Why are police still arresting children for ‘prostitution’?

As many as 100,000 minors become trapped in the sex trade every year in the United States, according to one estimate. Under federal law, each child is a victim of a serious crime. So why are police in many parts of the U.S. still treating these children as criminals—and why isn’t the government doing more to stop it?

The federal Trafficking Victims Protection Act (TVPA) makes very clear that any child under 18 who is sold for sex is by definition a victim of trafficking, whether or not fraud, force or coercion is involved. Children are legally incapable of consenting to sex with an adult, let alone selling themselves. But states aren’t required to comply with federal law—unless a state policy violates the Constitution—and many have criminal codes that don’t recognize minors as trafficking victims.

Police in these states can—and do—arrest and jail children for “prostitution.” A total of 656 children were arrested for this crime nationwide in 2013, according to the Federal Bureau of Investigation. That number is undoubtedly higher, since police departments voluntarily submit arrest data and about 20 percent of departments choose not to report.

An exclusive Fusion analysis of FBI data found that California arrested the most child sex trafficking victims of any state in 2013, making 205 arrests. The city with the highest number of child arrests for “prostitution” that year was Las Vegas with 98 arrests. One child under 10 years old was arrested in Minneapolis in 2013, according to FBI data. (The Minneapolis police department could not confirm this, because after six months the state discards the records of juveniles who were arrested and not charged.) Only 10 states have laws granting children full immunity from prosecution for the crime of prostitution. And even in these states, minors are sometimes still arrested—often because police are not trained in how to treat these victims—but not charged with crimes.

This nationwide problem of criminalizing exploited minors starts with a backward mindset about trafficked children, explains Malika Saada Saar, director of the advocacy group Human Rights for Girls. “There’s an entrenched perspective on the part of law enforcement, prosecutors, and legislators,” she says, “that these are bad girls making bad decisions as opposed to victims of a heinous crime.”

WHY PUNISHING VICTIMS IS THE WORST THING WE CAN DO

Data on child sex trafficking victims is sparse. Children are usually first sold into sex trafficking between the ages of 11 and 14, according to the FBI. These minors are often foster children, undocumented immigrants, or runaways who have left home because of sexual or physical abuse. LGBT youth are particularly vulnerable to sex trafficking.

The anti-trafficking organization Polaris Project has found that most of the sex-trafficking cases reported to its National Human Trafficking Resource Center involve female victims. (Though a recent study conducted by John Jay College in New York City estimated that as many as half of victims may be boys.) Most of those affected are children of color: 64 percent of the juvenile arrests for “prostitution” in 2013 were of African-American victims, according to FBI data. The rest were white, including white Hispanics, with only a handful of reported arrests of Native American and Asian children.

“Arresting and detaining children who have endured systematic, commercial rape re-traumatizes and re-victimizes them and is, without question, a human rights violation,” Saada Saar says. What’s more, these children are often left with a permanent criminal record (some states vacate the convictions of sex trafficking victims), and contributes to recidivism, according to a recent report by the Center for American Progress. “When we put children into the juvenile justice system, they lose access to many child welfare services and protections that they’d otherwise have,” so that once released, they are even more vulnerable, Saada Saar adds. “And in that state of vulnerability, who will she look for to give her safety and protection? The trafficker.”

Instead of jail, trafficking victims need housing, trauma services, and health care, says Shea Rhodes, the director of the Villanova Law Institute to Address Commercial Sexual Exploitation. In some states that allow the prosecution of child victims of the commercial sex trade, the courts have the choice to instead refer minors to a diversion program or child welfare services. But that means the victim’s fate depends on the judge’s mood  “We should have a system in place,” Rhodes says, “to care for our children who are homeless, and may not have the ability to pay for a place to live or have a foster home or family to go to.”

HOW TO FIX IT

One possible solution, some advocates argue, is for the U.S. Department of Justice to issue formal guidance to states on why they should treat trafficked minors as victims and outlining specific changes to state laws and delinquency codes. “It should not be controversial for the DOJ to stand by federal law in recognizing that children subject to commercial rape should not be arrested and detained for that experience,” Saada Saar says.

The guidance would not be legally binding but would signal that the DOJ may consider a state’s compliance with the TVPA when awarding the federal victim services grants created by that law, according to Richard Levy, a professor of constitutional law at the University of Kansas School of Law. “It’s the people giving you the money who are saying this what you can and cannot do,” he adds. “You’re likely to say ok.”

There is precedent for such DOJ action: The agency has recently issued guidance to states on other issues, advising against the over-criminalization of students and pushing states to ensure that immigrant students have equal access to high-quality education.

However, the DOJ declined to comment specifically on whether it is considering issuing guidance to states on sex trafficking. A spokesman pointed to recommendations issued in 2012 by a DOJ-convened study group on violence against children, which emphasize that no child victim of sex trafficking should ever be locked up. Then-U.S. Attorney General Eric Holder said that the group’s recommendations “will be taken into careful consideration, and wherever possible, used as the basis for action.”

Meanwhile, a handful of states have changed their own laws. Three states and the District of Columbia passed legislation in the last year granting exploited children immunity from prosecution for the crime of prostitution. Local cities and counties also are rethinking how they treat trafficked children. The Los Angeles County Sheriff’s department announced in October that it will no longer arrest minors on prostitution charges.

And recently enacted federal legislation may help improve conditions for these minors. At the end of May, President Barack Obama signed into law the Justice for Victims of Trafficking Act, which provides millions in funding for victim services and law enforcement training and ends impunity for buyers of child sex. (Traffickers often advertise girls online, where buyers can purchase them anonymously. The JVTA improves the federal government’s ability to investigate cyber sex-trafficking.) The law also restructures certain criminal justice grants to encourage states to bring their laws into compliance with the TVPA.

But without strong guidance from the DOJ signaling that states should comply with federal law, the situation is unlikely to change very soon. And some advocates say the Justice Department may not be pushed to action until there is more public awareness about the problem of exploited children in the U.S. “When you say human trafficking or sex trafficking or sexual exploitation, the general public immediately thinks, oh, that happens in other countries,” Rhodes says. “It’s hard to look at our own population, and say, ‘Wow, how did this happen?’”

This content was made possible in part by a grant from the Ford Foundation and produced independently by Fusion’s editorial staff. To find out more, explore our interactive map and read more of our coverage of America’s dysfunctional system of policing.

Erika Eichelberger is an independent journalist and a former staff reporter at Mother Jones. She is based in New York.