Prop 35, Youth, Sex Trade and Sex Trafficking-Interview with Alexandra Lutnick, Researcher

Alexandra Lutnick currently works with RTI international as a researcher, focusing on young people’s involvement in sex trade. I saw her present some of her work at the XIX International AIDS Conference and I was very moved by her insights and experience with youth involved in sex trades. As my own focus is the impact of anti-trafficking policies within the U.S. I arranged to interview Ms. Lutnick in San Francisco where we both reside. The following are some excerpts from this interview which I plan to publish in full in the future. I was very interested in her perspectives on best practices for young people, and her impressions of Proposition 35, which attempts to address these populations.

Ms. Lutnick's current project involves a process evaluation of three community-based organizations that have been funded to work with what the federal government considers domestic minor victims of human trafficking. Prior to that her work had largely been with adults who work in the sex industry, conducting a 5 year study funded by the National Institute on Drug Abuse with UCSF, the University of California San Francisco and St. James Infirmary, a peer run occupation health and safety clinic for individuals in the sex industry. Ms. Lutnick also worked at a homeless family shelter, and extensively with the youth at the shelter. Her work on a study with young injectors, most of them between 16 and 24, so she became more aware and had more direct experience with that subpopulation of young people who might be trading sex. Ultimately she was brought into the current project both because of her experiences doing evaluations of programs, and because of her larger expertise in the area of sex trade and sex work.

Currently much of the attention to trafficking in the U.S. focuses on young people engaged in sex trades. What are some of the policy proposals and changes associated with this emphasis?

The passage of the Trafficking Victims Protection Act (TVPA) in 2000 marks the beginning shift to focusing on young people involved in trading sex here in the states. The reason why I highlight that is that the language within the TVPA re-categorizes a whole group of young people, any young person under the age of 18 who is a U.S. citizen or lawful permanent resident engaged in sex trades, as a victim of trafficking. If one is under the age of 18 and fits these other criteria, based on the federal definition within the TVPA, one is now categorized as a victim of sex trafficking.

This move changed the discourse substantially. Prior to the passage of the TVPA a number of populations were recognized, each with widely different circumstances such as young people subjected to force and violence, or those involved in casual sex trade in exchange for a place to live, or youth considered ‘at risk’ in various circumstances.

After the passage of the TVPA, the conversation shifted as the numbers and circumstances of all these populations were combined to make the claim that there was an exploding problem of US young people being forced into the sex industry. The “Catch 22” is that the federal definition doesn’t require force, fraud, or coercion in the case of people under the age of 18. Yet most states still have on their books laws that criminalize people’s engagement in sex trades regardless of their age. So, in many states, unless a young person is being transported across a state border, unless they’re on federal property, it’s rare that the victim status within the TVPA is applied to them. We see, at the state level, different legislation being passed to address this, or not, depending on the state. Illinois for example, just passed their "Safe Children Act," so that they are the first state to be in compliance with this federal definition set forth by the TVPA .

How has California dealt with the discrepancies between arresting young people and their status as victims?

Within California, our 647B (prostitution) code doesn’t set a minimum age, so young people are still being arrested for their involvement in sex trades. However, there’s been a number of laws previously passed directly related to domestic minor victims. In 2005, Assembly Bill was passed and basically set between 4 to 8 years as the maximum sentence for someone convicted of sex trafficking in the case of a minor. The other legislation in California is primarily directed at people who are considered clients or facilitators of young people.

In California we see the same contradiction that exists across the U.S.-- the majority of these young people are under the age of consent, so essentially, they’re experiencing statutory rape or rape. The laws against statutory rape already exist. In California however, even though they are technically victims of statutory rape, they’re still being arrested for prostitution. Despite this serious discrepancy, the focus of relevant laws in the state (including Prop 35) is not to ensure the victim status of minors, but on efforts to target the facilitators and the clients, assuming that that’s going to eradicate the problem.

Have these new laws worked? Are young people charged as criminals in these states?

