A California law effective this month bars prosecutors from charging minors with prostitution. But the practice of bringing juveniles who have been victims of commercial sexual exploitation into court happens more often than we would expect in many parts of the country.
On January 31, 2013, 17-year-old Aarica S. was arrested in Los Angeles and charged with prostitution after she agreed to have unprotected sex with an undercover police officer in exchange for $60.
During Aarica’s court proceedings, her attorney argued the charges should be dismissed on the grounds that she was a victim of human trafficking.
In support of her claim, Aarica described a harrowing life story. Her father raped her when she was only three years old. At the age of 14, a friend introduced her to a pimp, who trafficked her into the commercial sex trade. After the pimp and his uncle raped her, she ran away and aborted the child that she was impregnated with.
When she was 16, another pimp recruited her. Although he gave her food and shelter, the pimp would physically abuse her if she didn’t make enough money for him. She was indoctrinated to believe that she was the “property” of the pimp.
By the time of her arrest, Aarica had been trafficked by approximately 10 different pimps, running away each time the abuse became too much to bear.
At trial, Aarica testified that she didn’t have a pimp controlling her when she was arrested. After being trafficked on and off for over three years, she had been free for three months, living with her grandmother. And because she admitted on cross-examination that she didn’t have anyone directly exploiting her at the time of her arrest, the court treated Aarica as a delinquent, not as a victim.
Despite the fact that the Californians Against Sexual Exploitation Act (CASE Act) states that “because minors are legally incapable of consenting to sexual activity, these minors are victims of human trafficking whether or not force is used,” prosecutors working under then-Attorney General Kamala Harris, who presents herself as a paragon of anti-trafficking reform, pursued a criminal conviction against this teenage girl.
Her conviction was upheld by the Court of Appeal, which ruled that evidence supported the juvenile court’s determination that the minor was not a victim of human trafficking.
Criminalizing juvenile victims of commercial sexual exploitation has been denounced by federal and state legislation across the United States; yet it still happens more than we would expect.
According to the Office of Juvenile Justice and Delinquency Prevention, there were approximately 700 juveniles arrested for prostitution and commercialized vice in 2014–the last year for which data is available.
To correct this type of erroneous criminalization of human trafficking victims, an increasing number of states are passing “vacatur “ statutes. These laws provide post-conviction relief for survivors of human trafficking by completely erasing criminal convictions related to their victimization.
Given the high risk of re-victimization and a return to the commercial sex industry among survivors of sexual trauma, it is recommended that these statutes not require survivors to prove they have left the sex industry.
In a further step to proactively prevent the erroneous criminalization of sex trafficked youth, California recently passed S.B. 1322, which went into effect on January 1, 2017. The legislation renders inapplicable to a child under the age of 18 provisions that make it a crime to solicit or engage in any act of prostitution, as well as to loiter in any public place with the intent to commit prostitution. The minor can still be taken into temporary custody for his or her protection.
Critics claim that this law “legalizes” child prostitution and puts juveniles at greater risk of commercial sexual exploitation. Proponents contend that the law simply decriminalizes the minor, while continuing to enforce stiff penalties against anyone who sexually exploits or attempts to solicit sexual services from a child.
Regardless, both sides agree that “there is no such thing as child prostitution.”
However, the reality is that commercial sexually exploited children around the country are being criminalized, even under the authority of extremely outspoken anti-trafficking advocates, like Kamala Harris.
Sex traffickers coerce children who are living on the margins of society into being exploited in the commercial sex industry. According to Carlos Curtis, who is currently serving life in prison for sex trafficking a 12-year-old girl from New York to Washington, D.C., “Just like some children use and deal drugs. It’s a part of life.”
In an interview with me, Curtis continued:
“Let’s say a young girl is 16 or 17 and she has no family, money, or food. So the young lady has to fend for herself. She is already sexually active, roaming the streets surviving. She does so with no guidance. Without proper guidance, one will be reckless. But, remember, she is a survivor. Willing to do whatever it takes to survive.”
Whether or not they appear to be consenting, children should never be criminalized for involvement in the commercial sex industry.
The fact that anti-trafficking advocates, like Kamala Harris, turn a blind eye to this fact demonstrates a critical gap between anti-trafficking law and practice.
We need to discontinue the business-as-usual practice of touting hollow victories for public accolade and move toward more evidence-based anti-trafficking policy that facilitates the protection of survivors, prosecution of offenders, and prevention of new victimizations.
Dr. Kimberly Mehlman-Orozco holds a Ph.D. in Criminology, Law and Society from George Mason University, with an expertise in human trafficking. She currently serves as a human trafficking expert witness for criminal cases. Her book, “Hidden in Plain Sight: America’s Slaves of the New Millennium,” is contracted for publication with Praeger/ABC-Clio. She welcomes readers’ comments.