regardless of consent.172 In State v. Cunningham, a Florida appellate court held that a child who
had consensually engaged in sexual conduct with an adult should be protected from criminal
prosecution.173 Also, in Schmitt v. State, the Florida Supreme Court found constitutional a statute
mandated that anyone who owns a nude photograph of a child has committed a crime and that the
court considered this type of photograph “sexual conduct by a child.”174 Finally, in State v.
Enstice, another appellate court reasoned that when a child was at risk of sexual abuse, a poorly
drafted search warrant was valid.175 These cases indicate that Florida case law protects minors
involved in sexual behavior, even by sometimes interpreting the rules more liberally.176
2. Strengths of the Florida Safe Harbor Act
The Florida Safe Harbor Act is stronger than other states’ “safe harbor” laws because it
follows a child-abuse model by providing: ( 1) separation between the dependency and
delinquency systems—prostituted children’s custody and treatment is handled by child services
(dependency system) as opposed to the juvenile delinquency department,177 without
compartmentalizing children into different processes depending on their age, or conduct as do
other states.178 Further, Florida provides in its law specific methodologies and systems to carry
out the goals of the Florida Safe Harbor Act,179 whereas other states have passed laws without
providing the means to implement them.180
The provision in the Florida statute giving law enforcement discretion effectively creates
a separation because children who are categorized as victims are not arrested (and therefore do
not enter the delinquency system) but are instead taken to the state Department of Children and
Families (dependency) and placed in safe houses, where they are not subject to criminal
procedure.181 Keeping the children out of the delinquency system is crucial because if the statute
is applied as intended, it eliminates the possibility of further traumatizing the child.182 Because
the Florida Safe Harbor Act relies solely on the dependency system to carry out its mandate, it
does not use the criminal system as a tool or alternative route in the case of any child under
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172 Id. at 1223 (“[A]ny type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the
child consents . . . society has a compelling interest in intervening to stop such misconduct.”) (quoting Schmitt v. State, 590 So. 2d
404 (Fla. 1991)).
174 See Schmitt v. State, 590 So. 2d 404, 413 (Fla. 1991).
175 See State v. Enstice, 573 So. 2d 340, 343 (Fla. Dist. Ct. App. 1990).
176 See Cunningham, 712 So. 2d at 1223; see Schmitt, 590 So. 2d at 413; see Enstice, 573 So. 2d at 343.
177 See Telephone Interview with Trudy Novicki, supra note 136 (stating that one of the most important features of the safe harbor
statute was the separation between dependency and delinquency it provides); see FLA. STAT. ANN. § 39.401( 2)(b) (West 2015); see
also Barbara Bennett Woodhouse, David C. Baum Memorial Lecture: The Courage of Innocence: Children as Heroes in the Struggle
for Justice, 2009 U. ILL. L. REV. 1567, 1581 (2009) (discussing the differences between the dependency and delinquency systems).
178 Cf. FLA. STAT. ANN. § 39.01( 12) (operating under the definition of children in Chapter 39, protects all sexually-exploited children
under eighteen); N. Y. FAM. CT. ACT § 311.4 (McKinney 2014) (allowing children who do not cooperate with authorities to be charged
in criminal court); CONN. GEN. STAT. ANN. § 53a-829(c) (West 2015) (differentiating between children under sixteen, who are
immune to prosecution, and children sixteen and older, who are only presumed coerced but not immune).
179 See FLA. STAT. ANN. § 409.1754( 1)(a)( 1)–( 7), ( 2)(a)( 2) (West 2015); see generally id. § 409.1678 (discussing safe foster homes
and safe houses); see generally id. § 39.524 (discussing child placement in safe housing); see generally id. § 39.401 (authorizing the
taking of dependent children into custody); see generally id. § 796.07 (criminalizing prostitution); see generally id. § 985.115
(discussing the release of minors who are in custody); see generally id. § 394.495 (discussing children’s mental health system care,
programs, and services); see generally id. § 16.617 (discussing specific departments and steps to take when implementing the law);
see generally id. § 409.997 (discussing child welfare results-oriented accountability programs).
180 See, e.g., N.Y. SOC. SERV. LAW § 447-b( 4) (McKinney 2014) (stating that abused children need services but failing to allocate
funding towards this end).
181 See Telephone Interview with Trudy Novicki, supra note 136.
182 Kate Brittle, Note, Child Abuse by Another Name: Why the Child Welfare System Is the Best Mechanism in Place To Address the
Problem of Juvenile Prostitution, 36 HOFSTRA L. REV. 1339, 1351 (2008).