To clarify, even where there are laws saying that a young person cannot be arrested for prostitution, such as in Illinois where they removed the language "juvenile prostitution" from all the codes, other charges may be applied within the same surrounding circumstances, so that youth may still be charged with other minor related crimes or infractions. We hear about such practices from service providers in Illinois.

In the literature from these areas, we also learn that when a young person is stopped and detained, they are not charged or cited for prostitution related offenses, but instead they are charged with loitering, for example. The same circumstance could produce drug possession charges, paraphernalia, or truancy. There are a wide number of infractions or crimes that young people are routinely charged with. That, then, funnels them into the juvenile justice system. For others it could be one part of what happens. For example they may be approached by law enforcement during a prostitution sting or while acting in a way that makes law enforcement suspicious about what they’re doing. The young person isn’t arrested, but is given a notice that they must participate in something like a pre-trial diversion.

Charges will not be pressed if they can comply with this placement, and participate in these programs, but if you don’t follow through, the authorities can bring this case back up. So, in New York, for example, if a young person is brought to juvenile justice with a prostitution related charge, and they are assigned a PINS provision (person in need of supervision), as long as they abide by the provision set forth, they’re okay. But if at any point they stop cooperating, and maybe cooperation means they’re mandated to drug treatment or they’re mandated to go to this program or they’re placed in a foster home or a residential facility-- if at any point they deviate from that, they are likely to be brought back to juvenile justice, and the charges will be applied.

What do you recommend in terms of best practices for the future?

There are still many contradictions in the current reforms: Young people can still get arrested for other charges besides prostitution, as I explained. We also know that many people are aging out of foster care without the necessary skills and resources to thrive, and that one in four folks in foster care, when they age out, will be arrested within 2 years. My hope is that, with this increased attention paid to young people’s involvement in sex trade, domestic minor victims of sex trafficking, it will become a priority to evaluate the services and policies that are being put in place. These evaluations are crucial to ensure that thay are achieving the hoped for outcomes because many of the policies definitely have the potential to negatively impact not just young people, but also adults who are working in the industry. In fact, with this increased focus on domestic minor victims of sex trafficking in the last number of years, we’ve seen an increase in the amount of funding for services and for task forces but we haven’t really seen the implementation of effective evaluations of that funding or these policies. So in my mind, yes, young people who trade sex, in a variety of circumstances, most likely need certain services. It may be they need very concrete things like a place to shower, or clothing. If they’re using substances they may need harm reduction supplies around injection drug use. They might need housing. They might need legal support; some might need mental health care. There’s a range, and having those services are important. In some of the laws that have been passed such as the one in New York, the Safe Harbour Act, service provision is an unfunded mandate, so the law is saying, “in a perfect world these services would be there, but we’re not going to allocate money for it.”

So it would be important to have more funding for housing options for young people. It would be great to have more funding for employment and paid internship opportunities for young people. But, without effective evaluations of the programs that currently exist that are focused specifically on this group of young people, I don’t think that funneling more money into them without evaluation is the answer.

We also can look to the proliferation of task forces since the passage of the TVPA. To date, there’s about 46 national task forces related to trafficking. In fiscal years 2009 and 2010, of 46 million dollars that’s dedicated to domestic minor victims of trafficking issues, task forces get about 6 million dollars. What we’ve seen in San Francisco is that how task forces use that money is really questionable, and their organization potentially leaves a lot to be desired. There is no oversight to determine if they’ve actually achieved the goals set forth in their objectives and their funding proposals. In San Francisco, initially the task force was based in the Vice Department of the Police Department. The Police Department then called and asked to use some of this money to do a sweep of adults who are working on Polk St. claiming they had gotten neighborhood complaints. So, money that’s supposed to be used to prevent the trafficking of young people is being used to arrest adults. All of that makes me very wary about throwing more money at this issue without evaluations because the funding can sometimes do more harm than good.

In the context of your expertise and the concerns you cite, how do you evaluate the California initiative, Prop 35?

