The following is a Chapter from my book, Sexual
Trafficking in Children, where I discuss THE JUDICIAL RESPONSE Chapter 7
SEXUAL TRAFFICKING AND THE JUDICIAL RESPONSE State and federal laws prohibit most forms
of child sexual exploitation, including prostitution, molestation, procuring, sex rings pornography,
and the transportation of minors for sexual purposes.
The extent to which these laws actually restrict the child sex markets by acting as statutory
barriers between victim and exploiter, however, is debatable. In this chapter we examine the official reaction
to the issue of sexual exploitation, as well as appropriate punitive responses to the crimes
of sexual trafficking. The Legislative Response: Statutory Intervention
An economic link between victim and offender is often forged when minors are excluded from
legitimate employment opportunities. Indeed, a number of federal and state laws
prohibit minors from acquiring any gainful employment. When legitimate opportunities do not exist,
survival for children who lack the support of their family may depend upon entry into
a commercial sex market.
State legislators have long recognized the
relationship between exploitation and the profit motive, as one legislative resolution
of the Arizona legislature states: The production and sale of such child pornographic
materials results in millions of dollars of profit . . . and the abundance of these materials
in Arizona indicates that this state contributes substantially to that figure. The state legislature of New York has acknowledged
the unhealthy relationship between exploitation and profit as a reflection of statutory failure
to provide for juveniles at risk. Furthermore, it declared that the state has
an obligation to break the bonds of economic exploitation associated with the sexual victimization
of minors: "The legislature finds that there has been a proliferation of exploitation of
children as subjects in sexual performances The care of children is a sacred trust and
should not be abused by those who seek to profit through a commercial network based
upon the exploitation of children." While many legislators clearly understand the need
for action, not all legislation effectively addresses the problems of sexual trafficking.
Vague language and overly broad coverage in state and federal laws have led critics to
question whether such statutes are consistent with the provisions of state constitutions
and the federal Constitution.
Most challenges are based on alleged violations of the First,
Sixth, and Fourteenth Amendments, which guarantee, among other rights, freedom of speech, freedom
of the press, the right to a speedy and public trial by an impartial jury, the right to be
informed of an accusation, the right to confront witnesses, the right to assistance of counsel
and compulsory process, and the right to equal protection under the law. As a general rule,
nevertheless, a state's interest in insuring the welfare and safety of children is deemed
to take precedence over the possible infringement of an offender's constitutional guarantees.
Judicial responses to constitutional challenges are based on past experiences with economic
and social welfare legislation and on prior decisions in cases in the areas of child neglect,
incest, sexual assault, and obscenity. These laws permit a state to intervene in a minor's
life.
A juvenile runaway, for instance, can be involuntarily placed under state supervision
in an institutional setting. Although actions of this kind often raise the question of whose
best interest is being served, they translate a child's entitlement to protection into concrete
action. Like child abuse laws, however, sexual exploitation statutes are often viewed as
an unreasonable assault on familial integrity and individual freedom. Substantive due process
minimally requires, therefore, that intervention be reasonably related to the promotion of
a valid state interest: in this case, the protection of a human resource.5 Advocates
of intervention by the state in matters of sexual exploitation argue that such steps
are justified because, in the words of Justice Herbert A. Pickford of the Supreme Court of
Virginia, "(t)he state has a compelling interest, one central to its right to survive, in protecting
children from treatment it determines is physically or psychologically injurious to youth."
Defending the state's interest in this matter can be properly traced back to the development
of child neglect legislation, the precursor of sexual exploitation statutes. Child neglect
laws developed from the belief that the welfare of the child is of paramount importance and
that the legal rights of the parent should be respected if the welfare of the child is
not endangered.
Similar concerns were expressed at the national level in Prince v. Commonwealth
of Massachusetts (321 U.S. 158, 64 S. Ct. 438, 88 L.Ed. 645, rehearing denied 321 U.S.
804, 64 S.Ct. 784, 88 L.Ed. 1090 [1943]). Justice Rutledge recognized that the state
has an ongoing interest in protecting children against such abuse as might prevent their
"growth into free, independent, well-developed men and citizens." The Prince decision held
that the state may constitutionally intervene in the parent-child relationship for the purpose
of enforcing its child labor laws. Child neglect statutes have been criticized
as overly broad when they focused on criteria other than a minor's condition—for example,
parental conduct or character. Even then, as the U.S. Supreme Court observed in Cinsberg
v.
New York (390 U.S. 629, 88 S. Ct. 1274, 20 L.Ed.2d 195, rehearing denied 391 U.S.
971, 88 S. Ct 2029, 20 L.Ed.2d 887 [1968]), the state has a more compelling interest in
the protection of children than in the control of adults (parents). Because child welfare
legislation is often based on intuitive and emotional assumptions, it is reasonable to
suppose, in the words of Columbia Law Review editor Robert Buckholz, that "the narrowest
possible means by which the state could fully implement its interest in child protection
would be a statutory formulation focusing on the child's condition and requiring a determination
that the proposed state assistance would in fact benefit the child."
