Non-criminalization; Third party control; specialized services Archives

Lack of Consistency in Child Sex Trafficking Laws May Hurt Our Children

By Christine Raino and Eliza Reock

What’s in a name? A lot, actually. In the area of anti-sex trafficking law and policy, words and definitions matter. They have the ability to affect thousands of lives of individuals who have survived sex trafficking. In recent years, policy makers and anti-trafficking advocates around the nation have been celebrating the success and passage of “Safe Harbor” laws . . . the problem? No one knows what that means.

After over 20 years in the fight to combat sex trafficking and protect victims, Shared Hope recognizes the importance of language. For instance, we see the vast difference between the response to a child thought to be a victim of sexual exploitation and that same child if he or she is instead labeled a “child prostitute.” A simple change in terminology–from “child prostitute” to “child sex trafficking victim”–alters subconscious impression. Since the release of our 2009 National Report on Domestic Minor Sex Trafficking, Shared Hope has been working with law enforcement, service providers and policy makers to imprint this understanding and assure that adults working with trafficked children recognize them as victims and not perpetrators of a crime. Yet, 23 states still have laws that allow children to be charged with prostitution and other crimes related to their trafficking abuse, effectively criminalizing them for the same conduct that makes them a victim of a crime. Laws matter. This conflict in the law is confusing and complicates our response.

Does this 23 state statistic surprise you? Well, you may be surprised because many states claim to have fixed the problem by enacting a “safe harbor” law. But what does it really mean to pass a “safe harbor” law? Unfortunately, this term has no single, clear meaning. Current “safe harbor” laws range all the way from an affirmative defense with no clear path to services, to comprehensive laws that respond to sex trafficked kids through various points of contact and mandate access to specialized services. As a result, the term “safe harbor” has become a catch-all phrase for any attempt to reduce criminalization of minors for prostitution—some of these laws are progressive and comprehensive and others fall far short of what is needed to truly protect child victims.

The term originates from the very first law enacted to protect juvenile sex trafficking victims from criminalization, the New York Safe Harbor law, enacted in 2008. This law allows minors to be charged with prostitution and directed into an adversarial court process in order to access services, and was definitely not the original goal of the bill. When survivor advocates set out to establish this new protection for sex trafficked youth and Assembly Bill 5258 was introduced, it would have eliminated criminal liability for minors for prostitution. Non-criminalization was the goal of the bill, and even though that’s not where the bill ended in 2008, that should still be the goal – for every state. Unfortunately, this incomplete response became the jumping off point for other states’ attempts at protecting minors from criminal liability, many of which continued to use the “safe harbor” terminology.

One of the risks of continuing to utilize an ill-defined term, and giving states credit for “safe harbor” laws without closely examining the structure of those laws, is complacency–the sense that the issue has been addressed–yet there is not one single state that has worked out a highly effective response to juvenile sex trafficking. Nevertheless, the lack of a perfect model is not a reason to stop moving forward and it is exciting to see states taking initiative in the law to address the unfair penalization of juvenile sex trafficking victims.

This is not a simple process and it requires a long term commitment as well as the willingness to keep assessing, evaluating and improving the laws necessary to protect juvenile sex trafficking victims. It is critical to maintain two clear goals at the core of the effort to draft truly effective child protective responses: (1) comprehensive laws that eliminate criminal liability for minors for prostitution and other nonviolent offenses related to their victimization, and (2) provision of an avenue to specialized services for trafficked youth.

Shared Hope has created useful tools that help educate advocates to understand their state laws meant to protect children who have been trafficked. Even if your state has a “safe harbor” law, examine the law to see if it meets the above named goals and if not, let your officials know that a bill name is not a victory. Join us in demanding that all states have legislative frameworks that undeniably and unequivocally provide justice for all child sex trafficking victims

Related Research:

Trauma, Coercion, and the Tools of Trafficking Exploitation: Examining the Consequences for Children and Youth in the Justice System

Seeking Justice Report

JuST Response Council Protective Response Model Field Guidance

Justice for Juveniles Field Guidance

Non-Crimiminalization of Juvenile Sex Trafficking Victims Policy Paper

State Mapping Report

Learn More About Safe Harbor

By: Natalie Assaad

The OSCE Office of the Special Representative and Co-Ordinator for Combating Trafficking in Human Beings held the 20^th OSCE Alliance Conference against Trafficking in Persons this past week from July 20 – 22, 2020. In reflection of the 20^th anniversary of the passing of the Palermo protocol, the conference focused on the lack of impunity of trafficking perpetrators globally. Despite an estimated 25 million victims of trafficking, only 11,096 traffickers were prosecuted in 2019. This amounts to approximately one prosecution for every 2,275 victims.

