The "Youngest Profession": Consent, Autonomy, and Prostituted Children

Although precise statistics do not exist, data suggests that the number of children believed to be at risk for commercial sexual exploitation in the United States is between 200,000 and 300,000 and that the average age of entry is between eleven and fourteen, with some as young as nine. The number of prostituted children who are criminally prosecuted for these acts is equally difficult to estimate. In 2008—the most recent year for which data is available—approximately 1500 youth under age eighteen were reported to the Federal Bureau of Investigation as having been arrested within United States borders for prostitution and commercialized sex. Anecdotal evidence suggests, however, that these numbers reflect only a small fraction of the children who face criminal charges as a result of their prostituted status. Research also reveals that because most states have laws that hold children criminally liable for ―selling‖ sex, law enforcement and the courts readily pathologize these youth, a significant  Assistant Professor of Law, University of North Carolina at Chapel Hill School of Law (tbirckhe@email.unc.edu). B.A., Yale College; J.D., Harvard Law School. I am thankful to have had the opportunity to present earlier iterations of this paper during Betsy Bartholet‘s course on the ―Art of Social Change: Child Welfare, Education, and Juvenile Justice‖ at Harvard Law School; a junior faculty workshop at George Washington University Law School; a conference convened by Nancy Dowd at the University of Florida Levin College of Law; Holning Lau‘s ―Children and the Law‖ seminar at UNC Law School; and a criminal law panel organized by Dan Markel at the Law & Society conference in Chicago. For detailed comments on previous drafts, I am grateful to Hillary Farber, Barbara Fedders, Cynthia Godsoe, Lisa Goldblatt Grace, Melissa Hamilton, Cheryl Hanna, Laurie Kohn, Eric Muller, Carolyn Ramsey, Catherine Ross, Michael Selmi, and Deborah Tuerkheimer. Many thanks also to J. Hunter Appler, Cara Gardner, and Lindsey Spain for excellent research assistance. Birckhead final book pages 5/3/2011 1056 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 88:1055 percentage of whom are runaways, drug addicted, or from low-income homes in which they were neglected and abused. Statistics additionally suggest that the number of American girls who are sexually exploited is increasing, particularly for those between the ages of thirteen and seventeen. Likewise, it is estimated that eighty percent of prostituted women began this activity when they, themselves, were younger than eighteen. Yet, nearly all states can criminally prosecute children for prostitution even when they are too young to legally consent to sex with adults, and very few communities have developed effective programs designed to prevent or intervene in the sexual exploitation of youth. This Article critically examines the prevalence of laws allowing for the criminal prosecution of minors for prostitution. It argues that rather than maintain a legal scheme that characterizes and treats such juveniles as willing participants who, if harmed, are merely getting what they deserve, a more nuanced approach must be developed in which—at a minimum— criminal liability should be consistent with age of consent and statutory rape laws. It analyzes the range of ways in which states have addressed the problem of prostituted children, and it highlights those few that have successfully utilized strategies of intervention and rehabilitation rather than prosecution and incarceration. It contrasts the impact of state versus federal legislation as well as domestic versus international policy in this area and examines the ways in which these differences serve to perpetuate pernicious stereotypes vis-a-vis youth and crime. The Article addresses the historical treatment of prostituted children as criminals rather than victims by both American law and society, and critiques contemporary rationales for continuing a punitive approach toward these youth. The Article explores the conflicting statutory, common law, and colloquial meanings of the terms ―prostitution,‖ ―consent,‖ and ―bodily autonomy‖ as they relate to children and sexuality. It also considers the extent to which the criminal offenses of prostitution and statutory rape address different sets of harms and explores how gender and sexual orientation are implicated in the discussion. The Article concludes by highlighting model programs directed at prevention, intervention, and rehabilitation, as well as proposing strategies for reform, such as decriminalization and diversion. Birckhead final book pages 5/3/2011 2011] THE ―YOUNGEST PROFESSION‖ 1057