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Safe Harbour Act


A Queens Criminal Lawyer said that, the defendant is a 16-year old with no criminal history who 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 jail. When she appeared before the arraignment part she was also the subject of a warrant that had issued out of Family Court. The accusatory instrument pertinently alleges that the Police Officer 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. Defendant stated, in substance, “I was coming from a party with my cousin.”

A Queens Sex Crimes Lawyer said that, at defendant’s arraignment, I addressed sua sponte whether I should dismiss this prosecution both as an exercise of my interests-of-justice power and in light of the recently enacted Safe Harbour for Exploited Children Act (the “Safe Harbour Act”), which I read to express the intent of the Legislature that 16- and 17-year-olds who are charged with prostitution offenses should be referred to Family Court rather than prosecuted criminally. The People requested an opportunity to address my proposed dismissal in writing, even though I noted that the legislative sponsors of the Safe Harbour Act believed that the mere pendency of criminal charges against these children was itself harmful: Arresting, prosecuting and incarcerating victimized youth serves to re-traumatize them and to increase their feelings of low self-esteem. This 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 sex crimes 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.

The issue in this case is whether defendant is liable for the offense of loitering for the purpose of prostitution.

A court may dismiss a prosecution on its own motion. My 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. 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 crime 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”.

More recently, the Criminal Procedure Law was amended to provide that a victim of sex crime trafficking may seek vacatur of judgments of conviction for loitering the charge here 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.

In connection with the passage of the Safe Harbour Act, many graphic details of the situation of, and consequences to, the children involved in child prostitution came into public focus. For example, a report prepared for the New York State Office of Children and Family Services determined that, in this state, the overwhelming majority of children who were identified as having been subjected to commercial sexual abuse exploitation, including prostitution had prior child-welfare involvement through child abuse and neglect investigations and/or foster care placement. In New York City, almost half had been adjudicated PINS, and over half had a prior juvenile justice placement. Demographically, they were identified predominantly as female (85 %), black (67 %), and 16- or 17-years-old (59 %).

The OCFS Report estimated that the commercial sexual exploitation of children affects 2,500 children in New York State each year, although it suggested that many more such children are “hidden” because they are runaways or homeless or, out of shame or embarrassment, do not disclose their sexual exploitation. Many of these children have been the victims of sexual and other physical abuse; many suffer from learning disabilities and limitations; many engage in what has been called “survival sex.” They are at risk for HIV infection, post-traumatic stress disorder and other forms of mental illness and violence.

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.

If you have been wrongfully indicted of a sex crime, seek the help of a Queens Sex Crime Attorney and Queens Criminal Attorney at Stephen Bilkis and Associates.

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