Published on:

sex crimes

The Facts:

A police officer allegedly observed the defendant remain in or wander about a public place for twenty minutes, during which defendant repeatedly beckoned to passers-by and stopped two passers-by, engaging in conversation with said passers-by; stop only male passers-by and defendant did not beckon to or converse with female passers-by who passed by during the same period; standing in the middle of the road while beckoning to motorists. A New York DWI Lawyer said the defendant is a 16-year old with no criminal history.

Thereafter, defendant is charged with the offense of loitering for the purpose of prostitution. The charge is a non-criminal violation punishable by no more than fifteen days in jail. When she appeared before the court in the arraignment part she was also the subject of a warrant that had issued out of Family Court.

At defendant’s arraignment, the court addressed sua sponte whether it should dismiss the prosecution both as an exercise of interests-of-justice power and in light of the recently enacted Safe Harbour for Exploited Children Act (the “Safe Harbour Act”) which the court read to express the intent of the Legislature that 16- and 17-year-olds who are charged with prostitution offenses should be referred to a Family Court rather than prosecuted criminally.

The People requested an opportunity to address the proposed dismissal in writing, even though the court noted that the legislative sponsors of the Safe Harbour Act believed that the mere pendency of criminal charges against these children was itself harmful; that arresting, prosecuting and incarcerating victimized youth serves to re-traumatize them and to increase their feelings of low self-esteem and that it only makes the process of recovery more difficult.

Appropriate services for sexually exploited youth do not exist in the juvenile justice system and both federal and international law recognize that sexually exploited youth are the victims of crime and should be treated as such. Therefore, sexually exploited youth should not be prosecuted under the Penal Law for acts of prostitution. Instead services should be created to meet the needs of these youth outside of the justice system. Sexually exploited youth deserve the protection and services of the Family Court through processes in place for persons in need of supervision, including diversion, crisis intervention, counseling, and emergency and long term housing services.

Ultimately, the court afforded the People and the defense an opportunity to respond to the proposed dismissal, not only in fairness to the People but also to assure that any decision the court makes would be based on a consideration of all appropriate arguments.

The Ruling:

The People submitted to the proposed dismissal. Thus, the prosecution should be dismissed in the interests of justice.

A court may dismiss a prosecution on its own motion. A review of the factors relevant to such a dismissal is informed by recent legislative enactments that reveal an understanding that the victim of a prostitution offense may be the prostitute herself. In fact, if the prostitute or, as here, alleged would-be prostitute, is 16- or 17-years-old, the Legislature defines her as a “sexually exploited child” who may obtain child welfare services for sexually exploited children.

The Legislature passed the Safe Harbour Act, among other things, to make the Family Court’s services available to sexually exploited children up to the age of 18. It amended the definition of a “person in need of supervision” (“PINS”), with regard to whom a Family Court proceeding may be originated, to include a child under 18 charged with prostitution or loitering for the purpose of prostitution. As a Family Court judge has observed, the Safe Harbour Act expresses a preference that children who have been sexually exploited be spared criminal prosecution in favor of receiving rehabilitative services.

The Safe Harbour Act came into effect against the backdrop of the federal Victims of Trafficking and Violence Protection Act of 2000 which defined the crimes of forced labor and sex trafficking, provided support for trafficking victims, and established a system for monitoring worldwide anti-trafficking efforts. Under federal law, if a 16- or 17-year-old has been induced to be a prostitute, she is considered to be a victim of a severe form of trafficking in persons. In 2000, Congress also provided avenues of immigration relief for children under 18 who are victims of a severe form of trafficking, i.e., prostitution, through “T” and “U” visas.
The Safe Harbour Act added to the protections put in place by New York’s Anti-Human Trafficking Act of 2006 which created the new offense of sex trafficking. In passing this act, New York joined 29 states and the federal government in an effort not only to prosecute the traffickers but also to provide these unique victims with the social services they need to break the ties with their traffickers and the opportunity to live healthy and productive lives.

Moreover, the Criminal Procedure Law was amended to provide that a victim of sex trafficking may seek vacatur of judgments of conviction for loitering and prostitution. As a result, courts have vacated convictions of individuals who had engaged in prostitution as a result of their having been trafficking victims.

The Safe Harbour Act did not amend the Penal Law and provide a defense of infancy to a 16- or 17-year-old charged with a prostitution offense. Yet a Penal Law prosecution of such an individual, whom the Legislature elsewhere defines as a “sexually exploited child,” whom the legislative materials reviewed depict as vulnerable and likely already known to Family Court, and who may qualify as a “victim” under both federal and state anti-trafficking laws and therefore for vacatur of any conviction here, is inconsistent with the ameliorative intent of the Safe Harbour Act and other statutes.

