In Loco Aequitatis: The Dangers of "Safe Harbor" Laws for Youth in the Sex Trades
Date
2016
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Stanford Journal of Civil Rights and Civil Liberties
Abstract
It has been the goal of this Article to challenge the prevailing trust in law enforcement-based interventions in this area and to introduce important questions for reform before the consideration of state and federal legislators. However, the interrogatories posed by this paper raise more questions than they do answers, justifying further research into the issues posed by these laws, which may be of interest to litigators, scholars, and judges. In particular, safe harbor laws do not only present errors of fact as articulated by this Article; the law and its progeny present significant questions as to their constitutionality. The trend towards “automatic” finding of state custody based solely on a prostitution arrest may amount to violations of procedural constitutional due process for lack of individualized determinations. Cases in which the disposition is grossly disproportionate to the crime committed also raise concerns for substantive due process and the Eight Amendment prohibition on cruel and unusual punishment. In addition, while safe harbor proponents laud the policies as one area of conformity between the United States and its international treaty obligations, safe harbor laws do nothing to end arrests of youth engaged in the sex trades, and many in fact presume that arrests will continue to take place, arguably in violation of international law. The Convention on the Rights of the Child and other international legal instruments -- including the Second Optional Protocol to which the United States is a State Party -- forbid the use of custodial arrest and involuntary detention against minors engaged in the sex trade. This paper invokes the Geneva School to sound a warning to state and federal legislators advocating for the adoption and expansion of safe harbor laws. Instead of the interventionist model promoted by categorical victimhood, youth must be asked what they need to survive. For some youth, a self-identified need is exit from the sex trade and secure housing for protection from controlling family members, intimate partners, or pimps. For the majority of others, however, what is needed is a living wage alternative to the sex trade. The discourse must be adjusted according to the principle that, regardless of whether minors trade sex as a result of limited economic circumstances or physical coercion, forced “rehabilitation” through handcuffing young people to services and confining them in institutions by taking advantage of lesser due process protections in family court systems is inconsistent with principles of due process, counterproductive, and wrong. (from Author Conclusion)
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Keywords
child abuse, trafficking, International Resources, CSEC, law, policy
Citation
Conner, B. M. (2016, forthcoming).In Loco Aequitatis: The Dangers of "Safe Harbor" Laws for Youth in the Sex Trades. Stanford Journal of Civil Rights and Civil Liberties.