Tram Nguyen
The police apprehend a victim of sexual trafficking, a girl who has been trafficked since she was 13, which is the average age minors enter prostitution. She was sexually assaulted, and then a pimp manipulated her into prostitution. Even now, she may have a strong emotional attachment to her pimp; she may think he’s her boyfriend.
She’s a victim, but according to Wisconsin law, she has committed a crime.
Some legislators and advocacy groups believe that as a minor, she should be viewed solely as a victim and not charged as a criminal. They want to pass what is known as “safe harbor” legislation, which prohibits prosecuting individuals under 18 for prostitution. While this legislation may seem like a no-brainer to many, it’s gotten some resistance from Republican legislators who fear it will hinder law enforcement’s ability to intervene and help trafficking victims.
The proposal was introduced last June by Reps. Jill Billings (D-La Crosse) and LaTonya Johnson (D-Milwaukee) and Sen. Sheila Harsdorf (R-River Falls). Children are often emotionally and physically dependent on their traffickers and should not be punished with criminal records, Billings said in a press release.
This dependence means that children can be difficult to remove from the situation, and because of this, “you never want to send a message to that victim that they’ve done anything wrong,” says Johnson.
The proposal never progressed past a public hearing in October, but Johnson says she will continue to introduce similar legislation until it passes.
An arrest for prostitution does not automatically lead to a conviction. Minors can complete a program or other requirements in exchange for a dismissal of the charge, or they can admit to charges but assert they were being trafficked at the time, says Claudine O’Leary, an advocate for youth in the sex trade, who runs Rethink Resources in Milwaukee.
While prosecution decisions can minimize legal consequences, some proponents of safe harbor worry that the emotional costs of criminalization are too high. The Wisconsin Coalition Against Sexual Assault has said the guilt and shame of being treated as a criminal may retraumatize children already suffering from guilt and shame at the hands of their abusers.
“Criminalization can and does add to the confusion over responsibility, consent and blame, thereby further harming and complicating recovery,” says Stephen Gilbertson, a clinical and consulting psychologist and clinical program manager at Wraparound Milwaukee.
Jo-Ann Gruber-Hagen of SlaveFree Madison, an organization that raises awareness about and combats human trafficking, says that the first priority should be giving victims an opportunity to regain control of their lives.
By criminalizing them or forcing them to testify, “You’re putting them back in a situation where someone else is telling them what they have to do, or else,” Gruber-Hagen says.
Proponents believe that by refusing to prosecute minors, law enforcement will be able to establish trust and gain access to information that will allow them to more successfully prosecute traffickers.
Minnesota passed comprehensive human trafficking legislation, including a safe harbor provision, in 2011. During the following three years, conviction rates of sex traffickers increased dramatically, from seven convictions in 2011 to 63 in 2013.
Minnesota Ramsey County Attorney John Choi told the Star Tribune that the new law helped make a difference. “We are now seeing that many of the victims — because we view them as victims and we want to help them instead of running them through the delinquency system — are willing to tell their story and come forward.”
Attorney General Brad Schimel and Rep. Amy Loudenbeck (R-Clinton) are among those who do not think this approach will work.
In public testimony against the safe harbor bill, Schimel explained that while he agrees prosecution should be avoided, he fears the legislation’s “unintended consequences” would limit the overall ability of law enforcement to serve victims. Loudenbeck expressed similar concerns in her testimony.
Schimel said that it is sometimes necessary to use the authority of criminal laws and briefly detain the child in order to remove a child from an unsafe place. Custody may also be necessary to ensure the child does not return to his or her trafficker, Loudenbeck said.
Loudenbeck worries that this legislation would present a “legal loophole” that would encourage traffickers to recruit minors. She compared the situation to drug trafficking. “If you provide immunity for youth for drug trafficking, then that just makes them more vulnerable, because that’s who the traffickers are going to target,” Loudenbeck said.
Loudenbeck noted that the problem remains small — the number of juvenile arrests for prostitution statewide in 2013 was 23.
“It’s not like this is a rampant issue,” she said. “A lot of counties are taking the stance of not charging. But in certain cases it is a tool we want to keep out there.”
Minnesota state Rep. Dave Pinto, who is also an assistant county prosecutor, and has handled prostitution cases, does not believe his state’s safe harbor law has hamstrung his office in dealing with these cases.
“It has made our work more effective, rather than less, because it means that everyone in the system is pushing in the same direction,” he says. “There’s no structural or legal ambiguity in our message to these kids.”
Some advocates continue to think the Wisconsin bill does not go far enough to protect kids, but Gruber-Hagen sees the need to find common ground with critics: “We need to land somewhere in the middle where cases are constructed effectively and children are not retraumatized unnecessarily.”
Editor's note: This article was amended to correct the first name of Rep. Jill Billings.
