EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, November 22, 2017

Cyntoia Brown and Prostitution Safe Harbor Laws for Minors

I've been getting a lot of questions about Cyntoia Brown

Brown, now 29, was a 16-year-old victim of sex trafficking in Tennessee in 2004 when she fatally shot Johnny Mitchell Allen, a 43-year-old real estate agent who solicited sex from her, according to court documents and multiple local reports. Brown — who admitted she killed Allen by shooting him in the back of the head — becomes eligible for parole soon after she turns 69.

In 2011, director Daniel Birman chronicled Brown's story in the documentary Me Facing Life: Seeking Redemption In Cyntoia Brown's Story. "The film gave insight on the physical, sexual and verbal abuse Brown suffered as a child before she was solicited for sex by 43-year-old realtor Johnny Mitchell Allen."


Brown has completed her associate's degree and is now working on her master's. In December 2016, pictures of her receiving her associate's from Lipscomb University's in-jail program showed a hopeful Brown.

Cyntoia Brown's case calls into question several aspects of the criminal justice system. The first that I want to address is safe harbor laws limiting the criminal liability of minors who are arrested for prostitution.

In addition to being convicted of first-degree murder, Cyntoia Brown was also convicted of prostitution. After Brown's conviction, however, Tennessee altered its prostitution statute so that minors can't be convicted of violating it. Now, Section 39-13-513(d) of the Tennessee Code states that

Notwithstanding any provision of this section to the contrary, if it is determined after a reasonable detention for investigative purposes, that a person suspected of or charged with a violation of this section is under eighteen (18) years of age, that person shall be immune from prosecution for prostitution as a juvenile or adult. A law enforcement officer who takes a person under eighteen (18) years of age into custody for a suspected violation of this section shall, upon determination that the person is a minor, provide the minor with the telephone number for the national human trafficking resource center hotline and release the minor to the custody of a parent or legal guardian.

The impetus for this "safe harbor" provision was the federal Trafficking Victims Protection Act of 2000 (TVPA). While state laws at the time allowed for the prosecution of minors for prostitution, the TVPA 

establishe[d] that any individual under age eighteen who engages in commercial sex is a victim of sex trafficking. Thus, the same seventeen-year-old who would be treated by state law as a criminal deserving punishment is viewed by federal law as a victim of sex trafficking entitled to protection. Susan Crile, Comment, A Minor Conflict: Why the Objectives of Federal Sex Trafficking Legislation Preempt the Enforcement of State Prostitution Laws Against Minors,  61 Am. U. L. Rev. 1783, 1786-87 (2012).


Since the passage of the federal TVPA, ten states have enacted some form of legislation limiting the criminal liability of minors who are arrested for prostitution: Connecticut, Illinois, Massachusetts, Michigan, Minnesota, New York, Ohio, Tennessee, Vermont, and Washington. These laws, which are often referred to as Safe Harbor laws, vary in scope; however, each requires that some category of prostituted minors be removed from delinquency or criminal court proceedings and diverted instead to social services, such as psychological counseling or long-term housing. Id. at 1792.

Tennessee's is probably the most favorable for minors. It immunizes juveniles up to the age of 18 and requires the law enforcement officer to "provide the minor with the telephone number for the national human trafficking resource center hotline and release the minor to the custody of a parent or legal guardian."

Conversely, "[i]n states like Texas and Michigan, law enforcement officers use age of consent, which can be set as low as fourteen or sixteen, to evaluate whether a minor was sexually exploited, leaving those above that age without protection and subject to the justice system." Kajal Patel, Note, Child prostitutes or sexually exploited minors: The deciding debate in determining how best to respond to those who commit crimes as a result of their victimhood, 2017 U. Ill. L. Rev. 1545, 1556-57 (2017). And then there's New York's law, which gives a minor immunity from a prostitution prosecution but gives the court discretion to allow such a prosecution if, inter alia, "the respondent has been previously adjudicated as a juvenile delinquent."

And then, of course, there are the states that don't have safe harbor provisions at all. At the time of Susan Crile's comment in 2012, there were 10 states with such provisions. According to this article

As of August 2013, 18 states have enacted some form of “safe harbor” legislation—laws that mandate that law enforcement agencies treat these young people as victims, rather than as perpetrators of their own crimes.

But that still leaves a large number of states in which all minors can be convicted of prostitution, and even states like Texas and Michigan allow for individuals under the age of 18 to be prosecuted for prosecution. So, where does that leave us number-wise? The most recent data comes from the Federal Bureau of Investigation’s Uniform Crime Reports:

According to the 2010 arrest table by sex, about 31 percent of [prostitution] arrests were males, while females made up almost 69 percent. It would seem that arrested prostitutes far outnumber pimps and johns. When the breakdown is by age, 804 minors under the age of 18 were arrested for prostitution..., and of those, 91 were under the age of 15. The arrest by state table shows California had the most, with arrests of minors under 18 with 363, Texas followed with 92, Nevada had 52, Florida had 46 and Washington state rounded out the top five with 33.

It seems to me like the Tennessee approach is the right way to go. As the Supreme Court's classic 1932 opinion in Gebardi v. United States, 287 U.S. 112 (1932), instructs us, it all comes down to how we construe prostitution statutes. With regard to minors under the age of 18, 17, or even 16, are they potential perpetrators of prostitution, or are they part of the class of citizens whom prostitution statutes are designed to protect? I think the clear answer is the latter, and I expect more and more states to follow suit in the near future.



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