Precedent or Problem? Alameda County's Diversion Policy for Youth Charged with Prostitution and the Case for a Policy of Immunity
Sully, Janet C., William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. CURRENT LEGAL RESPONSES TO CSEC EXPLOITATION A. Current Policies in Alameda County and California B. Policies in Other States II. LEGAL SUPPORT FOR A POLICY OF IMMUNITY IN ALAMEDA COUNTY A. Statutory Rape Laws in California B. Prostitution Laws in California C. The Federal Trafficking Victims Protection Act III. POLICY ARGUMENTS IN SUPPORT OF IMMUNITY A. Protecting CSEC Youth from Wrongful Prosecution 1. Protecting All Youth Who Are True Victims 2. Protecting Youth Regardless of Age 3. Protecting Youth Regardless of Their Cooperation with the Court 4. Protecting Youth Trapped in Exploitation B. Preventing Harm to CSEC Youth 1. Harm Caused by Criminal Detention 2. Indirect Harms C. Eliminating CSEC Prosecution 1. Freeing Police Resources 2. Obtaining Youth Cooperation with Law Enforcement IV. COUNTERARGUMENTS CONCLUSION
When Tasha was only thirteen, her mother died of a drug overdose. With no other relatives and nowhere to go, Tasha moved in with a family friend. Although she had a home, the situation soon turned abusive. Struggling with the trauma of her mother's death and her abusive home life, Tasha was desperate for stability. When she began dating an older man, Tasha thought she had finally found the love and support she so badly needed. After a few months, however, Tasha's boyfriend told her that if she wanted the relationship to continue, she would need to do her part to contribute. If they could save up enough money, he said, they could buy a nice house and start a family together. Although she was too young to hold a job, the man explained, she could easily make a few hundred dollars per night working as a prostitute. He knew a number of places to easily recruit her plenty of customers.
Soon enough, Tasha realized that she was trapped. Despite her boyfriend's promise to start a family together, he kept all of the money she earned working the streets. No longer attending school, Tasha had nowhere to turn and no one to ask for help. Leaving was not an option. She had no money, and she feared that if she tried to exit prostitution, her boyfriend would kill her. (1) If she went to the police, she would face criminal charges for prostitution. (2)
Unfortunately, Tasha's situation is not uncommon. Commercial sexual exploitation (3) of minors is a rapidly growing phenomenon. (4) In 2005, Congress updated the Trafficking Victims Protection Act (TVPA) to explicitly provide youth like Tasha with immunity from criminal charges for prostitution. (5) Recently, a number of states have begun to adopt similar policies, often called "safe harbor" laws, limiting the prosecution of such youth. (6) Nonetheless, only two states have provided these youth complete immunity from prosecution, (7) and many states have yet to create any safe harbor policy at all. (8)
California has one of the largest populations of commercially sexually exploited children (CSEC). (9) In the United States as a whole, an estimated 150,000 to 300,000 youth are involved in prostitution per year. (10) Due to lack of reporting, officials have not yet compiled solid estimates for the state of California. (11) The Federal Bureau of Investigation (FBI) considers the metropolitan areas of Los Angeles, San Diego, and San Francisco to be some of the largest CSEC markets in the United States. (12) Within the San Francisco metropolitan area, the problem is especially acute in Alameda County. For example, in Oakland, the largest city in Alameda County, police estimate that about 100 CSEC youth are involved in prostitution on any given night. (13)
Despite its large CSEC market, (14) California lacks a safe harbor policy. In 2008, California implemented a pilot program in Alameda County, allowing minors arrested on charges of prostitution to enter a diversion program in which they receive rehabilitative services and counseling, rather than accepting a conviction for prostitution. …