On October 6, 2010, a preeminent pop culture law commentary in America, Law and Order: Special Victims Unit, aired an episode about the prosecution of juvenile prostitutes. In the episode, a couple is eventually arrested and brought to justice for tricking families into believing they were sending their children to farms, when they were actually being sold into the sex trade. In the last few years, increased attention to problems with juvenile prostitution has grown, with documentaries and New York Times articles; however, legislators and prosecutors are at a loss of how to deal with minors who have been arrested for prostitution. Prosecuting or otherwise trying to prevent minors from engaging in prostitution is problematic due to the difficulty in invoking typical prostitution laws and a general absence of other effective legal mechanisms to address the needs of these children. Furthermore, unlike the children in Law and Order, most of these children are wards of the state and do not have families to protect them.
Most states have laws making sexual contact with minors illegal, as minors are unable to legally consent to sexual activity. For example, minors under the age of sixteen cannot consent in the state of New York (See N.Y. Penal Law § 130.05). Despite their inability to consent, prostitution laws do not exempt minors from prosecution and district attorneys are not shy about prosecuting minors under these laws. See Harboring Concerns: The Problematic Conceptual Reorientation of Juvenile Prostitution Adjudication in New York, Shelby Schwartz. While U.S. law provides protection for foreign children trafficked into this country for the sex trade, American children are treated as criminals rather than victims. Additionally, most of the American children in the sex trade were wards of the state, which first failed to protect them from the clutches of pimps and then prosecutes them for crimes to which they cannot legally consent.
Many of these children find themselves in prostitution after being lured away from foster case by an older male who is willing to shower them with gifts and affection, which he later withholds unless the children agree to engage in prostitution. The pimps also usually encourage drug use in order to exert further control over the children and to make them easier to manipulate. Frequently, by the time these children are arrested, the pimp and other prostitutes are the only family the child knows and getting the child away from this lifestyle presents many challenges. State and federal governments should undertake studies to understand how best to rehabilitate these children. At the very least, the laws should be altered to address issues of drug abuse, sexual abuse, and generally providing these children with safe homes and the support to keep them there. These children can still be rehabilitated and failing to do so does both them and society a disservice.