The “Youngest Profession”: Consent, Autonomy, and Prostituted Children

Although precise statistics do not exist, data suggest that the number of children believed to be at risk for commercial sexual exploitation in the United States is between 200,000 and 300,000 and that the average age of entry is between eleven and fourteen, with some as young as nine. The number of prostituted children who are criminally prosecuted for these acts is equally difficult to estimate. In 2008—the most recent year for which data is available—approximately 1500 youth under age eighteen were reported to the Federal Bureau of Investigation as having been arrested within United States borders for prostitution and commercialized sex. Anecdotal evidence suggests, however, that these numbers reflect only a small fraction of the children who face criminal charges as a result of their prostituted status. Research also reveals that because most states have laws that hold children criminally liable for “selling” sex, law enforcement and the courts readily pathologize these youth, a significant percentage of whom are runaways, drug addicted, or from low-income homes in which they were neglected and abused. Statistics additionally suggest that the number of American girls who are sexually exploited is increasing, particularly for those between the ages of thirteen and seventeen. Likewise, it is estimated that eighty percent of prostituted women began this activity when they, themselves, were younger than eighteen. Yet, nearly all states can criminally prosecute children for prostitution even when they are too young to legally consent to sex with adults, and very few communities have developed effective programs designed to prevent or intervene in the sexual exploitation of youth. This Article critically examines the prevalence of laws allowing for the criminal prosecution of minors for prostitution. It argues that rather than maintain a legal scheme that characterizes and treats such juveniles as willing participants who, if harmed, are merely getting what they deserve, a more nuanced approach must be developed in which—at a minimum—criminal liability should be consistent with age of consent and statutory rape laws. It analyzes the range of ways in which states have addressed the problem of prostituted children, and it highlights those few that have successfully utilized strategies of intervention and rehabilitation rather than prosecution and incarceration. It contrasts the impact of state versus federal legislation as well as domestic versus international policy in this area and examines the ways in which these differences serve to perpetuate pernicious stereotypes vis-à-vis youth and crime. The Article addresses the historical treatment of prostituted children as criminals rather than victims by both American law and society, and critiques contemporary rationales for continuing a punitive approach toward these youth. The Article explores the conflicting statutory, common law, and colloquial meanings of the terms prostitution, consent, and bodily autonomy as they relate to children and sexuality. It also considers the extent to which the criminal offenses of prostitution and statutory rape address different sets of harms and explores how gender and sexual orientation are implicated in the discussion. The Article concludes by highlighting model programs directed at prevention, intervention, and rehabilitation, as well as proposing strategies for reform, such as decriminalization and diversion

The New Peonage

Although the Thirteenth Amendment to the Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment of crimes “whereof the party shall have been duly convicted.” Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt. Yet, in the wake of the Civil War, Southern states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended, and workers became further indebted to local planters and merchants. Several decades later in Bailey v. Alabama (1911) and United States v. Reynolds (1914), the Supreme Court invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act. Yet, these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II. This Article examines the phenomenon of what the Author calls “the new peonage.” It posits that the reconfiguration of the South’s judicial system after the Civil War, which entrapped blacks in a perpetual cycle of coerced labor, has direct parallels to the two-tiered system of justice that exists in our juvenile and criminal courtrooms of today. Across the United States, even seemingly minor criminal charges trigger an array of fees, court costs, and assessments that can create insurmountable debt burdens for already struggling families. Likewise, parents who fall behind on their child support payments face the risk of incarceration, and upon release from jail, they must pay off the arrears that accrued, which hinders the process of reentry. Compounding such scenarios, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When low-income parents face such collateral consequences, the very act of meeting the most basic physical and emotional needs of their children becomes a formidable challenge, the failure of which can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For youth in the juvenile court system, mandatory fees impose a burden that increases the risk of recidivism. In short, for families caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration always looms. Ironically, rather than having court fees serve as a straightforward revenue source for the state, this hidden regressive tax requires an extensive infrastructure to turn court and correctional officials into collection agents, burdening the system and interfering with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system. This Article is the first to analyze the ways in which the contemporary justice tax has the same societal impact as post-Civil War peonage: Both function to maintain an economic caste system. The Article opens with two case profiles to illustrate the legal analysis in narrative form, followed by several others presented throughout the piece. The Article then chronicles the legal history of peonage from the passage of the Thirteenth Amendment through the early twentieth century. It establishes the parallels to the present-day criminal justice system, in which courts incarcerate or re-incarcerate those who cannot pay. It argues that Supreme Court decisions intended to end the use of debtors’ prisons ultimately had limited impact. The Article concludes with proposals for legislative and public policy reform of the new peonage, including data collection and impact analysis of fines, restitution, and user fees; ending incarceration and extended supervision for non-willful failure to pay; and establishing the right to counsel in nonpayment hearings

