October 01, 2015

Child Sex Trafficking: Legal Overview

Allison Newcombe

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Laws and policies at the federal and state levels address child sex trafficking. Child advocates should be aware of the protections the following laws provide: 

Federal Trafficking and Victims Prevention Act (TVPA)

First passed in 2000 and reauthorized four times, the TVPA is the cornerstone federal human trafficking legislation that defines human trafficking. Under the TVPA, the term “severe forms of trafficking in persons” includes sex trafficking1 in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.2 The exclusion of the requirement of “force, fraud, or coercion” to establish that a person under 18 is a victim of trafficking – or rather, the presumption of coercion— coincides with the principal that an underage child cannot legally consent to sex and makes it clear that under federal law, any child involved in a commercial sex act and is under the age of 18 is by definition a victim.3  

When first passed in 2000, the TVPA only provided funding for programs that helped foreign nationals. The 2005 reauthorization expanded these supports to include domestic victims.4 The passage of the TVPA and its reauthorization in 2005 reflect an evolved understanding of CSE within the United States – while a serious international issue, many victims affected by human trafficking are domestic born and raised. 

Despite progress at the federal level, there are still contradictions in state laws surrounding the age of consent for sex and the age of criminality for prostitution that lead to children being unidentified as victims, and eventually landing in the juvenile justice system for crimes related to their own exploitation. Once in the juvenile justice system, these children are housed in locked facilities, rarely provided specialized services, often retraumatized, and eventually returned to the same communities where they were first victimized – beginning the exploitation cycle again.  

Safe Harbor Laws

While several states continue to prosecute youth for crimes relating to their exploitation, some states have passed safe harbor legislation, which addresses these legal inconsistencies by providing immunity from prosecution for prostitution-related offenses for minors. Safe harbor laws vary by state. Some states provide full immunity for children under the age of 18; other states’ safe harbor laws only apply to children under a certain age (typically 14 or 15) or only apply for first time offenders.5 While a positive step, many safe harbor laws are limited in scope and do not provide adequate funding for comprehensive victim services. 

Justice for Victims of Trafficking Act of 2015:

In May, 2015 the Justice for Victims of Trafficking Act (JVTA) was passed.6 The JVTA provides for increased funding for programs and services to support trafficking survivors, increases fines and penalties for offenders, and provides funding to support law enforcement and prosecutors. The bill also encourages states’ adoption of safe harbor laws, and establishes a survivor-led U.S. Advisory Council on Human Trafficking. The JVTA was supported by many advocates who called it “the most comprehensive and thoughtful piece of anti-trafficking legislation in years.”7 However, some anti-trafficking advocates voiced concerns that the bill prioritizes funding for law enforcement over victim services, makes victim services dependent on cooperation with law enforcement, and inappropriately allows for prosecution of buyers of sex (or “johns”) as traffickers.8

For more information on the provisions of the Act, see Rhoden, Andrew. “What You Should Know about the Justice for Victims of Trafficking Act of 2015,” in the August 2015 Child Law Practice 34(8).

Endnotes

1. 22 U.S.C. § 7102 (10). Sex trafficking is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.” 

2. 22 U.S.C. § 7102 (9).

3. Annitto, Megan. “Consent, Coercion, and Compassion: Emerging Legal Responses to the Commercial Sexual Exploitation of Minors,” Yale Law & Policy Review 30(1), 2011, 31.

4. Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109-164, secs.2 (3)-(4), 203, 119 Stat. 3558, 3558-59(2006); Office of the Attorney General, U.S. Dep’t of Justice. Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities To Combat Trafficking in Persons: Fiscal Year 2007, 2008, 22-23, available at . 

5. “Sex Trafficking of Minors and “Safe Harbor.”   

6. S.178 - Justice for Victims of Trafficking Act of 2015

7. Shared Hope letter to U.S. House of Representatives Speaker John Boehner and Minority Leader Nancy Pelosi, April 29, 2015.  

8. Girls Educational & Mentoring Services. “Four Reasons Why We Don’t Support the JVTA and Why You Should Call Your Senator Today.” March 18, 2015; see also O’Hara, Mary Emily. “Even Anti-Trafficking Activists Want to Kill This Anti-Trafficking Bill.” The Daily Dot, March 22, 2015.