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Bridge Over Troubled Water: Safe Harbor Laws for Sexually Exploited Minors Cheryl Nelson Butler

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Bridge Over Troubled Water: Safe Harbor Laws for Sexually Exploited Minors Cheryl Nelson Butler NORTH CAROLINA LAW REVIEW Volume 93 Number 5 Symposium 2014: Vulnerable Defendants Article 7 in the Criminal Justice System 6-1-2015 Bridge Over Troubled Water: Safe Harbor Laws for Sexually Exploited Minors Cheryl Nelson Butler Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Cheryl N. Butler, Bridge Over Troubled Water: Safe Harbor Laws for Sexually Exploited Minors, 93 N.C. L. Rev. 1281 (2015). Available at: http://scholarship.law.unc.edu/nclr/vol93/iss5/7 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. CITE AS 93 N.C. L. REV. 1281 (2015) BRIDGE OVER TROUBLED WATER: SAFE HARBOR LAWS FOR SEXUALLY EXPLOITED MINORS* CHERYL NELSON BUTLER** When you’re down and out When you’re on the street When evening falls so hard I will comfort you I’ll take your part When darkness comes And pain is all around Like a bridge over troubled water I will lay me down Like a bridge over troubled water I will lay me down1 INTRODUCTION ..................................................................................... 1282 I. TROUBLED WATERS: PROSTITUTED MINORS ARE VICTIMS ....................................................................................... 1288 A. “No Teenage Girl Wants to Be a Teenage Prostitute.” .... 1288 B. “Pimps Up, Ho’s Down” .................................................... 1292 C. Technology—the New Tool of Exploitation ..................... 1295 II. BUILDING A BRIDGE OR BURNING IT? CONFLICTING LEGAL RESPONSES .................................................................... 1299 A. The Limits of International and Federal Law ................... 1299 B. The State Law Dilemma: Punishment vs. Protection ....... 1307 * © 2015 Cheryl Nelson Butler. ** Assistant Professor of Law, SMU Dedman School of Law. A.B., Harvard University; J.D., New York University School of Law. For their invaluable feedback, I would like to thank participants at the 2014 University of North Carolina Law Review Symposium at the University of North Carolina School of Law; the 2014 Tulane Symposium on the Future of Inequality at Tulane Law School; and the 2014 Emerging Scholars Symposium hosted by University of Kentucky School of Law. Cassie DuBay and Christopher Cornell provided valuable research assistance. 1. SIMON & GARFUNKEL, Bridge Over Troubled Water, on BRIDGE OVER TROUBLED WATER (Columbia 1970). This hit song has been ranked number forty-eight on Rolling Stone’s 500 Greatest Songs of All Time. See 500 Greatest Songs of All Time, ROLLING STONE (Apr. 7, 2011), http://www.rollingstone.com/music/lists/the-500-greatest- songs-of-all-time-20110407. CITE AS 93 N.C. L. REV. 1281 (2015) 1282 NORTH CAROLINA LAW REVIEW [Vol. 93 III. SHIFTING PARADIGMS: THE PROMISE OF SAFE HARBOR LAWS ............................................................................................ 1310 A. The First Wave of State Human Trafficking Legislation . 1310 B. The Second Wave: The Emergence of Safe Harbor Provisions ............................................................................. 1311 IV. THE THIRD WAVE: THE UNIFORM ACT OF 2013 ................... 1316 A. The Goals of the Uniform Act ............................................ 1316 B. Definitions Matter ................................................................ 1320 C. What Is Safe Harbor Under the Uniform Act? ................. 1321 V. APPLYING THE UNIFORM ACT STANDARDS TO CRITIQUE THE PROSECUTION MODEL ...................................................... 1324 A. New York’s Safe Harbour for Sexually Exploited Minors Act ............................................................................ 1324 B. Granting Immunity Only to Some Minors, Based on Age ........................................................................................ 1325 C. The Rebuttable Presumption of Victimization .................. 1328 D. Prosecution as a Pathway to Services ................................ 1331 CONCLUSION ......................................................................................... 1337 INTRODUCTION Domestic child sex trafficking, the sexual exploitation of native minors in the United States for financial gain,2 is a national crisis and growing epidemic.3 According to the U.S. Department of Justice 2. In the United States, minors are exploited in the commercial sex industry through a variety of means, including prostitution, stripping, pornography, and similar work in massage parlors. This Article focuses on the sexual exploitation of minors through prostitution. For scholarship on sexual exploitation of minors broadly or through other specific means, see generally Kimberly Kotrla & Beth Ann Wommack, Sex Trafficking of Minors in the U.S.: Implications for Policy, Prevention and Research, 2 J. APPLIED RES. ON CHILD.: INFORMING POL’Y FOR CHILD. AT RISK, no. 1, 2011, at art. 5, available at http:// digitalcommons.library.tmc.edu/cgi/viewcontent.cgi?article=1012&context=childrenatrisk. 