexual exploitation and sex trafficking.
The laws that criminalize sex with a minor do not necessarily, and indeed frequently do not, require that there be a commercial element involved in the act. Nevertheless, these laws often are applicable in cases that do involve a commercial element. Among state laws that criminalize sex with a minor, the penalties vary widely, and some are severe. Arizona, for example, provides for a life sentence in cases of “sexual assault” of a minor under age 12.70
Virtually all states have established sex offender registries (FindLaw, 2013) in which both adults and minors convicted of engaging in sex with a minor may be included as registered sex offenders, in some states for life. Federal law requires states to include minors convicted of sex offenses in their sex offender registries in certain specified circumstances.71 The committee believes that minors who are prosecuted for engaging in prostitution should not be registered as sex offenders.
Child Abuse Reporting
All states have child abuse reporting laws, as they are required to do under CAPTA.72 The Department of Health and Human Services has established a searchable database of these state child abuse reporting laws (Child Welfare Information Gateway, 2013).
The terms of child abuse reporting statutes vary with respect to who is required to report; whether reports are made to child welfare, law enforcement, or both; which types of abuse are reportable; and whether extrafamilial abuse (by third parties) is reportable. In about one-third of states, for example, acts are reportable under the child abuse reporting law only if they are committed by a parent, guardian, custodian, or other person responsible for the child; thus sexual acts with a minor may violate the state’s criminal laws, but not be reportable as child abuse unless committed by a parent or responsible caretaker (Glosser et al., 2004, p. 10). Even in states where sexual acts with a minor may be reportable if committed by someone other than a parent or caretaker, the other requirements vary
70Ariz. Rev. Code 13-705, 13-1307.
71Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. 16901-16929.
7242 U.S.C. 5106a(b)(2)(B).
widely, which may limit the application of child abuse reporting laws to instances of commercial sexual exploitation and sex trafficking of minors. For a discussion of the legal and ethical complexities of including commercial sexual exploitation and sex trafficking in mandatory child abuse reporting laws, see Box 1-2 in Chapter 1.
Every state includes some categories of sexual abuse or sexual assault in its child abuse reporting laws. Almost all states explicitly include within their definition of child abuse or sexual abuse the term “sexual exploitation,” which often encompasses inducing or enticing a child into prostitution (Child Welfare Information Gateway, 2013); however, the definitions of this term vary. Thus in some states, the definitions of reportable abuse cover most or all forms of commercial sexual exploitation and sex trafficking of minors, and in some they do not. In at least one state, Massachusetts, the definitions applicable to the child abuse reporting law recently were amended to include a broad definition of “sexually exploited child.” This definition incorporates a wide range of state and federal crimes, including sexual servitude and sex trafficking, along with such acts as offering to “engage in sexual conduct with another person in exchange for a fee . . . or in exchange for food, shelter, clothing, education, or care.”73
In many states, not all sexual acts with minors that are illegal under the criminal code fall within the definition of sexual abuse or sexual assault and are reportable under the child abuse reporting law. This is the case most commonly in states where child abuse reporting is mandated only for acts of parents, guardians, or caretakers.
The application of child abuse reporting laws to the sexual conduct of minors may discourage them from seeking health care that is essential to address the adverse health consequences of their sexual activity (see Chapter 3), or discourage traffickers and other exploiters from bringing exploited children and adolescents with health care needs to an emergency room or other medical facility or otherwise allowing them to access health care (English and Teare, 2010). Similar questions about the implications for victims and health care providers have been raised in connection with domestic violence, so resources from the domestic violence field could be instructive in addressing such concerns (Futures Without Violence, 2013).
In recent years, reporting of the sexual activity of minors has become a program requirement for the federal Title X Family Planning Program (IOM, 2009). This requirement has raised both potential conflicts with medical confidentiality laws that protect children and adolescents and ethical conflicts for health care professionals (American Academy of Family Physicians, 2004). Every state, as discussed below, has laws that allow minors to seek health care related to sexual issues such as sexually transmit-
73Mass. Gen. Laws Ch. 119 21, 51A.
ted infections or contraception. Their treating health care professionals are generally required to keep information about such visits confidential as a matter of law and ethics. However, conflicts may arise if, in taking a comprehensive health history, health care professionals learn information about an adolescent patient’s sexual activity that they are also legally required to report as child abuse.