Unfortunately, criteria deemed suitable for child neglect cases often fail to accurately
encompass child exploitation situations. In this regard, laws meant to eliminate child
prostitution and pornography, for example, have come under increased congressional scrutiny
since the Ferber decision, in which the U.S.
Supreme Court upheld the constitutionality
of a New York criminal statute prohibiting the knowing promotion of sexual performances
by children under by the distribution of materials depicting such performances. Frequently, laws
that govern sexual trafficking are inadequate in their protection of children. As stated
by the federal judge for the Western District of Oklahoma in 1986:
Such statutes are supplemental to other statutes readily applicable to activities associated
with child pornography such as rape, incest, sodomy, child abuse and neglect, contributing
to the delinquency of a minor, indecent exposure, and obscenity. These other statutes are somewhat
limited because some impose liability upon parents and guardians only, have relatively
weak penalty provisions, outlaw physical abuse only, and are not only difficult to prosecute
but are also low on the priority status of prosecutions in general. (Hon. Lee R. West)
This observation brings the central problem into focus. Legislators must make suitable
legislation a higher priority. For, in the words of David Shouvlin, "without the incentive
of probable conviction, prosecutors are unwilling to prosecute, police are dissuaded from making
arrests, and pedophiles (and others) are left to sexually exploit children without fear
of reprisal." Congress chartered the National Child Labor
Committee in 1907 to "promote the welfare of America's working children, investigate
conditions in various industries, and spearhead the push for state legislation." On June 24,
1924 Congress proposed an amendment to the United States Constitution banning child labor,
which 28 state legislatures had ratified by 1937.
In 1938 the Fair Standards Act was passed,
prohibiting the labor of children under the age of 16 in most jobs and barring persons
under 18 from dangerous occupations. Although it was intended to prohibit the economic
exploitation of minors, the Fair Labor Standards Act inadvertently provided a variety of opportunities
for adults seeking to profit from the financially disadvantageous situations of minors. Directed
exclusively at the abuses of child labor in manufacturing, the act left significant gaps
in the protection of minors in non-manufacturing activities which were subsequently exploited
by sexual traffickers. Since 1937 the bulk of federal legislation
in the area of child protection has focused on child abuse and neglect, primarily within
the family.
In 1981 the U.S. Supreme Court granted a petition for certiorari in the Ferber
case which raised this question: To prevent the abuse of children who are made to engage
in sexual conduct for commercial purposes, could the New York State Legislature (or any
legislature) prohibit the dissemination of material which shows children engaged in sexual
conduct, regardless of whether such material is obscene? The Court responded affirmatively
to the question, stating that "child pornography, like obscenity, is unprotected by the First
Amendment if it involves scienter (a defendant's guilty knowledge) and a visual depiction of
sexual conduct by children without serious literary, artistic, political, or scientific
value." Before the Ferber decision, 47 states and
Congress had legislation specifically addressing child pornography.
In the wake of the Ferber
decision. Congress amended the Protection of Children Against Sexual Exploitation Act
of 1977, passage of which was necessary because existing laws provided inadequate protection
against the use of children as prostitutes or as the subjects of pornographic materials.
The amendments produced four changes in prevailing federal law: (1) the age of majority was raised
from 16 to 18; (2) pecuniary penalties were raised to $200,000 for persons and $250,000
for organizations; (3) the commercial purpose requirement was deleted; and (4) the obscenity
requirement was deleted. The legislative committee concluded that "since the harm to the child
exists whether or not those who initiate or carry out the schemes are motivated by profit,
the subcommittee found a need to expand the coverage of the Act." The U.S. Court of Appeals
for the Eleventh Circuit in 1985 found that the amended version, known as the Child Protection
Act of 1984, did not violate the defendant's constitutional right to privacy. In 1986 Congress
passed the Child Abuse Victims Act of 1986, which increased the minimum term of imprisonment
to five years for an individual guilty of the sexual exploitation of minors.
In 1984 Congress enacted the Missing Children and Assistance Act, which established a national
clearinghouse and resource center to "provide state and local governments, public and private
non-profit agencies, and individuals with technical assistance in locating and recovering
missing children." As a result, the National Center on Missing and Exploited Children was
created.
Funded by the Office of Juvenile Justice and
Delinquency Prevention, the Center was directed to extend, among other services, "assistance
to state law enforcement agencies in investigating and prosecuting cases of missing and exploited
children." The center is also responsible for maintaining a nationwide, toll-free hotline,
and has orchestrated a variety of media campaigns designed to publicize the plight of missing
children. One of the center's principal functions is to collect and disseminate data on the
problem of sexual exploitation to state agencies. At the federal level, sexual trafficking has
been addressed by legislative remedies which provide penalties but meager financing for
state and private agencies. Sexually exploitive acts prohibited by federal statutes include
child pornography, sexual abuse, and child prostitution.
