No Quick Fix: The Failure of Criminal Law and the Promise of Civil Law Remedies for Domestic Child Sex Trafficking

83 Pages Posted: 17 Nov 2016 Last revised: 20 Nov 2016

Date Written: November 16, 2016

Abstract

Pimps and johns who sexually exploit children garner instant public and scholarly outrage for their lust for a destructive “quick fix.” In actuality, many justifiably concerned scholars, policymakers, and members of the public continue to react over-simplistically and reflexively to the issue of child sex trafficking in the United States — also known as commercial sexual exploitation of children (CSEC) — in a manner intellectually akin to immediate gratification. Further, research reveals that the average john is an employed, married male of any given race or ethnicity, suggesting that over-simplification and knee-jerk thinking on CSEC are conspicuous. This Article raises provocative questions that too many others have avoided, while addressing a topic of immense public interest. CSEC occurs in all 50 states and is estimated to be a $290 million industry in Atlanta alone. The explosion of media attention, high-profile scandals, and sexualized popular culture have put CSEC front and center in law and policy. However, the dominant discourse and policy-making on CSEC rely on criminal law as a quick fix. Scholars in law, social science, and public health have begun joining CSEC survivors and advocates in critiquing criminal law for its ineffectiveness and its dubious expansion of mass incarceration and survivor victimization. Yet, the discourse, law, and policy remain highly flawed. This Article bridges the gaps in crucial ways.

This Article addresses a controversial and fundamental matter: that many CSEC survivors resist “rescue” efforts and narratives, while decrying the pitfalls of criminal, child protective, and public health responses alike. After discussing the pronounced failure of criminal law, the socio-cultural and economic roots of CSEC, and feminist, critical race, and Vulnerability Theory implications, this Article concludes that youth agency is a key, missing element of the socio-legal response to CSEC. This Article traces the history of children’s consent to sex in U.S. law and incorporates scientific findings cited in recent U.S. Supreme Court jurisprudence.

Evidence suggests that civil law remedies for CSEC are an essential, redistributive, under-utilized tool that engenders sorely needed youth agency and adult offender deterrence. Civil law remedies for CSEC address most sharp critiques of criminal, child protective, and public health responses, while incorporating the “capabilities approach” that Nobel Prize-winning economist Amartya Sen and feminist philosopher Martha Nussbaum first coined — now prominent in public policy and political philosophy. However, there is still no “quick fix” for the complex, deep-seated CSEC crisis. Future responses require survivor leadership, multi-sector collaboration, and nuanced scholarly research. A continued rush to punish demonized “bad actors” or to carcerally protect children will only exacerbate the problem while ignoring the link between CSEC and prevalent sexual violence and oppression in the most intimate — and seemingly innocuous — parts of U.S. society.

Keywords: Child, Children, Sex, Sexual, Traffic, Trafficking, Exploit, Exploitation, Prostitution, Sex Work, Feminist, Feminism, Race, Criminal, Juvenile, Minor, Adolescent, Vulnerability, Youth, Civil, Remedy, Remedies, Tort, Restitution, Pimp, Prostitute, Sex Trade, Public Health, Justice, Welfare

JEL Classification: K42

Suggested Citation

Smith, Charisa Kiyô, No Quick Fix: The Failure of Criminal Law and the Promise of Civil Law Remedies for Domestic Child Sex Trafficking (November 16, 2016). 71 U. Miami L. Rev 1 (2016); Univ. of Wisconsin Legal Studies Research Paper No. 1398. Available at SSRN: https://ssrn.com/abstract=2870791
No contact information is available for Charisa Kiyô Smith

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