Birckhead on “Consent, Autonomy, and Prostituted Children”

Tamar Birckhead (UNC) has posted to SSRN her article, The ‘Youngest Profession’: Consent, Autonomy, and Prostituted Children, 88 Wash. U. L. Rev. 1 (2011).  Here is the abstract:

Although reliable estimates do not exist, the data suggests that the number of children believed to be at risk for commercial sexual exploitation in the United States is between 200,000 and 300,000 and that the average age of entry is between eleven and fourteen, with some as young as nine. The number of prostituted children who are criminally prosecuted for these acts is equally difficult to estimate. In 2008 – the most recent year for which data is available – approximately 206 males and 643 females under age eighteen were reported to the Federal Bureau of Investigation as having been arrested within United States borders for prostitution and commercialized sex. Anecdotal evidence suggests, however, that these numbers reflect only a small fraction of the children who face criminal charges as a result of their prostituted status. Research also reveals that because most states have laws that hold children criminally liable for ‘selling’ sex, law enforcement and the courts readily pathologize these youth, a significant percentage of whom are runaways, drug addicted or from low-income homes in which they were neglected and abused. Statistics additionally suggest that the number of American girls who are sexually exploited is increasing, particularly for those between the ages of thirteen and seventeen. Likewise, it is estimated that eighty percent of prostituted women began this activity when they, themselves, were younger than eighteen. Yet, nearly all states can criminally prosecute children for prostitution even when they are too young to legally consent to sex with adults, and very few communities have developed effective programs designed to prevent or intervene in the sexual exploitation of youth.

This Article critically examines the prevalence of laws allowing for the criminal prosecution of minors for prostitution. It argues that rather than maintain a legal scheme that characterizes and treats such juveniles as willing participants who, if harmed, are merely getting what they deserve, a more nuanced approach must be developed in which – at a minimum – criminal liability should be consistent with age of consent and statutory rape laws. It analyzes the range of ways in which states have addressed the problem of prostituted children, and it highlights those few that have successfully utilized strategies of intervention and rehabilitation rather than prosecution and incarceration. It contrasts the impact of state versus federal legislation as well as domestic versus international policy in this area and the ways in which these differences serve to perpetuate pernicious stereotypes vis-à-vis youth and crime. The Article addresses the historical treatment of prostituted children as criminals rather than victims by both American law and society, and critiques contemporary rationales for continuing a punitive approach toward these youth. The Article explores the conflicting statutory, common law, and colloquial meanings of the terms ‘prostitution,’ ‘consent,’ and ‘bodily autonomy’ as they relate to children and sexuality. It also considers the extent to which the criminal offenses of prostitution and statutory rape address different sets of harms and explores how gender and sexual orientation are implicated in the discussion. The Article concludes by highlighting model programs directed at prevention, intervention, and rehabilitation as well as proposing strategies for reform, such as decriminalization and diversion.

The full article is here.  I look forward to reading it.

-Bridget Crawford