Conducting financial investigations in trafficking cases was emphasized by panelists and speakers, and first discussed by Albania’s Minister of Interior, Mr. Sandër Lleshaj. He discussed the importance of confiscating money and assets in trafficking cases, which was addressed by an Albanian law passed in 2020. This law requires individuals to prove the legality and origins of their assets if they were previously convicted of a particular set of criminal activities, including human trafficking. Barry Koch, Commissioner on the Financial Sector Commission on Modern Slavery and Human Trafficking, further discussed the use of financial data and records as effective weapons in fighting trafficking. Not only does financial data identify victims and perpetrators, but it proves coercion, corroborates witness testimony, and is the driving force behind a perpetrator’s activities. Mr. Koch recommended expanding the use of forfeiture assets to provide remedies to survivors, implementing global standards of crypto currency and the dark web to prevent criminal anonymity, and encouraging financial institutions to conduct periodic risk assessments to evaluate their exposure to human trafficking.

Ghada Waly, the Executive Director of the United Nations Office on Drugs and Crime (UNODC) discussed the effects of COVID-19 on human trafficking. The UNODC found that the increase in time spent online has provided traffickers with more opportunities to exploit victims while surges in poverty rates has heightened victim vulnerability. The UNODC also looked at past economic recessions and pandemics to study how the current pandemic may exacerbate trafficking. They found that countries who had higher unemployment rates as a result of not recovering as fast as other countries also had an increase in cross-border human trafficking.

Hilary Axam, the Director of the Human Trafficking Prosecution Unit at the Department of Justice, emphasized the need for a victim-centered, trauma-informed response for survivors, along with the necessity of political will. Not only does a victim-centered, trauma-informed response require intensive training, but it requires the unlearning of typical training law enforcement receives. For example, a survivor’s difficulty in recalling memories, emotional reactions, or conflicting statements are typically viewed as unreliable by law enforcement, however trauma-informed expertise indicates that these actions are common in traumatized survivors. Further, mobilizing political will is crucial, but is a resource-intensive undertaking that does not provide quick results.

On the last day, Dr. Myria Vassiliadou, an independent expert and former EU anti-trafficking coordinator, provided a compelling presentation on anti-demand and the trafficking chain. Dr. Vassiliadou pointed out that our culture not only tolerates tens of thousands of trafficking victims but normalizes it through society and criminal justice systems. She stated that any criminal justice system that treats trafficking in a restricted manner by focusing only on the trafficker or victim instead of the trafficking chain and driving forces is bound to fail – as proven by the current statistics of prosecutions and victims internationally. Dr. Vassiliadou stressed the fact that trafficking is purely economically driven, and that impunity can only be achieved by eliminating economic demand.

Valiant Richey, Special Representative and Co-Ordinator for Combating Trafficking in Human Beings, ended the conference with a necessary proposal –that all participating states triple the number of current prosecutions within the next three years. Mr. Richey stated that his office will offer support to participating states in designing and implementing effective strategies, such as training judges and law enforcement, conducting more financial investigations, building more prosecutions without survivor testimony, and implementing victim-centered, trauma-informed approaches.

Though shared from an international perspective, several of the themes and concerns addressed throughout the conference directly impact the United States’ response to domestic minor sex trafficking. For example, Dr. Vassiliadou emphasized the need to diminish demand and address the entire trafficking chain. Under federal law, buyers can be identified as sex trafficking offenders with or without the existence of an identified trafficker. However, the trafficking laws in several states exclude buyer conduct, and others fail to prosecute buyers despite their laws. In recognizing that the sex trafficking industry is fueled by demand and failing to address it comes at the cost of thousands of children’s lives, Shared Hope has developed a body of anti-demand resources. For more information, please visit https://sharedhope.org/resources/policy-research-resources/#endingdemand.

Further, the conference’s emphasis on political will strongly aligns with Shared Hope’s policy work. Shared Hope works tirelessly with survivors, advocates, and legislators to reform legislation in order to promote the non-criminalization of child survivors and the implementation of specialized services. This avoids re-traumatization of child survivors and equips states to respond with a trauma-informed, victim-centered approach through individualized, specialized services. For more information on Shared Hope’s non-criminalization efforts, please visit https://sharedhope.org/what-we-do/bring-justice/non-crim/. You can also take action by signing Shared Hope’s petition to end the criminalization of child sex trafficking survivors.