Monday, June 16, 2014
Cynthia Godsoe (Brooklyn Law School) has posted Contempt, Status, and the Criminalization of Non-Conforming Girls (Cardozo Law Review, Vol. 34, p. 1091, 2014) on SSRN. Here is the abstract:
The number of girls arrested and incarcerated is growing at significantly greater rates than that of boys. While boys and girls have very different pathways into the juvenile justice system, the system has been designed and implemented with only boys in mind. Girls’ unique profiles and needs continue to be neglected. The risk factors for girls diverge sharply from those for boys. For instance, the majority of girls in the system have suffered abuse and family trauma. Most girls are arrested and detained for non-violent offenses. They comprise the majority of minors arrested for only two offenses — running away and prostitution. Indeed, a high percentage of girls come into the system for status offenses, conduct that is not criminal, such as truancy or running away. Girls are punished more severely for these non-criminal acts than boys, and even than some girls and boys who commit actual criminal offenses.
A discussion of meaningful systemic justice for adolescents, the subject of this Symposium, must include an examination of justice for girls. Issues to consider include: Why does this “high needs, low risk” population continue to be prosecuted and incarcerated in large numbers? Does criminal action effectively address the victimization that often brings girls into the system? The status offense framework, and its disproportionate use against girls, can offer some insight. Specifically, the malleability of status offense definitions and the related “bootstrapped” incarceration of girls for violating court orders suggest the juvenile justice system is regularly used to regulate girls’ conformity to societal norms, rather than to address crime.
This Article will first outline the status offense system and its gendered nature, both historic and current. It will then unpack status offenses, examining what harms and behaviors they are intended to address, and describing how they frequently operate to transform victimized girls into offenders. The Article will conclude by considering a recent illustration of the use of status offenses to regulate sexual behavior and obedience — New York State’s treatment of commercially sexually exploited children (CSEC). New York and a few other states have decriminalized prostitution for some minors based on their inability to consent to sex under the law. Nonetheless, exploited girls continue to be arrested and detained as status offenders. Failure to comply with the status offender system results in increasingly punitive interventions, rendering decriminalization illusory for many girls.