In 2003, New York City police arrested Nicolette R., a twelve-year-old girl, for offering oral sex to an undercover officer for forty dollars, (1) Nicolette had already been arrested for prostitution in a different city, but that time her pimp paid her fine and she returned to the streets. (2) This time was different. Prosecutors sought to sentence Nicolette to secure detention, pointing to her lack of remorse and tendency to carry weapons; her defense attorneys argued that she was a child, victimized by sexual predators, and should be set free. (3) First a Family Court judge placed her in a secure juvenile detention center, but later an Appeals Court granted her the right to be placed in a residential treatment facility for emotionally disturbed children. (4) Unfortunately, the only facility that accepted Nicolette had no resources to treat victims of sexual abuse or prostitution. (5) The struggle over Nicolette's fate is not unique; it occurs over and over in New York family courts and throughout the country. Simultaneously too young to consent to sex and in violation of criminal laws banning prostitution, juvenile prostitutes have been trapped in a contradictory system of regulations and left without any resources for their rehabilitation.
Issues of juvenile prostitution tap into the longstanding cultural confusion over management of teenage sexuality. The traditional adjudication of juvenile prostitutes through juvenile delinquency proceedings typifies state responses. In 1920, Mabel Ruth Fernald, who researched female criminal behavior in the early twentieth century, noted that the most common class of convictions for delinquent women was offenses against chastity. (6) Fernald's study tracks women convicted for prostitution, "sexually irregular" women--those who had been sexually promiscuous but not for money or who had "lived with one or more consorts for any length of time"--and "occasional sexual offenders," including women who had "illicit" sexual intercourse. (7) This criminalization of sexual conduct based on its perceived immorality exemplifies one strain of the discourse underlying the debates surrounding the adjudication and treatment of juvenile prostitutes.
An opposing normative view of adolescent prostitutes as victims in need of protection competes with these moral narratives in cultural discourse. We can see this "child-saving" philosophy reflected in traditional state laws setting age of consent requirements. (8) For example, in New York, juveniles aged sixteen years and under cannot legally give consent to sexual acts. Thus, juvenile prostitutes are technically victims of rape during each sex act performed. This peculiar situation has been noted by the New York state courts. (9) The above point does not apply to juvenile prostitutes aged between sixteen and seventeen, however, as they are still below the age of majority and thus technically "juvenile" prostitutes.
New York State has recently attempted to alleviate these tensions through the Safe Harbour for Exploited Children Act (SHA), (10) passed into law on September 25, 2008, and effective April 1, 2010. (11) This Act will convert all family court juvenile delinquency proceedings for prostitution-related offenses into Persons in Need of Supervision ("PINS") proceedings. (12) This change will decriminalize prostitution for juveniles, mandate specialized court services, and prohibit detention.
This Article will argue that, in the midst of the cultural tension surrounding teenagers and sex, New York should promote a more tailored, philosophically--and developmentally-appropriate method of dealing with juvenile prostitutes than the Safe Harbour Act offers. Instead of abandoning traditional theories of juvenile adjudication for a new victim-based theory, New York should instead hold onto the kind of individualized and graduated dispositions for which the juvenile court was created. Part I will provide background material on domestic juvenile prostitution and the traditional approach to adjudication, especially focusing on juvenile prostitution in New York, and on the philosophical bases of juvenile courts and delinquency proceedings. …