by Lauren Jekowsky, HTC associate
As a response to growing concerns about the domestic sex trafficking of minors, U.S. states have adopted Safe Harbor laws. These laws intend to protect minors who have been trafficked or experienced sexual exploitation. Safe Harbor laws have been fully implemented in twelve states and partially implemented in six. However, they have proven to be largely ineffective in most cases due to their incompleteness, poor implementation, and lack of resources and need to be strengthened.
Safe Harbor laws are based on the premise that minors lack agency and are unable to consent to sexual activities with adults and therefore require protection as victims. Safe Harbor laws seek to bridge laws on consent to sex and laws on statutory rape. These state laws complement federal law, which decriminalizes prostitution for individuals under the age of 18 by reclassifying minors as victims of human trafficking. This keeps states from arresting and charging them with the crimes of solicitation or prostitution. Many states have replicated federal statutes by decriminalizing prostitution for minors, while others have adopted the “diversion” method, which gives judges and prosecutors full discretion to either bring prostitution charges or divert minors to victim services.
Although new Safe Harbor laws continue to be passed in various states, evidence indicates they have been ineffective. In examining arrest records in the nine states that passed Safe Harbor laws prior to 2012, I find that only Illinois, New York and Tennessee were providing legal immunity for minors from prostitution charges. Yet these three states still reported 10, 20 and five arrests of minors for prostitution, respectively. These arrests indicate state laws are not necessarily providing safe harbor for minors involved in commercial sex — an inconsistency between the law as it is written and implementation of law by law enforcement.
I classify implementation of these parameters for the nine states that enacted Safe Harbor laws before 2012 (Figure 1). Only Massachusetts mandates all six parameters in its legislation. Because Massachusetts uses diversion, five minors were arrested for prostitution in 2012 at the discretion of law enforcement and a judge or prosecutor. While these arrests might indicate Safe Harbor laws are ineffective, they may be justified by the need to detain minors at flight risk or who may return to abusive situations. Any arrests, however, must be carefully considered to ensure detention of the minor is truly in his or her best interest.
This analysis suggests there is still much legislative work to do to make Safe Harbor a reality. Incomplete Safe Harbor laws will not adequately protect minor victims of sex trafficking. Legislators considering establishing Safe Harbor provisions should therefore enact comprehensive laws and allocate adequate resources toward law enforcement training, collaborative task forces and victim services. Without these laws and resources, Safe Harbor will not assist its intended population but rather result in arrests of misidentified victims.
Figure 1: Safe Harbor Legal Parameters and Arrests by State
*Blue box indicates successful mandated legislation
*The views and opinions expressed in this blog do not necessarily reflect the position of the HTC
 I only examine these states (Connecticut, Illinois, Massachusetts, Minnesota, New York, Tennessee, Texas, Vermont and Washington) since the Uniformed Crime Report (UCR) arrest records are only available through 2012. The UCR database is maintained by the Federal Bureau of Investigation, which analyzes arrest records from more than 18,000 state, local, municipal and federal agencies in the United States.