The Texas Supreme Court released an opinion last week declaring that a 13-year-old girl cannot be charged with prostitution. The court reasoned that if a 13-year-old child cannot legally consent to sexual activity, then that same child cannot consent to selling it. The idea that prostituted children are victims and not criminals is the strong message contained in the opinion. The court clearly states that “transforming a child victim of adult sexual exploitation into a juvenile offender was not the Legislature’s intent.” The court goes on to say that “children are the victims, not the perpetrators, of child prostitution. Children do not freely choose a life of prostitution, and experts have described in detail the extent to which they are manipulated and controlled by their exploiters.”
In the case at hand, the girl offered oral sex to an undercover vice cop for $20 and was subsequently arrested and charged as an adult. Upon discovering the girl’s true age through a background check, the District Attorney’s Office transferred her case from the adult criminal system into juvenile court. Within the juvenile system, the girl pled “true” to the prostitution charges. District Judge John Phillips sentenced her to 18 months of probation for Class B misdemeanor prostitution. The girl decided to appeal.
The 13-year-old told her story to a county psychologist. She had experienced both physical and sexual abuse, and had a history of untreated substance abuse. The girl had been living with her “boyfriend” of 32 since she was 11 years old. The psychologist found her to be "emotionally impoverished, discouraged and dependent."
The Texas Legislature has established that children under 10 cannot legally commit crimes. Criminal law treats 17-year-olds as adults. The Texas juvenile system deals only with those individuals between the ages of 10 and 17. Courts have broad discretion in handling the cases; individuals may receive mandated counseling or could even be incarcerated in youth facilities.
Holding that the Legislature has already determined that children under the age of 14 cannot legally consent to sex, the Texas Supreme Court adds that those under 14 are exempt from prostitution laws. "Because (the defendant) cannot consent to sex as a matter of law, we conclude (she) cannot be prosecuted as a prostitute," Judge O'Neill wrote. The Court goes on to discuss that the Legislature has long recognized children’s vulnerability and drafted laws for their protection. When the Court examines this case under that protective lens, it states that it is impossible “to find that children under fourteen understand the nature and consequences of their conduct when they agree to commit a sex act for money, or to consider children quasi-criminal offenders guilty of an act that necessarily involves their own sexual exploitation.”
The State alleges that this decision may affect prosecutorial autonomy. Countering this argument, the decision explains, “the State has broad power to protect children from sexual exploitation without needing to resort to charging those children with prostitution and branding them offenders.”