Nick Confessore, former political blogger and now of The New York Times, says

September 26, 2008

[New York] Gov. David A. Paterson on Friday signed into law a bill shielding sexually exploited girls and boys from being charged with prostitution.

The law, known as the Safe Harbor for Exploited Youth Act, will divert children under the age of 18 who have been arrested for prostitution into counseling and treatment programs, provided they agree to aid in the prosecution of their pimps.

He said it here.

[Via $pread magazine online. —fl]

The law has evidently been held up for year in the New York state legislature by law-n-order types, Senate Republicans and NYC Mayor’s office who believed it would just make it harder to “crack down on prostitution.”

The compromise bill allows charges to be reinstated for child prostitutes who refuse to cooperate with court mandates and also includes a sort of “one strike you’re in” provision where reoffenders just go to jail.**

While I’m actually, eh, sympathetic with qualms that if poorly administered the new law could just provide new avenues for gaming the system, on the other hand system-gaming-wise it’s already pretty much nickel night at the casino. So what’s wrong with attempting an approach that sidesteps that system?

As I’ve mentioned elsewhere there’s a bit of a disconnect between the standard protective impulse “OMG, here’s an underage victim who’s been conscripted into prostitution” and the standard response which is “arrest the little whore.”

Whichever way we might feel viscerally about sex work we can not be proud of the pure oxymoronics of “criminal victim.***” And on the face of it, anyway, this looks like a step away from punishing victims and towards punishing (silly me for asking, I know) the actual criminals in such cases: pimps, traffickers, and customers who buy and sell children’s bodies.****

—-

Next up, one hopes, would be diversion initiatives along Safe Housing / Safe Environments lines? The answer would appear to be… yes. According to a summary of the bill from something called the (randomly via-Google) Polaris Project Action Center there are provisions for…

Safe Houses

• Every local social services district is required to provide a short-term safe house to sexually exploited children who live in its district. In addition to secure housing, the facility should include 24-hour crisis intervention and access to various medical care and other supportive services. Existing resources, including respite beds or runaway and homeless youth programs, can be used if appropriate, and local social service districts may work together to provide these resources on a regional basis.

• The Office of Children and Family Services (OCFS) is required to contract with an appropriate agency with experience working with sexually exploited youth to provide at least one safe house for longer-term care, in a geographic area that would meet the needs of sexually exploited youth and that cannot be readily accessed by perpetrators of sexual exploitation.

Planning
Every local social services district is required to:

• Determine the needs of sexually exploited children in their respective districts;
• Include the determination of the need in the integrated county plan;
• Provide crisis intervention and community-based programs to meet the determined need; and

• Recognize and plan for the separate and distinct needs of girls, boys, and transgendered youth who have been sexually exploited.

Oh, but wouldn’t you know? Perhaps the bigger objections to the bill weren’t so much about about law ‘n order as some people not wanting to pay to do the right thing.

A recent study conducted by the state Office of Children and Families reports that counties are currently not equipped to handle the needs of this victim population. The study, New York Prevalence Study of Commercially Sexually Exploited Children, was released April 18, 2007. It examined 159 agencies from a sample of local departments of social services throughout the state, including New York City. Among its conclusions, the study details the service availability and capacity, as well as the problems preventing local departments of social services from providing the necessary services.

Hmm… should we help victims or lock them away? Yeah, “which one’s cheaper” is always a moral choice.

[** If convicted. If I’m not mistaken one of the big problems for pimped or trafficked sex workers of any age is that their pimps and traffickers a) know the ropes and b) can afford good successful lawyers. —fl]

[*** I believe I’ve mentioned elsewhere my strong preference for a different, more appropriately focused construction… like treating customers of child prostitutes as Level 1 or Level 2 lifetime-registerable child sex offenders. The act, incidentally, mainly covers children under age 16 so “chilling effect” on what really ought to be legitimate adult sex work customers? Not so much. —fl]

[*** Oops, maybe I’m not so happy: Based on Confessori’s article it looks like Bloomberg et.al. pressed for requiring cooperation against traffickers but… as usual no mention of prosecuting the customers of pimps and traffickers. —fl]

Photo by Flickr user lawgeek. Used under a Creative Commons license.

Earlier today I mentioned an article, via Ann Bartow of Feminist Law Professors, about an underage girl from Massachusetts who was being prostituted out of a New Jersey motel room.