Victims and survivors of commercial sexual exploitation and sex trafficking have extensive needs for health care services, as discussed in Chapters 3 and 7. Their access to health care is influenced by a variety of state laws, including both those related to the funding of health care and those related to consent and confidentiality. Many of those state laws are affected in turn by the Patient Protection and Affordable Care Act of 2010 (ACA)74 and its implementation (English and Teare, 2010). For example, many victims and survivors are financially eligible for Medicaid or the Children’s Health Insurance Program (CHIP) (Heberlein et al., 2012), especially following expanded eligibility resulting from implementation of the ACA, but they will have difficulty applying without considerable assistance, especially if they are disconnected from their families (English and Halley, 2009). Medicaid and CHIP eligibility rules and other requirements are determined by a combination of federal and state statutory and regulatory provisions. Victims and survivors who have been in foster care are likely to be eligible for and enrolled in Medicaid, but that eligibility may lapse if they run away from foster care or age out, although the ACA includes a provision requiring states to extend Medicaid coverage to former foster children up to age 26 beginning in 2014 (English, 2010). Even if their eligibility does not lapse, enrolling in Medicaid or CHIP or maintaining their Medicaid or CHIP enrollment status can require frequent interactions with a state or local agency, a challenging task for a young victim/survivor. The ACA also includes provisions requiring states to conduct special outreach and enrollment efforts for vulnerable populations,75 but without significant assistance, minors who are victims/survivors of commercial sexual exploitation and sex trafficking are still likely to encounter significant challenges to enrolling.
Not all victims and survivors are enrolled in Medicaid or CHIP, and those who are not must rely for health care on programs that serve vulner-
74Patient Protection and Affordable Care Act (PPACA, Public Law 111-148, March 23, 2010), as amended by the Health Care and Education Reconciliation Act (Recon. Act, Public Law 111-152, March 30, 2010).
7542 U.S.C. 1397aa.
able and uninsured populations. Some states use moneys from the state general fund to pay for health care services for vulnerable populations. In other situations, state funds are used to supplement or complement federal block grant funds. Thus some health care services delivered at the local level—including Title X family planning programs, community health centers, and Health Care for the Homeless sites, among others—are funded in whole or in part under federal funding statutes in combination with state funding statutes.
Laws allowing minors to consent for their own health care exist in every state, but the terms of those laws vary among states (English et al., 2010). The specific terms may affect the ability of victims and survivors to receive the health care they need. For example, about a dozen states explicitly allow minors to consent for their own health care on the basis that they are living apart from their parents, but other states do not. Also, every state has laws allowing minors to consent for specific services, such as diagnosis and treatment of sexually transmitted infections or substance abuse problems, but to be effective, these consent laws must dovetail with the laws that ensure financial access to needed services.
Confidentiality protections for the health information of minors are determined by a complex combination of federal and state laws. The federal laws include the privacy regulations issued under the Health Insurance Portability and Accountability Act,76 the confidentiality regulations for the Title X Family Planning Program,77 and the privacy rules for federal drug and alcohol programs.78 The state laws include a wide range of medical privacy laws, evidentiary privileges, and funding statutes.
The specific provisions that are applicable in individual states may affect the willingness of victims and survivors to seek care and/or their ability to receive care with protection of their privacy. For example, a survivor may be able to consent for diagnosis and treatment of a sexually transmitted infection, but the medical history taken may result in reporting of the sexual activity in which she/he was involved under the child abuse reporting laws, thus abrogating confidentiality protection for the care received.
Child Welfare and Foster Care
Every state has statutes that establish juvenile court jurisdiction over abused and neglected (dependent) children. Dependency statutes generally apply in cases that have come to the attention of child welfare/child protection through a child abuse report, although voluntary surrender of children
7645 C.F.R. Parts 160 and 164.
7742 U.S.C. 300 et seq. 42 C.F.R. Part 59.
7842 C.F.R. 2.11 et seq.
by their parents and other mechanisms may apply. Once a juvenile court has issued an order that a minor falls under the court’s dependency jurisdiction, the disposition may be to return the minor to her/his home with supervision, or place her/him in a foster or group home. For older adolescents, beginning at about age 16, “independent living” arrangements—in which foster youth live in more loosely supervised settings, such as an apartment, to begin the transition to discharge from foster care—may be the “placement.” Some states end dependency jurisdiction at age 18, but some extend it beyond age 18 to age 19, 20, or 21; foster care placement beyond age 18 usually depends on the voluntary agreement of the young person and a finding by the court that continued placement is in the youth’s best interest (Peters et al., 2008). The option of remaining in foster care beyond age 18 may be important for some young survivors to provide them with needed support while they are establishing a stable life apart from the “sex trade,” but only if the child welfare system is prepared to meet their specific needs (Hobson, 2012). (See the discussion in Chapter 6.)
