by Dianna Muldrow:

The criminal justice system is tasked with the critical job of preventing and punishing crime and to further complicate matters the system is expected to do so while fulfilling the more nebulous notion of justice.

But how is justice to be reached if the perpetrator is also a victim? When a teenager is arrested for prostitution, it is becoming clearer and clearer that they are often not the actual instigator in the crime, or even a willing participant. Nevertheless, states across the country are criminalizing these children.

For example, Texas so fiercely protects its youth from coercion by adults that it asserts that juveniles aren’t capable of consenting to sex. But, why then does Texas still actively search out and punish child prostitutes? These “criminals” are generally girls around fifteen year-old who have fled from abusive homes and are now ‘sheltered’ by a pimp.

Texas Penal Code §43.02 criminalizes prostitution without reference to age, but provides that if the perpetrator was also the victim of conduct included under §20A.02 then they have an affirmative defense to prosecution. This second statute prohibits the trafficking and forced labor of children, ostensibly providing an out to children who are being coerced into the behavior.

However, this doesn’t keep cases against child prostitutes out of the courts. Force is difficult to prove because the child is usually completely dependent upon the pimp and subtle implications of dire consequences are enough to compel action without actual physical force or threats of it. In addition the child often will not assist in the prosecution of someone that they might believe is their protector and who has taught them to be deeply distrustful of the authorities.

The state of Texas believes so strongly in a child’s susceptibility that any sexual contact that an adult has with a child is a statutory offense. This means that it doesn’t matter if the adult knew the age of the child or if the child consented. The adult is the responsible one. We are willing to enforce enormous penalties on unknowing individuals because we want to completely protect children from coercion. But for some reason, when the act becomes profitable we no longer believe that adults might be forcing it?

Numerous studies have looked into what forces child participation in prostitution. Abused young girls are most at risk and runaways are particularly vulnerable. By offering assistance and affection to children that are alone and afraid the trafficker gains their trust. Then through many varying types of abuse and social isolation the child is pressured into their life as a “criminal.”

These methods are often much more subtle than what is provided for in the statute.

These girls believe themselves to be alone in the world, save for their pimp or trafficker who is usually stronger and more aggressive. This is a powerful coercive factor. Sadly, with a lack of physical abuse or clear threats of physical abuse it is much more difficult to prove coercion in court, resulting in the child being criminalized for their own victimization. Another complicating factor is that, from residual fear, or perhaps out of twisted loyalty to their captor, victims often refuse to participate in prosecution, leading to their own imprisonment.

Besides being a subversion of justice, this practice clearly affects Texas in other important ways. There are, of course, prosecution and housing costs for the criminal justice system, but it is also key to note that eventually these juveniles will age and become adults in the system. The longer that these individuals spend in this dangerous life, the more difficult it is for them to be extricated, leading to a cycle of arrests and imprisonments. In addition, the increased likelihood that these children have or will develop drug addictions in this lifestyle means a higher likelihood of state involvement and other convictions down the road.

Obviously these children don’t belong in the criminal justice system at all. Their consent in these situations is illusory. They are the victims. But merely releasing them back to their life of sexual exploitation turns a blind eye to their real situation. A concerted effort is needed to identify these children and the manipulative adults that truly have committed crimes, and then direct the youths to the proper services that can break the cycle of exploitation and arrests.

The Center for Court Innovation, a public-private initiative to find more effective means of addressing low-level offenses, has highlighted two programs that identify and provide options for women and girls in these situations who have been arrested on charges of drug use or prostitution.

Services to Access Resources and Safety (STARS) is an alternative to jail for all ages that was implemented in New York. It focuses on education and therapy to enable the individual to make the changes in their life necessary for them to be released from their cycle of arrests.

Bronx Community Solutions is another alternative program that identifies these victims and links them to providers of housing, vocational training, and counseling. The provision of alternative housing is important as many of these juveniles have no home and rely on their trafficker or pimp to provide shelter.

Whatever program is used, it is clear that children shouldn’t be jailed for decisions that the law acknowledges they aren’t capable of making. There is a crime occurring when money is exchanged for sex with a child, but the child is not the criminal. Criminalizing victims is a government failure that leads to a cycle that absorbs law enforcement time and inflicts years of pain upon children.

Dianna Muldrow is a Research Associate at a non-profit in Austin and a third year law student at the University of Texas School of Law