Authorities: Kidnapped girl rescued at motel

ABSECON — Police arrested a Vineland man and three other people after a Massachusetts girl called her mother to report she was being held against her will at a White Horse Pike motel.

...

Authorities would[n’t] give the exact age of the victim, or when she was first allegedly kidnapped, stating only that she is under 18.

Source: South Jersey News

Response #2:

I’ve mentioned this elsewhere recently but can anyone explain why let alone pimps and traffickers of the underaged, let alone their customers, shouldn’t spend the rest of their lives on sex-offender registries?

And no, it doesn’t matter whether their prostitution is voluntary or, as in the case of the New Jersey girl, coerced. Nor does it matter that (as Lux Alptraum correctly points out) “...adolescents are not children.” Because as she also points out, neither are they adults.

And yet, as Debra Boyer pointed out in “Who Pays the Price? Assessment of Youth Involvement in Prostitution in Seattle” (pdf)

The routine fine for those arrested for “patronizing” is $500 although the maximum that can be imposed is $1,000.

What’s not just wrong but sick and wrong is that in virtually all instances the penalty for “patrons” of minors is no higher with the result that…

- Customers have no incentive to check. Which is ironic because in cases of non-prostitution “She looked old enough to me” isn’t a defense. It’s also ironic because evidently customers have no qualms, at all, about checking whether a sex-worker is actually an undercover cop.

- There’s no additional penalty for those pimps and traffickers who conscript minors. Which is a particular shame since minors, especially runaway or kicked-out minors, are particularly vulnerable.

- Particularly disturbingly from my perspective is that, evidently, if there are no additional penalties then police and prosecutors evidently have no additional incentive to investigate or bring charges against prostitution, or “patronage” of minors.

- And finally, if “patrons,” pimps, and police aren’t checking ages and responding accordingly then it’s easier for minors themselves to slip into prostitution, either voluntarily or by conscription.

Show of hands, please, if anyone thinks that status quo is just hunky-dory? Didn’t think so. So! WTF?

Actually, three WTFs

1) Why aren’t anti-prostitution activists specifically targeting child prostitution for reasons other than flash or buzz value? (For instance would Professor Bartow have given the New Jersey child case any attention at all if she wasn’t pushing to extend TVPA coverage to all adults?) It seems to me that even if you wanted to stop all prostitution going specifically against prostitution of minors would let you build up a lot of momentum. Unless I’m mistaken and anti’s are content to let children be prostituted in order to maintain a high scare-quote quotient against prostitution in general. (Anyone know why anti’s are so reluctant to single out prostitution of children? Is it that they like the shock-troop value that child prostitution adds to what might otherwise be a more straight-up libertarian issue?)

2) Why aren’t pro-prostitution activists specifically supporting targeting child prostitution? It seems like a no-brainer if you really wanted to see prostitution legalized and/or normalized. Not least because anti-prostitution types get so much mileage with prostituted-child statistics (even if, evidently, they never otherwise lift a finger to stop it — see the preceeding point.) And not to put too fine a point on it but why on earth do adult prostitutes tolerate competition from minors in the first place? Why on earth do they tolerate the diversion of paying customers to generally less expensive and more conventionally desirable child prostitutes? (Anyone know why pro’s are so reluctant to single out prostitution of children? Is it that most adult sex-workers have better sense than to draw attention to themselves for fear of arrest? Is it because nominally pro-prostitution customers themselves enjoy “patronizing” children when they can get away with it? Especially since there appear to be no, zero, none consequences if they do under the current system?)

3) Why aren’t reporters, parents, community activists, politicians, and police specifically supporting targeting child prostitution? Actually this might be less of a no-brainer than the preceding ones because, to too many people, once someone’s had sex, even if they’re a child, they’re “broken” or “damaged goods” or their “innocence” is “lost.” On the other hand, it seems to me that they’d be most easily recruited to support anti-child-prostitution policies.

At any rate this seems like a classic case of if you’re not part of the solution you’re the problem** whether you disapprove of, approve of, or are utterly indifferent to prostitution between adults. So again, WTF? If you’re not part of the solution you ought to be ashamed of yourself: pimps and patrons of prostituted minors should be registered as the unambiguous sex offenders they are.

[** Not just part of it. —fl]

Photo by Flickr user tuis. Used under a Creative Commons license.

Quick question for anti-prostitution types all bent on upping detection and arrest rates for sex workers (remembering that most anti’s assume all sex workers are coerced.) How does the justice system and social services in your area deal with the current load of sex workers?