Child welfare and dependency statutes were not designed to address commercial sexual exploitation or sex trafficking of minors. As a result, many state and local child welfare agencies are unprepared to respond appropriately to victims and survivors and provide them with the services they need. Nevertheless, many victims of commercial sexual exploitation and sex trafficking may already be in the child welfare system, and with the enactment of safe harbor laws, increasing numbers of victims may be entering the child welfare system.
A few states have begun to enact laws that require their child welfare agencies to address the needs of sexually exploited children. For example, Massachusetts’ human trafficking law, enacted in 2011, requires the Department of Children and Families, in collaboration with the Department of Mental Health and other state agencies, to provide for the child welfare service needs of sexually exploited children, including requiring that these children have access to an advocate.79 The Massachusetts law also requires the Department of Children and Families to recognize that sexually exploited youth have separate and distinct service needs according to gender and to make appropriate services available while ensuring that a continuum of services exists.80 This Massachusetts statute is noteworthy yet atypical among current state human trafficking laws in the extent to which it details specific responsibilities of the state child welfare system deemed necessary to meet the needs of sexually exploited and trafficked children. It may be indicative of an impending trend as increasing numbers of states enact safe harbor laws, as discussed later in this chapter.
79Mass. Gen. Laws ch. 119 39k.
80Mass. Gen. Laws ch. 119 39k.
Education, Housing, and Employment
The long-term prospects for young victims and survivors of commercial sexual exploitation and sex trafficking almost certainly depend not only on the outcome of their direct encounters with the legal system but also on the extent to which they can access a range of essential services, as discussed in other chapters of this report. These services include, among others, health care (discussed above and in Chapter 7), education (Chapter 8), housing (Chapter 6), and employment. Very few state laws directly address the provision of these services to minors who are victims and survivors of commercial sexual exploitation and sex trafficking. Also limited in number are state laws addressing the education, housing, and employment needs of vulnerable youth generally. The committee notes that further attention is needed to the intersection of laws and the education, housing, and employment needs of both minors vulnerable to commercial sexual exploitation and sex trafficking and minors who have been exploited and trafficked. This attention could include further research aimed at understanding the role of these services in preventing commercial sexual exploitation and sex trafficking of minors and in ensuring positive outcomes for victims and survivors, as well as enactment of state laws to support the delivery of these services to at-risk and exploited minors.
Safe Harbor Laws
As discussed earlier, minors in the United States who are victims of commercial sexual exploitation and sex trafficking often are arrested and treated as perpetrators under state criminal and juvenile delinquency laws that make a wide variety of sexual offenses illegal (Fassett, 2012; Guymon, 2012; Nasser, 2012). Although victims themselves, these youth may be subject to arrest, detention, adjudication or conviction, commitment or incarceration, and permanent records as offenders. A small but growing number of states have enacted laws designed to redirect young victims of sexual exploitation and sex trafficking away from the criminal or juvenile justice system and into the child welfare system or to other agencies to receive supportive services. Several states have enacted laws that to a greater or lesser degree fall under the umbrella term “safe harbor” laws.
These states include Connecticut,81 Florida,82 Illinois,83 Massachusetts,84 Minnesota,85 New York,86 Vermont,87 and Washington.88 Texas has followed suit through judicial decision, with the Texas Supreme Court having stated that the notion “that the juvenile justice system is the only portal to such services for children [who are commercially sexually exploited] . . . is simply not true.”89 A growing number of states are considering the enactment of safe harbor laws and some pending bills may have been enacted prior to publication of this report. As of April 2012, such legislation was pending in Hawaii and New Jersey. Some states in addition to this group have enacted specific provisions in their statutes that offer one or more of the same protections to minor victims as are contained in some of the safe harbor laws (e.g., coercion as an affirmative defense for a charge of prostitution). Because those provisions were not enacted as part of an overall safe harbor framework, they are not discussed here.
