Confronting Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States (2013) / Chapter Skim
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4 Legal Framework
4 Legal Framework
Pages 143-194
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From page 143... ...
and in the 50 states and the U.S. territories for all of these areas is beyond the scope of any single chapter, the aim of this chapter is to describe the federal and state laws that are most relevant to addressing commercial sexual exploitation and sex trafficking of minors in the United States.
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The White Slave Traffic Act of 1910, commonly known as the Mann Act, criminalized the transportation of women or girls in interstate or foreign commerce for prostitution, debauchery, or other immoral purposes.1 In its early years, the Mann Act came to be used not only to police the transportation of women and girls for prostitution but also to criminalize actions deemed immoral.2 From 1910 until the 1990s, federal law changed very little in this area except for updating language, for example, to make it gender neutral and acknowledge situations in which men or boys are victims. In the 1990s, public awareness of the problems of commercial sexual exploitation and sex trafficking of minors increased, spurring U.S.
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Although federal law on trafficking and sex tourism is well developed with respect to commercial sexual exploitation of minors, federal law has no direct provision prohibiting prostitution, as prostitution historically has been considered a local crime to be regulated by state and local authorities. Federal law regulates child pornography, but as noted in Chapter 1, a review of child pornography laws is beyond the scope of this study.
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Such an approach would be consistent with child protection principles and goals of federal and state laws regulating treatment of minors. SUMMARY OF FEDERAL LAWS Since 2000, when the TVPA was enacted, the federal government has adopted a number of significant pieces of legislation related to commercial sexual exploitation and sex trafficking of minors.
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Also discussed below is the range of entities implicated by efforts to address commercial sexual exploitation and sex trafficking of minors and federal measures designed to enhance coordination among these entities. Criminalization/Prosecution With respect to sex trafficking of minors, federal law provides that "whoever knowingly .
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For example, confiscation of identification documents with intent to engage in sex trafficking is a crime punishable by a fine or a sentence of up to 5 years or both.18 With respect to commercial sexual exploitation of minors, there is, as noted earlier, no federal law specifically governing prostitution, as it historically has been deemed a state or local crime. In the Mann Act, however, federal law criminalizes travel in interstate and foreign commerce for the purpose of sexually exploiting a minor.19 The transportation of a minor in interstate or foreign commerce "with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense" is punishable by a fine and a sentence of 10 years to life in prison.20 Similarly, persuading, inducing, enticing, or coercing a minor to travel in interstate or foreign commerce to engage in prostitution is subject to a fine, a sentence of up to 20 years, or both.21 Also, any individual who "arranges, induces, procures, or facilitates" such travel for "commercial advantage or private financial gain" shall be subject to a fine, imprisonment of up to 30 years, or both.22 Finally, travel in interstate or foreign commerce for the purpose of engaging in illegal sexual conduct with another person is subject to a fine and a sentence of up to 30 years or both.23 All of these provisions have application in cases of commercial sexual exploitation when interstate commerce is implicated.
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The Department of Justice, the Department of Health and Human Services, and other agencies each play a role in U.S. efforts to identify, protect, and respond to child and adolescent victims of commercial sexual exploitation and sex trafficking.
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The committee observes that this difficulty in ascertaining services and programs available to child victims presents potential obstacles for children and adolescents seeking to access services after the trauma of sexual exploitation or sex trafficking and for professionals and caregivers attempting to help them. Federal law provides for services for minors who are victims of commercial sexual exploitation and sex trafficking.
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that "[have] developed a workable, multidisciplinary plan to combat sex trafficking of minors," with the requirement that two-thirds of the funding be used for residential care and services for minor victims and survivors of sex trafficking provided by nongovernmental organizations.28 The committee views this as a positive step in support of pilot programs to serve the needs of victims and survivors of commercial sexual exploitation and sex trafficking of minors.
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Federal law and programs aimed at the root causes of commercial sexual exploitation and sex trafficking of minors have focused primarily on other countries. Federal law has established a limited number of programs that target prevention.
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types of trafficking-related activities," including misleading and fraudulent recruitment practices; charging of recruitment fees; and confiscation or destruction of identity documents, such as passports.30 The Executive Order also requires contractors and subcontractors to develop compliance plans, inform their employees of rules about not engaging in trafficking-related activities, and provide a means for employees to report trafficking activities without fear of retaliation.31 Although the Executive Order is intended primarily to advance prevention and early intervention efforts aimed at labor trafficking, its language is not limited to labor trafficking. Moreover, these regulations might suggest other legislative approaches that could engage commercialsector entities as partners in addressing commercial sexual exploitation and sex trafficking of minors.