I ask because the more I read of “Who Pays the Price? Youth Involvement in Prostitution in Seattle” (pdf), a report produced by Debra Boyer, PhD, for Seattle’s Human Services Department, Domestic Violence and Sexual Assault Prevention Division, the more aggravated I become.

The report is on children in prostitution — for those keeping track at home one clue that sex workers start very young is that police and social service agencies report that the mean age for children arrested for prostitution in 2007 was 15.5. (50% of those arrested were either 14 or 15.)

The clue for why so many young prostitutes come from abusive families? Because a) their customers may be the same age as their fathers but at least they’re not their fathers!; b) they leave to escape from home, discover there’s no, zero, none safety net beyond, maybe, foster homes, and either turn to prostitution based on input from street peers or else wind up “taken care of” by pimps; c) they grow up that way at home and don’t necessarily see any other lifestyle as possible for them.

Disturbing quote from the report?

Youth with prostitution arrests are developing their identity based on their life in prostitution. They need more focused prostitution and trauma recovery services.

So! You want them to get picked up more quickly and more often. Hey, so do I! (Seriously! I’m more sanguine than a lot of folks about affirmatively voluntary sex work but I’m dead set against child sex work whether or not it’s conscripted or coerced.)

But as the report makes clear their ain’t a lot of places for them to go assuming they are intercepted.

Youth cycling through the juvenile justice system are more likely to be involved with a pimp or gang, and will need safe and secure housing when they are released. It is within this group that youth whose lives are in danger from pimps and gang affiliation are most likely to emerge. Youth with prostitution arrests are developing their identity based on their life in prostitution. They need more focused prostitution and trauma recovery services.

Youth are not released from detention if they do not have a place to go. Since there is seldom family to pick them up, youth, with the assistance of a probation counselor or case manager, may go to a DCFS group home, back to foster care, or to shelters if there are any of the few beds available such as YouthCare Shelter, Dove House, or Teen Hope. None of these are permanent placements; the only transitional independent living program for youth under age 18 is YouthCare’s eight-bed [emphasis mine —fl] Pathways programs.

“Their families are just not there.” (Social Worker)

“I believed I had to accept this life; this is what was dealt me. Someone would have to prove I could go somewhere he couldn’t get at me. Do you really have somewhere I could go?” (Prostitution Survivor)

“Girls with pimps or with gangs need out of here!” (Prostitution Survivor)

“There is nowhere to send them.” (Interview responses from juvenile probation officers, attorneys, and social service providers)

Oh yeah, and speaking of intercepted, you know how cheerleaders for hijacking enforcement of international sex and labor trafficking in favor of cracking down on pure anti-domestic-prostitution by instructing prosecutors and police officers to treat every prostitution arrest as a Federal trafficking incident?

How about putting a little effort into investigating, or arresting, let alone bringing prostitution charges in the first place? As Boyer’s report says

“Often they have come in under other charges such as drug offenses or a stolen car and have previous arrests. If they
are brought into detention, we would only learn about prostitution from their social history if it came up.” (Social Worker)

...

Youth may be arrested but referred for charges other than prostitution, which is up to the discretion of officers if multiple crimes are involved. Youth who are involved in prostitution are often referred on drug or theft charges, for example. These arrests are not included in the prostitution category, and their involvement may or may not surface as a part of their social history. We do know that King County police agencies identified at least 82 youth in 2007. Surely, the 82 youth identified in 2007 more realistically reflect the local problem than arrest data from prior years suggest.

...

The Office of Juvenile Justice and Delinquency Prevention has supported studies to increase statistical and research information on the prostitution of juveniles. David Finkelhor and Richard Ormrod have analyzed data from 76 agencies in thirteen states on juvenile prostitution based on the National Incident-Based Reporting System (NIBRS).v

Finkelhor and Ormrod found that prostitution offenses are scarce in police reports. The investigators reviewed 14,230 prostitution incidents recorded in NIBRS data from 1997 through 2000, which represents only 0.17 percent of all crime incidents known to police (2 out of every 1,000 incidents known to police involved prostitution). The NIBRS data for 1997-2000 identify only 241 prostitution incidents with juvenile offenders, juvenile victims, or both (five percent of incidents). Of these incidents, 229 individuals are identified as juvenile offenders and 61 as juvenile victims. Analyses of the small data set are complicated because prostitution arrest categories may combine categories including patronizing and promoting with offering and agreeing to prostitution. It can be concluded that police reports are not reliable indicators of the scope of juvenile involvement in prostitution. The scarcity of juvenile prostitution reports suggests it is a low-priority crime. [emphasis mine —fl]

So! We should be not just enforcing laws but crafting policies that, say, make it safe and non-complex for underage victims to give evidence while minimizing stigmatization by jurors and minimizing interference from family members. Because laws just say what we think we ought to do. Policies say how we’re going to do it.

