Intervention, Not Incarceration for Prostituted Children

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The commercial sexual exploitation of children is an epidemic, says Tamar Birckhead, assistant law professor at UNC School of Law, and it is an epidemic in which some of its victims -- the prostituted children -- are prosecuted as criminals in many of our states and municipalities. Birckhead, who argues in favor of legal reform that channels such children into rehabilitation programs instead of the juvenile and criminal justice systems, has compiled an analysis of the legal environment encountered by these youth in her article, "The 'Youngest Profession': Consent, Autonomy and Prostituted Children." The article is slated for publication in the Washington University Law Review (Volume 88, Issue 5) in spring 2011.

As many as 300,000 children -- most of whom are between eleven and fourteen, with some as young as nine -- are at risk for sexual exploitation in the United States today, she says.

"It is shocking to learn that children are held criminally liable for their role in acts of prostitution. Even after all this research, I'm still amazed at the wrongheadedness of this practice," says Birckhead, adding that at the international level, United States policy views prostituted children as victims, while they are treated as criminals domestically. "Hopefully the tide is turning, and perhaps this article can play a small role in convincing legislators to change their laws, and prosecutors, as well as law enforcement, to change their policies."

Birckhead became interested in the topic at a national juvenile defender conference in New Orleans, Louisiana, in 2008, where she attended a session on effectively representing youth charged with prostitution. She says she was intrigued to learn that New York and a handful of other locales were working on safe harbor laws that provide prostituted children with an opportunity for treatment and supervision rather than criminal prosecution and detention.

In October 2010, Professor Elizabeth Bartholet, the faculty director of the Child Advocacy Program at Harvard Law School, invited Birckhead to participate in a panel discussion of the topic, along with Lisa Goldblatt Grace, director of a prevention program in Boston called "My Life, My Choice" that focuses on girls who are at risk for commercial sexual exploitation, and Ann Wilkinson, a mentor in the program as well as a former prostituted child.

"I spoke on the laws that allow for the criminal prosecution of minors for prostitution, and I described the range of ways in which states have addressed the problem and highlighted those few that have successfully used strategies of intervention and rehabilitation rather than prosecution and incarceration," she says. These topics, in addition to the differences between international law and domestic law in this area, are included in her current article.

Birckhead hopes the article will increase awareness and concern for prostituted children and the web of laws that determines their fates.

"I began my research motivated by a basic desire to understand more about how laws that hold children criminally liable for prostitution developed in the U.S., why they've remained on the books, and why our government appears to treat child victims of international sex trafficking so differently from children who are prostituted on our soil," she explains. "The rationale appears to be based squarely on geography, perpetuating stereotypes about youth and crime. Implicit is the notion that prostituted children from non-Western countries were coerced and enslaved into the international sex trade, while American teen prostitutes are 'bad kids' who aren't worthy of society's sympathy and support."

In the process of her research, Birckhead discovered a number of inconsistencies in existing U.S. laws -- such as statutory rape laws that consider children under the age of sexual consent to be victims, while prostitution laws hold them criminally liable -- and a lack of services for treatment. There are, she says, fewer than 100 slots available nationally in long-term rehabilitation programs for sexually exploited youth.

Yet Birckhead, whose next project will focus on approaches to reforming the juvenile justice system, is optimistic about the possibility of a change in perspective in the future. Several more states are developing safe harbor laws, and prosecutors increasingly are working with law enforcement to implement local policies that direct prostituted youth into treatment programs instead of the court system. However, she notes, in an economy where states are streamlining their budgets, prevention and rehabilitation programs that help sexually exploited youth rebuild their lives are unlikely to receive adequate funding. Until this happens, Birckhead admits, the epidemic of prostituted children will inevitably continue.

-January 18, 2011

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