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. Numerous state and local agencies also are involved in efforts to address commercial sexual exploitation and sex trafficking of minors.
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an individual under 18 years of age who has been arrested for engaging in, or attempting to engage in, a sexual act with another person in exchange for monetary compensation as a victim of a severe form of trafficking in persons; prohibits charging such minors with the crime of prostitution; and requires that they be referred for comprehensive services."34 (Safe harbor laws are discussed in greater detail later in this chapter.) SUMMARY OF STATE LAWS All states have laws addressing various aspects of commercial sexual exploitation and sex trafficking of minors.
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, a discussion of the relevant laws that are applicable on Indian reservations is beyond the scope of this chapter. Finally, salient characteristics of the state laws relevant to commercial sexual exploitation and sex trafficking of minors include both wide variations and strong similarities.
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The main prevention-oriented provisions that do exist relate to human trafficking task forces,37 training of various state law enforcement personnel and other state employees,38 and public awareness campaigns.39 These laws often include nothing specific about trafficking victims who are minors, but there are a few exceptions. For example, Maryland requires that its Department of Education, "in collaboration with the Department of Health and Mental Hygiene, shall provide awareness and training for Directors of Student Services in local education agencies on human trafficking, including strategies for the prevention of trafficking of children."40 A much more extensive array of prosecution-related provisions appear in state human trafficking laws.
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. causes a minor to engage in commercial sexual activity or a sexually explicit performance."43 Delaware defines "commercial sexual activity" as "any sex act on account of which anything of value is given, promised to, or received by any person."44 This definition is similar to that used in federal antitrafficking law, as discussed earlier in the section on federal laws, as well as in other state laws.45 Similar to federal law, some state laws do not require coercion or deception to establish sexual servitude as a sex trafficking violation when the victim is a minor.46 Other violations that can be prosecuted under state human trafficking laws include "patronizing a human trafficking victim" or "patronizing prostitution."47 These provisions overlap with those of other state criminal laws, such as those discussed below in the section on prostitution.
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, but even greater penalties if the victim is under age 15 or under age 12.52 Some state laws provide that victims of human trafficking are not criminally liable for sex acts performed as a result of their victimization.53 These provisions are especially likely to be found in the safe harbor laws discussed below. When they do address the protection of victims, state human trafficking laws adopt varied approaches.
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A review of those local laws is beyond the scope of this study, but they can play an important role in the response to prostitution generally and the sexual exploitation and sex trafficking of minors specifically. The problem of overlapping jurisdictional authority regarding enforcement is discussed below in the section on interpretation and use of laws.
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, although it is slowly being supplanted in some states by an alternative approach. A recent trend away from treating minors as perpetrators is represented by new legislation in several states, discussed below in the section on safe harbor laws.
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. A 2013 National Research Council report on juvenile justice reform explains the importance of understanding adolescent development when crafting juvenile justice policies (NRC, 2013)
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2) Many of the findings and recommendations presented in the National Research Council's report are relevant to understanding both how the juvenile justice system has treated victims of commercial sexual exploitation and sex trafficking and the principles that should guide future juvenile justice responses.
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Fewer state laws directly address the situation of homeless youth who are not technically status offenders, although some states have statutes that address the question of whether runaway and homeless youth under age 18 can stay overnight in a shelter without parental permission.69 Without legal authorization to be sheltered without parental permission, many minors who are victims of commercial sexual exploitation and sex trafficking confront an insurmountable barrier to securing a safe place to stay. (See Chapter 6 for a more detailed discussion of shelter availability.)
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. The discrepancies are myriad and lead to considerable confusion among mandated reporters and other professionals coming into contact with children and adolescents who are victims of commercial sexual exploitation and sex trafficking.
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; however, the definitions of this term vary. Thus in some states, the definitions of reportable abuse cover most or all forms of commercial sexual exploitation and sex trafficking of minors, and in some they do not.
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However, conflicts may arise if, in taking a comprehensive health history, health care professionals learn information about an adolescent patient's sexual activity that they are also legally required to report as child abuse. Health Care Victims and survivors of commercial sexual exploitation and sex trafficking have extensive needs for health care services, as discussed in Chapters 3 and 7.
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The specific provisions that are applicable in individual states may affect the willingness of victims and survivors to seek care and/or their ability to receive care with protection of their privacy. For example, a survivor may be able to consent for diagnosis and treatment of a sexually transmitted infection, but the medical history taken may result in reporting of the sexual activity in which she/he was involved under the child abuse reporting laws, thus abrogating confidentiality protection for the care received.