And whether we’re really serious.

Final quote from Boyer’s report?

Washington state data are similar to national data regarding the low number of prostitution arrests involving juveniles.

Sounds to me like it’s not just Seattle, or Washington State then. And what’s the solution? Just pass another law, double the penalties, clap the dust off your hands and go look for some other good deed to do? I don’t think so.

Recommendations in the report? #1: Safe housing. #2: Dedicated local housing. #3: Training for service and law-enforcement agencies. #4: Deal with the contradictory legal status of youth prostitutes (if they’re under 18 — Washington’s statutory age of consent — they should be considered victims of sex offenders rather than arrested, prosecuted, and sentenced to juvenile detention.) #5: Get real about charges against customers of child prostitutes. Current penalty for sex with a child? Life on the sex-offender registry. Current penalty for sex with a child prostitute?!?!?! Average $500, maximum $1,000!

Seriously, if you’re pro-prostitution what are you doing about the deplorable situation of children in prostitution in your vicinity? Because you know as well as I that there’d be way less opposition, and maybe even a little more support for your cause if everybody’s age of entry (that’s “age” not “average age”) was 18 or higher.

Even more seriously, though, if you’re anti-prostitution what are you doing about the deplorable situation of children in prostitution, in your communities, in spite of the coverage already extended to minors under the current Trafficking Victim’s Protection Act? Because guess what? Extending that coverage to adults isn’t going to do what you think it’s going to do you can’t even get authorities excited about or even interested in digging into child prostitution, m’kay?

!@*#!$!!

[** “Conscripted” for my purposes here include those who wind up sex workers due to the TVPA’s force or fraud provisions as well as the more frequently understood and recognized direct coercion. —fl]

So you still sometimes hear people talking about the halcyon days of life in America before the 1960s cropped up with all it’s nasty non-conformity and civil rights and environmentalism and, especially, feminism. I… I… I just don’t think most people, even most anti-feminists, would really enjoy it as much as they imagine. One thing, especially, I don’t think outside of maybe the most fervently anti-feminist/anti-modernist evangelical movements and the occasional South Carolina law professor’s other allies, I’m pretty sure most people would be uncomfortable with the 1960 the U.S. Supreme Court ruling that officially defined women as mentally “weak” and accepted the “legislative supposition” that women have “no independent will of their own.”

The case dealt with interpreting whether a woman could be compelled to testify against her husband under a prosecution of the 1910 “White-Slave Trade Act,” a.k.a. the Mann Act if the husband had been her pimp. The court said go for it.

Justice John Marshall Harlan II, evidently considered the most conservative judge on the court at the time wrote the majority opinion. (All emphasis mine.)

U.S. Supreme Court WYATT v. UNITED STATES, 362 U.S. 525 (1960)

it cannot be seriously argued that one who has committed this “shameless offense against wifehood” ... should be permitted to prevent his wife from testifying to the crime by invoking an interest founded on the marital relation or the desire of the law to protect it. Petitioner’s attempt to prevent his wife from testifying, by invoking an asserted privilege of his own, was properly rejected.

Second. The witness-wife, however, did not testify willingly, but objected to being questioned by the prosecution, and gave evidence only upon the ruling of the District Court denying her claimed privilege not to testify. We therefore consider the correctness of that ruling. 3 [362 U.S. 525, 528]

...

Where a man has prostituted his own wife, he has committed an offense against both her and the marital relation, and we have today affirmed the exception disabling him from excluding her testimony against him. It is suggested, however, that this exception has no application to the witness-wife when she chooses to remain silent. The exception to the party’s privilege, it is said, rests on the necessity of preventing the defendant from sealing his wife’s lips by his own unlawful act, see United States v. Mitchell, supra, at 1008-1009; Wigmore, op. cit., supra, 2239, and it is argued that where the wife has chosen … not to “become the instrument” of her husband’s downfall, it is her own privilege which is in question, and the reasons for according it to her in the first place are fully applicable.

