Consent, Coercion, and Compassion: Emerging Legal Responses to the Commercial Sexual Exploitation of Minors
Charlotte School of Law
February 3, 2011
Yale Law and Policy Review, Vol. 30, page 1, 2011
Within 48 hours of running away or being thrown out, a child on the streets will typically be approached for sex in exchange for money or lured into a situation leading to exploitation. There are competing theories about the prosecution of youth for prostitution who are subject to commercial sexual exploitation, or domestic minor sex trafficking, in the United States. Recent developments in juvenile courts and legislatures endeavor to create appropriate responses to eliminate contradiction in the laws. Some states recognize that statutory rape and federal trafficking laws conflict with the prosecution of children for their own exploitation, but most do not. This leaves large numbers of minors charged as criminals and with little access to appropriate medical and psychological care. Related gender and adolescent capacity issues are implicated in this lack of coherence in the law and underlie the current failures. The issue is best understood in light of recent changes in judicial and legislative discourse. Recent developments in courts and legislatures have taken a new direction to harmonize laws dictating the legal status of these children as survivors in need of treatment instead of as offenders. The Illinois model recently decriminalized children under age 18 who are prostituted, ensuring that they are not treated as criminals under any circumstances. While other state statutory frameworks exist, without clear language, statutes intended to assist children risk being undermined. Legislation that addresses prostitution of youth must be carefully constructed and contain funding provisions in order to have the necessary intended effects. It should focus on comprehensive services with a critical eye on the important distinctions between diversion measures that allow for continued prosecution versus decriminalization. These new judicial and legislative developments provide a model and framework by which states can create effective and consistent responses to the commercial sexual exploitation of minors instead of criminalizing them.
Number of Pages in PDF File: 70
Keywords: criminal justice, juvenile justice, juvenile rights, prostitution, minors, consent, commercial sexual exploitation, sex abuse, autonomy, adolescent development, legislative reform, Safe Harbor Act, Illinois Safe Children Act, runaway youth, homeless youth, juvenile detention
Date posted: February 20, 2011 ; Last revised: September 28, 2012