When the Epstein child sex trafficking case was first uncovered two decades ago, investigators sat across from trafficked children and demanded that they account for their own culpability. The prosecutor conducting grand jury proceedings treated child survivors like criminals, asking whether they were aware that they were offenders. Survivors reported being threatened with arrest for prostitution. The fact that their abuser gave them money and that the abuse was repeated was used by the prosecutor and authorities as evidence of survivors’ consent and criminality.
The trauma therapist working with survivors reported that girls were sad and fearful that they were in trouble despite being victims of sexual abuse and grooming. Survivors were not believed about being psychologically manipulated and materially induced into exploitation by wealthy and powerful adults. Epstein’s shockingly light 18-month sentence reinforced disbelief in survivors’ testimonies and reduced the gravity of Epstein’s crimes to some iteration of “underage prostitution.”
The attorney representing the first child survivors of Epstein’s trafficking ring said that these girls learned at a very young age that the legal system does not protect children. Has the system changed, or has there been a paradigm shift away from the criminalization of child survivors in the two decades since? Not substantially.
Despite the passage of domestic minor sex trafficking (DMST) laws, task forces, coalitions, and interagency cooperation, victim blaming and survivor criminalization persist. The same legal frame that allowed the original Epstein prosecutor to invoke survivors’ culpability for prostitution survives in today’s laws despite at least two decades of reform.
For years, I have analyzed how and why lawmakers and judges do this. What do they say when deciding to pass these laws? This includes floor debates, statutes, and case decisions across states representing legal models ranging from most punitive to most child-protective.
Framing child sex trafficking as a consensual commercial transaction is still embedded in our laws, including Safe Harbor legislation aiming to recognize minors as victims of commercial-sexual exploitation rather than as offenders of prostitution.
Their failure is not due to lack of awareness that statutory rape laws exist, misinterpretations, or drafting errors. It is a structural hazard—based on a legal fiction that Safe Harbor laws do not redress: interpreting exploitation as commerce, specifically, that “selling sex” is a contract, and a contract implies consent. This capitalist principle is part of our legal language, placing limits on child protection.
Statutes under both models define the offense along lines of “knowingly performs, offers, or agrees to perform” a sex act “for anything of value,” or “for a fee.” Offer, agree, value, and fee are the vocabulary of commercial exchange. The leading American treatise explains that the criminalizing element in prostitution law is “price,” explicitly stating, “It is the commercial aspect of prostitution…which attracts the attention of the criminal law.”
In 2004—after the federal Trafficking Victims Protection Act classified minors as victims but before the passage of Safe Harbor laws—New York prosecuted a twelve-year-old girl for soliciting sex to an undercover police officer. Her lawyer argued that the girl could not consent to sex under age-of-consent law, much less to commercial sex. The court disagreed, stating that is unrelated to the crime of “charging a fee for sexual activity.” Prosecutors argued that she was “a hardened child who lacked remorse,” and a psychologist testified that she was “still enough of a child to suck her thumb occasionally,” but “she was also dangerous enough to carry razors.” The judge determined that she needed to acquire “proper moral principles.”
Two decades later, we are told this can no longer occur, when it does. More than thirty states and DC have enacted Safe Harbor laws that prohibit the criminalization of children as offenders of prostitution, while nearly twenty continue to permit it. However, both models allow framing child sex trafficking as involving a child who “offers” sex acts in exchange for something of value, which is the language of contracts, not exploitation.
This predetermines child consent and culpability. S/he is the offeror, which makes the adult the offeree—a customer, patron, consumer—in a society in which consumption is the primary criterion of citizenship and consumers are market participants, not predators. This is what allows adult “buyers” to dissolve and vanish in the criminal process. Meanwhile, children are held in carceral facilities awaiting trial or in order to secure their testimony against traffickers or pimps, in some cases for 30-90 days or more, with a detainee label known to prejudice the entire process of criminal procedure against them.
The system has been aware of these contradictions for decades, but continually refuses to resolve them. Safe Harbor laws changed legal language, providing euphemisms for criminalization. New York and Illinois were among the first to implement nationally-celebrated Safe Harbor laws, in 2010, but they channeled children into “temporary protective custody”, authorizing police to hold children without a warrant and deny their ability to leave, while stating it is not an arrest. Courts often require the criminalization of an exploited child first as a prerequisite to receiving victim services and benefits, creating a perplexing category of criminal-victims.
As of now, neither of these states are providing minors with adequate protection from unjust criminalization. Meanwhile, only Epstein and Maxwell have ever been prosecuted in the US in connection with the child sex trafficking ring they were implicated in, with no further American arrests. The US Department of Justice maintains that there is “no credible evidence that their activities extended to Epstein’s network.” Even if that explanation is taken at face value, US law is structured to criminalize minors and, thereby, lose sight of exploiters. As a result, it requires extraordinary effort to prosecute and convict perpetrators of child sex trafficking.
Moreover, US legal models of child sex trafficking violate many core principles of trauma-informed justice. This includes persistent dynamics of victim blaming, discrediting survivors, delayed disclosure, secondary and procedural re-traumatization, and institutional betrayal. People with the least structural power in society—children, disproportionately impoverished children, and children of color—are reconstituted as rational economic actors presumed to have chosen their own commodification, not as victims or survivors of commercial-sexual exploitation.
The solution is not simply more statutes with Safe Harbor in the title. It is to thoroughly eliminate the contractual construction of commercial-sexual exploitation of minors and euphemisms that conceal their criminalization, to shift resources away from detention toward material supports that prevent children’s systemic vulnerabilities to exploitation and incarceration, and—at a minimum—to respect survivors’ preferences for privacy and disclosure and provide trauma-informed accommodations throughout the justice process.
