The commercial sexual exploitation of children has become an increasingly well known violation of the rights of children. The United States presents an interesting case of how a federal government can enact legislation to aid victims of commercial sexual exploitation of children, but also how the laws remain ineffective on the local level without appropriate enforcement. Though the Trafficking Victims Protection Act of 2000 has marked the change in the way U.S. federal laws address trafficking victims, systemic legal problems persist and complicate the process of aiding victims. Many of these problems, such as the contradictions between state and federal laws regarding child prostitution, are illustrated in the case of the state of New York and the development of new legislation meant to protect exploited children.

The way trafficking and commercial sexual exploitation of children is being addressed, by legal and social services in New York, should serve as a model for other cities to emulate. Ultimately, the commercial sexual exploitation of children remains a pervasive problem in the U.S., and though major changes have occurred in legislation, legal problems still exist that severely impede efforts to help victims.

In order to understand how trafficking and the commercial sexual exploitation of children (CSEC), it is vital to understand how the terms are defined and how they are related. While different government agencies and non-governmental organizations (NGOs) define trafficking differently, many of the laws in place in the U.S. on both the state and federal level use the definition provided by the Trafficking Victims Protection Act of 2000 (TVPA). The TVPA in Section 103 (8), defines severe forms of trafficking as,

A. Sex trafficking in which a commercial sex act is induced by force, fraud or coercion, or in which the person induced to perform such acts has not attained 18 years of age; or

B. The recruitment, harboring, transportation, provision, or obtaining a person for labor or service, through use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. (Spangenberg: 2002, 2)
The TVPA definition makes the clear distinction that any child (defined as a person under the age of 18) who is induced to perform sexual acts is a trafficking victims, the provision of force, coercion or fraud do not apply in the cases concerning minors.

It follows that any child who has been commercially sexually exploited is a victim of trafficking. Since there is no official definition of CSEC given by the US government the definition provided by the forerunners in research on CSEC, an international NGO named End Child Prostitution in Asian Tourism (ECPAT), should be used. “The commercial sexual exploitation of children consists of criminal practices that demean, degrade, and threaten the physical and psychological integrity of children. There are three primary, interrelated forms of commercial sexual exploitation of children: prostitution, pornography, and trafficking for other sexual purposes” (ECPAT: 2008, 5). Since the TVPA dictates that all people under the age of 18 who are induced to participate in sexual acts are victims of trafficking, it follows that CSEC is by its inherent nature a severe form of trafficking. Sex trafficking has been “uncontroversially recognized as a violation of rights of physical integrity” (Brysk: 2005, 42). If an even broader category of commercial sexual exploitation is seen as a human rights abuse, then the commercial sexual exploitation of children should be considered a human rights abuse as well.

However, despite international recognition of sex trafficking and CSEC as human rights abuses, many legal systems, especially the legal system in the US, are racked with problems and contradictions concerning how trafficking victims are treated.

Despite advances in policy and law, such as the creation of the T-Visa and the TVPA, systemic problems with regards to the treatment CSEC victims by the current US legal system still exist. The TVPA allows for federal law to be applied in cases of CSEC. While there are laws and legislation in place that are designed to protect the victims of CSEC, the enforcement of such laws is inconsistent and contradictory at best. The reasons for this disconnect is that federal and state laws often conflict. “State laws define and prohibit the prostitution of children, yet these laws inconsistently protect child victims. Legislation on trafficking in children is comprehensive but enforcement is inconsistent…particularly for domestic child victims who are trafficked with the US” (Friedman: 2007, 17).

While some states may have significant legislation designed to aid victims of CSEC, the break down occurs on the local level beginning with the law enforcement officials that encounter victims on a daily basis, but may not recognize them as such. The problem remains that the people that would most often come into contact with victims of CSEC, such as judges, attorneys, social workers, and police officers, are not trained to recognize them. As a result the good intentions of the TVPA and Optional Protocol beak down, and many victims are treated as criminals (Friedman: 2007, 20).

To further this breakdown, there are often contradictions within a state’s own laws regarding protection of CSEC victims and the prosecution of prostitution. The fact remains that it is immensely easier for local law enforcement officials to arrest a trafficked child as a prostitute and try them as such then it is to go through the intensive and drawn out process of aiding them as a victim of CSEC (Friedman: 2007, 21).

This example demonstrates the discourse that pervades local law enforcement agencies in that those caught in prostitution are criminals, not victims. This severely impedes efforts to aid the CSEC victims when even the police treat them as hardened criminals. The reason for this seemingly harsh treatment is because of the inherent ambiguity of the situation, “When a juvenile has sex with an adult in exchange for money, the juvenile may have committed a prostitution offense and may also be a victim of statutory or other sex crime. Presumably when the juvenile is pimped, they will be seen as victims, and when they take a more active role such as soliciting, they will be seen as offenders” (NISMART-2: ECPAT, 2005). Again, this emphasizes how the ambiguities in state laws versus federal laws allow for many victims of CSEC to slip through the cracks. An attorney working with the Legal Aid Society in New York said that this is “one of the few areas of the law, in children and family court, where we see if there’s not a 100% detention rate, it’s very, very close to a 100% detention rate” (Friendman: 2007, 17). Since state courts are commonly the ones dealing with CSEC cases, until they begin to incorporate the new trafficking legislation enacted on the federal level, victims will continue to be prosecuted as criminals.

