Give Restitution to Victims of Child Pornography, But Also Recognize All Child Victims of Sexual Exploitation

A significant group of child victims remains unrecognized as such -- children in the commercial sex industry.
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The Supreme Court this week heard arguments in Paroline v. United States about restitution for victims of child pornography. This case reflects the recent awareness among lawmakers, courts and the media about sexual exploitation. This is a welcome development. But a significant group of child victims remains unrecognized as such -- children in the commercial sex industry.

The federal government has estimated that at least 100,000 minors every year are sold for sex in the U.S. The men who purchase and pimp them are rarely punished. And little is done to prevent this epidemic. Run-away shelters, safe housing and services for these children are perennially underfunded.

Instead, the most common reaction is to punish these victims. In almost every state, trafficked minors are routinely arrested, prosecuted and incarcerated for prostitution or related charges. Many of them are very young, entering "the life" at an average age of 11 to 14 years old. The evidence is clear that these children are extremely vulnerable, with over half of them having experienced sexual or physical abuse, and many of them taking to the streets to escape dysfunctional families. Experts estimate that, once he or she has run away, a young person will be approached within 48 to 72 hours to engage in prostitution. Many of them, with no safe place to sleep and no money to buy food, have no other choice.

Undoubtedly, many police officers and judges do not want to lock up these boys and girls. Yet they are wary of letting them back on the streets, to face beatings or worse at the hands of pimps and customers. As one Chicago cop asked: "What do you do with these [children]?. . .You need a place where they can stay where they can be safe." I don't blame these individuals on the front lines. But I do question why we as a society have made jail the only safe place for vulnerable kids.

All prostituted minors under 18 years old qualify as trafficking victims under the federal Trafficking Victims Protection Act, regardless of whether they are born in Bosnia or Brooklyn. Most children in the commercial sex industry would also qualify as victims under statutory rape laws. Yet I could find not a single case of a customer of a trafficked child being prosecuted for statutory rape. Prosecutions under trafficking laws remain rare, a drop in the bucket compared to the numbers of minors prosecuted for prostitution.

Prosecuting and jailing these children is not only unfair, but also ineffective. Young people exit the system with no services or housing in place. Not surprisingly, then, most return to their pimps or to the families they fled. Treating these victimized youth as criminals also renders them less likely to seek assistance in the future.

This bleak picture is slowly starting to change. About 10 states have passed "safe harbor laws" permitting trafficked minors to be taken out of the criminal system. Yet all but one of these states still allow for the prosecution and incarceration of some youth, and none of these laws is adequately funded. Child sexual exploitation will continue to go largely unchecked until real resources are devoted to safe housing and therapeutic services. Children depicted in pornography, like "Amy," whose images are at issue in the Paroline case, have suffered terribly. But so have the thousands of young people who are sold for sex on websites and dark streets. All these children deserve recognition and restitution as the victims they are.

Cynthia Godsoe teaches criminal and family law at Brooklyn Law School, and is on the board of GEMS, an organization serving girls and young women who have experienced commercial sexual exploitation and domestic trafficking.

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