There is no fixed legal definition of a safe harbor law. The term emerged when New York enacted the first such law in 2008 and has been applied to several other state laws enacted since then. Several organizations have developed guidelines for drafting legislation of this type. One such set of guidelines recommends that any safe harbor law at a minimum do at least three things: prevent minor victims of sex trafficking from being prosecuted for prostitution, ensure that coercion is not required to prosecute sex traf-
81An Act Providing a Safe Harbor for Exploited Children, 2010 Conn. Public Act 10-115, (Feb. Session), Jun. 7, 2010, amending Conn. Gen. Stat. 53a-82, 53a-84, 53a-86, 53a-87.
82Florida Safe Harbor Act, 2012 Fla. Ch. No. 2012-105, April 13, 2012, amending Fla. Stat. 39.001, 39.01, 39.401, 796.07, and adding Fla. Stat 39.524, 409.1678.
83“Illinois Safe Children Act” (not official legislative title), Ill. Public Act 96-1464, Aug. 20, amending, inter alia, 325 Ill. Comp. Stat. 5/3; 705 Ill. Comp. Stat. 405/2-3, 2-18; 720 Ill. Comp. Sat. 5/11-14, 11-14.1, 11-14.2, 11-15, 11-15.1, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1, 11-19.2, 14-3; and adding 720 Ill. Comp. Stat. 5/11-19.3.
84An Act Relative to the Commercial Exploitation of People, 2011 Mass. Acts Ch. 178, Nov. 21, 2011, amending, inter alia, Mass. Gen. Laws ch. 6 178C; ch. 119 21, 51A, 51B, 51D, 55B, 58; ch. 265 24C; and adding Mass. Gen. Laws ch. 119 39K, 39L; ch. 265 26D, 49-57; ch. 272 8 (new), 53A (new).
85Sexually Exploited Youth, 2011 Minn. Chapter Law 1, Art. 4-5, Jul. 20, amending, inter alia, Minn. Stat. 260B.007(6), (16); 260C(6), (11); 609.3241, 626.558(2a).
86Safe Harbour (sic) for Exploited Children Act, 2008 N.Y. Laws, Ch. 569, 1, adding N.Y. Soc. Serv. Law 447-a and 447-b, and amending N.Y. Fam. Ct. Act, 311.4, 712, 732.
87An Act Relating to Human Trafficking, 2010 Vt. Act No. 55, adding Vt. Stat. Ann., tit. 13, ch. 60; and amending, inter alia, Vt. Stat. Ann., tit. 13 9, 3255, 4501, 5301, 5401, 7043.
88An Act Relating to Sex Crimes Involving Minors, 2010 Wash. Laws Ch. 289, Apr. 1, 2010, amending, inter alia, Wash. Rev. Code 13.32A.030, 7.68.070, 13.40.070, 13.40.213, 988A.140, 9.68A.100, 9.68A.101, 9.68A.105, 9.68A.110, and 43.63A.740; reenacting and amending Wash. Rev. Code 9.94A.515; adding new sections to Wash. Rev. Code Ch.13.32A; adding new sections to Rev. Code Wash. Ch. 13.40; adding a new section to Wash. Rev. Code Ch. 74.15.
89In the Matter of B.W., 313 S.W.3d 818, *; 2010 Tex. LEXIS 446, **; 53 Tex. Sup. J. 854.
ficking of children, and protect child victims of sex trafficking by providing them with special services (Polaris Project, 2013a).
The safe harbor laws that have been enacted vary with respect to a wide variety of factors, including, for example, who is covered under the law and up to what age; what type of protection the law provides (e.g., automatic diversion or referral to services on proof of age, or an affirmative defense that the adolescent has the burden to establish); how the treatment of adolescents differs based on whether the law applies to them; the relationship that is established among juvenile justice, criminal justice, and child welfare laws and agencies; the services, if any, that the law provides for; and whether the law includes any new funding for services. Table 4-1 provides a comparison of the provisions of the various safe harbor laws.
