"Children are the victims, not the perpetrators, of child prostitution,” the Texas Supreme Court said today when it ruled that children under the age of consent can't be charged with selling sex.
The case arose when a 13-year-old girl living with her 32-year-old boyfriend was arrested for offering to perform oral sex on a undercover police officer. Authorities weren't aware the girl, who was charged in criminal court, was underage until a background check. Then they transferred her case to family court, which handles juvenile proceedings. Though a court-appointed psychologist found that she had a history of sexual and physical abuse and concluded she was “emotionally impoverished, discouraged and dependent,” the trial court sentenced her to an 18 month probation. An appeals court later affirmed the lower court. The Supreme Court heard oral arguments for the case in January.
Since the girl was under 17, the prosecutor charged her under a provision of the Texas Family Code, which defines "deliquent conduct" as behavior that "violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail." The penal law in question is the prositution statute, which requires a person to "knowingly engage in sexual conduct ... for a fee." Because children under 14 cannot lawfully consent to sex, the Supreme Court held today, they can't "knowingly" engage in sexual conduct.
The 6-3 decision is Justice Harriet O’Neill’s last on the court — Fort Worth District Court Judge Debra Lehrmann, who Gov. Rick Perry appointed to the spot in May — will take her place on Monday.
Here’s more from O’Neill:
It is difficult to reconcile the Legislature’s recognition of the special vulnerability of children, and its passage of laws for their protection, with an intent 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. In the context of these laws … it is far more likely that the Legislature intended to punish those who sexually exploit children rather than subject child victims under the age of fourteen to prosecution.
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. Courts, legislatures, and psychologists around the country have recognized that children of a certain age lack the mental capacity to understand the nature and consequences of sex, or to express meaningful consent in these matters.