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Nevertheless, many victims of commercial sexual exploitation and sex trafficking may already be in the child welfare system, and with the enactment of safe harbor laws, increasing numbers of victims may be entering the child welfare system. A few states have begun to enact laws that require their child welfare agencies to address the needs of sexually exploited children.
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This attention could include further research aimed at understanding the role of these services in preventing commercial sexual exploitation and sex trafficking of minors and in ensuring positive outcomes for victims and survivors, as well as enactment of state laws to support the delivery of these services to at-risk and exploited minors. Safe Harbor Laws As discussed earlier, minors in the United States who are victims of commercial sexual exploitation and sex trafficking often are arrested and treated as perpetrators under state criminal and juvenile delinquency laws that make a wide variety of sexual offenses illegal (Fassett, 2012; Guymon, 2012; Nasser, 2012)
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There is no fixed legal definition of a safe harbor law. The term emerged when New York enacted the first such law in 2008 and has been applied to several other state laws enacted since then.
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, work to ensure that adequate shelters and services are available for victims/survivors who are diverted from the criminal justice system, and provide appropriate training to relevant personnel. INTERPRETATION AND USE OF LAWS As reviewed in this chapter, a plethora of federal and state laws can be useful in addressing commercial sexual exploitation and sex trafficking of minors.
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.) Further research is required on states' child abuse reporting laws and child welfare agency services to examine whether child welfare agencies have the necessary resources and are adequately prepared to meet the needs of minors who are victims and survivors of commercial sexual exploitation
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and 17 Florida 2012 Covers minors Definition of "dependent child" (Florida Safe under age 18 is amended to include sexually Harbor Act) who meet the exploited child and sexually definition of trafficked child dependent child and who are not under arrest or being prosecuted for certain prostitution related offenses that involve the exploitation of other minors
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dependent child and not as sexually exploited to child increased from $500 to a delinquent welfare; placement in a $5,000, to be used primarily "short-term safe house" for safe houses; sexually pending determination exploited children are eligible of whether the child has for victim compensation funds been sexually exploited; short-term safe house to provide shelter, food, clothing, medical care, counseling, and crisis intervention; child found to be sexually exploited is placed in a safe house if determined appropriate after comprehensive assessment; safe house to provide a broad range of comprehensive services continued
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(h) commits or allows to be committed the offense of involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons for forced labor or services"
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; thereafter, trafficking and prostitution the victim was at least age a sexually exploited or 18 unless the accused did trafficked minor may be not have an opportunity to placed in "temporary observe the victim protective custody" in a medical facility or other child welfare placement, such as a foster home or group home, but shall not be placed in a jail or place of detention for other criminal offenders (per previously existing statutory definition) continued
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act of prostitution under state (comprehensive law or is a victim of inducing human a minor into prostitution; trafficking law) definition of "child in need of services" is amended to include a sexually exploited child; list of abuses subject to mandatory reporting is amended to include sexually exploited children; "appropriate services" are defined as assessment, planning, and care, including food, clothing, medical care, counseling, and appropriate crisis intervention services provided by an agency, organization, or entity with expertise in providing services to sexually exploited children or children who are human trafficking victims Minnesota 2011 Covers minors Definition of "delinquent child" (Sexually under age is amended to exclude sexually Exploited Youth)
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; a care and protection petition can be filed by a minor or any person; a child in need of services petition can be filed by a police officer or parent Diversion to a service Commissioners of public Penalties for buyers of adult program for 16- and safety, human services, prostitution are increased to 17-year-olds alleged and health and other between $500 and $750, with to have engaged in stakeholders are charged 40 percent of penalties going prostitution for the first with developing a to a "Safe Harbor for Youth" time (effective 2014) ; victim services model to account to pay for services for prosecutorial discretion address needs of sexually sexually exploited youth as to whether to continue exploited and at-risk youth diversion for subsequent (dependent on donation offenses; children who are of sufficient funds involved in prostitution as from outside sources)
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protection for trafficking, are victims of the minors ages 16 crime of compelling prostitution, and 17 or engaged in prostitution offenses Vermont 2011 Covers minors (An Act Relating under age 18 to Human Trafficking) (comprehensive human trafficking law)
