Shame Must Change Sides: Protecting Children from Criminalization
Rev. Dr. Marian Hatcher
Shared Hope Policy Consultant
Once again, I find myself writing about the non-criminalization of minors. It’s unfortunate that survivor leaders and advocates must continue in firm support of not holding children/youth criminally liable for their own abuse.
In 2026 there have been two important bills passed addressing this. On the face of it, both bills are an attempt at making the lives of trafficking victims better. Making the scales of justice a bit more balanced. However, concerns remain.
The Virginia House Bill, HB191, signed into law April 13, 2026, amends the affirmative defense code to grant minors who are victims of sex trafficking complete immunity from arrest or prosecution for prostitution offenses.
There are concerns as (1) it only allows the immunity from prosecution for “victims of trafficking,” and the statutory definition requires that the minor committed the offense as a direct result of being solicited, invited, recruited, encouraged, forced, intimidated, or deceived by another to engage in prostitution; and (2) the immunity is in the affirmative defense code rather than in the prostitution code, which might require a minor to essentially go to trial to prove their victimhood.
The Louisiana House Bill, HB 321, signed into law August 1, 2026, provides immunity to “victims of trafficking” but, importantly, presumes “any child who is engaged in prostitution or prostitution-related offenses is presumed to be a victim of human trafficking.” Unlike the VA bill, this amends the human trafficking and prostitution code sections, so there should not be an issue of affirmative defense.
But there is still a larger issue that we must confront when we talk about protecting minors from criminalization: not every child who is commercially sexually exploited has a third-party trafficker standing behind them.
Domestic minor sex trafficking is fueled by demand. Buyers are the reason this human rights violation exists. In fact, buyers are traffickers and we have the legislation to support that statement.
The problem is that when our laws define a child’s victimization through the presence or actions of another trafficker, we can unintentionally create a gap in protection for children whose exploitation is driven directly by buyers. A child may be repeatedly bought and sold for sex without a traditional “trafficker” recruiting, transporting, controlling, or directing them. The buyer’s demand can be the force sustaining the exploitation. If the legal protection depends upon proving that another person solicited, recruited, encouraged, forced, intimidated, or deceived the child, then some children who are clearly being commercially sexually exploited may still fall outside the protection intended for trafficking victims.
This matters because the absence of a third-party trafficker does not mean the absence of exploitation, and it certainly does not mean the absence of harm. A child should not have to identify, cooperate against, or prove the existence of a trafficker in order to be recognized as a victim when the conduct itself demonstrates commercial sexual exploitation. If our goal is truly to stop criminalizing children for their own abuse, the protection must reach the child whose exploitation is facilitated by a trafficker and the child whose exploitation is sustained by the demand of buyers.
A landmark ruling, United States v. Jungers (8th Circuit Court of Appeals 2013) established a legal framework promoted by law enforcement and advocates alike in South Dakota. It was a privilege to watch the traction of this philosophical platform that became law. The U.S. Attorney Brendon Johnson was a colleague in the anti-trafficking fight. He and I were both awarded the Shared Hope Path Breaker Award in October 2014.
The legislation established that buyers of sex acts with minors are committing sex trafficking under federal law, increasing the risk of participating in that activity which drives sex trafficking markets. The Eighth Circuit held that 18 U.S.C. § 1591 applies to purchasers of commercial sex acts involving children, not only those who supply or control the child.
When Brendan received the Pathbreaker award, Shared Hope International President and Founder Linda Smith said, “By creating a threshold for buyer accountability, he sets a national precedent, that if applied, will make significant strides in reducing tolerance for purchasing sex with a minor.”
This ruling changed how sex trafficking was prosecuted nationwide. By categorizing buyers as traffickers, they can be prosecuted more aggressively. This strongly impacts what we know is the driving force of the industry, BUYERS!
According to the South Dakota Law Review (2019 Issue 3), one of the outcomes of Jungers was the language included in the Justice for Victims of Trafficking Act (JVTA), a federal law signed on May 29, 2015. The JVTA added the words “patronizes” and “solicits” to the list of proscribed activities found at 18 U.S.C. section 1591(a)(1). Following the Eighth Circuit’s decision in Jungers, the JVTA made it clear that buyers can be prosecuted as sex traffickers.
“The system of prostitution is designed to spotlight the availability of sex “provided” by women and girls on the margins of society while at the same time masking sex buyers who demand this availability.
Sex buyers crave anonymity in order to compartmentalize an abusive practice and segregate it from their reputations, their careers, and their families.” 1
These same systems of prostitution will leave many at the intersection of sex trafficking and offending conduct. It’s necessary to understand and navigate this victim-offender dynamic in a trauma-informed manner.
And it is also necessary to examine whether our laws are actually reaching all of the children we say we intend to protect.
We cannot build a system of non-criminalization that protects only those children who fit a particular trafficking narrative. A child should not have to have a third-party trafficker in order to be recognized as a victim. A child should not have to prove that someone else recruited or controlled them before we decide that their participation in commercial sex was exploitation. If the demand is what creates the market, then our protections must account for the children exploited by that demand.
“Shame Must Change Sides.”
Gisele Pelicot