The Safe Harbour Act specifically addresses the conduct charged here and provides for its non-punitive, non-criminal adjudication in Family Court. The other recently enacted state and federal laws previously mentioned would strongly suggest that criminal prosecution of a 16- or 17-year-old for a prostitution offense is inappropriate, and that the right response of law enforcement would be to bring the child before Family Court.

The court need not need to rule that the prosecution is barred under the Safe Harbour Act, because interests-of-justice authority allows and encourages the court to achieve the same result; dismissal, on the narrower grounds present in the case.

The factors set forth in CPL 170.40 clearly demonstrate that the prosecution of the defendant would constitute injustice.

First, the seriousness and circumstances of the offense alleged are as minimally serious as can be. The charged offense, Penal Law 240.37, is a violation, which is not even a crime under the Penal Law’s classification scheme. The circumstances of the offense are likewise minimally serious: the defendant is alleged to have engaged in the proscribed conduct, loitering in the middle of the street, for a total of twenty minutes and to have stopped two passers-by to engage them in conversation.

Second, the extent of harm caused by the offense is likewise minimal. Although the court recognizes that prostitution may negatively impact all participants as well as the neighborhoods where it occurs, the harm of the violation charged here is minimal. More importantly, the harm to defendant’s own physical and mental welfare from the alleged conduct is greater than any other societal harm.

Third, the court assumes that evidence of guilt is strong. Further, the court is not aware of any misconduct in the investigation, arrest and prosecution of defendant. To the contrary, the District Attorney is prosecuting the case with a focus on rehabilitative, rather than punitive, concerns. But even so, a New York DWI Lawyer said the absence of these factors does not dissuade the court from the conclusion that dismissal is appropriate.

Fourth, the history, character and condition of defendant as revealed in the records are a 16-year-old who has no prior involvement with the criminal justice system, who has lived her entire life with her grandmother in New York City, who has completed the 11th grade, and who attends school.

Fifth, the court finds that there would be little purpose in imposing a sentence on defendant and that the effect of any sentence would do more harm than good. A Nassau County DWI Lawyer said the sentencing options in Criminal Court are limited. The likely sentence in a case such as this would not involve jail. Even if the sentence were a conditional discharge with required attendance at a counseling program, the court sees no purpose in imposing such a sentence when the options available in Family Court are likely superior because of the statutory mandate of considering the child’s best interests. On the other hand, the effect of a conviction in this case would be seriously and inappropriately detrimental to the defendant. If convicted and sentenced, she would have a record, albeit for a non-criminal offense. Such a record, unlike that for a conviction of virtually any other violation, would not be subject to sealing pursuant to the general sealing statute. And, as a result of another legal anomaly that arises from the definition of “youth” in the Criminal Procedure Law, a conviction of this offense would not be subject to replacement by youthful offender adjudication and sealing under the youthful offender law. By contrast, any other adolescent with no prior record would be entitled to have her first misdemeanor conviction replaced by a youthful offender finding, even though a misdemeanor is a more serious offense than the one charged here. Indeed, an adolescent convicted of a felony may be eligible to have her first felony conviction replaced by youthful offender adjudication, leaving that adolescent with no public record of conviction. In sum, defendant here may have a life-long record of conviction of a stigmatizing offense, when other adolescents whose cases were resolved in more unfavorable circumstances or adults similarly situated would not suffer that same detriment.

Sixth, the court believes that dismissal will not impact the safety or welfare of the community. Although prostitution may have negative collateral effects on the community, attributing such effects to the alleged conduct of this particular defendant would surely be an exaggeration. Maintaining a prosecution against an alleged teen prostitute might give law enforcement a tool with which to fight trafficking but it is doubtful whether any public interest in this regard cannot equally be achieved if this case were handled in Family rather than in Criminal Court. That is, the venue of the adjudication should not preclude a District Attorney from investigating the allegation that a teenager has been prostituted. More importantly, the court finds it hard to justify refusing to dismiss the case against a teenager only so that prosecutors might prove that she is the victim of the crime with which she is charged.

Seventh, the court believes that the public’s confidence in the criminal justice system will be enhanced by a dismissal in the case at bar. The criminal justice system is not always the best venue for addressing societal problems. Here, the alleged offense which is not a crime involves someone who, according to the Penal Law, is barely an adult, and who, according to the Social Services Law, is a “sexually exploited child.” Under the circumstances, the purposes of the Penal Law, which include providing an appropriate public response to particular offenses, favor an exercise of the criminal justice system’s mercy-dispensing power to dismiss the prosecution. As a result of a dismissal here, the public will be confident that the laws are not inflexible or unduly harsh and that they do not operate in isolation of a growing awareness that, in the appropriate case, the lessened culpability of a 16-year-old vis-á-vis an adult, as well as the recognition that she is exploited if not also victimized, may require that the allegations against her be addressed outside criminal court.

Henceforward, the matter is dismissed; sealing is stayed 30 days to allow the People an opportunity to seek Family Court adjudication of the matter and to seek leave to appeal.
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