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Legal Framework 181 Type of Protection Services Provided Other Requirements Minors under age 18, "Safe houses" (as defined) including minors ages to be available for sexually 16 and 17, suspected exploited youth; an of prostitution may be advocate is to be provided diverted to Family Court; for a sexually exploited Penal Code allows minors youth in a safe house; ages 16 and 17 to be safe houses are to assist prosecuted for prostitution sexually exploited youth in in criminal court as securing needed services; adults; protection from social services districts are prosecution limited to to develop consolidated first-time offenders who plans for addressing the meet federal criteria for a needs of sexually exploited severely trafficked person youth and cooperate with law enforcement; if a minor is charged with prostitution, it is presumed that the minor meets federal criteria for a severely trafficked person; a "person in need of supervision" petition is substituted for a delinquency petition unless the minor does not meet criteria Minors have immunity Vermont Center for Mandatory minimum sentence from prosecution for Crime Victim Services of 20 years for sex trafficking prostitution in criminal may convene a task force of a minor court but may be subject to develop a statewide to either a delinquency or protocol for providing dependency petition; being services for victims of a victim of trafficking is human trafficking; may an affirmative defense for enter into contracts to sex-related offenses; force, develop services fraud, or coercion is not required to establish that a minor is a victim of trafficking; a minor who is a victim of sex trafficking shall not be found to be in violation as delinquent of the offense of prostitution continued
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The term "dependent" generally refers to children or sex trafficking in states that have adopted, or are considering adoption of, a requirement for universal or widespread reporting of cases of commercial sexual exploitation or sex trafficking of minors under child abuse reporting laws. The committee cautions that adopting a universal reporting requirement without ensuring the adequate preparation of child welfare agencies may have unintended consequences that are harmful to the vulnerable children that the laws are designed to assist, as discussed in Chapter 1.
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such services, minors and their service providers and advocates are likely to have equal or greater difficulty in doing so. STRENGTHS AND LIMITATIONS OF CURRENT LAWS The current federal and state laws reviewed in this chapter have both strengths and limitations.
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In addition, existing state criminal laws sometimes are poorly suited to addressing these problems because of definitional, jurisdictional, and procedural issues, as well as other factors. Child welfare, foster care, and dependency statutes are not designed to meet the needs of victims and survivors of commercial sexual exploitation and sex trafficking of minors -- a growing concern as safe harbor laws being enacted in an increasing number of states redirect some victims and survivors to the child welfare system.
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For the most part, the state laws that address commercial sexual exploitation and sex trafficking of minors most directly -- human trafficking and safe harbor laws -- are too new to know where the greatest challenges
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identifying selected examples of international laws containing noteworthy provisions that address commercial sexual exploitation and sex trafficking of minors. One such example is a law that mandates a "recovery and reflection" period of at least 30 days for any individual who may be a trafficking victim, during which he or she is provided services but not required to make any decision regarding cooperating with law enforcement.90 Identifying promising legal interventions in this area is challenging given that many such laws (particularly at the state level)
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FINDINGS AND CONCLUSIONS The committee's review of the literature and its careful consideration of expert testimony provide a picture of the current legal framework for commercial sexual exploitation and sex trafficking of minors in the United States. Based on its review of the best available evidence, the committee formulated the following findings and conclusions:
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4-3 State laws and regulations that can be used to address the com mercial sexual exploitation and sex trafficking of minors form a diverse and complex array. Only a limited number directly address commercial sexual exploitation or sex trafficking, but many are nevertheless potentially important elements of a com prehensive response to these problems.
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4-11 Further research is needed to examine whether child welfare agencies have the necessary resources and are adequately pre pared to meet the needs of minors who are victims and survivors of commercial sexual exploitation or sex trafficking in states that have adopted, or are considering adoption of, a requirement for universal or widespread reporting of cases of commercial sexual exploitation or sex trafficking of minors under child abuse reporting laws. 4-12 Further attention is needed to the intersection of laws and the education, housing, and employment needs of both children and adolescents who are vulnerable to and those who have been vic timized by commercial sexual exploitation and sex trafficking to ensure that their needs are met.
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4-16 Civil lawsuits merit further exploration as a strategy for creating effective remedies for commercial sexual exploitation and sex trafficking of minors. Efforts to identify and remove barriers faced by child and adolescent victims in bringing such claims against the traffickers and other exploiters who have victimized them are warranted.
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2012. Paper presented to the Committee on Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States, March 23, 2012, Boston, MA.
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2012. Statutory frameworks used to charge chil dren for commercial sexual exploitation and alternatives to prosecution.
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http://www.state.gov/documents/ organization/136023.pdf (accessed April 29, 2013)
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