The Child Abuse Prevention and
Treatment Act (42 U.S.C. § 5102 et. seq.} sets a broad federal standard to which state
laws can be compared. This act, which has been amended several times since its inception
in 1974, makes it unlawful for any person to employ, use, persuade, induce, entice,
or coerce any child to engage in, or have a child assist any other person in the production
of, sexually explicit or simulated conduct. This prohibition holds true for anyone, including
a parent, legal guardian, or custodial adult who allows or knowingly permits a minor to
enter into such a situation. Punishment for Sexual Trafficking
Debate continues over what constitutes appropriate punishment for child exploiters. Do fines
and prison sentences reduce the level of trafficking? Is there a cause-effect relationship between
severe punishment and reduction in the number of sexually victimized minors? There is not—at
least presently—a sufficiently informed consensus to dictate definitive and comprehensive
approaches.
What can be agreed on is that the criminal
justice system must provide speedy trials and that the punishment should be appropriate
for the offense. To determine appropriate punishment, most
states consider the nature of the offense, its degree of severity, the defendant's past
record, and the extent of the defendant's involvement in the case under consideration.
(See Tables 7-1 and 7-2.) The judgment can be substantial fines or a term of imprisonment.
The latter course must, however, be considered in the context of the present prison overcrowding
and the high cost of incarceration.
Accordingly, it is most often adopted with violent offenders—that
is to say, punishment is not likely to be severe unless the offense can be defined as
having as an element "the use, attempted use, or threatened use of physical force against
the person or property of another, or any other offense that is a felony and that, by
its nature, involves a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense." Table 7—1 Selected State Legislation Showing
Upper Limit of Penalty, Term of State, Statute, and Year of Passage
California: Sexual Exploitation of Children (1981),
Imprisonment,6 years,Fine,$100,000 Florida: Sexual Performance of a Child (1985),
Imprisonment, 15 years, Fine, $10,000 Georgia: Sexual Exploitation of Children (1983),
Imprisonment, 20 years, Fine, $ 20,000 Minnesota: Sexual Exploitation of Child or
Child Pornography (1982-1983), Imprisonment, 20 years, Fine, $ 20,000
New Jersey: Endangering Welfare of Children (1984)
Imprisonment, 10 years New York; Sexual Performance by a Child (1977)
Imprisonment, 7 years Ohio: Obscenity Involving a Minor (1977)
Imprisonment, 10 years Pennsylvania: Sexual Abuse of a Child (1977)
Imprisonment, 10 years Tennessee: Use of Minors for Obscene Purposes
(1985) Imprisonment, 21 years, Fine, $10.000 Virginia; Production, Publication, Sale, Possession
with Intent to Distribute, etc., of Sexually Explicit Items Involving Children (1986)
Imprisonment, 10 years, Fine, $ 1,000 This approach leaves in doubt the appropriate
punishment of various other offenses that lack the ingredient of violence.
Child pornography,
for example, is a major element of sexual trafficking, yet lacks the element of violence
that would result in incarceration for even a flagrant offender. In response to this circumstance,
the courts have begun exploring new options. California, for instance, has established
a pilot program for treatment of offenders who have sexually abused children. Initially,
an offender is required to undergo counseling in conjunction with a probationary sentence.
If he continues to abuse children or declines counseling, the sentencing court removes the
probationer from the program,23 and the traditional sanction of imprisonment is imposed.
At the federal level, criteria established for fixing an appropriate sentence include:
1.
Age. 2. Education.
3. Vocational skills. 4. Mental and emotional condition, to the
extent that such condition mitigates the defendant's culpability or to the extent that such condition
is otherwise plainly relevant. 5. Physical condition, including drug dependence.
6. Previous employment record. 7. Family ties and responsibilities.
8. Community ties. 9. Role in the offense.
10. Criminal history. 11. Degree of dependence upon criminal activity
for a livelihood. Federal Statute: Federal Statute:
Importation of Immoral Articles Prohibited 18U.S.C. § 1305(1980)
Penalty: Seizure and disposition, 19C.F.R. § 12.40, 12.41. Federal Statute:
Mailing Obscene or Crime-Inciting Matter 18 U.S.C. § 1461 (1971)
Penalty: Maximum fine of $5,000 and maximum imprisonment of 10 years. Subsequent offense
doubles penalties. Federal Statute:
Offenses Committed within Indian Country 18U.S.C. § 1153(1986)
Penalty of state jurisdiction. Federal Statute:
Penalty for Mailing of Sexually Oriented Advertisement 18U.S.C. § 1735(1970)
Penalty: Maximum fine of $5,000 and maximum imprisonment of 10 years.
