Did California Legalize Child Prostitution?

A Response by Jerry Peyton

Founder & Executive Director of Sold No More

Is “child prostitution” now legal in California after SB 1322 went into effect January 1?  The answer is, “No,” and, “Yes.”

According to California Penal Code Sections 647 and 653, it is unlawful to solicit, agree to engage in or engage in any act of prostitution, or to loiter in any public place with the intent to commit prostitution.  Under SB 1322 that is still true for adults, but now it “does not apply to a child under 18 years of age.” 

While it is still illegal for adults in California to engage in prostitution with adults or minors, it is no longer unlawful for a minor to sell himself or herself for sex.  In an effort to recognize that such kids are victims, not criminals, their involvement in “child prostitution” has been decriminalized.  Similar laws have been passed in 19 other states and are supported by many in the anti-trafficking movement. 

Police in California may no longer arrest a child they suspect is engaged in commercial sex, but they are to report the minor to Child Welfare as possible abuse.  Only if the child is in immediate danger or in need of medical care may police take them into temporary custody   

For too long minors engaged in sex trafficking have been arrested, incarcerated and given criminal records for engaging in “child prostitution.”  But since minors cannot legally consent to sex, which is statutory rape, how can they be guilty of prostitution?  And since any commercial sex act with a minor, including exchanging sex for food or lodging, is the felony of sex trafficking, how can child victims of sex trafficking be regarded as criminals? 

It is time to stop treating these kids as criminals and get them the help they need.  We need to keep them out of juvenile detention and free the Juvenile Justice system from having to handle these as criminal cases 

Once I was allowed to speak in Juvenile Court on behalf of a 16 year old girl about to be sentenced for felony resisting arrest when she returned to a hotel after having been sold for sex.  “Why,” I asked, “Was she in court instead of the men who sold and abused her?”  The judge dropped the felony charges and released her to our custody for placement in an out of town treatment home. 

In the hallway outside the courtroom, the prosecuting attorney, who had been pressing for the maximum sentence, took my hand and thanked me.  No one in that courtroom wanted to see a child victim become a convicted felon.  But that was where the legal system was pushing us.   

Minors’ brains are not fully developed in the rational decision making areas.  Hence the laws regarding sex with minors as statutory rape – minors cannot legally consent to sex.  “It was her idea,” “She wanted it,” “It was her choice,” are not a defense regarding sex with a child.  

While the anti-sex trafficking movement is unanimous in not regarding or treating children involved in commercial sex as criminals, there is not unanimity when it comes to decriminalizing – making it legal – for children to sell themselves for sex, which what SB 1322 has done in California.  Such laws raise some unanswered questions and could create additional suffering for children.  There are questions to be answered and issues to be debated.

Some Questions & Possible Consequences 

SB 1322 severely limits public prosecutors’ ability to use victims as witnesses.  Without victims as witnesses, successful prosecution of pimps is almost impossible.  If we really care about child victims, we would be locking up as many of their pimps as possible for as long as possible. 

One of the most successful prosecutors of pimps in the U.S. told me privately what she would not say publicly due to blow back from many in the anti-trafficking movement: “If we decriminalize the participation of girls and women in sex trafficking, I wouldn’t win a single case.”   

California’s new law leaves extremely vulnerable children on the streets – if it cannot be shown that they are in immediate danger or in need of medical care.  Police now have to choose between ignoring the horror of what they believe is a child being sold for sex, or taking them into temporary custody risking being cited for harassment or unlawful detainment if they cannot prove immediate danger or medical necessity. 

Why would police need to establish that a minor engaged in commercial sex is in immediate danger or in need of medical care when we know with absolute certainty that such behavior is extremely violent and unhealthy?  Eighty-six percent of prostituted women are physically abused by pimps, and 86% are physically abused by johns.  Their physical injuries, diseases and psychological disorders are legion.  Over 80% of trafficked women have sustained bruises, broken bones, head injuries or mouth and teeth injuries.  Women in prostitution have a mortality rate 200 times that of women of similar age and race, and are 18 times more likely to be murdered.  Kids being sold on the street wouldn’t be in greater danger if they were a Marine in Afghanistan.  

Should we leave children exposed to such horrors on the street simply to keep them from feeling like criminals because they were picked up by police When minors are discovered being sexually abused or trafficked at home, they are removed by law enforcement for their own safety – without being regarded as or treated like criminals.   

In most states police are allowed to pick up runaway juveniles who have committed no crime, (although running away is a status offense in nine states).  Several states allow runaways to be held in detention – for their own safety.  Why the “hands off” requirement for kids involved in commercial sex? 