The Racialization of Juvenile Justice and the Role of the Defense Attorney

The existence of structural racism is not new. In fact, as the second decade of the twenty-first century comes to a close, there is evidence of a national political openness to acknowledging the phenomenon. This Article seizes upon this openness as it seeks to provide a fuller understanding of how structural racism operates within a branch of the criminal justice system that is often overlooked—the juvenile justice system. The Article offers a definition of racialization that acknowledges its multi-dimensional and fluid nature and the ways it is perpetuated via juvenile court rhetoric, processing, and procedure. It demonstrates how the racial bias that animates today’s juvenile justice system has deep echoes in its early history. The Article examines the harms of racialization and the impact of those harms on children charged with crimes, providing insight into how the construction of race operates within the system as well as how the system itself contributes to the construction of race. In turn, the Article shines a light on how young offenders, who are disproportionately children of color living in poverty, are perceived and understood within American society. The Article also explores the roles of the various actors within the system, focusing upon the juvenile defense attorney and the question of whether it is ethical to utilize racialized narratives during litigation, a discussion that illustrates the tension between two very different models of criminal defense. It analyzes the rules of professional ethics that address the potential conflict between a lawyer’s duty to her client and adherence to her own moral code, and it explores a middle ground that takes into account the unique challenges of defending adolescents charged with crimes. The Article argues that the harms of racialization should be confronted in the context of broader strategies for reform of the juvenile justice system. It considers the efficacy of implicit bias training for police officers and other court actors and proposes implementing practical safeguards that enable defense attorneys to inoculate against bias, rather than focus on the nearly impossible task of eradicating it. The Article concludes with a call to diversify the overwhelmingly white bench and bar in order to create a racially, and ethnically, heterogeneous court culture that emphasizes fair and impartial lawyering, no matter one’s role

Delinquent by Reason of Poverty

This Article, written for the 12th Annual Access to Equal Justice Colloquium, explores the disproportionate representation of low-income children in the U.S. juvenile justice system. It examines the structural and institutional causes of this development, beginning with the most common points of entry into delinquency court—the child welfare system, public schools, retail stores, and neighborhood police presence. It introduces the concept of needs-based delinquency, a theory that challenges basic presuppositions about the method by which children are adjudicated delinquent. It argues that at each stage of the process—from intake through adjudication to disposition and probation—the court gives as much or more weight to the perceived needs of the child and her family than to the quality of the evidence against her or the ability of the state to prove its case. Typical features of the juvenile code, including the procedures for intake and diversion and the use of bench rather than jury trials, combine to shift the system\u27s emphasis from an evaluation of a child\u27s criminal responsibility to an assessment of a family\u27s social service needs. The standard of proof, therefore, is determined in large part by the socioeconomic class of the accused rather than the nature of the forum, an orientation that lowers the state\u27s burden for indigent juveniles while heightening it for affluent youth. The result is that in all but the most serious of cases, children from low-income homes do not have to be as guilty as those from families of means in order to enter and remain in the system, thereby widening the net of court intervention for poor children. The Article establishes that the juvenile court‘s traditional focus on the needs of destitute youth continues to be reflected in the system‘s practices and procedures, despite the modern court‘s shift in dispositional philosophy from rehabilitation to youth accountability and public safety. It argues that the emphasis on families‘ needs when adjudicating delinquency has a disproportionate effect on low-income children, resulting in high rates of recidivism and perpetuates negative stereotypes based on class. It offers strategies for confronting and reversing this trend, including data collection that records the income-level of juveniles‘ parents; initiatives that raise awareness of needs-based delinquency among police, prosecutors, defenders, judges, and agency personnel; diversion programs that reduce the high rate of juvenile court adjudications for minor offenses; cross-agency mental health treatment plans for children and adolescents; and the adoption of international juvenile justice models that are preventative and diversionary rather than penal and punitive. The Article challenges the view that in tight budgetary times, court involvement is the only way for poor children to access services. It concludes by calling for lawmakers and system players to end the practice of needs-based delinquency, with the goal of increasing fairness for all youth in the juvenile justice system