Victims as Defendants

A few weeks ago, we mentioned a new bill signed into law by New York Gov. David Paterson which shields sexually exploited children from being charged with prostitution. A Stitch in Haste ties together the law with a different case we discussed the other day:

It’s a long-standing principle in the law that “predatory” crimes should not be applied to those whom the law is meant to protect. So, for example, minors usually (though not always) cannot be prosecuted for statutory rape. Due process demands (or ought demand) that someone cannot simultaneously be the perpetrator and the victim of the same crime.

[The new law] [m]akes perfect sense to me. I find it depressing (but not surprising) that the move was ever considered controversial and that it had so much trouble getting through New York’s dysfunctional state legislature.

I have three other hasty stitches:

1. Wouldn’t it be nice to see, as a stepping stone toward decriminalization, drug offenses treated the same way? Why should drug users (i.e., the victims) ever be prosecuted for buying drugs? Aren’t they “incompetent” (i.e., as addicts) much the same way that minors are deemed incompetent? Why not make the same offer: Get treatment, disclose your source, and face no criminal penalty?

2. Teens who engage in prostitution, especially those in New York City, overwhelmingly do so because they are runaways with no other means of survival. And a disproportionate fraction of those runaways are gays, either disowned by their families or fleeing hostile communities (e.g., this source claims 42% of New York’s homeless youth identify as gay or lesbian; this source says “more than 20%”). Any policy discussion regarding the plight of teen runaways should incorporate the causal impact of anti-gay bigotry on the problem. (See also my previous posts on the role of anti-gay bigotry on teen suicide and suicide-ideation rates.)

3. What does it say about contemporary criminal justice that I had to use the term “predatory” crimes in my opening sentence (i.e., as opposed to “victimless” crimes)? Should conduct that is not “predatory” ever be a crime in the first place?

Comments

[KipEsquire]

Thanks for the linkage. :-)

[Daniel]

I have thought about this issue some more since your original comment.

(1) It is not true that the victim and the perpetrator are being charged with the same crime. The offering of a solicitation for prostitution and the acceptance of that offer are not the same crime. They involve the same event, but they are not the same crime nor more than the offering of and accepting of a bribe are the same crime. Thus, there is no violation of due process.

(2) I find it deeply ironic that one of the major justifications for outlawing the possession of child pornography, like the possession of drugs, is the theory that it is important to reduce the supply, as well as the demand, of illegal materials to the market. If that is true, charging underage girls with prostitution has the salutary affect of reducing the supply of prostitutes on the market.

(3) I am not obtuse to the real exploitation that goes on. Neither of the articles is heavy on the details and this is a case where details matter. For example, I have no problem with the diversion proviso for the *first offense*. If the diversion program works, and keeps the child off the street, then that is a good thing. But the first offense implies that there is some type of record keeping that goes on so that these girls can be tracked. What should not happen, but which I think likely, is that these girls will be put in a diversion program and three months later they will b e out on the street with a new pimp and turning new tricks. And at the end of the day, more and more male sex offenders will exist, all in the name of protecting the myth of "innocent" and "vulnerable" girls.