COMMENT: A Minor Conflict: Why the Objectives of Federal Sex Trafficking Legislation Preempt the Enforcement of State Prostitution Laws Against Minors

The doctrine of federal preemption provides a framework for resolving the tension between the treatment of prostituted minors under federal sex trafficking law and criminal prostitution laws in many states. Federal preemption doctrine holds that state laws are preempted if they conflict with a federal law by frustrating its purpose. The federal Trafficking Victims Protection Act (TVPA) defines individuals under age eighteen who engage in commercial sex as per se victims of severe sex trafficking. The TVPA seeks to protect these individuals by treating them as victims and providing them with services. Many states, on the other hand, define prostitution without regard to age and enforce criminal prohibitions against the same category of minors that the federal law seeks to protect. This Comment argues that states' enforcement of criminal prostitution laws against minors frustrates the TVPA's purposes with regard to prostituted minors by (1) treating prostituted minors as offenders, rather than victims, (2) contributing to misidentification of victims, and (3) discouraging prostituted minors from cooperating with law enforcement, thereby impeding federal efforts to investigate and prosecute trafficking. This Comment concludes that the TVPA preempts states' enforcement of criminal prostitution laws against minors."We have created a legal dichotomy in America in which the Federal Government views prostituted children as victims, yet most [s]tates treat them as criminals."1Minors under the age of eighteen are purchased for sex throughout America.2 The full extent of the problem is difficult to measure,3 in part because of the underground nature of prostitution generally,4 but also because prostituted minors5 are commonly subjected to psychological manipulation and abuse that makes them unlikely to self-identify as victims.6 Despite the difficulty of measuring the problem, however, it is certain that the number of minors involved in prostitution is substantial.7 For example, the U.S. Congress has cited research suggesting up to 300,000 American minors are at risk for commercial sexual exploitation.8 An article published by the Department of Justice's (DOJ) Office of Juvenile Justice and Delinquency Prevention further estimates that, for those at-risk individuals who do enter into prostitution, the average age of entrance is thirteen- or fourteen-years-old.9 These young people share characteristics, such as histories of neglect, abuse, or homelessness, that make them vulnerable to exploitation.10 In addition, they almost always have pimps-individuals who target and recruit vulnerable minors and use combinations of feigned affection, psychological coercion, and physical or emotional abuse to dominate their victims and profit from their sexual exploitation.11Federal sex trafficking law and state criminal prostitution laws are in conflict over the treatment of prostituted minors.12 States generally define prostitution without regard to age,13 meaning, for example, that a seventeen-year-old who engages in commercial sex commits prostitution under most state laws.14 In contrast, the federal Trafficking Victims Protection Act of 200015 (TVPA) establishes that any individual under age eighteen who engages in commercial sex is a victim of sex trafficking.16 Thus, the same seventeen-year-old who would be treated by state law as a criminal deserving punishment is viewed by federal law as a victim of sex trafficking entitled to protection.This Comment argues that under the doctrine of federal preemption, the TVPA preempts enforcement of state criminal prostitution laws against minors. Preemption refers to the displacement of state law by federal law pursuant to the Supremacy Clause of the Constitution.17 Preemption can be inferred from the existence of a conflict between federal and state laws; a conflict exists if state law frustrates the purpose of a federal law.18 In this case, the TVPA preempts states' application of criminal prostitution laws to minors because enforcing criminal prostitution laws against minors frustrates the TVPA's objectives of protecting sex trafficking victims and prosecuting traffickers. …