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Should Prostitution be a Prosecutable Offense?

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By Michelle Beshears, professor of criminal justice at American Military University

Prostitution is a misdemeanor crime, which, in the majority of states, is punishable by jail time, a fine or both. However, for pimps or others found guilty of promoting prostitution, the crime is viewed as a felony. And, where it is found that an underage prostitute is involved, the penalties are much stiffer for traffickers. Of course, these punishments currently vary by state. (Here is a list of state laws, including all 50 states and D.C.).

One problem that currently exists with current state laws is that the majority of states still have statutes on the books that criminalize minor prostitution. These statutes conflict with the states’ statutory rape and child-abuse statutes, which were created with the idea that a minor is not capable of engaging in consensual sex. In light of this and of the growing issue revolving around human trafficking, the government is looking at ways in which laws may be applied to assist both adult and child prostitutes, who in many cases are victims of human trafficking.

woman sitting in jailNew York is one state that recognizes this flaw and its courts have begun to expand policies in which they do not prosecute the majority of prostitutes at all, but rather divert them to a separate court that treats them as sex-trafficking victims in need of a wide array of social services. According to Fox (2013), “Judge Lippman called prostitution a complex problem, and said the new system would recognize that ‘the vast majority of children and adults charged with prostitution offenses are commercially exploited or at risk of exploitation.’” (p. A19)

And, more recently, a bill has been introduced in the state. H.R. 3610 Stop Exploitation Through Trafficking Act of 2014 was introduced November 21, 2013 and was passed by the House on May 20, 2014. Its next stop is the Senate and, if passed, will move on to the President for signature. H.R. 3610, if passed, will require states to do the following within three years:

  1. Treat a minor (an individual under 18 years of age) who has engaged in, or has attempted to engage in, a commercial sex act as a victim of a severe form of trafficking in persons;
  2. Discourage the charging or prosecution of a minor for prostitution or sex trafficking offense; or
  3. Encourage the diversion of an individual to appropriate service providers, including child-welfare services, victim treatment programs, child advocacy centers, rape crisis centers, or other social services. Moreover, this legislation requires additional reporting to Congress on restitution orders and offender information in sex trafficking cases.

Under the proposed act, the Attorney General would be authorized to withhold state funds for failure to comply. These funds would be withheld from the Edward Byrne Memorial Justice Assistance Grant (JAG), in which states are currently receiving funding. These allocations vary by state and county. For more on the amount allocated to each state please review the Justice Assistance Grant (JAG) Program: FY 2014 Allocations and Disparate Information.

This act aims to not only help alleviate the threat of sexual exploitation of minors, but also seeks to ensure legislation is aimed at punishing the exploiter and not the child. In doing so, it seeks to raise the amount of monetary damages that might be claimed in civil suits and authorizes the Attorney General to establish a process to collect and analyze data relating to the mandatory restitution orders.

The Secretary of Health and Human Services (HHS) will be directed to make annual grants for a national communication system to assist victims of severe forms of trafficking via an amendment to the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA). In addition, this amendment will require the Attorney General to report annually on agency activities under the Act. Lastly, the Workforce Investment Act of 1998 would be amended to include victims of a severe form of trafficking as eligible for the Job Corps.

About the Author: Michelle L. Beshears earned her baccalaureate degrees in social psychology and criminal justice and graduate degrees in human resource development and criminology from Indiana State University. Mrs. Beshears served in the U.S. Army for 11 years. She obtained the rank of Staff Sergeant prior to attending Officer Candidate School at Fort Benning, Georgia where she earned her commission. As a commissioned officer Mrs. Beshears has led numerous criminal investigations and worked with several external agencies as well. As a civilian she has worked with the local sheriff’s department, state drug task force and FBI. Michelle is currently pursuing her Doctorate degree in Criminal Justice. Mrs. Beshears resides with her husband Michael, their son Hunter, and daughter Malia near Norfork and Bull Shoals Lakes, in Clarkridge, Arkansas. Michelle is currently an assistant Professor of criminal justice at American Military University & American Public University and is full-time faculty in the School of Public Service & Health. You can contact her at michelle.beshears(at)mycampus.apus.edu.

References

Fox, A. (2013, September 26). City News: Prostitutes face fewer prosecutions — New York is creating a statewide court system for defendants that are seen by many as the victims of human trafficking. Wall Street Journal, New York, N.Y, p. A.19.

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