February 2013

Thanks to organizations like Traffick Free, the problem of the commercial sexual exploitation of children (CSEC) is fairly widely known. I was encouraged in 2010 when the Illinois Legislature, prompted by the tireless work of Anita Alvarez, then Illinois States Attorney, passed the Illinois Safe Children Act (ISCA). While many states had attempted to address CSEC through legislation, Illinois was the first state to pass a law that completely immunized those under the age of 18 from prosecution for prostitution-related activities. Many scholarly articles had addressed the conceptual clarity of this rule – that someone who could not legally consent to an activity, surely cannot consent to the same act for money. However, no attempt had been made to evaluate the law as applied, or to identify potential gaps in the statute as written. I wrote the my Note for the Vanderbilt Law Review to try and address this need.

Ultimately, my analysis shows that while the ISCA is the most comprehensive and statutorily coherent law on the books concerning CSEC, it still has several major gaps where innocent victims may fail to be identified, treated, and protected. Functionally, the law designates children involved in prostitution to be “abused” under the Juvenile Code, creating a presumption of neglect that allows investigating police officers to take the child into protective custody. Then, the child may be placed in the care of the Department of Child and Family Services, where they are eligible for further protective custody, treatment, or release back to their families.

Anecdotal evidence suggests that many children who should benefit from the protection of the ISCA may continue to be abused. First, misidentification of victims of sexual exploitation by both law enforcement and state child-welfare agencies is common. Because of the significant discretion given to law enforcement officers in contacting social services, common use of fake identification by victims, and generally difficult task of finding these children often hidden away by their abusers, many victims will not be identified and protected by the ISCA. In addition, there is anecdotal evidence that police officers may continue to use “masking charges” (charges such as theft, drug-related charges, or curfew violations) to ensure that the child is criminally charged, ignoring the context of their sexual exploitation. The Note suggests further empirical research on the identification stage of an investigation and the creation of “red flag” checklists and procedures for first responders.

Further, the law as written fails to consider other common CSEC or child labor trafficking scenarios when defining an abused child. Specifically, the law would not cover children: (1) where the child is a domestic minor, living with his or her parents and being prostituted by a third-party peer or “boyfriend”; (2) where a foreign-born minor is sent to the United States by his or her parents and forced to pay off a smuggling debt through long hours at “regular” employers; and (3) where a foreign-born minor orphan is smuggled into the country and forced to live and work for a family in forced servitude. The Note recommends that the law be amended in specific ways to address this gap.

Finally, there is a critical gap in the law for those that are identified by police or social service agencies as abused or exploited but who return quickly to their abusers due to a lack of protective-detention options. With the limited options available to exploited children—namely, return to parents or guardians, temporary protective care, or foster home placement—there is a serious risk that they will continue to be exploited. The Note suggests a period of protective custody, rather than the immediate return to guardians, foster homes, or other unprotected custody. However, this option is severely limited by the lack of safe housing options for child victims of sexual exploitation. Increased cooperation between DCFS and private social welfare organizations could easily fill this gap.

The ISCA is a significant and historic step forward in the protection of child victims of commercial sexual exploitation. Nonetheless, legislators, police, social service actors, and advocates in Illinois must realize that the job is not yet finished. Prioritizing identification, protection, and restoration will recognize the dignity of all these young lives and will not leave the most invisible behind to suffer. Addressing all child victims of commercial sexual exploitation is a delicate task—but where young lives hang in the balance, the full force of the state must not be made to wound, but instead to heal.