By Linda A Smith Samantha Healy Vardaman Melissa A Snow

The National Report on Domestic Minor Sex Trafficking: America’s Prostituted Children 59as potential places for recruitment. 164 Nonetheless, detaining these victims creates even greater risksfor them as they are typically housed with the general population of juvenile offenders. One troublingcase from Fort Worth, Texas, illustrates this risk. In January 2008, law enforcement officers discovereda network of teenage pimps and sexually exploited youth and arrested a number of the members. It wasdetermined necessary to detain both the teenage suspects as well as the victims. Unfortunately, it wasdiscovered later that the teenage victims and suspects were being held at the same juvenile detentionfacility in the general population. 165While protection and safety are two critical components that must be provided to the child sex traffickingvictim, the danger of using the general delinquency system to house these victims is clear. Specializeddetention or placement is critical for this victim population.Legal discrepancies create confusion.There are discordances in laws that contribute to the arrest of victims of child sex trafficking forprostitution — the crime actually being committed against them. One such discrepancy is found betweenthe federal and state law. The federal Trafficking Victims Protection Act defines a minor as having lessthan 18 years of age. However, the age of consent established by state laws can be substantially lowerthan 18 years and vary by state. In fact, the age of consent for sex under federal law is also 16 years. Theresult of this is confusion as to whether a person under the age of 18 but over the applicable state’s ageof consent can consent to commercial sex acts, thereby removing applicability of the federal traffickingstatute. Anti-trafficking laws criminalizing trafficking have been enacted in 38 states (as of December2008); these also define a minor as having less than 18 years of age, creating a conflict within the state’sown laws defining age of consent and age of majority. The answer though is straightforward: a child canconsent to sex at 16 years, but they cannot consent to commercial sexual activity or to appear in childpornography — children simply cannot consent to sexual activity that is otherwise illegal. In addition, theconfusion that may result from the divergent ages in the various laws does not explain a large portion ofthe arrests of domestically trafficked minors. For instance, in Nevada, the legal age of consent is 16 years,yet 17% of children arrested in 2005 to 2007 for prostitution in Clark County, Nevada, were under thisage. 166Disconnects within a single state’s laws can also result in the failure to identify victims of child sextrafficking. State laws criminalizing child sexual abuse define the child upon whom this crime isperpetrated as a victim — this would include sex trafficked children. However, the conflict arises when thechild is identified as a prostitute and charged under state prostitution laws which do not typically state thatthe offense of prostitution can only be committed by an adult. Therefore, a minor can be viewed as eithera victim of child sex abuse or, unfortunately, as a prostitute and the applicable law will determine whetherthat child is treated as a victim or a criminal.164Remarks by Sheila, Survivor of domestic minor sex trafficking, GEMS. Shared Hope International National Training Conferenceon the Sex Trafficking of America’s Youth. Transcript on file with authors.165Stevens, Eve, Smith and Bing, Domestic Minor Sex Trafficking Assessment Report — Fort Worth, Texas, pg. 87.166Kennedy and Pucci, Domestic Minor Sex Trafficking Assessment Report — Las Vegas, Nevada, pg. 8.