We must view this position in light of the congressional judgment and policy embodied in the Mann Act. “A primary purpose of the Mann Act was to protect women who were weak from men who were bad.” Denning v. United States, 247 F. 463, 465. It was in response to shocking revelations of subjugation of women too weak to resist that Congress acted. ... As the legislative history discloses, the Act reflects the supposition that the women with whom it sought to deal often had no independent will of their own, and embodies, in effect, the view that they must be protected against themselves. Compare 18 U.S.C. 2422 (consent of woman immaterial in prosecution under that section). It is not for us to re-examine the basis of that supposition.

Applying the legislative judgment underlying the Act, we are led to hold it not an allowable choice for a prostituted witness-wife “voluntarily” to decide to protect her husband by declining to testify against him. For if a defendant can induce a woman, against her “will,” to enter a life of prostitution for his benefit – and the Act rests on the view that he can – by the same token it should be considered that he can, at least as easily, persuade one who has already fallen victim to his influence that she must also protect him. To make matters turn upon ad hoc inquiries into the actual state of mind of particular women, thereby encumbering Mann Act trials with a collateral issue of the greatest subtlety, is hardly an acceptable solution.

Fourth. What we have already said likewise governs the disposition of the petitioner’s reliance on the fact that his marriage took place after the commission of the [362 U.S. 525, 531] offense. Again, we deal here only with a Mann Act prosecution, and intimate no view on the applicability of the privilege of either a party or a witness similarly circumstanced in other situations. The legislative assumption of lack of independent will applies as fully here. As the petitioner by his power over the witness could, as we have considered should be assumed, have secured her promise not to testify, so, it should be assumed, could he have induced her to go through a marriage ceremony with him, perhaps “in contemplation of evading justice by reason of the very rule which is now sought to be invoked.” United States v. Williams, 55 F. Supp. 375, 380.

Read the full text of the opinion and dissent here.

Interestingly, in the dissent Chief Justice Earl Warren, who was regularly excoriated by evangelicals, conservatives, and other opponents of civil rights, 10-Amendment rights in general, and rulings that trumped “states rights” a.k.a. legislated racism, wrote that in passing the Mann Act Congress expressly relieved women of any culpability in prostitution on the assumption that, again, women lacked independent will to make such a decision and therefore it has to be someone else’s, anyone else’s, fault.

The Court does not and could not rely upon the record to prove that petitioner’s wife was somehow mesmerized by him when she was on the witness stand. The evidence, in point of fact, strongly suggests that the wife played a managerial role in the sordid enterprise which formed the basis for the prosecution. 2 Apparently this was the jury’s view, since the jurors asked the judge whether it would “make any difference or – if the woman had anything to do with the instigation or planning . . . .” The judge, of course, instructed them that this would be immaterial, but the jury nevertheless unanimously recommended leniency. Thus this case is a strange vehicle for the Court to use in announcing its “lack of independent will” theory. Presumably it is to be regarded as the exception which proves the rule.

The sole ground assigned by the Court for its decision is that it is a necessary application of the “legislative judgment underlying the [Mann] Act,” which “reflects the supposition that the women with whom [Congress] sought to deal often had no independent will of their own, and embodies, in effect, the view that they must be protected [362 U.S. 525, 534] against themselves.”

...

In assessing the pertinence of the woman’s consent to the culprit’s criminal responsibility, Congress chose between the interest of society in eradicating the importation and interstate transportation of prostitutes and the interest of women to be protected from clever and unscrupulous profiteers, on the one hand, and the voluntary engagement of women in prostitution on the other. In view of the manifest imbalance of these competing considerations and the difficulty of definition and proof of the type of consent which might conceivably be relevant, it is hardly surprising that Congress passed the Mann Act and made consent entirely immaterial under 2422.

At any rate I can see why people like the Southern Baptist Convention would prefer that the Wilberforce Trafficking Victims Protection Reauthorization Act of 2007 should relocate sex trafficking from coverage under, you know, a 13th-Amendment-based anti-trafficking statute to coverage under the commerce-clause coverage of the White-Slavery Trade Act. They’re acidly committed to the once-common, now-radical proposition that women aren’t people. (See also Juhu Thukral’s guest post at Feministing about problems with shoving real trafficking under the Mann Act umbrealla.