On the ballot in November we have the CASE Act, and I truly believe that folks supporting The CASE Act have nothing but the best of intentions. There is already significant legislation in California dealing directly with what’s considered domestic minor victims of sex trafficking.

When I initially read The CASE Act, I got turned off immediately when I read the opening section, the Findings and Declarations, which are based on flawed research. The CASE Act claims that 300,000 young people in the U.S. are at risk for sex trafficking. This is a commonly cited number from the study conducted by Estes and Weiner in 2001 which has been widely critiqued in the field.[1] There has been significant criticism, even within mainstream media of that figure. The number is based on 14 speculative sometimes overlapping categories, such that it doesn’t really mean anything. Any time policies start off with flawed research, I’m going to be cautious. I’m going to be super cautious.

I’m also really reticent of policies that assume that increasing the penalties associated with something is going to eradicate it. We already have legislation on the books in California directly addressing these crimes against domestic minors, with sentences between 4 and 8 years. We can look to the drug war to see that increased penalties don’t really change behaviors and often times end up hurting the very people we’re trying to positively effect. There’s also the problem that Prop 35 is overly broad in it’s definitions, so many people could end up swooped up in this who really aren’t involved in trafficking. We’ve seen that in other situations, even in San Francisco where sometimes it’s the people who are trading sex themselves who are charged with pimping and other crimes. So folks could then be threatened with lifetime registration as a sex offender.

We’ve seen in other situations when that language ends up hurting the very folks we’re trying to protect, and I don’t feel that increased penalties will actually make a dent. It’s not doing anything to address the poverty that encourages young people to trade sex, racism, homophobia, these structural factors.

I also find it problematic that one of the things that The CASE Act is heralding is that it’s going to generate money for services for victims of sex trafficking. That’s already in place in the current legislation. Because of these issues combined with the overly broad elements in The CASE Act, I can’t support it.

Some still believe that incarceration is a viable solution to this problem. What do you say to them?

It’s a rare occasion that incarceration is a positive thing for young people. There are a small percentage of cases in which incarceration serves as an intervention and they turn things around in their life. There is the stigma of being incarcerated, and the aspect of being pulled out of community, disconnected from services, from school, from family, potentially then interacting with a different group of people they wouldn’t have met before and coming out and engaging in other behaviors that are considered problematic.

Drug treatment and harm reduction options should be provided, so that a range of individuals with different needs and experiences can access relevant services. I’m just trying to paint a fair picture of what I hear from folks engaging in sex trades who’ve been arrested and also from the literature.

What changes would you like to see in policies that address youth vulnerabilities related to sex trade, sex and survival, trafficking, etc?

The broader statement is that if we want to see a reduction in the number of young people who are trading sex, there needs to be concerted effort and attention paid to the factors that precede their involvement.

It could be emotional neglect, that individual’s emotional needs aren’t being met by the family. The young person may couple with somebody in what seems to be a relationship, and then that transforms into more of a work dynamic. So we need to look at these factors that preceded involvement, and that’s much more challenging than saying, “oh, if we just rescue these young people, it’s going to solve everything.” If we can’t look at emotional neglect within the family, if we’re not looking at the impact of poverty on young people’s decisions, if we’re not looking at the impact of homophobia and transphobia on the ways in which young people get pushed out of their home, differential access to education, to housing and employment, things aren’t going to change.

Ultimately the point that I make regarding adults involved in trading sex is, if people’s basic human rights are met, if they had secure housing, safe housing, had employment, sources of income, health care, access to education, the individuals who really do not want to be trading sex will have other options, but there are still going to be people who do it.

But I don’t want to present it as if we can just solve this young people trading sex is going disappear. There’s still going to be young people who do it, especially the ones who are doing it for luxury items or who are doing it for perceived excitement, or who feel, you know what, compared to my other employment options, this is preferable.

What do you find discordant or surprising about the effects of current anti-trafficking policies as they effect young people?