SB 1322’s provision for police to simply report minors engaged in commercial sex to Child Welfare, without taking the minor into custody, is an exercise in futility.  What can Child Welfare do without the minor being in custody? 

What message are we giving youth who are selling themselves, when we decriminalize their actions?  Are we saying it is not illegal but it’s wrong, or is it legal and okay?  The vast majority of child victims of sex trafficking do not view themselves as victims.  Almost all of them – including my 14 year old daughter – say it was their choice.  Some of them are trauma bonded with their pimps, referring to them as their boyfriend or daddy.  

SB 1322 tells youth selling themselves that while their buyers are engaged in illegal activity, they are not.  What about the minors who are selling themselves without a pimp?  While we can understand the powerful forces that pushed them into such self-destructive and dehumanizing behavior, these youth see themselves as independent operators who set their own schedule and keep all the money.  No one is telling them what to do. 

What about the sex trafficking of minors not occurring on the streets, which is only the tip of the iceberg of child sex trafficking.  After conducting sex trafficking prevention presentations to over 25,000 youth the past three years, we at Sold No More are convinced that far more sex trafficking of minors takes place via the internet, in homes and in school restrooms than on the streets with pimps.  Homeless youth are selling themselves in exchange for money, food, a place to sleep (“couch surfing”) and drugs (“drug whoring”).  It’s all sex trafficking. 

Is SB 1322 telling youth who are selling sex in school restrooms that they won’t be arrested because what they are doing is not a crime, that they are only victims?  Are we telling youth who are selling or distributing pornographic photos and videos of themselves – which is either child pornography or sex trafficking – that what they are doing is not a crime, that they are only victims? 

It is vital we understand the trauma that drives someone to accept being abused, even learn to love abuse, or to abuse others – such as the girls seduced into sex trafficking who become “bottom bitches,” recruiting and controlling new girls for their pimp.  It’s one thing to understand but quite another to excuse all personal responsibility.  Relieving people of any responsibility for their actions does not elevate them.  It dehumanizes them, robbing them of what is essential to being human: their free will.  Do we want to tell youth, “You had no choice,” “There was nothing you could have done,” “Your actions were predetermined by others and circumstances,” “You’re a helpless victim”?

Using criminal law and law enforcement to forcefully rescue youth engaged in commercial sex is a hotly contested issue within the sex trafficking movement, as is whether or not to place these rescued-against-their-will kids in a secured facility where they can’t immediately runaway.  It’s so cold and unjust to treat these victims like criminals.  And it won’t do any good to arrest them or lock them up because all we’ll be doing is making them more angry and re-traumatizing them.  We’ll be doing exactly what their abusers have done: controlling them.  We need to let them come to their own conclusions that they need help, that they are ready to change.  We can’t make those decisions for them. 

But if these prostituted kids are helpless, traumatized victims incapable of choosing to stop doing what they are doing – which is why they are not responsible for their actions – what gives them the ability to turn around and decide, “I’m ready to quit and get help now”?  How can we expect severely traumatized kids to make mature decisions to leave their pimps (if they have one), to stop selling themselves for sex, to stop using drugs, to not run away from safe treatment homes and to get the help they need to make those changes?  Aren’t we asking them to do what we’ve already determined they are incapable of doing?  Or, are we admitting that they can’t make those changes without help – help they may not want and will fight against tooth and nail?  

Whether it’s abuse, trauma or chemical addictions, some still have, or had at some point, the ability to choose to not become involved or seek help to get out.  And they knew it.  Others never had a choice.  There is a difference between a 17 year old performing oral sex for money in school restrooms, a 17 year old who sells herself on Backpage to pay college tuition, and a 17 year old who has been sexually used by her father and brothers since she was five, sold by her mother for heroin and continues as a teen to be sold by a pimp and put on meth to keep her pacified and controlled.  The problem with decriminalization laws such as SB 1322 is they appear to put all three in the same boat: helpless victims who aren’t doing anything illegal.  

In our “Power Over Predators” presentations we apologize to students for how they are being manipulated, used and abused, not only by predators but by media and a culture that glorifies sexual promiscuity, sexualizes girls and encourages boys and girls to be sexually aggressive.  It’s not youth’s fault and they didn’t ask for it.  They’re being used by adults for commercial gain, selling them highly sexualized music, movies, clothing, apps and video games. 

But we do not excuse students’ behavior or tell them they are helpless victims – precisely what abusers want them to believe.  We tell them they have what it takes to stand up to abusers, to get help and to become champions for others who are being abused.  We also show them the laws declaring that taking, sending, receiving or possessing sexual images or videos of minors is illegal – including images of themselves.  It’s a form of child pornography, and selling such images is a form of sex trafficking.   

