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 above 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 cited.
The Chief Judge’s questions are particularly relevant in the context of this case. 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.
Before enumerating these factors, I wish to observe that the District Attorney offered the defendant the Saving Teens at Risk (“STAR”) program, which is part of his office’s own initiative to address prostitution by offenders under the age of 22 with counseling rather than incarceration. The program is free. If a defendant completes it, she will receive an Adjournment in Contemplation of Dismissal. No plea is required in order for her to participate in this program. Clearly the District Attorney, by offering the defendant the STAR program, is not seeking to punish but to help her. Nonetheless, no matter how truly laudable are the District Attorney’s efforts to provide a treatment option to defendant and others like her, I cannot ignore the fact that the court retains the power to sentence the defendant to up to fifteen days in jail if she should ultimately fail to finish the STAR program and is then convicted of the charged offense, and that as a consequence of any such conviction she would have a potentially life-long criminal record, albeit for a violation. Nor can I ignore that her continued prosecution in criminal court may traumatize her to a greater extent than the prosecution of an adult defendant would affect an adult. These concerns counsel against continuing a prosecution, no matter how sensitively handled by the District Attorney, of an individual whom the law alternately regards as a child and an adult or quasi-adult, and whom the law also calls an “exploited child” and possibly a “victim,” particularly where another appropriate forum may address the circumstances of her alleged offense. I turn now to the statutory factors set forth in CPL 170.40.
First, the seriousness and circumstances of the offense alleged here 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 I recognize, as the Judge of Midtown Community Court reasoned when he denied a motion similar to the present, 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, I am persuaded that the harm to defendant’s own physical and mental welfare from the alleged conduct is greater than any other societal harm that I can see in this particular case.
Third, I will assume that evidence of guilt is strong. Further, I am aware of no misconduct in the investigation, arrest and prosecution of defendant. To the contrary, the District Attorney is prosecuting this case with a focus on rehabilitative, rather than punitive, concerns. But even so, the absence of these factors does not dissuade me from my conclusion that dismissals appropriate.
Fourth, the history, character and condition of defendant as revealed in this record 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, I find 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. Rape was not involved.
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, I see no purpose in imposing such a sentence when the options available in Family Court, as suggested by the Chief Judge, are likely superior because of the statutory mandate of considering the child’s “best interests.”
Sixth, I do not believe that dismissal will 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.
Seventh, I believe that the public’s confidence in the criminal justice system will be enhanced by a dismissal here. 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, if even that, and who, according to the Social Services Law, is a “sexually exploited child.” In these 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 this prosecution. I believe that as a result of a dismissal here, the public will be confident that our 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.
For these reasons, this matter is dismissed. Sealing is stayed 30 days to allow the People an opportunity to seek Family Court adjudication of this matter and to seek leave to appeal.