Safe Harbor Act
FRIDAY, OCTOBER 03, 2008
Katherine Mullen, a staff attorney in the Juvenile Rights Practice

Katherine (Cait) Mullen, a staff attorney in the Brooklyn Office of the Juvenile Rights Practice, is credited as the central figure in the fight for the rights of sexually exploited children through the Safe Harbor Act. Cait's 2004 appellate brief on behalf of a 12-year-old Bronx girl charged with prostitution articulated the new legal standard that became the Safe Harbor Act, signed into law last Friday (September 26, 2008) by Governor David A. Paterson. Cait is in Arlington, VA, leading the legislation roundtable discussion of the Canada-U.S. Consultation in Preparation for the United Nations World Congress III Against Sexual Exploitation of Children and Adolescents.

 

New York Law Journal

Legal, Social Services Communities Prepare for Enactment of Safe Harbor Act

By Thomas Adcock
October 3, 2008

Proponents of a fundamental change in how the state's criminal justice system deals with juveniles arrested for prostitution are gearing up for a year-long effort at training prosecutors, police officers and the defense bar in new procedures and legal philosophy in the wake of the ground-breaking Safe Harbor Act, signed into law last Friday by Governor David A. Paterson.

The new law, which takes effect in 2010 as the first of its kind in the nation, shields sexually exploited youths from incarceration and criminal prosecution under juvenile delinquency proceedings.

Instead, children under age 16 would be adjudicated in Family Court - regarded as crime victims rather than criminal perpetrators, and assigned as "persons in need of supervision" to safe houses from which they could access social services, including psychological counseling and medical care.

At the option of prosecutors and/or judges, 16- and 17-year-olds could be likewise adjudicated.

According to the act, courts would retain discretion for delinquency proceedings if a defendant "does not meet the definition of a victim of a severe form of trafficking; has previously been found to have committed a prostitution offense; has previously been adjudicated a person in need of supervision and placed; or expresses . . . unwillingness to cooperate with specialized services for sexually exploited youth."

Key to the new law is a provision for long-term housing, given the fact that many prostituted children - overwhelmingly female - are driven to the streets after being battered or sexually abused by their parents or other household adults.

Speaking on behalf of her colleagues who spent the past four years making lobbying trips to Albany, Legal Aid Society staff attorney Katherine E. Mullen said, "It's been a long struggle. We were over the moon when Governor Paterson signed the bill."

Ms. Mullen, who works for the society's Juvenile Rights Division, is credited by several of her colleagues with articulating the new legal standard in a 2004 appellate brief on behalf of a 12-year-old Bronx girl charged with prostitution.

"This is huge, this is a tipping point, and it will impact other states," said Rachel Lloyd, executive director of Harlem-based Girls Educational & Mentoring Services (GEMS), among the country's largest nonprofit agencies serving teenage survivors of exploitation by pimps and sex traffickers.

"This legislation is not only due to lawyers but to survivors' advocacy," Ms. Lloyd added. "We had girls from GEMS journey up to Albany for four years straight. They attended legislative briefings, they spoke to the press.

"They opened themselves by telling of their experiences, recognizing that this wouldn't help them because they'd already been rescued - but for their peers," said Ms. Lloyd. "We've seen legislators weep. They really saw what this law means. It means, Oh my God, these are children. They're not bad, they're not loose women, they're not dirty, terrible girls."

She added, "They're articulate and funny and smart. They're survivors. I'm a survivor."

Ms. Lloyd, who fled her girlhood home in England and fell victim to European sex traffickers, founded GEMS in 1999 after her own rescue by a U.S. religious mission in Germany. Today, she holds a master's degree in urban anthropology.

"This new law doesn't decriminalize [prostitution] activity," said Karenna Gore Schiff, a volunteer litigator on behalf of Sanctuary for Families. "It recognizes that a child whose body is being bought and sold is not the criminal. This is a paradigm shift, a moment of people coming together to address an injustice."