Subsequent offense
doubles penalties. Federal Statute:
Child Sexual Abuse and Pornography Act of 1986, Pub. L. No. 99-628, Nov. 7, 1986, 100
Stat. 3510-3512, Section 2. Advertising Offenses Related to Sexual Exploitation of Children
Fined and imprisoned for any term of yrs. or life, or both. Federal Statute:
Sexual Abuse of a minor or ward 18 U.S.C. § 2243 (1986), Chapter 109A—Sexual Abuse
Aggravated Sexual Abuse (c) with Children 18 U.S.C. § 2241 (1986)
Penalty: Fined and imprisoned for not more than 5 yrs., or both (minor). Fined and imprisoned
for not more than 1 yr., or both (ward). Federal Statute:
Transportation of Minors 18U.S.C. §2423(1986) Penalty: Fine and maximum imprisonment of
10 years, or both. Federal Statute:
Sexual Exploitation of Children 18 U.S.C. § 2251-2252* (1986)
Penalty: Maximum fine of less than $100,000 and imprisonment up to 10 years, or both.
Prior conviction: maximum fine of $200,000 and imprisonment of 5-15 years, or both. Maximum
organization fine of $250,000. (See note below)* Federal Statute:
Criminal / Civil Forfeiture 18 U.S.C. § 2253, 2254 (1986)
Penalty: Forfeiture of property subsequent to seizure by federal authorities. *Between May 1977 and November 1983, only
four persons had been indicted under Section 18 U.S.C., § 2251, of whom two pleaded guilty
to other charges under 18 U.S.C.
§ 2252 (traffic in materials portraying sexual exploitation
of children), one pleaded guilty to conspiracy, and one still had proceedings pending. Report
of the Judiciary Committee, House of Representatives, to Accompany H. R. 3635, Report No.98-536,
at 2 (1983). 1984 U.S. CODE CONC. & ADMIN. NEWS 493. Of the 28 persons indicted during
the same period for § 2252 offenses, 23 were convicted, 2 were convicted other obscenity
violations, 1 defendant committed suicide, and 2 defendants were subject to pending violations,
ibid. In the twenty-eight months from May 21, 1984
to Sept. 26, 1986, 274 individuals had been indicted and 214 individuals were convicted
for federal sexual exploitation of children violations. Report of the Judiciary Committee,
House of Representatives, to Accompany H. R. 5560. Report No. 99-910. at 5U986). 1986
U.S. CODE CONC. & ADMIN. NEWS 5954. Careful consideration of these factors assists
the sentencing court in fashioning a sentence appropriate to the circumstances and increases
the likelihood of achieving the following fundamental objectives:
1.
Protection of the minor victim in the case at hand.
2. Protection of potential victims. 3. Separation of the offender and the victims.
4. Rehabilitation of both the victim and the offender.
5. Action to prevent reoccurrence. This approach tends to provide alternatives
to imprisonment. In 80 percent of the states and in the federal courts, the trial judge
imposes sentence; jury sentencing is retained in less than a dozen jurisdictions. Under
both modes, the dual objective of sentencing is apparent: the wrongdoer is punished and
others are deterred from committing similar offenses.
How the System Works in Practice As previously stated, a stated right to intervene in a minor's
behalf is well-established. A point of considerable tension develops, however, when legislators
and judges must balance the interests of minors against the constitutional rights of defendants.
One way to measure the effectiveness of current statutory remedies is to consider how they
were applied in an actual case of sexual exploitation. Clearly not all victims benefit from the remedies
theoretically available. The following case is an example of what happens when legal procedures
are applied in the absence of judicial advocacy.
It is a mother's account other 9-year-old
son's encounter with a neighborhood pedophile and the consequences of his victimization,
both within and outside the formal judicial system.
Taking the parent's point of view, the reader may answer the following questions, then evaluate
the performance of the system in terms of the case's outcome:
1. What would I want the judicial system to do to ensure that my child's best interests
and rights were represented? 2. What sort of penalties would I want applied
to the offender? 3. What, if any, compensation would I expect
for my child in the form of therapy and personal damages?
4. What consideration would I expect from the prosecutor and the judge in terms of minimizing
my child's trauma during the pre-trial, trial, and post-trial phases of this case? A VICTIM POORLY SERVED BY THE SYSTEM
Jeff was our next-door neighbor, about 36 years old and a cook at a hotel restaurant.
I really trusted him—never trusted somebody so much in my life. He never seemed to have
any girl-friends, but I didn't ask why 'cause it was none of my business. Jeff was good
to kids, especially to Aaron.
He had a yard, just a little old yard, and he’d give Aaron
$10 to mow it. When I asked Aaron where he got the money, he said, "I got it from my
buddy." That's what he called Jeff—"my buddy." So I called Jeff up and asked him how come
he paid Aaron, a 9-year-old kid, $10. He said he liked Aaron and figured he could use some
extra spending money. He kept on giving Aaron money all the time.
What a good neighbor. He'd come over, bring me the paper, take out the garbage.
I've never
known anybody nicer than he was. I discovered he had let Aaron drive his car. Other people
had seen it. I mean, a 9-year-old driving a car? I found out about this later. Nobody
told us at the time. Aaron liked him a lot. Sometimes he came over to the house to sit
and talk with my husband and me about things in general. One night, around 9 p.m., Jeff
stopped by to see if Aaron could spend the night at his house. I let him know that my
son wasn't allowed to stay away from home.
Still, we didn't think anything was really
wrong. This guy would get upset, real mad, if someone else ever took Aaron out to play.
