State Net Capitol Journal: More States Looking to Offer ‘Safe Harbor’ to Underage Trafficking Victims

By Rich Ehisen 

Dealing with human trafficking has always been tricky business for lawmakers. States have in recent years been bringing down a variety of hammers, most aimed at the traffickers or the johns who solicit their often-underage victims. But how to best deal with the young girls and boys the traffickers exploit has been far more challenging.
 
According to the U.S. Department of State, human trafficking has developed into a $32 billion global industry, with some estimating there are as many as 27 million trafficking victims worldwide. Nobody knows how many end up in the United States, though most estimates hover around 15,000 to 17,000 people each year. Most are adults forced into working in factories or on farms, but a large number are also children forced into the sex trade. Exactly how many remains a mystery. 
 
"We know there is a huge problem," says Lauren Ryan, the director of Minnesota's nascent No Wrong Door anti-trafficking program. "But we don't have exact numbers. We just don't have the data." 
 
States have been aggressive in going after traffickers, including using racketeering and anti-gang laws to prosecute organized trafficking operations. Many have also adopted more severe asset forfeiture and criminal penalties for those convicted of the crime. According to Polaris Project, which advocates for state and federal anti-trafficking laws, 39 states passed such measures in 2013, and 32 have now achieved the group's Tier 1 ranking for the strength of their anti-trafficking policies. That's up significantly from 2012, when only 21 earned that distinction. 
 
In recent years, many states have also begun offering greater assistance to victims, allowing them to claim civil damages against their traffickers and vacating previous prostitution convictions. A growing number have also adopted so-called "safe harbor" laws, which generally fall in line with the federal Trafficking Victims Protection Act, which says minors arrested for prostitution should be treated as victims of exploitation rather than as criminal offenders. The presumption is that if a minor cannot legally consent to have sex with an adult in normal situations, it is illogical to treat them as criminals for doing so when they are being coerced. Since 2008, when New York became the first state to adopt a statewide safe harbor law, 17 more have followed suit with some variation of their own: Arkansas, Connecticut, Florida, Illinois, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York, North Carolina, Ohio, Tennessee, Vermont, and Washington. In theory, these laws not only preclude a minor-age trafficking victim from being prosecuted as a criminal, they allow victims to receive support services that will help get them away from the forced sex trade, including mental health treatment, drug addiction counseling and safe housing. 
 
But funding for the specialized services most trafficked kids require is spotty. Polaris Project says that while several states have included dedicated funding provisions, most have not. For example, Connecticut, Texas and Tennessee refrain from prosecuting trafficked minors as prostitutes but offer virtually no critical services thereafter. Meanwhile, New York, Louisiana, Kansas, Washington and Vermont are among those which arrest and prosecute minors, but also have state-funded diversion programs to which judges have the option of sending them to. Age cutoffs also vary. The Texas law applies only to kids 14 or younger. The cutoff is 15 in Connecticut, while Illinois, Nebraska and Tennessee are among those that grant immunity from prosecution to any trafficked minor under 18. 
 
According to the National Conference of State Legislatures, at least 11 states have pending safe harbor bills. This includes California, which adopted a safe harbor measure in 2008 that currently applies only to Alameda and Los Angeles Counties. Efforts to make the law statewide have so far been slow to come to fruition, a source of great frustration for many in a state that is home to several of the biggest trafficking hubs in the nation, including Oakland, San Francisco, Los Angeles and San Diego. 
 
But it is not for a lack of trying, says Nola Brantley, executive director and co-founder of the Oakland, California-based anti-trafficking group MISSSEY (Motivating, Inspiring, Supporting, and Serving Sexually Exploited Youth). She says that while there is wide support for helping underage trafficking victims, there is not unanimity on how to do it. 
 
"There is still belief among a lot of people that if you don't arrest these kids, then you can't get them into services," she says. 
 
Although the Golden State's budget situation has improved dramatically over the last two years, funding for such programs has been a tough sell around the Capitol as Gov. Jerry Brown (D) continues to preach fiscal austerity even as the state's coffers have moved from a deficit to a surplus. Brantley says a safe harbor law unto itself doesn't mean much without funding to pay for both the services kids need and the people and training to administer them. 
 
"You can stop arresting [trafficked kids], but then what?" Brantley says. "Does the Department of Child and Family Services, where these kids should really be directed to, have the capacity to deal with them? The answer currently is no." 
 
That certainly resonates with Alameda County District Attorney Nancy O'Malley, who says her county has prosecuted almost half of all the human trafficking cases adjudicated in California in recent years. She says the biggest challenge for anyone trying to get underage kids out of the life is keeping them away from their traffickers, who often use both physical and emotional tools to control their victims. 
 
"We have not yet found the system that really fits the needs of these exploited minors," she says. "What does the system look like that keeps them from being arrested but also keeps them safe and separated from their traffickers? It can't just be decriminalization because that would be feeding them to the wolves." 
 
That very possibility, says Minnesota's Ryan, was a driving force behind the Gopher State's safe harbor law, which goes into effect in August. In the three years from the law's passage in 2011, stakeholders from law enforcement, social services and other advocacy groups came together to work out a comprehensive plan that dramatically increases both penalties against the johns who solicit child prostitutes and the kids who they victimize. The law now treats minors under age 16 who are arrested for prostitution as victims while also imposing a mandatory first-time diversion for 16- and 17-year old offenders into social services programs aimed at getting them away from their traffickers for good. 
 
It also creates a network of six "navigators" throughout the state that will help guide victims to those services, and a single statewide director of child sex trafficking prevention. Ryan assumed that role about four months ago. 
 
"We didn't want to just not charge them and then send them right back out into the street," she says. 
 
But funding remains an issue. Last year, the Minnesota Department of Health asked for $13.5 million to fund the program; lawmakers appropriated only $2.8 million. The funds paid for Ryan and the six navigators and shelter space for a dozen trafficking victims. Full funding would have made space for up to 40. 
 
Meanwhile, California is moving closer to implementing a statewide safe harbor law. Last fall, the Senate approved SB 738, sponsored by Sen. Leland Yee (D), a bill that would move minor trafficking victims under the jurisdiction of the juvenile court system and provide training for foster parents and group home administrators in how to better deal with trafficking victims. It is currently awaiting a vote in the Assembly Committee on Human Services. 
 
"The criminal justice system always wants to have leverage, and in this case the leverage of sending someone to jail," he says. "But I think we're finally close to working out the details of how we separate those who are real violators and those who are victims." 
 
California lawmakers are considering several other new trafficking bills as well. These include SB 939, which would allow joint prosecutions for human trafficking across multiple jurisdictions, SB 955, which would allow police to get wire taps on suspected traffickers, and SB 1388, which would make it a misdemeanor to solicit a prostitute, with part of the fines going to the state's Commercial Sexual Exploitation of Children Fund. 
 
Although Polaris has voiced strong support for Sen. Yee's Safe Harbor bill, others have expressed concern over its intention to refer trafficked kids to the foster care system. Daphne Phung, founder of California Against Slavery, says 60 percent of trafficked kids have already been in and run away from the foster system, a statistic she calls "appalling." She calls SB 738 "a step in the right direction," but says the law needs to place kids in shelters where they can receive specialized sexual trauma treatment. 
 
Yee says he understands her frustration, adding he has been working on getting a bill like SB 738 passed for a decade. But after years of historic budget cuts that have hit social services particularly hard, he thinks the time may finally be right. 
 
"Everything around here is one step at a time," he says. "We have to get this first step in place before we can move on."

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