I’d like to address what’s happened in terms of law enforcement since the passage of the TVPA. Most of us would read the language of the TVPA and think, “if you’re a US citizen under the age of 18, or a lawful permanent resident trading sex in any capacity, you are now a victim of sex trafficking, surely you can’t get arrested, you’re a victim and you’re supposed to get victim services." This is established in the TVPA; you’re not supposed to be held in correctional facilities. You’re supposed to be held in places that are appropriate for your crime victim status such as a domestic violence shelter.

If we look to arrest rates, however, we see something really peculiar. Since the passage of the TVPA in 2000, the total amount of arrests for young people in prostitution has actually increased by almost 9%. But what’s happening is a gendered effect. If we look at boys arrested for prostitution, those have decreased by about 50%. Arrest of girls, have increased by about 57%. This doesn’t add up. We also can look to the enforcement program, the "Innocence Lost" initiative. They’ve been conducting these country-wide sweeps. To date, they say they’ve rescued about 1250 young people from prostitution. Yet twice that, during that same time period, have been arrested for prostitution. So there’s this discrepancy in terms of what’s happening with the law enforcement. Who gets to be considered a victim, who gets these services for being a victim and who’s funneled into juvenile justice?

We also see from a very early time that girls, in particular, were funneled more heavily in to juvenile justice for sexuality related issues, so based on promiscuity which is similar with the Mann Act of 1910, thinking if we don’t do anything to intervene in your life now, this immoral behavior is going to lead to your future detriment. I bring that up because it just seems eerily similar to what we’re seeing with the increase of arrests of young girls for prostitution since the passage of the TVPA. How interesting is it that even though equal numbers, if you look at the literature-- equal numbers of girls and boys are involved in trading sex, however, we see a far greater number of girls arrested for it. To me that speaks of this gendered idea of who’s allowed to be a sexual being, and who’s deemed worthy of being protected or saved.

I would also add, that what I find problematic, again, is linguistic. Trafficking, in its essence, is the movement of a person from one place to the other, it doesn’t necessarily have to be a bad thing. Lots of people coordinate their movement across borders through an intermediary because laws prevent them from doing it any other way. They know what they’re getting into, and so I feel just as the term domestic minor victims of sex trafficking obscures the diversity of people and behaviors that are taking place, so does "trafficking." I feel there’s very clear consensus, regardless whether someone aligns with the anti trafficking movement or not, that people do not want to see other folks exploited. And from there the consensus departs. Then there are the conversations of, for some people sex trade can be a positive thing. Other people are going to say it’s inherently exploitative and we need to eradicate the whole sex industry. So if the anti- trafficking movement was very specific about the types of trafficking that they’re trying to eradicate and combat, and if that happened to be those forms where people’s rights are being violated, great. I think there’d be renowned support for it. Where things get troublesome is when the methods being used are impacting folks who aren’t being exploited and who are choosing to do different behaviors. Or it's impacting those who have decided that of their options, trading sex is the least worst. A challenge for those individuals is figuring out how to get their needs met too without having to present as a victim.

In general, I struggle with the language of victimhood. I feel it ignores the resiliency and resourcefulness so many people possess. And what does it mean to go to service providers or to interact with law enforcement or child welfare and be told, you’re a victim. What does that mean for somebody who said, "well actually no one else was taking care of me, I had to do this on my own, I think I did a pretty good job for the limited options I had."

What I would like to see with the anti-trafficking movement and these conversations in general, is really highlighting the ways in which for many of these young people despite some very difficult circumstances, they’re resilient and resourceful, they are doing the best they can with limited options and limited support, and how as the community and how as law makers and how as service providers, we can equip them so they have even more tools in their tool kit such that if they don’t want to trade sex, they don’t have to.

[1] “In sum, no one should cite the 326,000 number from Estes and Weiner as a scientifically based estimate of the number of juvenile prostitutes.” How Many Juveniles are Involved in Prostitution in the U.S.? http://www.unh.edu/ccrc/prostitution/Juvenile_Prostitution_factsheet.pdf, Crimes against Children Research Center, University of New Hampshire.