But while child victims of commercial sexual exploitation are seeing these barriers to
their recovery begin to weaken, victims of other forms of child trafficking may not. Victim
identification is a problem for all forms of child trafficking, including domestic trafficking.12
Thanks to increased public awareness of the issue of sex trafficking, including the introduction of
safe harbor laws, a child arrested for engaging in commercial sex can be identified as a victim of
trafficking and thereby be immune from prosecution.13 However, children carrying out other
illegal activities, such as performing criminal acts on behalf of a street gang, do not fall under
safe-harbor-type laws and have so far not been considered victims of anything but poor judgment,
much less trafficking.14 Children compelled into service to a gang may participate in illegal
activities from the prosaic (drug offenses) to the horrific (murder), but all such juveniles have
only an adjudication to anticipate.15
This tendency to view juvenile misconduct as purely offense and disposition may be
changing. In 2013, a United Kingdom Court of Appeal decision quashed one conviction and
allowed the appeals of two others in cases where the individuals convicted were juveniles at the
times of their arrests for drug production.16 This case, read in conjunction with U.S. Supreme
Court case law on the developmental limits of criminal culpability of young offenders, strongly
suggests that juveniles who commit gang-related crimes cannot unilaterally be treated as though
these recognized safeguards of children’s rights do not exist.17
A juvenile’s criminal culpability for delinquent acts, while not expressly covered by such
a presumption of unwillingness as the trafficking laws contain, still is not identical to the
culpability of an adult.18 American juvenile courts operate under the belief that children, due to
their still-developing cognitive abilities, generally cannot be held to the same criminal standard as
adults.19 However, even this is not entirely true: waiver or transfer to adult court may be
permissive, mandatory, or presumed, and one factor affecting transfer is gang involvement.20 In
light of this, the “hows and whys” of juvenile gang membership must be carefully examined to
avoid unnecessary and potentially harmful adjudication of those youths who are more reluctant
trafficking in a prostitution adjudication); Polaris Project, Introduction to the Illinois’ Safe Children Act, 1, END DEMAND ILL. (2010),
11 Overview of State Legislative Policy to Address the Commercial Sexual Exploitation of Children, POLARIS PROJECT (2008),
12 Susan Crile, Comment, A Minor Conflict: Why the Objectives of Federal Sex Trafficking Legislation Preempt the Enforcement of
State Prostitution Laws Against Minors, 61 AM. U. L. REV. 1783, 1821–22 (2012); Hidden Slaves, supra note 2, at 74–75; Kathleen
Kim, Coercion of Trafficked Workers, 96 IOWA L.R. 409, 450–64 (2011) (arguing for use of situational coercion analysis based on
constitutional and statutory definitions and applications); see generally Samuel Vincent Jones, Human Trafficking Victim
Identification: Should Consent Matter?, 45 IND. L. REV. 483 (2012) (arguing that the consent of the alleged victim may remove victim
status even if the alleged victim suffers harm in certain circumstances).
13 Johnson, supra note 1, at 186–88.
14 Jones, supra note 12, at 497, 499–500.
15 Michael Tapia, Gang Membership and Race as Risk Factors for Juvenile Arrest, 48 J. RES. CRIME & DELINQ. 364, 376–78 (2011).
16L., H.V.N., T.H.N., & T. v. R,  EWCA (Crim) 991 (U.K.), available at
http://www.bailii.org/ew/cases/EWCA/Crim/2013/991.html (allowing an appeal by a Ugandan woman who was an adult victim of sex
trafficking); see discussion infra Part III.
17 See discussion infra Part III.
18 Tracy Rightmer, Arrested Development: Juveniles’ Immature Brains Make Them Less Culpable than Adults, 9 QUINNIPIAC HEALTH
L.J. 1, 3–5 (2005); Elizabeth N. Jones, Questioning a Juvenile’s Capacity for Criminal Liability in Street Gangs Post-J.D.B. v. North
Carolina, 32 CHILD. LEGAL RTS. J. 1, 1, 3–5 (2012).
19 Rightmer, supra note 18, at 7; Jones, supra note 18, at 4–5, 11.
20 Rightmer, supra note 18, at 9; see 705 ILL. COMP. STAT. ANN. 405/5-805 (West 2015); see also Automatic Transfer to Adult Court,
JUVENILE JUSTICE INITIATIVE, http://jjustice.org/resources/juvenile-transfer-to-adult-court/ (last visited Feb. 4, 2015) (summarizing
criticism of and collecting recent commentary on juvenile transfer laws).