Young people who trade sex rarely think of themselves as victims (Cates 1989; Curtis et al. 2008; Schwartz 2009; Tiapula and Turkel 2008; Walker 2002; Williams 2009). They are instead constructing their own life course to the best of their ability, with their choices shaped by the opportunities and constraints of their circumstances (Elder 1998). For many, trading sex gives them a “sense of control and power” (C. Harris, personal communication, May 21, 2012). Although their choice to trade sex is made under the constraints of limited options, poverty, abuse, and neglect, they argue that calling them victims “robs them of autonomy” (Sherman 2012, 1608). Trading sex affords them the opportunity to leave abusive homes and provide for themselves. In situations where their families do not provide for them, it becomes a way to assert their independence and get their needs met. In response to the ways in which their access to power has been limited through laws that influence their ability to work in legitimate jobs and enter into contracts, as well as by negligent or abusive parents and guardians, these youth are trying to regain power and control.
For the majority of these young people, a third party facilitates or benefits from their sex trades. Although facilitating or benefitting financially or both constitute the legal definition of pimping and pandering, it is rare for young people to think of these third parties as “pimps.” Young people couple with third parties for a variety of reasons. These other individuals can be intimate partners who provide emotional support. Some are directly involved in arranging young people’s sex trades. Others have no involvement but benefit financially. In cases where a young person’s relationship with the person starts as an emotional one, over time it may become more contractual and controlling (Mukasey, Daley, and Hagy 2007). Youth who are not accepted by their biological or adopted families because of their gender or sexual identity or those who feel they are not loved within their families sometimes view third parties as surrogate family members. Ron Riggin, a retired Maryland state police sergeant, explained that “the pimps give the victims the attention and sense of belonging that vulnerable children desire” (qtd. in Pupovac 2013). Some third parties simply let the young person use their homes to work out of or connect youth with clients, and in return they receive a portion of the young person’s earnings. For many youth, it is their friends and peers who teach them how to trade sex and connect with clients.
In general, young people identify their relationships with third parties as important. This is true whether the third party is their intimate partner or a surrogate family member or a friend. The arrangements they have with these people provide them with a sense of belonging and a sense of being loved and accepted. Alternatively, some young people are simply trying to get out of one abusive situation, be it at home or in child welfare placements, and are willing to couple with someone who may or may not be abusive as well (Marcus et al. 2014).
Some young people never choose to couple with a third party and instead find that as a continuation of the sexual abuse they experience from family members, those mothers, fathers, aunts, and uncles are now forcing them to sell sex (M. Dang, personal communication, January 16, 2014; Mitchell, Finkelhor, and Wolak 2010; O’Connell Davidson 1998; E. Sims, personal communication, July 31, 2014; Sims 2012). It is clear that people who act as third parties are not a homogenous group.
Even though in most states these young people have not reached the legal age of consent for sex, they are still arrested for a sexual encounter that under other laws would be classified as rape or statutory rape. This contradictory system of regulations places them in the troubling position of being viewed as both an exploited youth and an individual granted total agency and held to adult standards. Although young people of various ages are arrested for prostitution offenses, the finding that those who appear frightened, are cisgender women, and are younger than sixteen are more likely to be considered victims suggests that victim status is based on social concepts about childhood and innocence.
The federal definition put forth through the TVPA classifies this group of young people as victims who should not be arrested for prostitution-related offenses and should not be placed in juvenile detention facilities. To ensure that youth are not arrested for prostitution-related offenses, their involvement in prostitution needs to be decriminalized. The American Bar Association’s Child Trafficking Policy is in agreement with the TVPA that it should be prohibited to arrest or charge young people “with the crimes of prostitution, solicitation, or loitering as well as other offenses, including status offenses that are incident to their trafficking situation” (American Bar Association 2011). Judge Fernando Camacho, administrative judge for criminal matters in Queens County, New York, started a court that works with young people who have been charged with prostitution-related offenses. His opinion is that “jail is not the right place for these young people. A young person is presumed to be not competent to consent under certain statutory sex offenses, yet the same young person who is not even capable of consenting is now going to be prosecuted as an adult for engaging in prostitution and prostitution-related offenses. And that never made any sense. That’s just silly” (in Schweig 2012).