She added, "It gives you a sense that the political and legislative process, as frustrating as it may be, can work."

Ms. Schiff and Ms. Mullen and Ms. Lloyd - along with comrades including attorneys Taina Bien-Aimé, the executive director of Equality Now; Norma Ramos, the New York executive director of the Coalition Against Trafficking in Women; and Dorchen A. Leidholdt, the director of Sanctuary's Center for Battered Women's Legal Services - were countered in their lobbying campaign by the District Attorneys Association of New York State, among other opponents of the Safe Harbor Act (A-5258/S-3175).

Staten Island District Attorney Daniel M. Donovan, president of the bar group, said his organization's opposition was not "ardent" and offered personal sympathy for the plight of children drawn into prostitution.

"It's a vulnerable population," Mr. Donovan said, noting that many are out-of-town runaways who are "hungry and don't know where to stay."

He added, "We certainly understand the purpose of the bill, and we're not opposed to that. Many [young prostitutes] will accept the services, and many will just walk out. Without the possibility of criminal action against the person who's performed the sexual act, it's less likely that person would help us. We need to utilize their knowledge to go after those exploiting them."

City Opposition

John Feinblatt, criminal justice coordinator under Mayor Michael R. Bloomberg, offered harsh opposition to the Safe Harbor Act, which was sponsored by Senator Dale M. Volker, R-Depew, and Assemblyman William Scarborough, D-Queens.

"A bill that the Legislature may pass in the next few days would inadvertently hand a big victory to pimps," Mr. Feinblatt wrote in a June statement laying out the city administration's official opposition to the new law. "[T]een prostitutes who get arrested would be back on the street with little or no consequence - and back making money for their pimps."

He wrote further:

New York has learned some clear, hard lessons about social services over the past few decades. One of them is that people who are in desperate need of support - such as those with substance abuse or mental health problems - often don't complete mandated services unless they feel there will be repercussions for dropping out.

[T]here comes a time when 'tough love' is the only thing that will get a child to stop destructive behavior. This is one of those times, and the stakes couldn't be higher. Some of the sexually exploited children . . . face physical and emotional abuse. Given the severity of their suffering, it is especially disturbing that the Safe Harbor Act carries with it no funding for support services. In fact, it only mandates the creation of one safe house for the entire state.

Ms. Lloyd acknowledged Mr. Feinblatt's financial concern.

"We're in uncharted territory here," she said. "There's still a long way to go, and it's a challenge. You can legislate all day long. Implementation is the key."

Ms. Mullen noted, however, that some $10 million of unappropriated federal money could be tapped from funds earmarked for states under the Trafficking Victims Protection Act of 2000, which targets the international sex trade.

The number of sexually exploited teens likewise falls into unchartered territory. According to the state Division for Criminal Justice Services, prostitution arrests since December 2007 number 1,888. That number is not broken down by age. Pimp arrests, meanwhile, number 519, while arrests of patrons number 1,625.

Ms. Mullen said the effective date of the Safe Harbor Act was "very deliberately" set to provide a one-year run-up period in order to determine an operating budget and funding sources for the initiative, to be administered by the Office of Children and Family Services. As a practical matter, she said, the state agency will work with existing metropolitan and upstate nonprofit organizations on the "biggest problem" of safe houses. A long-term housing program is now under way in suburban Pleasantville by the Jewish Child Care Association.

"You don't need to have a Ph.D. in economics to figure out that it costs more to feed and house girls in a penitentiary situation as oppose to providing them services they need to rebuild their lives," said Ms. Bien-Aimé. "You save in the long run. Not just financially, but culturally."

Ms. Ramos said the new legal framework would help change the cultural focus from one of normalizing and glamorizing commercial sex to "recognizing the social reality of exploited girls and women."

In her testimony before legislators in June of last year, Ms. Leidholdt maintained, "Just as battered women do not 'engage in domestic violence' . . . sexually exploited youth do not 'engage in prostitution' - they are brutally exploited by the adults who buy and sell them."