As discussed earlier in the section on federal law, the TVPA reauthorization of 2013 contains a mandate to include safe harbor provisions in a model state law. This step may add further impetus to state efforts to adopt safe harbor laws and ensure greater consistency among state safe harbor provisions.
While recognizing that additional time and research are needed to assess the effectiveness of specific state safe harbor laws, the committee believes that the core principle underlying such laws—that children and adolescents who are survivors of sexual exploitation and sex trafficking must be treated as victims and not criminals—should be advanced without delay. In doing so, a variety of approaches should be considered. For example, the committee believes that careful consideration is warranted of alternative approaches to arrest and prosecution, including not only diversion, but also decriminalization of prostitution for young victims. The committee believes further that, in light of the trauma typically suffered by minors who are victims of these crimes, states should consider carefully the appropriateness of imposing certain burdens on these minors (e.g., making minor status an affirmative defense that the victim must establish), work to ensure that adequate shelters and services are available for victims/survivors who are diverted from the criminal justice system, and provide appropriate training to relevant personnel.
INTERPRETATION AND USE OF LAWS
As reviewed in this chapter, a plethora of federal and state laws can be useful in addressing commercial sexual exploitation and sex trafficking of minors. Some of these laws directly address an aspect of the problem, while the relevance of others is indirect but potentially quite significant. For example, federal and state laws that criminalize sex trafficking of minors and provide for the prosecution and punishment of perpetrators obviously are central to any societal response. Less clearly applicable are laws allowing
minors to consent for their own health care or providing Medicaid coverage for vulnerable youth, although these laws could play an important role in efforts to provide comprehensive services to victims and survivors.
Some of these laws are overlapping, or even conflicting, and gaps exist between others. Overlaps and conflicts are especially possible with the criminal laws: relevant laws exist at the federal, state, and local levels. In cross-border sex trafficking cases that involve more than one state, for example, the interpretation and use of state or federal law can raise difficult questions—sometimes jurisdictional issues exist between agencies in two or more states, and the child slips through the cracks and ends up back with his or her trafficker or exploiter. Jurisdictional issues may arise even within a single state—violations of state law are prosecuted by local district attorneys, and a child may have been trafficked or exploited in more than one county. Questions also arise with respect to whether it is more advantageous to prosecute a case under federal or state law or which of several potentially applicable laws should be applied.
Resolving these issues will entail considerations of cost and resources, as well as which laws are more likely to lead to a conviction or the imposition of higher penalties. The committee recognizes that in some jurisdictions, agencies at the federal, state, and local levels have worked together on these issues in recent years, but emphasizes the importance of ensuring that every jurisdiction addresses these coordination issues to ensure effective responses to the commercial sexual exploitation and sex trafficking of minors. (See discussion in Chapter 10.)
Other issues of interpretation arise with respect to the application of laws that were not originally enacted to apply to cases of commercial sexual exploitation or sex trafficking of minors. In approximately one-third of states, for example, the child abuse reporting laws apply only to intrafamilial abuse, and thus would not appear to encompass exploitation or trafficking by a non-family member. Even when the reporting laws apply to abuse by non-family members, the consequences of a report may or may not be well tailored as a response in sexual exploitation or trafficking cases, such as when a report is required to go to a child welfare agency, but the state’s child welfare laws are not structured for an appropriate response to these cases. Additional challenges arise in the context of mandatory reporting, and studies of compliance with child abuse reporting laws have documented the complex reasons why professionals who are mandated reporters sometimes do not make required reports. (Additional discussion of mandatory reporting is included in Chapter 1 [see Box 1-2].)