When my daughter, Lisa, who heads up Sold No More’s prevention education program, shared that information in a gymnasium of over 2,000 students, I was standing in the back with the faculty.  The teacher next to me said, “Do you see that?  Hundreds of students have pulled out their cells phones.” 

“Yes,” I responded, “They’re deleting the evidence.”  Most of those students knew what they had been doing was wrong, which is why they hide it from adults.  But they didn’t care.  Once they knew it was illegal, that youth had committed suicide as a result of sexting and that teens had been arrested for sexting, they all of a sudden cared.  Fear of being caught breaking the law is not a bad motivation.  It keeps most of us from driving way too fast. 

From Personal Experience 

Forty years ago my 14 year old daughter, Lisa, who heads up Sold No More’s prevention program in schools, ran away and wound up being sex trafficked – although we didn’t know it at the time and no one called it sex trafficking.  When the police called, allowing me to go into the home to get her instead of them picking her up, she refused to go anywhere with me.  It took a fair amount of time sitting in the police car with two cops for her to decide to go home rather than to juvenile detention.  Her plan was to run away again, but we already had plans to fly her out of state in a couple of days.  And since we couldn’t lock her up, Georgia spend the nights sleeping with Lisa in her bed.  She didn’t run away.  She spent the next year at Shelterwood in Missouri.

Was Lisa traumatized?  Certainly, not only by having gone overnight from being a model Christian kid and honor student to being used for sex and smuggling drugs across the Mexican border, but from having her close friend kill himself in the school parking lot a few weeks earlier – while she was waiting for him.  Lisa was a 14 year old suffering from PTSD who was not making rational choices.  She was, as she later admitted, trying to kill herself.  

Was Lisa a criminal?  No, although she was breaking some laws.  Did she hate having the police involved?  Yes.  But would Lisa have come home or gone to Shelterwood without the involvement of police and the threat of juvenile detention?  No.  She would have kept telling me to go to hell and continued destroying herself.  Lisa desperately needed help but was in no condition to make that decision herself.  Did she want to go to Shelterwood in Missouri?  No, and she hated it, calling it “Shelterhell” or “Sheltertraz.”  But, as she admitted years later, did Shelterwood save her life?  Yes.

Some Conclusions 

Not regarding or treating child victims of sex trafficking as criminals is essential – even if they believe they are freely choosing to sell themselves for sex.  They aren’t criminals even if they have broken laws while being abused.  The law takes into account even adults who act under duress, when threatened or under the influence of mental instability.  

Removing from police the ability to take into custody any minor they believe is engaged in sex trafficking creates a major roadblock to rescuing these children and to arresting and prosecuting their abusers: the pimps who sell them and the johns who buy them.  Children can be, and are being, taken into custody by police without being treated like criminals.  All law enforcement personnel in Arizona are being trained to do just that – especially when it comes to sex trafficking victims. 

Juvenile Detention is not an ideal place for trafficking victims, even as a temporary holding shelter.  But it is much safer than being left out on the street when there is no other secure facility available – which is the case in southern Arizona.  And the threat of Juvenile Detention can be an effective deterrent for youth, just as jail is for adults.   

Juvenile sex trafficking victims are usually on drugs or alcohol, needing to be detoxed before any other treatment can begin.  Detox requires secure confinement.  Juvenile sex trafficking victims are highly likely to run away from any unsecured facility until they have been detoxed and stabilized.  And they usually run right back to their pimp. 

Californians may be dreaming if they believe SB 1322 will keep innocent victims out of juvenile detention while placing them where there is the safety and treatment they need.  Those needs are met in small residential treatment homes specifically for trafficking victims – not institutions, generic youth homes, shelters or trauma therapy programs.  The necessary treatment homes are extremely rare and very expensive.   

Since such treatment homes are usually not available, SB 1322 may result in more victims being left on the street because they cannot be held in juvenile detention.  But perhaps that will motivate us to get serious about providing those homes.  Or to get really serious and begin providing systematic, comprehensive sexual abuse prevention education for our youth – like we do for drug abuse.  Training law enforcement, rescuing victims and providing services is essential, but we can help a thousand times more youth at a fraction of the cost by empowering them to not become victims in the first place – to not fall prey to the tigers who come at night, turning their dreams into the living hell of sex trafficking.   

The selling of children for sex is not a partisan political issue.  I don’t question the motives of those who proposed or support California’s SB 1322.  But I do question the motives of those who cannot criticize the law without castigating “the Democrats responsible for the law.”  Drop the political jabs and focus on the children.  Only sick criminals are in favor of abusing children, not legislators of any party.