“Because a 13 year old child cannot consent to sex as a matter of law…B.W. cannot be prosecuted as a prostitute
--SupremeCourt of Texas decision “In the Matter of B.W.”, June 18, 2010
Thirteen-year-old B.W. was arrested for prostitution when she flagged down the car of an undercover officer and offered to engage in oral sex for twenty dollars. She was tried in Family Court, where she admitted that she had “knowingly agreed to engage in sex…for a fee,” and received a sentence of 18-months’ probation. The Court of Appeals affirmed the judgment and the Texas Supreme Court agreed to review her case.
Although the federal government, under the Trafficking Victims Protection Act of 2000, classifies sexually exploited children as victims, many states, including Texas, have contradictory laws that permit the prosecution of children for prostitution: One law establishes the age of sexual consent as 16; a different law sets no minimum age for the crime of prostitution, leaving the state prosecutor to determine which law to follow.
In a landmark decision, the Supreme Court of Texas addressed this issue head on and reversed the Court of Appeals by a 6-3 decision. http://www.supreme.courts.state.tx.us/historical/2010/jun/081044.pdf It said that “…transforming a child victim of adult sexual exploitation into a juvenile offender was not the legislature’s intent when it enacted the laws on prostitution” and “delinquent conduct of a child.” … “As a 13- year-old, B.W. cannot consent to sex as a matter of law, and therefore cannot be prosecuted as a prostitute.”
The Texas decision supported several arguments that advocates of sexually exploited children have been pressing.
1. Children cannot consent to sex because they lack the maturity to understand the consequences.
Responding to the prosecutor’s argument that B.W. “pleaded true” to “knowingly engaging in sex for a fee,” the Supreme Court cited longstanding common law, Texas statutes, and numerous cases affirming that children below age14 cannot understand the significance of agreeing to sex. This makes it difficult, the court said, to see how a child’s agreement could reach the ‘knowingly’ standard required by the statute. Referring to the 2010 U.S. Supreme Court decision that juveniles “are more vulnerable or susceptible to negative influences and outside pressures,” the majority opinion held that even expert psychologists find it difficult to differentiate “between the juvenile offender whose crime reflects unfortunate yet transient immaturity and the rare juvenile offender whose crime reflects irreparable corruption.” The Court further ruled that legislative intent was clear enough and did not need bolstering. Although it did not rule on children above the age of 14, the court did cite legislation saying that “compelling a child under 18 to commit prostitution was a second-degree felony.”
2. Prohibiting the adjudication of children for prostitution will not encourage more exploitation.
While the State argued that judging a child innocent of a crime would also make a pimp immune from criminal liability and free him to seek out even more children, the Court held that the exploitation or prostitution of a child below the age of 14 is already a crime. “It is unclear how the prosecution of a child for prostitution would serve as any further deterrent, especially in the case of children on the streets.” Removing children from arrest and prosecution will also remove the opportunity for pimps to play on their fear of police.
3. The inability to prosecute children for prostitution does not let adult offenders off the hook.
The Court rejected the State’s assumption that prohibiting the charging of juveniles for prostitution prevents prosecutors from bringing cases against adult offenders. In doing so,it identified several statutes under which pimps and traffickers can be held criminally liable for exploiting children without their being present to testify. Addressing the intent of the legislature, the Supreme Court said that children cannot be considered guilty of an act that involves their own sexual exploitation. “It is far more likely that the legislature intended to punish those who sexually exploit children rather than subject child victims below 14 years to prosecution.”
The case also demonstrates how traffickers and pimps are usually the last to be arrested, while children bear the brunt of the scrutiny and punishment. As the State’s litany of B.W.’s criminal offenses (prostitution, assault, drug possession, failure to attend school, sexually transmitted diseases, and two abortions) read like a clear indictment, the prosecutors acknowledged but made no effort to even investigate her “32 year old boyfriend with whom she lived with and had sex.” The Supreme Court did not address this issue.
4. Placing a child in detention does nothing to keep her safe, force her recovery, or prevent her running away.
Dismissing the argument that prohibiting the criminal prosecution of an exploited child would leave the State with no option but to put her back on the street, the Court cited many State alternatives to protect a child’s health and safety by a police officer or child protective services. At the same time, the prosecution argument has some merit. Service providers are in desperately short supply and many children do wind up back on the street in the arms of their pimps. But the solution is to ensure services that help children to heal, not detention that may further traumatize them or mark their future.
Texas Decision Complements Safe Harbor Laws
Citing Texas state law and interpreting its intent, the Supreme Court decision shows that efforts to protect the child from prosecution are firmly grounded in legal precedent. Safe harbor laws passed in four states so far – New York, Connecticut, Washington, and Illinois – complement the court’s intent to shift the focus from criminalizing to protecting a child, and to punishing the pimps and buyers, even without a child’s cooperation. Aiming to protect and prevent any person below age 18 from being charged, prosecuted, or incarcerated for prostitution, safe harbor laws refer exploited children to special services and shelters to support their recovery, and require special training of law enforcement, judges, and first responders.
A giant step forward, the Texas decision and passage of safe harbor laws by four states is just the beginning. Much more is needed to combat the increasing demand for and exploitation of children. Across the country, media increasingly report on U.S. children being sexually exploited on the streets, over the internet, in strip clubs and brothels. All states need to follow this new precedent through the courts and legislatures to protect children from prosecution for prostitution and to ensure adequate and appropriate services for their recovery.