Further research is required on states’ child abuse reporting laws and child welfare agency services to examine whether child welfare agencies have the necessary resources and are adequately prepared to meet the needs of minors who are victims and survivors of commercial sexual exploitation
TABLE 4-1 State Safe Harbor Statutes
|State (Title of Law)||Year Enacted||Age/Eligibility||Definitions|
|Connecticut (An Act Providing a Safe Harbor for Exploited Children)||2010||Covers minors under age 16; limited application to minors aged 16 and 17|
|Florida (Florida Safe Harbor Act)||2012||Covers minors under age 18 who meet the definition of dependent child and who are not under arrest or being prosecuted for certain prostitution-related offenses that involve the exploitation of other minors||Definition of “dependent child” is amended to include sexually exploited child and sexually trafficked child|
|Type of Protection||Services Provided||Other Requirements|
|No prosecution for prostitution of minors under age 16; coercion is an affirmative defense to a charge of prostitution for individuals of any age; coercion is presumed for minors aged 16 and 17, and prosecution must prove beyond a reasonable doubt that the minor was willing and not coerced in order to override the defense||Pursuant to a child welfare agency protocol (not part of the Safe Harbor for Exploited Children Act), law enforcement informs child welfare when a child is suspected of being a victim of commercial sexual exploitation; law enforcement and child welfare collaborate on investigation, and child welfare determines next steps re placement and services||Penalties of 1 to 20 years in prison for “promoting prostitution” of minors aged 17 and younger, including a provision that 9 months of the prison sentence may not be waived or reduced; perpetrators of promoting prostitution, patronizing a prostitute, or permitting prostitution cannot assert defense based on the child’s inability to be prosecuted|
|Sexually exploited minor to be treated as a dependent child and not as a delinquent||Law enforcement to refer a child suspected of being sexually exploited to child welfare; placement in a “short-term safe house” pending determination of whether the child has been sexually exploited; short-term safe house to provide shelter, food, clothing, medical care, counseling, and crisis intervention; child found to be sexually exploited is placed in a safe house if determined appropriate after comprehensive assessment; safe house to provide a broad range of comprehensive services||Penalties for individuals selling sex with others (pimps) increased from $500 to $5,000, to be used primarily for safe houses; sexually exploited children are eligible for victim compensation funds|
|State (Title of Law)||Year Enacted||Age/Eligibility||Definitions|
|Illinois (“Illinois Safe Children’s Act”) (not official title of legislation)||2010||Covers minors under age 18||Definition of “abused child” in the child abuse reporting law and Juvenile Court Act is amended as follows: “‘Abused child’ means a child whose parent or immediate family member, or any person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent: . . . (h) commits or allows to be committed the offense of involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons for forced labor or services”|
|Type of Protection||Services Provided||Other Requirements|
|No prosecution for prostitution for minors under age 18; length of “reasonable detention” of an exploited or trafficked minor by law enforcement for investigative purposes is limited to 48 hours (per prior case law and regulations); thereafter, a sexually exploited or trafficked minor may be placed in “temporary protective custody” in a medical facility or other child welfare placement, such as a foster home or group home, but shall not be placed in a jail or place of detention for other criminal offenders (per previously existing statutory definition)||Notification of child welfare is required when law enforcement takes a minor into custody for a prostitution offense; funding for services is provided from vehicle impoundment fees to survivors of human trafficking and prostitution||Increased penalties for various offenses by purchasers of sex and other exploiters and traffickers (“pimps”); for offenses of keeping a place of juvenile prostitution or juvenile pimping, no affirmative defense is allowed that the accused believed the victim was at least age 18 unless the accused did not have an opportunity to observe the victim|
|State (Title of Law)||Year Enacted||Age/Eligibility||Definitions|
|Massachusetts (An Act Relative to the Commercial Exploitation of People) (comprehensive human trafficking law)||2011||Covers minors under age 18||Definition of “sexually exploited child” includes a victim of sex trafficking under federal law or sexual servitude under state law, or one who has engaged in an act of prostitution under state law or is a victim of inducing a minor into prostitution; definition of “child in need of services” is amended to include a sexually exploited child; list of abuses subject to mandatory reporting is amended to include sexually exploited children; “appropriate services” are defined as assessment, planning, and care, including food, clothing, medical care, counseling, and appropriate crisis intervention services provided by an agency, organization, or entity with expertise in providing services to sexually exploited children or children who are human trafficking victims|
|Minnesota (Sexually Exploited Youth)||2011||Covers minors under age 16; limited application to minors aged 16 and 17||Definition of “delinquent child” is amended to exclude sexually exploited children under age 16 (effective 2014); definition of “dependent child” (“child in need of protection or services”) in the child protection code is amended to include sexually exploited youth, who are defined as children alleged to have engaged in prostitution, sex trafficking victims, and other categories of exploited youth (effective 2011)|
