UNITED STATES: Decriminalising children exploited for prostitution is not 'legalisation'

The internet has been ablaze over the last few weeks after incendiary comments from California lawmaker Travis Allen drew media attention in the US and around the world. Allen claims that moves by Democrats in his State have “legalised child prostitution”, but these comments represent a gross misinterpretation of the terms involved and a sensationalised approach to a topic which requires thought and sensitivity.

As of 1 January this year children being exploited for prostitution in the State of California will not be held criminally responsible, thanks to changes made to a law which previously allowed children to be convicted for the offence of prostitution. Upon considering that these children are most often victims of pimps and human traffickers themselves, the state’s legislature opted to stop giving them criminal records, instead focusing on arresting those who organise and solicit sex from under-18s, and directing children who are sexually abused to the appropriate social services.

Allen has confused legalisation with decriminalisation, repeatedly and explicitly, even going so far as to tweet “Decriminalization=Legalization”. In fact, legalisation would rely on nobody being punished for the crime, it having been made legal. The implications of the change are not that nobody will be punished, but rather that those forced into sex will not be further victimised by the State, allowing more time to be spent investigating those exploiting children. Allen doubled down on his position this week, claiming that Democrats had children’s best interests at heart, though it seems he may have missed the latest evidence on best practice from the UN.

At the end of her recent visit to the US, Maria Grazia Giammarinaro, UN Special Rapporteur in Trafficking in Persons, especially Women and Children, urged the government to stop the practice of arresting persons – especially women, girls and LGBTI individuals– involved in selling sex. She warned that “The fear of prosecution, detention, and expulsion is a major obstacle for trafficked persons who want to report their traffickers and exploiters,” adding that exemption from criminal liability was imperative for children.

Further, Allen argued that the move would make it easier for people to exploit children, suggesting that if they could not be arrested then police would be powerless to help them. This is also demonstrably false, as the California Penal Code stipulates that any officer may take a child into protective custody without a warrant if they are “in immediate danger of physical or sexual abuse”.

Children’s rights are not totally new to Allen, who had previously worked to remove the statute of limitations for rape in California, noting the effect that the limitations can have on sexually abused children in adulthood, but here he has missed the mark spectacularly.

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