Last year, in 2023, the National Center for Missing and Exploited Children received over 18,000 reports of possible child sex trafficking. For many victims, the trauma does not end at the hands of their abusers but continues in the criminal justice system. According to a 2020 report by the UNODC, “trafficking victims are often wrongly arrested, charged, prosecuted and convicted for crimes and other unlawful acts committed in their status as victims of trafficking.” In the face of a legal system that often prosecutes rather than protects, safe harbor laws present a potential solution for victims of sex trafficking and exploitation.
At their core, safe harbor laws are legal provisions that provide protection from legal liability. In regard to sex trafficking, safe harbor laws act as statutes or regulations that prevent minors from being prosecuted on prostitution charges or other crimes they may have committed against their will while being trafficked. A principal objective of these laws is to redirect underage individuals to child protection proceedings rather than the criminal justice system. In addition, they often include measures that seek to facilitate sex trafficking victims’ recoveries, such as “mental health and trauma counseling, medical evaluations, anti-trafficking victim services, residential placement, placement with alternative caregivers, drug treatment, language services, legal services, and basic needs.”
Types of Safe Harbor Laws
Within the broad category of safe harbor laws, there are three common subgroups. The first type of safe harbor laws is those that provide “prostituted minors with (full) immunity from arrest and prosecution.” Based on the premise that minors cannot consent to sex, these immunity safe harbor laws criminalize those who engage in sexual acts with minors in an attempt to protect minors from predatory behavior.
The second type of safe harbor law employs a diversion tactic. This means that affected minors are still “charged with a crime but redirected away from formal processing in the justice system.” Underlying this approach is the idea that sex-trafficked minors need added protection rather than immunity alone. By charging them with a crime, these minors remain under the authority of the court. The ultimate goal is not to prosecute the minors but for the court to use its authority to grant the minors treatment services and ensure that they do not return to the dangerous situations they just escaped from. Once treatment is completed, the charges are dropped.
Lastly, there are mandatory referral safe harbor laws. These are similar to diversion laws in the sense that minors are treated as children in need of treatment and psychological services, but they differ in that mandatory referral laws do not include the threat of criminal charges. As a result, these laws serve as a hybrid approach that “bridge immunity and diversion by completely removing the victim from the justice system and place him or her in a youth-serving agency.”
Safe Harbor Legislation
Since their implementation in the U.S. over the course of the past fifteen years, safe harbor laws have proven to both protect trafficked youth from the criminal justice system, as well as increase pressure on the traffickers and pimps who exploit them.
At the beginning of the 21st century, before safe harbor laws were readily used, the number of minors arrested on prostitution charges was very high. According to the Office of Juvenile Justice and Delinquency Prevention, 1,410 minors were arrested on prostitution and commercialized vice charges in the year 2000. That number remained high throughout the early 2000s, with over 1,000 arrests still being made in 2010. However, as safe harbor laws became more frequent in the 2010s, the number of arrests made starkly declined. By 2015, arrests for prostitution were down to 630, and as recently as 2020, there were only 110 arrests made for prostitution.
Furthermore, as researchers proved in a 2014 evaluation of safe harbor laws, both “the awareness of sexual exploitation and the number of services for exploited youth,” as well as the number of “charges and convictions against sex traffickers,” have steadily increased with the enactment of safe harbor laws.
The proliferation of safe harbor laws can be attributed to an effort by the Department of Justice to reduce the exploitation of children. In 2000, the Department of Justice began this initiative with the passage of the The Trafficking Victims Protection Act, which was one of the first federal laws that addressed human trafficking. Over the course of the next 17 years, the act would be reauthorized by Congress five times.
In 2013, the Department of Justice took another decisive step when it called for a report on the commercial sexual exploitation and sex trafficking of children in the United States. This report is what ultimately formed the basis of most modern safe harbor laws. It called for “a paradigm shift from treating victims and survivors of commercial sexual exploitation and sex trafficking of minors as criminals to understanding and recognizing commercial sexual exploitation and sex trafficking of minors as forms of child abuse.”
Protecting Survivors of Human Trafficking
One misconception people typically have about sex trafficking is that they “think it’s a choice like prostitution,” human trafficking survivor GiGi Calcagno said in a recent interview with SMDS. “It’s so much more dangerous and heinous than that; you cannot leave or do anything alone, ever.” For many of us, human trafficking and the experiences Calcagno shares in her interview are incomprehensible. It is time we treat trafficking survivors with the same respect we would all yearn for in their place. Whether through immunity, diversion, or mandatory referral, safe harbor laws attempt to do just that. We need to help the people around us to provide them with safety, security, and protection. The prosecution of human trafficking survivors must end — now is the time for safe harbor laws.
Lydell, whose home rests on a quiet street in Bonn, Germany, is currently a junior at Brown University studying English and Political Science. As an aspiring writer, Lydell not only appreciates the beauty of language, but recognizes its extraordinary power. It is through reading that many of us learn, and so it is through writing that we can educate and tackle the complex issues that pervade the world around us. Especially given his background as an African American, Lydell is passionate about facing modern iterations of slavery, and dismantling the injustices that populate our landscapes.