Right then I should have been smart enough to figure him out, because he was always with
my son. I just thought he liked him. It's my fault for not knowing better. I was
working late the day it happened. When I came home, my husband, who is disabled, met me
out at the car and said, "Cathy, Aaron's sick. He's been throwing up all day, ever since
he got back from Jeff's." My husband kept asking Aaron what was wrong but
he wouldn t say anything. Anyways, he was just deathly sick so we took him to the hospital
emergency room. The nurse told us to go sit in the waiting room while the doctors examined
him. We still didn't have any idea what was wrong with our son.
Eventually the doctor came out of the examining room and told us what had happened. Jeff had
had oral sex with my son. Aaron opened up to the doctors but he refused to tell us.
To this day, I don't know all of the details because Aaron is too ashamed and scared to
discuss it.
So we don't push it. When I found out at the hospital, I just sat there in total
shock. I thought, what am I going to do? After all, I trusted this guy. My next-door neighbor!
I almost went crazy. Jeff, of all people. For a little while my mind refused to believe
it. After the shock wore off, they told me at
the hospital that I had to get a warrant for his arrest. Which I did. and they put Jeff
in jail on a pretty high bond. By the way, I had to take Aaron back to the hospital the
second night.
He was a nervous wreck. Let me tell you what it was like for him. He wouldn't
eat, was sick for days, never could get to sleep. He'd stand in a corner all day long
and blame himself, repeating, "It's all my fault, all my fault." Every time the phone
rings, he'll say, "Momma, is somebody asking about me?" At first he cried day and night.
When he finally went back to school, word got out about what had happened, and the kids
would say awful things to him, God, they were cruel. I called the teachers at the school,
but that didn't help much. When it first happened, I had a terrible time
with him. You couldn't even mention the incident in the house or Aaron would burst out crying.
I spent my whole paycheck to buy him a special bicycle, to help cheer him up since it was
something he'd always wanted. He wouldn't play with it. Instead, he would just sit by
himself and pick at his fingers.
I knew what was on his mind. We took him to Baltimore
for a vacation, but that didn't help. You cannot run away from something like that.
Anyways, after Jeff was arrested, there was a hearing in closed court with the prosecutor,
judge, and a bunch of people (grand jury) asking questions. Aaron didn't want to go
in the courtroom We had to practically drag him in. It broke his heart. They had questioned
us one at a time, but they wouldn't let my husband or me sit in the courtroom with Aaron.
Jeff had an attorney and said he was not guilty.
Mr. Abbott, the prosecutor, represented us.
The people in court asked me if I was a fit mother because I wanted to put my son through
the pain of a trial. They actually blamed me for wanting to go to all this trouble
to get the guy locked up! There never was a trial. We were supposed
to have a preliminary hearing, but the prosecutor kept putting us off. This went on for weeks.
We spent a whole day sitting in his office once and he finally came out and said, "Not
today. Why not drop the case?" Abbott told me that I should drop the case because Aaron
would have to go through a bad time in court. At first I wouldn't do it. I told Abbott,
"If I drop it, what is Jeff going to do next?" I was furious. Nobody cared if Jeff got punished.
The prosecutor called up one day and said Jeff had pleaded guilty to the charge.
He
was willing to do anything they wanted except go to jail. So Abbott told me that if I agreed,
Jeff would be put on probation and sent to the mental health center for treatment. I
was against it, but Abbott said, once again, "If you think your son went through hell at
the grand jury hearing, wait till the defense gets him in open court. They'll tear him apart.
Let it drop or take your chances in court." This was the choice he gave me. I still don't
understand why I had to decide. Isn't a prosecutor supposed to make this decision?
I sat up all night trying to decide what to do. My husband wanted Jeff locked up. Finally,
I told Abbott, okay, drop it. The only reason I agreed to probation was because he gave
me so much hassle about what the defense would do to my son in open court. I didn't think
Aaron could take it at the time. I gave the prosecutor my home and work phone numbers
and asked him to call and notify me of the outcome of the case.
He never called or let
me know a damn thing. I still don't know for sure if Jeff is on probation or what they
did to him. To this day no one will tell me.
The worst part is that we still run into Jeff. I've seen him. So has Aaron. About a week
ago, we went to a store and Aaron suddenly took off running for the car. Jeff was in
the store and Aaron saw him. My oldest son spotted this guy in town one day, jumped out
of the car, and just about beat Jeff to death. Jeff tried to get a warrant issued on my son,
but the prosecutor refused. When it first happened, my husband begged
the police to let him go find Jeff and kill him.
If the police hadn't picked up Jeff first,
my husband would have killed the guy. No question about it.
Aaron has calmed down since the incident, but any little thing gets him upset. The doctors
said it would take years for him to recover, but he'd never forget what happened to him.
School kids still tease him and he still thinks it is all his fault. He refuses to get help
at the mental health center and wants to know why he has to go there if it wasn't his fault.