3. See S. Res. 340, 113th Cong. (2014), available at https://www.congress.gov/113/ bills/sres340/BILLS-113sres340ats.pdf (noting one FBI estimate that put the number of individuals trafficked at over 200,000); Improving Outcomes for Youth at Risk for Sex Trafficking Act of 2013, S. 1518, 113th Cong. § 2 (2013) (“Recent reports on sex trafficking estimate that hundreds of thousands of children and youth are at risk for domestic sex trafficking.”); PRESIDENT’S INTERAGENCY TASK FORCE TO MONITOR & COMBAT TRAFFICKING IN PERS., COORDINATION, COLLABORATION, CAPACITY: FEDERAL STRATEGIC ACTION PLAN ON SERVICE FOR VICTIMS OF HUMAN TRAFFICKING IN THE UNITED STATES 2013–2017, at 5 (2014) [hereinafter COORDINATION, COLLABORATION, CAPACITY], available at http://www.ovc.gov/pubs/FederalHumanTraffickingStrategicPlan.pdf (“[T]he International Labour Organization estimates that more than 20 million men, women, and children are victimized by forced labor and sex trafficking worldwide, including in the United States.”); Cheryl Nelson Butler, Kids For Sale: Does America Recognize Its Own Sexually Exploited Minors as Victims of Human Trafficking?, 44 CITE AS 93 N.C. L. REV. 1281 (2015) 2015] BRIDGE OVER TROUBLED WATER 1283 (“DOJ”), over eighty percent of the identified cases of human trafficking in the United States involve some form of sex trafficking.4 The U.S. government has estimated that between 200,000 and 300,000 minors are victims of commercial sexual exploitation in the United States each year.5 A current misconception is that many of these minors are foreigners.6 In fact, most minors who are prostituted in the United States are native-born, as opposed to foreign-born, youth.7 Unfortunately, the U.S. juvenile justice and child welfare systems have failed to provide consistent and effective legal responses to domestic child sex trafficking. Until recently, law enforcement and elected officials failed to even acknowledge child prostitution as a pervasive problem or to identify prostituted minors as crime victims.8 On the state level, the juvenile justice system has focused on SETON HALL L. REV. 833, 834–35 (2014) (noting similar trafficking statistics); see also INST. OF MED. & NAT’L RESEARCH COUNCIL, CONFRONTING COMMERCIAL SEXUAL EXPLOITATION AND SEX TRAFFICKING OF MINORS IN THE UNITED STATES 42 (Ellen Wright Clayton et al. eds., 2013) [hereinafter NAT’L RESEARCH COUNCIL REPORT] (noting one estimate that the number of minors at risk is between 244,000 and 325,000). 4. U.S. DEP’T OF JUSTICE, NCJ 233732, CHARACTERISTICS OF SUSPECTED HUMAN TRAFFICKING INCIDENTS, 2008–2010, at 1 (2011), available at http://www.bjs.gov/content/ pub/pdf/cshti0810.pdf. 5. S. Res. 340; S. 1518. For such reports, see NAT’L RESEARCH COUNCIL REPORT, supra note 3, at 42, and LINDA A. SMITH, SAMANTHA HEALY VARDAMAN & MELISSA A. SNOW, SHARED HOPE INT’L, THE NATIONAL REPORT ON DOMESTIC MINOR SEX TRAFFICKING 4 (quoting DVD: Prostituted Children in the United States: Identifying and Responding to America’s Trafficked Youth (Shared Hope Int’l and Onanon Productions 2008)). 6. INST. OF MED. & NAT’L RESEARCH COUNCIL, CONFRONTING COMMERCIAL SEXUAL EXPLOITATION AND SEX TRAFFICKING OF MINORS IN THE UNITED STATES: A LEGAL GUIDE FOR THE LEGAL SECTOR 1 (2014) (“However, much of this attention [on commercial sexual exploitation and sex trafficking of minors] has focused internationally. This international focus has overshadowed the reality that commercial sexual exploitation and sex trafficking of minors may also occur every day within the United States.”). 7. See S. Res. 340; Press Release, White House, Remarks by the President to the Clinton Global Initiative (Sept. 25, 2012), available at http://www.whitehouse.gov/the- press-office/2012/09/25/remarks-president-clinton-global-initiative. 8. See In Our Own Backyard: Child Prostitution and Sex Trafficking in the United States: Hearing Before the Subcomm. on Human Rights and the Law of the Comm. on the Judiciary, 111th Cong. 14 (2010) (statement of Rachel Lloyd, Executive Director and Founder, Girls Educational & Mentoring Services, New York, N.Y.), available at http://www.gpo.gov/fdsys/pkg/chrg-111shrg58003/pdf/chrg-111shrg58003.pdf; INST. OF MED. & NAT’L RESEARCH COUNCIL, supra note 6, at 1 (“Commercial sexual exploitation and sex trafficking of minors in the United States are frequently overlooked,
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