It is logically inconsistent to say that young people are not able to consent to sex but then to criminalize them for trading sex. To address the tension that currently exists between viewing them as victims and treating them as criminals, all states need to incorporate a minimum age into their laws whereby no one younger than eighteen can be charged for prostitution-related offenses. In fact, the International Committee on the Rights of the Child criticized the U.S. government in 2013 for continuing to criminalize people younger than eighteen who trade sex (Phillips et al. 2014). Section 1243 of the TVPRA of 2013 offers the elements of a model state statute. This model includes not charging or prosecuting young people for prostitution offenses; not requiring them to prove force, fraud, or coercion;
1 and requiring the referral to appropriate services inclusive of community-based organizations. Decriminalization is the only way to ensure that young people are not arrested or detained for prostitution-related offenses.
In addition to aligning state with federal law, decriminalizing young people’s involvement in trading sex also directly addresses the ways in which criminal convictions create lifelong barriers to obtaining housing, employment, financial aid for education, and other social welfare benefits—the very things that young people need to be able to transition away from trading sex. Any time a young person has a criminal conviction, their vulnerabilities increase, and the options available for them shrink dramatically. These collateral consequences, of course, limit case managers’ ability to connect their clients to services and other forms of support. Once convicted, young people face barriers to employment, housing, benefits, and educational goals, which effectively compromises their ability to create a new life course. Indeed, people with convictions sometimes find that their only option to make money is to continue to engage in criminalized activities such as trading sex (Lerman 2014; Phillips et al. 2014). Robin Richardson, Equal Justice Fellow at the Urban Justice Center’s Sex Workers Project, offers her perspective on the vulnerability created by convictions: “It’s my personal belief that to the extent that a criminal record forces somebody to stay in prostitution, the state has at least committed the actus reus [the act that cause the crime] of trafficking. They may not have committed the mens rea [criminal intent], but they are at least reckless. A criminal conviction for prostitution makes people more vulnerable to being trafficked by other people” (2014). Ultimately, convictions are enduring barriers that place youth right back in the situations of vulnerability that resulted in their trading sex in the first place.
Because of the incentive to prosecute, young people are being tried and convicted as co-conspirators to their sex trades involvement. This treatment is morally reprehensible, brands young people as sex offenders for life, and limits them to a life without options because of that label. An additional problem relates to how many young people help coordinate other young people’s sex trades. Common harm reduction techniques on the street such as working in pairs, using condoms, and providing information about potential clients are criminalized and can result in young people being charged as traffickers (Brennan 2014; Dorsey 2013; McLemore 2012; Medina 2014). The TVPRA of 2003 expanded the predicate acts that can be prosecuted under the Racketeer Influenced and Corrupt Organizations (RICO) Act of 1970 to include human trafficking. The TVPRA of 2008 added to the list of RICO offenses the provision of condoms manufactured outside of the state where the offense occurred. In the guise of being tough on crime and going after purported perpetrators, the current anti-trafficking laws ultimately criminalize young people’s support systems and their fundamental right to health-promoting material such as condoms. Tamar R. Birkhead, associate professor of law and the director of Clinical Programs at the University of North Carolina, Chapel Hill, reflected on the problem of young people acting as recruiters: “Should these teenage recruiters also be criminally prosecuted and punished? What if the pimp is even younger than the prostituted child? Perhaps even more vexing, what ought to be done when a prostituted child recruits another child—her own peer—into the Life?” (2011, 1091–1092).
Recognizing the competing priorities of law enforcement and young people, the TVPRA of 2008 removed the provision that required young people to provide reasonable assistance in investigating and prosecuting their trafficker in order to be able to receive assistance and services. Suzanne Tomatore, co-chair of the Freedom Network, a national coalition of anti-human-trafficking service organizations, argues, “We all want to do the right thing, but I think it is important that the individual rights come first and [the victims] aren’t pressured into cooperating with law enforcement” (qtd. in Pupovac 2013). Echoing this sentiment, Ambassador Luis CdeBaca in the U.S. State Department Office to Monitor and Combat Trafficking in Persons suggests that young people’s needs and choices should be “as important as the needs of the state, the needs of prosecution, the needs of law enforcement” (qtd. in Kovtun 2013).
