In search of a true safe harbor - Diverting sexually exploited children from delinquency proceedings to supportive child requiring assistance petitions

Issue January/February 2017 By Cristina F. Freitas and Debbie F. Freitas

On Nov. 21, 2011, then-Governor Deval Patrick signed House Bill 3808, An Act Relative to the Commercial Exploitation of People, into law. The human trafficking and sexual servitude law added a fifth category of Child In Need of Services petitions (now called Child Requiring Assistance or CRA petitions following the 2012 legislative overhaul) for a "sexually exploited child." On February 19, 2012, the law went into effect. The following year, from Jan. 1, 2013, to Dec. 31, 2013, over 5,000 CRA applications were filed statewide. None were for a child alleged to be sexually exploited. And yet, across the United States, nearly 300,000 children are trafficked for sex each year.

In Massachusetts, the numbers are no less dire. Since 2005, at least 480 children from Suffolk County alone have received services related to commercial sexual exploitation. There are likely many more statewide, but the clandestine nature of sexual exploitation leaves these children in the shadows of society, unidentified and unaccounted for. Survivors sharing their history and other anecdotal evidence demonstrate that commercial sexual exploitation is an issue confronting communities from Worcester to Lowell and Allston/Brighton to East Boston. Research shows that almost 98 percent of these children are girls and more than half are girls of color. The median age of these girls is 15 years old, although the mean age is 13 years old and the youngest was age 11. Over 75 percent of these girls are U.S. citizens or permanent residents.

Many risk factors increase a child's vulnerability to entering the commercial sex trade. Previous abuse or neglect; poverty; homelessness; running away; living in high crime neighborhoods or violent communities; being lesbian, gay, bisexual or transgender; having mental health issues or having parents who do; using substances or having parents who do; and living in cities with international or large airports all increase a child's likelihood of becoming sexually exploited. Many live double lives, attending school and living with their families or in state-run group homes during the day and being exploited by night. The trauma associated with sexual exploitation includes not only a higher incidence of sexually-transmitted diseases, but also depression, anxiety, post-traumatic stress disorder, and long-lasting emotional and psychological scars.

A relatively untapped but potentially powerful link to services is the addition of a sexually exploited child CRA category. This addition reflects an evolution in understanding that these children are not offenders, but victims. A CRA child alleged to be a 'sexually exploited child' is any person under the age of 18 who has been subjected to sexual exploitation as a result of being a victim of a crime of sexual servitude, sex trafficking or inducement of a minor; engages in common night walking/street walking; or engages in sexual conduct with another person in return for a fee or in exchange for food, shelter, clothing, education or care. A parent or police officer may file a petition in the juvenile court requesting assistance for a sexually exploited child. Parents and police officers are doing so more now than ever, but many children still suffer undetected by the criminal justice and child welfare systems. Contributing to this problem are the many forms that sexual exploitation can take. No longer is this crime limited to mail-order brides, brothels, and pornography. The proliferation of the internet and electronic technology has created a sexual tourism industry, generating millions of dollars each year. One study estimated that one child sex trafficker can generate as much as $650,000 annually by exploiting four children.

Solutions for increasing awareness and interventions for these youth require a multidisciplinary approach. The most successful laws treat these girls as victims of crimes, not criminals. Historically, prostituted females were arrested ten times more frequently for selling sex than males were for buying sex. Extricating these youth from exploitation requires decreasing criminalization of victims while increasing access to interventions. The "safe harbor" provisions included in section 39L of Chapter 119 of the Massachusetts General Laws as amended by Chapter 178 of the Acts of 2011 takes important steps in actualizing this goal, but critical gaps remain. This section of the law provides the district attorney or the judge the discretion to stay an arraignment of a juvenile charged with common night walking and hold a hearing on whether a care and protection petition or child requiring assistance petition should be filed, thus diverting a delinquency case to a child welfare case. Many times, however, sexually exploited children are arrested not for common night walking but for street crimes (such as drug use, loitering and trespassing) or survival crimes (such as shoplifting and evading public fares). The law has yet to create any opportunity for sexually exploited youth charged with these crimes to be diverted from delinquency proceedings to supportive services.

Juvenile and child welfare practitioners should be vigilant in recognizing and supporting the youth in their caseloads that are sexually exploited or are at risk for becoming exploited. Identification is not always obvious. Youth who wear clothing inconsistent with the season, wear designer label clothing or shoes, present with drug use, are homeless or experience state agency removal from the home, have bruising, or who have certain tattooing may all be at risk for being commercially exploited. Children charged with lesser crimes such as those noted above are also at risk, but even some normative adolescent non-criminal behavior, such as running away, also increases the risk for becoming sexually exploited. Traffickers regularly target these runaway children by offering to meet their needs in ways their current custodian, including the Department of Children and Families, does not.

Unfortunately, the traumatic history that makes these young people vulnerable to sexual exploitation creates a mistrust of adults that can impede a successful attorney-client relationship. Success in engaging these youth routinely requires a patient and non-judgmental approach. Adopting the language of the child ("boyfriend" versus "pimp"), awareness of the child's physical stance (threatened or at ease), preparedness for discussion of sexual topics, maintaining appropriate boundaries, utilization of open ended questions, and positive reinforcement (celebration of small successes, giving credit for surviving difficult circumstances, etc.) are all recognized as ways to connect with this population. Chief among these considerations is the need to be consistent and supportive in accessing the right services at the right time, as dictated by the child's position.

Moving forward, communities should employ evidence based models of engaging this population. An empowerment paradigm fueled by community support and the strength of survivors has successfully lead to the extrication of many of these girls. Increasing access to safe housing, a trauma informed continuum of care, street outreach, and a pathway to safety and stability are essential. Attention to youth aging out of the child welfare system is also critical, as this population is at risk of becoming homeless, losing social supports as their cases close, and thus increasing their vulnerability.

Although creation of multidisciplinary teams to address the issues uniquely faced by this population improves outcomes, defense attorneys for children are often not included in these task forces and committees. As treatment of these youth moves away from criminal prosecution to supportive interventions, inclusion of children's attorneys is critical to reaching some of the most vulnerable and least likely to be identified children. These youth often form strong and trusting relationships with their long-term attorneys bound by attorney-client privilege, and these attorneys must be involved in service provider meetings and task forces in order to reach these children and link them to the right services, consistent with their client's position. While much progress has been made in implementing supportive services in lieu of criminal prosecution for this unique population in Massachusetts and utilizing the "sexually exploited child" CRA is an important part of that progress, several known risk pathways remain unaddressed, leaving many children vulnerable.

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