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Vote would put state in line with federal regulations meant to protect sexually exploited teenagers from criminal prosecution
Lawmakers in New York state, where cases of human trafficking are among the worst in the nation, are expected to vote on a bill this week that would bring it into line with federal law to protect sexually exploited minors from prosecution.
The bill would raise to 18 the age at which a victim coerced into prostitution could be prosecuted.
In New York state, minors ages 16 and 17 can be arrested and prosecuted for prostitution, despite being considered not mature enough to consent to sex legally.
Other measures being considered by the legislature include making trafficking a violent felony, which would increase penalties for perpetrators.
The proposals form part of a nationwide, state-by-state campaign by advocates for child victims of sexual exploitation to stop them being prosecuted, ensure they do not have to prove they were coerced into prostitution and, to divert them into rehabilitation programmes.
If the measures are passed, New York would become the fifth state where children under the age of 18 coerced into prosecution can no longer be prosecuted. Similar measures are being put proposed in California. The other states where minors under 18 are automatically considered trafficking victims and do not need to prove they were forced into prostitution, are Illinois, Kentucky, Vermont and Tennessee, according to the Polaris Project, which campaigns for stronger laws against human trafficking.
Lauren Hersh, the NY director of Equality Now, who have been advocating for the measures with lawmakers for months, said the current law in New York sends "a bad message to victims".
"We need to start seeing children in prostitution as victims not 'child prostitutes' which implies a level of voluntariness," she said. "One of the things traffickers say to victims is that law enforcement will never believe them. Here in NY state and world wide we need to shift that paradigm."
Hersch said classifying sex trafficking as a violent rather than nonviolent felony would increase sentences and "send a message that sex trafficking is inherently violent."
She said: "We need to make sure that politics doesn't get in the way of the necessary language in this bill and the bill is given for a vote."
A felony carries a minimum sentence of between one and three years' jail time and a maximum of between eight and 25 years. But making trafficking a more serious crime would increase the minimum sentence to between four and nine years and the maximum to between 12 and 25.
The measure to increase penalties is part of governor Andrew Cuomo's controversial 10-part Women's Equality Bill, which has now been broken down into 10 separate bills. Cuomo, a Democrat, acknowledged on Monday that one of the most contentious points, which would enshrine abortion rights into law, was unlikely to be taken up by the legislature this year. The bills also cover pay equity and sexual harassment.
Advocates said they hoped the trafficking measures would be voted on this week.
'There is never really a choice'
New York was the first state to pass the Safe Harbour law, a 2008 statute that sought to protect sexually exploited children from prosecution by diverting them to family courts. But criminal law still allows anyone 16 or over to be prosecuted in a criminal court, so advocates say additional safeguards are needed.
Stella Marr, a former trafficking victim who is now the executive director of Sex Trafficking Survivors United, said that minors working as prostitutes should be offered help, not criminalised: "Traffickers are violent, they threaten you, they threaten your family" said Marr. "I was manipulated, threatened and I felt I had no other choice. The trauma (from sexual violence and rape) changes your brain.
"There is such a stigma you feel that you are not worth anything. If we are realistic about it, there is never really a choice. Sex trafficking and prostitution are intrinsically linked. Treating 16- and 17-year olds as criminals, when they have been so abused goes against humanity."
There are few statistics on trafficking, but a Bureau of Justice Statistics study reported that out of thousands of suspected human trafficking incidents investigated between 2008 and 2010, 40% involved the sexual exploitation of a child.
A report by the New York City administration for Children's Service this year, which acknowledged that data on sexually exploited children is difficult due to stigma and its hidden nature, quoted one 2007 study which estimated the number of sexually exploited children in New York City alone to be 2,200.
Statistics form the division of criminal justice service in New York show that in 2011, NY state prosecuted ,3315 for prostitution but only 1,824 people were prosecuted for crimes of coercion, including patronising, promoting and compelling.
The Jewish Child Care Association (JCCA), which has a residential programme, Gateways, to house and help sexually exploited youth, see "scores" of children every year, some as young as 12 or 14, it said. Many have been prosecuted as a result of New York's law.
Richard Altman, chief executive of the Jewish Child Care Association, said he was "hopeful" that the legislation would pass under this session.
"I believe that the governor was recommending that it be de-coupled form the omnibus bill and if it's rewritten as a stand alone bill it will pass."
Altman said that, prior to the safe harbour act, they saw a "significant number of young girls aged between 13 and 16 that were incarcerated in juvenile facilities". The mean age is now 15.
James Dold, senior policy director of the Polaris Project said: "Federal law says that minors do not have to prove they were coerced into prostitution. But if does not give them protection at the state level. If we recognise as a society that (minors) can't engage in sex in the first place, then how on earth can we prosecute them as prostitutes?"