New Jersey 'Safe Harbor' Law Provides a Lesson in Unintended Consequences
Imagine a sexual predator arriving for Super Bowl XLVII at MetLife Stadium in New Jersey...and finding out it is now legal for minors to sell sex or to sell someone else for sex to a third party. This would be a dream come true for pimps, traffickers, and johns.
If the Super Bowl had been in New Jersey in February 2013 instead of this year, that would have been the case.
You are probably thinking this must be made up, but it is a true story. The background provides a lesson in unintended consequences. New Jersey legislators tried to help minors found in prostitution, but their efforts went awry.
In 2011, the legislators in New Jersey decided to try their hand at enacting "safe harbor" provisions. Many states have passed safe harbor laws, in an attempt to protect minor victims of sex-trafficking. Some states (IL, NE, TN) consider decriminalizing prostitution for minors (meaning a minor found in prostitution cannot be charged with the crime of prostitution) as the best course of action. Some other states have varying degrees of provisions for minors, from exempting minors under the age of 15 from arrest to diverting the minors into treatment programs or into the child welfare system instead of juvenile detention.
Decriminalizing prostitution for minors makes it easier for pimps to exploit them. If a police officer finds a minor in prostitution, all the minor has to say is they have no pimp (even if they do) and, legally, she is allowed to continue. What do you think pimps would tell victims to say in this situation?
Unfortunately for New Jersey, they managed to do more than decriminalize prostitution for minors. They also decriminalized pimping for minors.
On January 17, 2012, New Jersey Gov. Chris Christie signed S-2599 and S-2763 into law as P.L. 2011, c.195. Part of the law amended New Jersey Statutes Annotated (NJSA) 2C:34-1, "Prostitution and Related Offenses." In a misguided attempt to help minor victims of trafficking, New Jersey's affirmative defense language was changed (the underlined portion was the new language) to read:
It is an affirmative defense to prosecution for a violation of this section that, during the time of the alleged commission of the offense, the defendant was a victim of human trafficking pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8) or the defendant was under the age of 18.
It is not clear whether the legislators realized that they were allowing minors to claim an affirmative defense for all the offenses in the section, which included "[p]romoting prostitution" (pimping). Under the 2011 law, just the fact of being a minor under 18 years of age was a sufficient defense to a charge of prostitution or pimping. The result: prostitution and pimping were decriminalized in New Jersey for minors.
While doing research on the topic in the summer of 2012, Concerned Women for America (CWA)'s Beverly LaHaye Institute came across this law and immediately asked CWA's legislative department to contact Gov. Christie's office to ask about it. The governor's office requested more information, so CWA sent an explanation of the faulty language and recommended that the New Jersey legislature:
o Repeal the decriminalization of prostitution and pimping for minors.
o Keep prostitution criminalized for all people, and allow for all charges to be dropped for minors after successful completion of rehabilitation and treatment services.
o Put an affirmative defense for all victims of sex-trafficking, regardless of age, in place instead of decriminalization for minor victims of sex-trafficking.
o Add an expungement of records section for those who have been convicted of prostitution or loitering.
Lo and behold, CWA was heard!
In October 2012, "[t]he Human Trafficking Prevention, Protection, and Treatment Act" (A-3352) was introduced, and it was signed into law in May 2013 as P.L. 2013, c.51. The affirmative defense provision was changed to eliminate the decriminalization of prostitution and pimping for minors. The law now affords a defense to all sex trafficking victims regardless of age. It reads:
It is an affirmative defense to prosecution for a violation of this section that, during the time of the alleged commission of the offense, the defendant was a victim of human trafficking pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8) or compelled by another to engage in sexual activity, regardless of the defendant's age.
Victims of sex-trafficking were given other provisions to help them toward rehabilitation and restoration. The bill added a section to the New Jersey statutes that allows for convictions to be vacated "when the person's participation in the offense was a result of having been a victim of human trafficking." In addition, the law established the "Human Trafficking Survivor's Assistance Fund" to help provide services to victims, and it will be funded by fines paid by convicted traffickers.
There is another step New Jersey could take to help get minor victims into treatment and services.
CWA supports the Massachusetts model, which keeps prostitution criminalized for persons of any age. However, minors arrested for prostitution are diverted into treatment and rehabilitation programs. Upon successful completion of these programs, the charges against them are dropped. CWA supports this model, because it protects minors who do not self-identify as victims (they believe that their pimps love them and are not exploiting them) to give them a chance to get the help they need, and it allows judicial discretion to remain in the process.
CWA applauds Gov. Christie and the New Jersey legislature for correcting flawed legislation. As the Super Bowl rapidly approaches, there are stories about the all-out effort New Jersey is taking to prevent sex-trafficking during the event. If prostitution and pimping had remained decriminalized for minors, predators would have been the ones finding safe harbor at the Super Bowl. Instead, let's hope that law enforcement officers will use New Jersey's laws to kick those predators through the goalposts of a prison cell.