In an attempt to remove some of the negative impacts of being convicted of prostitution-related offenses even when legally considered a trafficking victim, several states have passed vacatur remedies. Most of these remedies apply only to prostitution-related offenses and fail to acknowledge the ways in which people engage in multiple criminalized activities surrounding their sex trades. Although it would be preferable to expunge all convictions related to young people’s involvement in trading sex, as Kate Mogulesco, supervising attorney for the Trafficking Victims Advocacy Project at the Legal Aid Society, explains, “vacating any convictions helps our clients, especially our clients who are still facing arrest. If you’re able to reduce their rap sheet by this much [holds up thumb to finger] that’s a help to them” (2014). Indicative of the importance of having vacatur remedies, the Council of State Governments voted to include Kentucky Senate Bill 184 in their suggested state legislation volume for the year 2016 (J. Horne, personal communication, August 20, 2014).
2 Kentucky’s vacatur remedy allows for the vacation of all nonviolent offenses that occurred while involved in trafficking situations, inclusive of young people who trade sex. All states need to enact vacatur remedies to ensure that young people’s vulnerabilities are not enhanced by the very system that purports to protect them.
In addition to decriminalizing young people’s involvement in trading sex, future work needs to examine the ways in which decriminalizing or legalizing adult prostitution may have an impact on young people’s involvement in sex trades. It is possible that if a system for adults to procure sex were formalized through decriminalization or legalization, opportunistic clients would no longer have a need to purchase sex from young people. Similarly, removing criminal statutes against all individuals who sell and purchase sex may create an environment where they could report to law enforcement officials without fear of legal consequences any situations where people are being exploited in the sex industry.. In their report about effective legal remedies for trafficking victims, Suzannah Phillips and other attorneys at the International Women’s Human Rights Clinic and City University of New York School of Law suggest that “individuals in the sex industry often have information about individuals forced into sex work and can report situations of exploitation and trafficking. Yet, fear of arrest or police harassment can pose a huge barrier to providing assistance for trafficked individuals” (2014, 23).
If nothing else, all people involved in trading sex—clients, third parties, and those who trade sex—regardless of age need to be guaranteed immunity if they choose to come forward to law enforcement and file reports when they are victims of crimes or when they want to report other crimes or abuses they have witnessed while engaged in trading sex. Granting young people immunity is clearly just the first step in acknowledging the ways in which law enforcement officials have become yet another exploiter in the lives of these young people. Among other things, a significant and meaningful investment in the restorative justice process is needed.
Looking beyond U.S. borders,
3 we find an example of what is possible when trading sex is not criminalized. In India, prostitution is legal, so people involved in the sex industry can work collectively to identify and address the social and structural factors that have negative impacts on them. In 1996, the Durbar Mahila Samanwaya Committee (DMSC), a collective of sixty-five thousand sex workers in West Bengal, decided that it wanted to work to address the issue of young people and coerced adults involved in sex work (Jana et al. 2013). As of 2011, the DMSC ran thirty-three self-regulatory boards in West Bengal, comprising ten to twelve members—six to seven sex workers and the rest representatives from the government, legal, social welfare, and health sectors.
To ensure that no youth or coerced adults are trading sex, the regulatory boards screen all newcomers to the red-light districts in West Bengal (DMSC 2013). In instances when it is determined that someone in the trade is younger than eighteen, either through self-report or analysis of a bone X-ray, the board decides a course of action with the young person. If returning home is not an option, often because of abusive conditions, the board arranges for alternative placements, such as short-stay homes and boarding schools. When appropriate, young people are also linked to vocational training or helped to find placements in other occupations (S. Jana, personal communication, February 11, 2014). It is important to note that not all the young people screened by the regulatory boards are appreciative of their efforts. Dr. Smarajit Jana, principal of the Sonagachi Research Training Institute, shared that some “express their anger…[and] see [the intervention as] oppressive and [an] infringement of their rights” (personal communication, February 11, 2014).