|Type of Protection||Services Provided||Other Requirements|
|Coercion is an affirmative defense for a charge of prostitution when the defendant is a victim of human trafficking; a minor may be charged with prostitution, but in a delinquency or criminal proceeding against a minor for prostitution, it is presumed that a “child in need of services” petition* (applicable to minors aged 6-18 who are runaways, beyond parental control, or truants) will be filed on behalf of the child (which will redirect the child away from the delinquency/ criminal justice system); a care and protection petition can be filed by a minor or any person; a child in need of services petition can be filed by a police officer or parent||Requirement that “appropriate services” be provided following a child abuse report for a child suspected of being sexually exploited or trafficked or when a sexually exploited child is taken into custody by law enforcement; a sexually exploited child shall have access to an advocate; multidisciplinary service teams with appropriate expertise shall recommend a service plan for a sexually exploited child||Penalties of imprisonment of up to 10 years and a fine of up to $10,000 for buying or selling sex with a minor under age 18; penalties of imprisonment from 5 years (mandatory minimum) to life for trafficking a minor for purposes of sexual servitude|
|Diversion to a service program for 16- and 17-year-olds alleged to have engaged in prostitution for the first time (effective 2014); prosecutorial discretion as to whether to continue diversion for subsequent offenses; children who are involved in prostitution as purchasers or traffickers remain subject to delinquency jurisdiction; sexually exploited children under age 16 no longer are subject to delinquency jurisdiction for prostitution||Commissioners of public safety, human services, and health and other stakeholders are charged with developing a victim services model to address needs of sexually exploited and at-risk youth (dependent on donation of sufficient funds from outside sources); multidisciplinary outreach to sexually exploited and at-risk youth is authorized||Penalties for buyers of adult prostitution are increased to between $500 and $750, with 40 percent of penalties going to a “Safe Harbor for Youth” account to pay for services for sexually exploited youth|
|State (Title of Law)||Year Enacted||Age/Eligibility||Definitions|
|New york (Safe Harbor for Exploited Children Act)||2008||Covers minors under age 18; limited protection for minors ages 16 and 17||Definition of “sexually exploited child” includes minors under age 18 who are victims of sex trafficking, are victims of the crime of compelling prostitution, or engaged in prostitution offenses|
|vermont (An Act Relating to Human Trafficking) (comprehensive human trafficking law)||2011||Covers minors under age 18|
|Type of Protection||Services Provided||Other Requirements|
|Minors under age 18, including minors ages 16 and 17, suspected of prostitution may be diverted to Family Court; Penal Code allows minors ages 16 and 17 to be prosecuted for prostitution in criminal court as adults; protection from prosecution limited to first-time offenders who meet federal criteria for a severely trafficked person and cooperate with law enforcement; if a minor is charged with prostitution, it is presumed that the minor meets federal criteria for a severely trafficked person; a “person in need of supervision” petition is substituted for a delinquency petition unless the minor does not meet criteria||“Safe houses” (as defined) to be available for sexually exploited youth; an advocate is to be provided for a sexually exploited youth in a safe house; safe houses are to assist sexually exploited youth in securing needed services; social services districts are to develop consolidated plans for addressing the needs of sexually exploited youth|
|Minors have immunity from prosecution for prostitution in criminal court but may be subject to either a delinquency or dependency petition; being a victim of trafficking is an affirmative defense for sex-related offenses; force, fraud, or coercion is not required to establish that a minor is a victim of trafficking; a minor who is a victim of sex trafficking shall not be found to be in violation as delinquent of the offense of prostitution||Vermont Center for Crime Victim Services may convene a task force to develop a statewide protocol for providing services for victims of human trafficking; may enter into contracts to develop services||Mandatory minimum sentence of 20 years for sex trafficking of a minor|
|State (Title of Law)||Year Enacted||Age/Eligibility||Definitions|
|Washington (An Act Relating to Sex Crimes Involving Minors)||2010||Covers minors under age 18||Abuse or neglect defined to include sexual exploitation by any person; “child in need of services” defined to include a sexually exploited child; “sexually exploited child” defined to include a minor under age 18 who is a victim of commercial sex abuse of a minor, promoting commercial sex abuse of a minor, or promoting travel for commercial sex abuse of a minor|
NOTES: Texas addressed this issue through a judicial decision, In the Matter of B.W., 313 S.W.3d 818 (Tex. 2010). Every state has statutes providing for juvenile court jurisdiction over children who are “dependent” or “delinquent.” The specific terms used to refer to these categories vary significantly from state to state. The term “dependent” generally refers to children
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. The committee cautions that adopting a universal reporting requirement without ensuring the adequate preparation of child welfare agencies may have unintended consequences that are harmful to the vulnerable children that the laws are designed to assist, as discussed in Chapter 1.