What did he do wrong? Aaron is 10 years old now. He cries a lot. I try not to think about
it too much. My husband and I never discuss it when he's home.
But I'm his mother. I know
it plays on his mind. He spends a lot of time alone, just thinking. Never ever talks about
the incident. I don't think he fully understands what happened to him.
I think I did wrong. I believe now I should have gone to trial, but this case just meant
nothing to the prosecutor. This experience will stay with Aaron for a long time. Take
it from me, and don't ever trust your next-door neighbor.
The criminal justice system in this case obviously failed to address the problem of appropriate
punishment. Instead, the prosecutor accepted a plea bargain that returned a child molester
immediately to the community.
No provisions were made to place either Aaron or his family
in counseling or therapy as a result of this traumatic incident. Obviously, there are a
number of important peripheral issues involved in this case, including sentencing as an appropriate
expression of the state's perceived interest in the welfare of a minor.
Judicial Advocacy The rights of an underage victim of sexual
molestation are sometimes incompatible with the needs of substantive due process and the
application of legal remedies. In Aaron's case, the mother assumed, correctly or not,
that both victim and defendant were moved through the judicial process with a minimum
expenditure of effort, time, and interest by the judicial officers.
Judicial advocacy is more than just going through the motions of protecting underage
victims. Alexander Lyerly, a district court judge with jurisdiction over certain types
of cases involving exploited children, points out in the following case that judicial advocacy
also involves the investigation, hearing, prosecution, and fair disposition of such
crimes with full consideration for a victim's rights.
Only in such a comprehensive approach
will the response be appropriate and equitable to the needs of the sexually exploited child,
while still ensuring the rights of the accused. A VIEW FROM THE BENCH
All children are potential victims of sexual abuse or exploitation. There is no minimum
age: We deal with cases in which the victims are only a few days old. The significant majority
of cases with which I have been involved have, however, concerned children who are in the
prepubescent stage of physical/sexual development. Sexual exploitation of children may take any
number of forms, from actual, definable "sexual acts" upon the persons of children, to private,
traded, or commercial photo- graphs and films, to the private or commercial
prostitution of children. Victims come from all types of families. Both birth and stepparents,
adoptive and foster parents are frequently the abusers. Professional caregivers in schools,
group homes, daycare facilities, and even homes specifically structured to house
and treat the abused child should be aware of the possibility that these places provide
for staff members an excellent opportunity for exploiting children. Unfortunately the
public, medical, and legal professionals, law enforcement personnel, social workers,
parents, and especially the courts often lack adequate skills to deal with every level of
the abused child's needs.
Children who have been sexually abused or
exploited rarely fabricate the story. If anything, they tend not to relate it fully, especially
if it is an isolated (rather than an ongoing) incident of abuse. Children simply lack the
sexual and social sophistication to intellectualize an abusive or exploitive event. Some do, of
course, but most do not. The exploiter often finds his or her
encounters with kids to be more sexually and psychologically gratifying because he or she,
as the abuser, can feel somehow "superior" to the child. The victim frequently has little
or no sexual sophistication and generally little or no basis of comparison in sexual
experiences. Having listened to adult molesters testify
in many cases, it is clear that the child may not appreciate the criminal or wrong nature
of the sexual act. This gives the offender further protection from discovery. Children
are also more susceptible to gifts or other forms of intimidation which insure their cooperation,
confidence, or secrecy. Children almost always want to feel as if they have the approval
of an individual who is usually older and perceived to be more "powerful" at the time
of the abusive incident.
The child will continue to seek reinforcement of this approval through
continued cooperation or a bond of secrecy. The sexual abuse or exploitation of kids is
usually not episodic for the abuser. It tends to become his or her regular form of sexual
activity, although isolated acts of abuse do spring up from time to time.
Court resolutions of child abuse are especially difficult for thevictim. In the "strange,"
adversarial settings of the courtroom, the child must not only relate (at some point)
the incident itself but is subjected to cross-examination by adults who are fulfilling their obligatory
roles, such as social worker or defense counsel. The result is that the victim finds the courtroom
appearance to be an extension of the abusive act. The basic structure of the entire legal/judicial
system has the added caution of not wanting to create any error at any stage which might
result in that thing all judges abhor, whjch is reversal by an appellant court.
Over the past 15 years I have listened to, prosecuted, served as guardian ad litem in,
or presided over scores of cases of child sexual abuse and exploitation.
The following
are four capsule summaries of some typical cases (told in the present tense).
TODD Todd is 9 years old. He does not remember
a time when he was not sexually abused by his father, mother, and even by groups of
adults and other children. Todd's parents are members of "sex clubs" whose express purpose
is to have sexual experiences with children, either their own or others.
He is diagnosed as being "socially retarded" because he has not been allowed to develop
the usual, normal childhood relationships common for most children. Isolating abused
children from their peer groups is a means used by many offenders as a form of protection
from arrest. Todd is the oldest of three brothers, all of whom have been abused in a similiar
fashion. The boys were all removed from the parents
several months ago; each has been in specialized care in a group home, with daily therapy sessions.