Some of the youth identified will never trade sex because of the DMSC regulatory boards’ efforts, some will move to other districts where the regulatory boards do not operate, and others will wait until they are eighteen and then engage in sex work (S. Jana, personal communication, February 11, 2014). From 2001 to 2011, the regulatory boards identified 668 young people involved in trading sex, and since 1992 they have witnessed a 90 percent decline in the number of young people involved in sex work (Jana et al. 2013). Interestingly, from 2007 through 2009, the time period that data were reported, DMSC regulatory boards identified and assisted 259 young people, whereas the police identified only 90 (Jana et al. 2013). The approach utilized by the DMSC highlights the ways in which a community-led strategy rather than one driven by law enforcement provides the opportunity for more young people to be identified.
The United Nations has called for an increase in participatory interventions that address the social and structural factors that create, reinforce, and reproduce risk among young people who trade sex (Miller et al. 2011). Although some programs in the United States have placed young people who trade sex in positions of leadership, they are the exception rather than the rule. What is more common is programs perpetuating the same power dynamics that young people experience in exploitative situations: “People are getting
a,
b,
c, and
d. Usually shelter, food and a certain amount of love. They have to give
a,
b,
c, and
d. So they have to be that good client, in by 10 at night, and work all these groups. That can be very similar to the same things they are getting in an exploitative situation, which is shelter, food and conditional love, and the same things they have to do which is be loyal, be back to their exploiter by a certain time at night and make money, those power dynamics feel the same” (Lerman 2014).
To begin to move toward an empowerment, antioppression model of program development and service delivery, funders need to involve young people in the process from the beginning. These young people are resourceful and resilient, and they are the experts about their lives. They are capable of offering what they consider to be the solutions to their issues. Without their input and inclusion, service providers will continue to struggle when working with young people who trade sex. In fact, “a closer look suggests that what professes to be social welfare is often social control” of young people who frustrate systems by not playing by their rules (Sherman 2012, 1586). Programs need to be committed to creating opportunities for young people to develop and enhance their skills so they are able to take on additional leadership roles within and beyond the organization. Funding and delivering formal leadership programs for these young people are crucial.
Laws alone are not sufficient to prevent youth from trading sex. Young people also need social and economic power as well as the ability to have their choices about living situations, service needs, and sexuality respected. Unfortunately, because the United States is one of only three countries that has not ratified the United Nations Convention on the Rights of the Child,
4 it appears that we are not really interested in empowering our young people. Minh Dang recounted the following conversation she shared with a friend: “A friend of mine said this really beautifully. She identifies as a survivor of child abuse and trafficking and she said it’s pretty telling that as a society we don’t really value children’s rights, we don’t have universal children’s rights because adult voters can vote away funding for education. Children have no say in that. Adults can literally say, ‘We’re not going to teach our kids, we’re not going to give kids health care.’ So how are we at all respecting children’s rights?” (personal communication, January 16, 2014). If as a nation we ratify the Convention on the Rights of the Child, we would be obligated to listen to young people and take seriously their opinions. We also would be required to ensure that young people have access to health care, education, and social benefits.
If we truly care about our young people, we would recognize the ways in which many of our current laws and policies increase their vulnerability to trading sex and how none of the anti-trafficking laws address the root factors of trafficking. Young people trade sex when they need a place to stay and often eschew shelter options because they do not want child welfare involvement. Young people should be allowed to enter into binding contracts for property if they can provide sufficient proof that they are financially able to honor the contract. Recognizing the challenge for people younger than eighteen to make enough money to be able to prove financial ability, we also need to revisit the restrictions and guidelines that relate to shelters. Policies that require shelter staff to report the young person’s presence to parents and guardians within a specified time period, typically seventy-two hours, effectively keep young people from entering shelters. The reporting provisions need to be eliminated to ensure all young people feel comfortable accessing shelter services. Young people have the right to access all forms of health care—mental, physical, and sexual. Laws that require parental or guardian consent prevent some young people from receiving these important services. Parental and guardian consent should not be required to access health care.