Even before issues of the use and interpretation of laws can be identified and resolved, other obstacles must be overcome. The committee has noted the absence of a comprehensive source at the federal or state level for identifying all the relevant services available to address the needs of victims and survivors of commercial sexual exploitation and sex trafficking of minors. If the committee had difficulty identifying the laws providing for
|Type of Protection||Services Provided||Other Requirements|
|Mandatory diversion for first prostitution-related offense by a minor; “child in need of services” petition may be used to detain a sexually exploited child in a secure or semisecure crisis residential center with staff experienced in working with sexually exploited youth for up to 15 days without criminal charges being filed||Prostituted minor may receive compensation from a victims fund, which can be used to pay for needed services even if the minor is also charged with prostitution||Not knowing victim’s age is not a defense for buyers and traffickers; increased fines for buyers and traffickers of minors to be deposited in a “Prostitution Prevention and Intervention Account,” which can be used to fund programs that provide mental health and substance abuse counseling, housing relief, education, and vocational training for youth who have been diverted for a prostitution offense; services are provided to sexually exploited children in secure and semisecure crisis residential centers with staff trained to meet their specific needs; other services are provided for sexually exploited children|
who have been abused or neglected; the term “delinquent” generally refers to children who have committed acts that would be crimes for adults.
*Legislation passed in 2012 that changed “child in need of services” to “child requiring assistance” mistakenly failed to include “sexually exploited child” in the definition of “child requiring assistance”; corrective action is pending.
such services, minors and their service providers and advocates are likely to have equal or greater difficulty in doing so.
STRENGTHS AND LIMITATIONS OF CURRENT LAWS
The current federal and state laws reviewed in this chapter have both strengths and limitations. Federal law on sex trafficking of minors has been strengthened significantly since 2000. A number of challenges that arose in early cases have been addressed in the law. Federal law now allows for substantial sentences for perpetrators of such exploitation of minors, although actual sentences vary significantly. In addition, amendments to relevant law have facilitated prosecutors’ ability to secure convictions of traffickers and others who commercially sexually exploit 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 locations, 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 trafficking can still be arrested and prosecuted as criminals, rather than being assured of being treated as victims. Even in instances where charges are reduced to status offenses, responses still fall short of recognizing and treating such children as victims of exploitation rather than as offenders. In addition, 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 funding 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 respect to the past and future implementation of federal and state laws related 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
to scale. The Office of Juvenile Justice and Delinquency Prevention is funding 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 federal government for the lack of evaluation of its global programs, but similar 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 issues. Because commercial sexual exploitation and sex trafficking are clandestine 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 community. 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 government has provided some data on total numbers of individuals trained, it is unclear what those numbers mean in terms of overall progress in training 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 initiatives. (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 criticized 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 exploitation and sex trafficking of minors most directly—human trafficking and safe harbor laws—are too new to know where the greatest challenges
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 committee’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 justice 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 committee 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 provided 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 significant 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
90Council of Europe Convention on Action against Trafficking in Human Beings, art. 13 (2005).
their core principle—that children and adolescents who are survivors of commercial sexual exploitation and sex trafficking must be treated as victims 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 apprehend 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 sectors, 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:
|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 commercial 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 comprehensive response to these problems.
|4-4||The absence of a comprehensive source of information identifying the services for victims and survivors established or funded by federal and state law presents obstacles for children and adolescents 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 individuals who purchase sex with a minor, function as pimps, operate 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” children and adolescents who have been sexually exploited and trafficked from future contact with and pressure from their exploiters 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|
|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, policies, 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 implementation 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 victimized 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 children and adolescents are in fact victims of commercial sexual exploitation or sex trafficking.
|4-14||Children and adolescents exploited in the commercial sex industry 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 customers, 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.
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ACF (Administration for Children and Families). 2012. Contact information for coalitions. http://www.acf.hhs.gov/programs/orr/resource/contact-information-for-coalitions (accessed April 10, 2013).
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