Safe harbor laws are intended to protect juvenile victims of sex trafficking. Minors are frequently arrested for prostitution and other related charges, despite their designation under the Trafficking Victims Protection Act as a victims. The intention of Safe Harbor laws is to trigger a child protection response rather than subjecting survivors of abuse and exploitation to the juvenile justice system. Since New York passed the first Safe Harbor law in 2008, 17 other states have passed full or partial Safe Harbor measures. Arresting survivors of a terrible crime sounds counterintuitive, so why is there not overwhelming agreement about Safe Harbor protections?
As HTC Associate Lauren Jekowsky pointed out in an earlier blog post, many state Safe Harbors laws are insufficiently funded, rendering them feeble or ineffective. Others are “incomplete,” meaning that they do not contain all of the elements identified as key components of Safe Harbor. Which elements or combination of elements have proven most effective in these states remains uncertain.
One area of contention is the debate about decriminalization or diversion. Decriminalization makes minors immune to prosecution for prostitution-related charges, while diversion places them in court-ordered rehabilitative services. In reality, states have enacted much more sophisticated models that rarely fall into such binary terms. For example, in Massachusetts, courts and prosecutors have discretion over whether to initiate a delinquency case against a child engaged in commercial sexual acts or to instead begin a child care and protection case. Should the courts and/or the prosecutors decide on the latter but the minor does not comply with court-ordered diversion programs and services, a delinquency case can be re-initiated. Minors might be immune to prosecution, in other words, but that depends largely on their behavior and is granted only after a diversion program has been successfully completed. While in Massachusetts or Vermont both judges and prosecutors share this discretion, only the judge has this power in New York, and only the prosecutor in Washington.
In Michigan only those under the age of 16 receive immunity, and in Arkansas trafficked and sexually exploited youth are legally classified as victims so that they can access services, but are not immune from prosecution at all. In states like Louisiana, diversion programs may not be afforded to prior offenders.
As if this isn’t confusing enough, some argue that decriminalization is neither necessary nor desirable. It may be unnecessary because youth are already sheltered by other laws, such as age of consent laws or the TVPA itself. Others, including many seasoned prosecutors, argue that if adults are aware that minors will receive lenient sentences or “mere” referrals to services, this might incentivize efforts to recruit minors. It is for this reason that many states include increased penalties for traffickers and exploiters alongside other Safe Harbor provisions. Still others argue that decriminalizing a specific crime for youth makes no sense if we are not decriminalizing other charges. Why, they ask, would we let a teenager who has been selling him or herself for sex off the hook when someone of the same age who has been trafficked by an adult to commit any other crime (e.g. theft or drug peddling) would still be held accountable?
While some states mandate immediate investigation and temporary protective custody for an identified commercial sexually exploited youth, others argue that this short separation from an exploiter/trafficker is insufficient. Once released, the idea goes, the minor may return to their exploitative situation, either willingly or because of fear or other control tactics. This begs the question of how long can a state can hold a minor in custody if it is not arresting them or placing them under the jurisdiction of the juvenile justice system. Effective Safe Harbor statutes must address not only the issue of whether to charge a youth (decriminalization), but also how to obtain appropriate referrals to service providers regardless of legal outcomes.
Clearly, the issue is not as easily delineated as it is sometimes portrayed. As Colorado moves forward with its efforts to consider and draft Safe Harbor provisions, the above concerns are just some of the controversies that will have to be considered.
*Ashley Greve is both Associate Director of Advocacy at the Human Trafficking Center at DU and Public Policy Intern at the Denver Anti-Trafficking Alliance within the Denver District Attorney’s Office. The Anti-Trafficking Alliance has been instrumental in offering the support and resources necessary for this research to be conducted. Several community stakeholders were consulted in the process of writing this post, and no one person’s or organization’s opinions are reflected here.
 Arkansas, Connecticut, Florida, Illinois, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, North Carolina, Ohio, Tennessee, Vermont, and Washington
 Identified by Human Trafficking Center Associate Lauren Jekowsky as decriminalization or diversion, training, task forces, victim services, penalties for offenders, and funding. Other elements identified by the Denver Anti-Trafficking Alliance include prosecutorial and/or judicial discretion, mandatory investigations, and mandatory protective custody.
Though this may change with new legislation under consideration