With this general framework of how the existing laws function and current problems in helping victims of CSEC, the case of how CSEC is addressed has evolved in New York provides a valuable model that should be emulated in other cities across the US. Historically, New York legislation has prosecuted many children caught in prostitution as criminals, again, because of the ambiguity of how to treat them. In New York the legal age for consent to sex is 17, when an adult has sex with a child under the age of consent it is considered statutory rape. However, the moment they except money from the “rapist” they are treated as criminals and prosecuted as such. This dilemma embodies the contradiction between state and federal laws (Friedman: 2007, 21).

A dramatic shift has occurred in the way New York law treats victims CSEC in the form of the Safe Harbor for Exploited Children Act of 2008 (SHA). The Act allows children, and especially girls, to be treated as victims in need of assistance, instead of being criminalizing. The Speaker of the New York Assembly, Sheldon Silver, said about the Act in a press release that it “would define sexually exploited children as someone under the age of 18 who may be subject to sexually exploitation because they engaged or agreed or offered to engaged in sexual conduct in return for a fee, food, clothing or a place to stay” ([assembly.state.ny.us]).

The SHA is revolutionary in the way it aids victims instead of prosecuting them. Though they still must go through the court system, they are now recognized as exploited youth. Girls in particular are referred to a organization named Girl Education and Mentoring Services (GEMS). Referring young women to GEMS is another innovative way that New York is helping victims of CSEC. GEMS, which was started by Rachel Lloyd a former victim of CSEC herself, provides girls with shelter, counseling, legal aid, job training, and other services. However, in spite of these major changes, a disparity still exists in how CSEC is perceived, and how victims are treated in society. Since most victims of CSEC were living in vulnerable circumstances before being trafficked, they are often overlooked when awareness about CSEC is raised. Rachel Lloyd, director of GEMS, explained that people most often hear a story about a poor white girl from the rural mid-west being kidnapped and forced into prostitution by a black pimp, rather thanthe more common story of “an African American girl who’s grown up in her own neighborhood, whose aunt was probably a prostitute whose father or cousin may be a pimp, and she’s working four blocks down the street from where her mother lives” (Friedman: 2005, 26).

Lloyd illustrates a critical dichotomy in how laws and society address different victims of trafficking. Though definite advances have been made in how the Optional Protocol has been implemented in the US and the provisions made in the TVPA, more attention is paid to the children that have been trafficked into the US from other countries and the American children that are taken from non-violent, affluent areas. The laws and services that have been established in New York should be the model for how trafficking victims are treated because they address these systemic problems. The Safe Harbor Act and GEMS provide a valuable and innovative model that should be emulated in cities across the US, because it allow federal law aiding victims of trafficking to be practiced on a local level thus providing victims of CSEC with a long-term support system that occurs in the courts and in the services provided to them.

Systemic change is happening, especially concerning how laws in the US treat CSEC victims. However, still very little is known about the full extent CSEC within US borders. State legislation needs to be implemented in order to harmonize the efforts of the federal and state governments in protecting trafficking victims. Policy and laws can only do so much without enforcement, as can be seen in the lack of enforcement of the TVPA on the state level. Training of legal professionals and law enforcement officials will be vital in recognizing and helping the victims of CSEC. However, the most important aspect of aiding CSEC victims will be the implementation and expansion of long-term services and support systems available to victims. Countless children can be rescued by an educated law enforcement team, but they will have nowhere to go but to the streets if more services, like those offered at GEMS, are not available to them.

Works Cited

Brysk, Alison. “Children Across Borders: New Subjects”. Human Rights and Private Wrongs: Constructing Global Civil Society. Routledge, Inc., 2005.

Feingold, David A. “Human Trafficking”. Foreign Policy, No. 150. Carnegie Endowment for International Peace, 2005. [jstor.org].

Friedman, Sara Ann. Alternative Report to the Initial Report of the United States pf America to the UN Committee on the Rights of the Child Concerning the Optional Protocol to the Convention of the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography. New York: ECPAT-USA, 2007.

Freidman, Sara Ann. Who Is There to Help Us? How the System Fails Sexually Exploited Girls in the United States. ECPAT-USA, Inc., 2005.

O’Neill Richards, Amy. International Trafficking in Women to the United States: A Contemporary Manifestation of Slaver and Organized Crime. Washington D.C.: State Department’s Bureau of Intelligence and Research, 1999.

Spangenberg, Mia. International Trafficking of Children to New York for Sexual Purposes. ECPAT-USA, 2002.

Tzvetkova, Marina. “NGOs Responses to trafficking in Women”. Gender and Development, vol. 10. Taylor and Francis, Ltd., 2002.

. New York Assembly Passes Safe Harbor Legislation. [assembly.state.ny.us]. Accessed May 26, 2009.

. Questions and Answers about the Commercial Sexual Exploitation of Children. ECPAT International: 2008.