Saturday, October 3, 2015
Cynthia Goode (Brooklyn), Punishment as Protection, Houston Law Review, forthcoming
Each year, thousands of girls are prosecuted, and often incarcerated, for prostitution. Indeed, prostitution is the only crime for which girls are the majority of juveniles arrested. Why are girls below the age of consent victims of statutory rape when they have sex, yet become offenders if they are paid?
This differential treatment cannot be justified on retributive or consequential grounds, as prostituted girls inflict only self-harm, usually deemed illegitimate grounds for criminal sanctions, and punishment does not deter their conduct. Criminal sanctions are not only unjustified, but counter-productive. They result in great harms to the individual girls and have not decreased the scope of juvenile prostitution. In short, the cure is worse than the ill.
This Article examines the persistence of this criminalization model and argues that the protectionist rationale offered is pretextual, cover for moralism. Entering ‘the life’ at an average age of thirteen, most of these girls have experienced abuse or family trauma. They are also victims under trafficking and statutory rape laws. Nonetheless, studies report that police see only one in five as a victim. The men who purchase girls for sex are rarely prosecuted. Using a historical lens, this Article argues that this punitive paternalism is the current incarnation of a long trajectory of regulating adolescent female sexuality via criminalization.
This story of regulation as punishment also offers broader insights into the dynamics and dysfunctions of the criminal law. The high costs of punishment render criminal sanctions an untenable instrument for addressing self-harm or enforcing sexual norms. By punishing the victims and failing to pursue the real offenders, this institutional approach ignores, even normalizes, the commercial sexual exploitation of children. This Article concludes by considering three alternative frameworks for addressing this widespread social problem.