After many weeks of confusion, feelings of guilt (for "putting mommy and daddy away")
and some predictable incidents of sexual acting out with older youths in the group home, the
boys are coming around.
Everyone concerned feels it will be at least another six months
before Todd and his brothers can be considered for permanent placement with adoptive parents.
CATHY Cathy is 13. Her birth father abandoned the
family nine years ago. When her mother married Jim, Cathy accepted the new family unit well.
Cathy's mother is a nurse who works night duty. Jim is engaged in real estate and insurance
sales, a person well thought of in the community. Since Cathy was 10 she has slept with Jim
on the nights her mother worked. At first Cathy felt "loved," "secure," and "special"
sleeping in her parents' bed.
The fact that Jim slept in the nude and insisted that Cathy
do so did not at first seem to be of any great significance. Jim soon began to insist that
she give him "rub downs" like "your mom does to people in the hospital."
This request almost immediately progressed to mutual masturbation and requests by Jim
for Cathy to perform oral sex on him. She was, in Jim's words, "getting to be such a
beautiful woman," that he began to photograph her beginning
with various stages of undress and leading eventually to nude photos.
Law enforcement agents later seized more than 220 photographs of Cathy taken over several
years. Jim was prosecuted and imprisoned. Cathy's mother placed her in a group home
after the trial, convinced that her daughter had somehow seduced Jim. I was Cathy's appointed
guardian ad litem. She told me several times that she regretted ever having testified against
Jim.
His threats that "they will come and take you away" and "your mom will be upset
at you" appeared, from her point of view, to have come true. Cathy felt as if she had
ruined her mother's marriage and that it was she who had abandoned the family.
CHRISTOPHER Christopher is 16. His first exposure to sexual
exploitation occurred at approximately age 8 to 9. He began playing "tickling games"
with his mother and two of her adult friends, a male and a female. Robb, the male, owned
a photography studio. Hundreds, possibly thousands, of commercially produced photographs and films
of these sessions of tickle games of three nude adults and one male child were made and
sold by Robb. When Christopher was 14, he was taken into custody by juvenile court authorities
and charged with the sexual assault of a 4-year-old girl and a 17-month-old boy. He will be in
a correctional facility for juveniles until he turns 18.
The prognosis by his psychologist
is not good. I have always wondered at the meaning of the term "correctional facility."
It may well be the law's greatest misnomer, especially in dealing with exploited children.
BENJAMIN Benjamin is 12. He was befriended by a next-door
neighbor known as Uncle Steve. Uncle Steve is 47 years old, married, and the father of
several children. Steve began his abuse of Benjamin by giving the b'oy gifts of money
and trips to baseball games or the soda shop in exchange for anal intercourse and silence.
Steve is an executive with a large corporation. He also coaches junior league sports for neighborhood
boys and has been active in church, a country club, and an international men's service organization.
Benjamin's parents apparently knew nothing of the abuse until a school nurse noticed
stains on his white tennis shorts. Benjamin was examined by an astute physician that same
afternoon, who asked all of the right questions.
He impressed upon the boy the importance of
telling the truth so that he could be properly treated. Ultimately, Steve was prosecuted
but not convicted. The foreman of the jury (six men and six women) later disclosed that
they simply did not believe a man of Steve's reputation would do such a thing to a child.
In their opinion, Benjamin was lying. As these cases indicate, much remains to be
done in the name of child advocacy. At both state and federal levels, it is clear that
we need more uniform statutes dealing with exploitation, from the initial reporting of
an incident through the disposition of the case. The courts and legislatures have made
some progress—for example, permitting testimony by videotape, allowing social workers or health
care professionals to testify to hearsay interviews with the children, and using anatomically
correct dolls which enable children to re-enact incidents of abuse.
Some states have presumptive
sentencing for those convicted of child abuse or exploitation. Others have sought more meaningful
regulations for child care facilities. Three basic problems confront advocacy efforts
and judicial reforms. First, the sexual exploitation and trafficking of minors remains a topic
which is not sufficiently discussed. It is still an unpleasant subject for many adults
and professionals and one they would, apparently, rather ignore. Second, children have little
political power or influence; they are a constituency without a voice in our judicial system. And,
third, the constitutional rights of the abuser, such as the right to confrontation and the
standards of due process, must be addressed in a more pragmatic manner if realistic innovations
are to survive judicial review. The rights of the victim, in short, must be given at
least as much attention as those of the offender charged with exploitation.
Conclusion The federal response to sexual trafficking
has been erratic and slowed by the lack of public awareness that the various child sex
markets—private and public—constitute a major threat to the welfare of our youth.
Renewed enforcement efforts by U.S.
Customs and postal authorities, the passage of legislation
by Congress, and the creation of a National Center for Missing and Exploited Children
are the three most recent federal responses to trafficking. In addition, recent initiatives
by Congress, such as amending the RICO statute (Racketeer Influenced and Corrupt Organizations)
to extend coverage to sexual exploitation of children, as in the case of showing evidence
of a child pornography scheme, and the passage of the Child Sexual Abuse and Pornography
Act of 1986, may lead to heightened public interest in such activities. What effect these
measures will have on the volume of exploitive activities remains to be seen.
