Wednesday, March 9, 2011
Megan Annitto (West Virginia University College of Law) has posted Consent, Coercion, and Compassion: Crafting a Commonsense Approach to Commercial Sexual Exploitation of Minors (Yale Law & Policy Review, Forthcoming) on SSRN. Here is the abstract:
Within 48 hours of running away or being thrown out, a child on the streets will typically be approached for sex in exchange for money or lured into a situation leading to exploitation. There are competing theories about the prosecution of youth for prostitution who are subject to commercial sexual exploitation, or domestic minor sex trafficking, in the United States. Recent developments in juvenile courts and legislatures endeavor to create appropriate responses to eliminate contradiction in the laws. Some states recognize that statutory rape and federal trafficking laws conflict with the prosecution of children for their own exploitation, but most do not. This leaves large numbers of minors charged as criminals and with little access to appropriate medical and psychological care. Related gender and adolescent capacity issues are implicated in this lack of coherence in the law and underlie the current failures. The issue is best understood in light of recent changes in judicial and legislative discourse. There is a split in the two states whose highest courts have ruled on this issue, resulting in a landmark decision by the Texas Supreme Court. In addition, emerging state legislation has taken a new direction to harmonize laws dictating the legal status of these children as survivors in need of treatment instead of as offenders. The Illinois model – the first one of its kind – recently decriminalized children under age 18 who are prostituted, ensuring that they are not treated as criminals under any circumstances. While other state statutory frameworks exist, without clear language, statutes intended to assist children risk being undermined. Legislation that addresses prostitution of youth must be carefully constructed and contain funding provisions in order to have the necessary intended effects. It should focus on comprehensive services with a critical eye on the important distinctions between diversion measures that allow for continued prosecution versus decriminalization. These new judicial and legislative developments provide a model and framework by which states can create effective and consistent responses to the commercial sexual exploitation of minors instead of criminalizing them.