The framing of young people’s involvement in trading sex as victimization through “domestic minor sex trafficking” has resulted in an increase in media attention, funding for services, and state and federal legislation. Although this shift from viewing youth as criminals to considering them victims of crimes began more than fourteen years ago, the unfortunate reality is we have not made much progress in truly addressing the root causes of this social issue. Rachel Lloyd, founder and chief executive of Girls Educational & Mentoring Service, offered her perspective on this issue in a piece she wrote for the Huffington Post: “In an effort to get people to care about this issue, we’ve been less than careful with the statistics and in an effort to get the media to cover this story we’ve often reduced it to the most basic elements. I’ve been guilty of this too. We’ve focused on quick fixes and good vs. evil responses that rarely address the true causes or empower the young people that we’re serving” (2012).
Relying on this victim–villain narrative has prevented us from examining the structural factors and social forces that produce and maintain young people’s vulnerability. Bree Pearsall, a human trafficking outreach advocate for the Bluegrass Rape Crisis Center in Lexington, Kentucky, acknowledged, “I don’t think that we see people who are against eradicating human trafficking…. I think where the pushback is addressing some of those core vulnerability issues…. Why do we have children being prostituted on our streets? Those are the harder questions I think we have to ask ourselves as a community because we can really rally around eradication of slavery but it’s those more really ground-level issues that I think are perpetuating the problem” (in Shaw 2010).
The “inaccurate and irresponsible” content of most descriptions of domestic minor sex trafficking has resulted in misinformed people supporting “policies and organizations that are ultimately counter-productive to the fight against human trafficking” (Turner 2014). It is our obligation to critically examine all current and proposed anti-trafficking legislation and assess whether it is directly helping or harming young people.
A more holistic and nuanced picture of youth who trade sex clearly demonstrates that campaigns focusing on ratcheting up penalties for third parties and clients will not in and of themselves result in young people leaving the sex industry. These young people have been forced to trade sex by parents and family members; they have been pushed out of or run away from home and are trying to survive; they are cisgender and transgender youth who are looking for emotional support and validation; they are in abusive relationships. Just as important as looking at what preceded their involvement, we also need to acknowledge what it takes for young people to stop trading sex. Many will stop on their own when their emotional, financial, and survival needs are provided for in other ways. When we pay attention to these diverse narratives and recognize the rarity in which youth are forced into trading sex by someone unknown to them, we realize that the root causes of young people’s involvement in sex trades are not easily changed. Likewise, we see that the solution to this issue is not as simple as focusing efforts on “rescuing” youth and punishing “bad” people. Instead, attention needs to be directed at how the failure of social and cultural systems influences youth to trade sex in the first place. Speaking to this need to critically examine structural inequalities, Minh Dang suggests that “perhaps this is a good opportunity for anti-trafficking activists to say you can’t fix trafficking without fixing inequalities in education, and racism, and poverty, and on and on and on. It’s the perfect way to say, look, this is our messed up system coming to a head” (personal communication, January 16, 2014).
In the absence of an anti-oppression framework that addresses the systemic issues that create vulnerabilities—sexism, classism, racism, homophobia, transphobia, generational violence and abuse—we will never eradicate the social issue of young people trading sex. Young people need micro-, meso- and macrosystems that facilitate their holistic development. Without a functioning system to support them, young people find that to meet their needs, their best, only, or least-worst option is to trade sex.
Evoking the spirit of Pierre Bourdieu’s notion of “amor fati, the choice of destiny, but a forced choice, produced by the conditions of existence which rule out all the alternatives as mere daydreams and leave no choice but the taste for the necessary” (1984, 178), a case manager in New York explained, “Yes, they’re forced, but they’re forced by the fact that there are no other options…. And there’s some adults that take advantage of the situation, but…if we took those situations away it would impact the amount of young people who are vulnerable to those type of predatory adults…. [I]t’s so frustrating that people are trying to find this complicated answer” (J. Westmacott, personal communication, November 7, 2011).
If young people’s basic human rights are met, if they have stable and safe housing, employment or another source of income, health care, access to education and welfare benefits, and supportive networks (familial or social), those who really do not want to be trading sex will have other options.