Most states have followed the federal example by enacting statutes that deal with exploitation
outside the domain of intra-familial abuse. The common feature of these assorted efforts
has been a lack of perception of the fundamental dynamics of trafficking and the failure to
formulate appropriate penalties for the crimes involved.
The one connective thread between federal and state legislation is the issue of child
labor, from which has sprung a profusion of statutes and amendments designed to protect
minors in the workplace.
Although restricted primarily to work issues, these laws have
prompted improvements in peripheral areas such as child abuse and child neglect, and
they have also compelled legislatures to take a broader view of the rights of minors in
a variety of unrelated areas. With the introduction of juvenile courts and the slow development
of a juvenile justice system, we have seen the advent of comprehensive statutory programs.
These programs, while often criticized for their displacement of family rights, have
at least provided the means for a state to intervene in cases of child exploitation or
abuse. Such legislative actions will not eliminate the crimes of sexual trafficking, but at least
they reflect a change in attitude in state government and Congress from one of complacency,
based on gross ignorance of the problem of sexual exploitation of minors, <to one promoting
judicial advocacy for those who cannot otherwise find representation or aid within the political
system.
Endnotes
1. Fair Labor Standards Act, 29 U.S.C. §§ 201 to 219 (amended 20 times since
1938), especially §§ 212, "Child Labor Provisions." 2. Arizona Revised Statutes Annotated, Chapter
200 (March 25, 1978). 3. McKinney's New York Penal Law, Title 0,
Article 262, "Sexual Performance by a Minor" (Commentary).
4. May v. Anderson, 345 U.S. 528 (1952). and Meyer v. Nebraska, 262 U.S. 390
(1923) (natural duty of parent to give his children education suitable to their
station in life). 5. Jackson v. Indiana, 406 U.S. 715, 738,
32 L.Ed.2d 435, 450, 92 S. Ct. 1845 (1972}.
6. Freeman v. Commonwealth, 288 S.E.2d 461, 465 (Sup. Ct. Va., 1982).
7. Hammond v. Department of Public Assistance, 142 W. Va. 208, 214 (W. Va.
1956) (cited cases omitted.) 8. See also Ginsberg v. N.Y., 390 U.S. 629
640, 20 L.Ed.2d 195, 204 (U.S., 1968) (state has interest to protect the welfare
of children), and Stanley v. Illinois, 405 U.S. 645, 552 (U.S., 1972) (state
has the right and duty to protect minor children).
9. Robert E. Buckholz, Jr., ed., "Constitutional Limitations on the Scope of
Child Neglect Statutes," Columbia Law Review, vol. 79, no. 4 (May 1979),
pp. 719-732. 10. New York u.
Ferber, 458 U.S. 747, 73 L.Ed.2d
113, 102 S.Ct. 3348 (1982). 11. United States v. Reedy, 632 F. Supp. 1415,
1416 (D. Okla., 1986). 12. David P. Shouvlin, "Preventing the Sexual
Exploitation of Children: A Model Act," Wake Forest Law Review, vol. 17 (1981),
p. 538. 13. Andrews Edward, ed.. Concise Dictionary
of American History (New York; Charles Scribner's Sons, 1962), p. 176.
14. 29 U.S.C., §§ 201-219. "Fair Labor Standards Act of 1938."
15. New York v. Ferber, 458 U.S. 747, 753, 73 L.Ed.2d 1113, 1120, 102 S. Ct.
3348 (1981). 16. Ibid.
17. S. Rep. No. 95-438, 96th Cong., 2d Sess. 5-6 (1984).
18. H.R. Report No. 98-536, 1st Sess. 2. reprinted 1984, U.S. CODE CONG. &
ADMIN. NEWS, 492-494. 19. United States v. Miller, 776 F.2d 978,
(llth Cir. 1985). 10. Pub. L. No. 98-473, 42 U.S.C. § 5771
et. seq,, "Missing Children's Assistance Act." (1984).
ill. Fact Sheet for the Honorable Alfonse M.
D'Amato, United States Senate,
United States Government Accounting Office (January 5, 1986), p. 5.
12. Pub. L. No. 98-473, 18 U.S.C. § 16, "Crime of Violence Defined" (1984).
53. Cal. Penal Code, §§ 1000.30-1000.36 (1985).
54. 28 U.S.C. §994(d). S. See, for example, Stanley v. Illinois,
405 U.S. 645, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972); Parham v. R., 442 U.S.
584, 602, 99 S. Ct. 2493, 61 L.Ed.2d 101, 119(1979).
S6. Contributed by the Honorable Lyerly, Banner Elk, North Carolina.
17. On October 18. 1986, the Senate passed S. 985, amending the RICO statute.
President Reagan signed H.R.
5560, the Child Abuse and Pornography Act
of 1986 (Pub.L. No. 99-628), on November 6, 1986..
