However, New York’s Safe Harbor Act allows a judge the
discretion to divert family court PINS petitions back into criminal
proceedings in numerous circumstances, including cases of repeat
prostitution arrests, when children are uncooperative in court
mandated treatment, or when there is a judicial determination that the
child is not a victim of “severe trafficking”141 as defined by
statute.142 This judicial discretion does not allow for the appropriate
level of protection to child victims of sex trafficking. The judge
should not have broad discretionary authority to label and prosecute a
child victim as a prostitute, especially for repeat offenses.143 The
discretionary authority leads to inconsistent treatment of children
within the system—some may be offered a second chance of
rehabilitation at the time of re-arrest and some may not.144 As studies
suggest, it might take many attempts, if ever, for a young victim to
escape the human trafficking operation.145 Thus, it may be inevitable
for the child victim to return to the trafficker and continue
involvement in the sex trafficking organization, resulting in future
arrests for prostitution-related offenses. This cyclical pattern does not
seem to be considered under New York’s current statutory scheme
allowing for judicial discretionary authority when there are repeat
offenses. Therefore, judicial discretionary authority should be
eliminated from New York’s statutory scheme.
The policies outlined above provide an overview of the
evolution of New York’s legal landscape, highlighting the state’s
main provisions surrounding domestic minor sex trafficking. The
141 A victim of a severe form of trafficking is defined as a person who is under
eighteen years of age and (1) who is a victim of sex trafficking in which “a
commercial sex act is induced by force, fraud, or coercion” or (2) who is
transported or obtained for services and subjected to “involuntary servitude,
peonage, debt bondage, or slavery.” 22 U.S.C.A. § 7105(b)(1)(C) (West 2013); 22
U.S.C.A. § 7102(8) (West 2013).
142 N. Y. FAM. CT. ACT § 311.4(3) (McKinney 2013); see also Schwartz, supra note
58, at 278 (discussing the issue of judicial discretion within the New York Safe
Harbor Act).
143 See HINES & HOCHMAN, supra note 129, at 11.
144 Id.
145 Id. at 15 (discussing the prevalence of traffickers or pimps re-victimizing
youth).
