by Judge Maria D. Hernandez and Judge Douglas J. Hatchimonji
Yes, even in Orange County.” Illuminated by moving billboards on the sides of OCTA buses and posters at In-N-Out takeout windows, talked about in houses of worship, and featured in Orange County Register articles, the awareness is spreading that even here, children as young as eleven years old are being sold as commodities, sold for sex on our streets, through social media and online marketplaces.
When these children are brought to the Orange County Juvenile Court, we are relieved and challenged. Relieved because, for the time being, they are safe. Challenged because these children test our county’s child welfare and juvenile justice system to its maximum, revealing its flaws and shortcomings, but also highlighting the strength and talent of the many people who serve our children. The story about how we work to alter the life trajectory of the child victims of commercial sexual exploitation provides a unique insight into the overall role of the Orange County Juvenile Court in the fabric of our community.
The Unique Role of the Juvenile Court Judge
Working on three floors of the Lamoreaux Justice Center, with Juvenile Hall and the Orangewood Children and Family Center as neighbors, eleven judicial officers, working with specially trained attorneys, probation officers, social workers, and a remarkably dedicated staff, work to achieve our statutory mandate “to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court.” Cal. Welf. & Inst. Code § 202(a). We work with children who have been abused and neglected, as well as children who have committed criminal offenses ranging from truancy to murder.
Our roles vary from traditional judges who adjudicate by applying the law to a given set of facts, period. Like other judges, we, of course, are required to be impartial and fair in applying the law. But we also have the opportunity to work for the benefit of the children who come before us. Indeed, juvenile court judges must provide an active leadership role inside the courthouse and into the community. Standard 5.40 of our Standards of Judicial Administration instructs juvenile court judges to: “Provide active leadership within the community in determining the needs of and obtaining and developing resources for at-risk children and families.” At its core, this active leadership means educating, prompting innovation, and driving the system’s players to implement programs and services to improve the lives of at-risk children and families.
Juvenile court judges must look for and seek to fill gaps in the system. System gaps are caused by shrinking budgets for health and human services, and by agencies and organizations working in silos, unaware of the blind spots in their overall delivery of services to youth and families. Juvenile court judges work to fill these gaps by convening, facilitating, and leading governmental and non-governmental organizations to leverage their oft-times diminishing resources in order to achieve their mission to serve at-risk children and families. For example, in the context of children prosecuted for prostitution, we strive to have the law reflect that children are legally unable to consent to sex.
No Child Can Be a Prostitute
The child victims of sex trafficking represent a fraction of the children that appear before the Orange County Juvenile Court. But because of who they are and the issues they present, these child victims are an amplification of the issues facing virtually all of the children that appear before our court.
At Juvenile Court, we begin by keeping in mind this self-evident proposition that is far too often forgotten: these are children. As a matter of longstanding public policy, minors in our country cannot legally consent. Minors cannot enter into contractually binding agreements, minors cannot consent to most medical procedures, and minors cannot consent to having sex. Adults who have sex with a minor cannot avoid prosecution for lewd and lascivious conduct by saying that the minor consented. From the standpoint of the minor’s legal capacity to consent, there is no difference between the high school teacher that seduces his fifteen-year-old student and the fifteen-year-old who is compelled to exchange sex for money with that same teacher.
The legal age of consent in our country is not merely a legal fiction. Peer-reviewed scientific studies have established that the adolescent brain is underdeveloped in comparison to adults and that this results in developmental and functional immaturity impacting a minor’s decision-making capacity. Studies by developmental psychologists, such as Dr. Laurence Steinberg and Dr. Elizabeth Cauffman, and functional MRI imaging studies, demonstrate that the emotional development of adolescents lags significantly behind their intellectual development. A 2016 study noted: “Scientific research has demonstrated that adolescents show heightened sensitivity to motivational and socio-emotional information, which potentially renders them more vulnerable to poor decision-making in these situations . . . .” Alexandra O. Cohen, et. al., When Is an Adolescent an Adult? Assessing Cognitive Control in Emotional and Nonemotional Contexts, 27 Psychol. Sci. J. 549-62 (2016). Adolescent brains simply do not work the same way as adult brains.
The importance of recognizing a minor’s lack of capacity to consent is seen in our human trafficking laws. In the case of an adult victim, prosecuting human trafficking requires proof of coercion, proof that the victim was involuntarily compelled to engage in the sex trade. However, in the case of a child who has been exploited, federal and state trafficking laws do not require proof of coercion. This is because the law recognizes that a minor cannot enter into a consensual relationship with a pimp.
Of course, these children are, in reality, coerced. Statistically, the average age that a child is first trafficked in this country is twelve years of age. A history of abuse (sexual or otherwise), neglect, abandonment, substance abuse, mental illness and alienation are the ingredients found in the lives of virtually all these children. These deficiencies are typically used by the pimp to bind the child to him or her, mixing them together to form a twisted sense of love and family. Rachel Lloyd, one of the earliest and strongest voices against the commercial sexual exploitation of children describes how breaking a victim’s bond to her pimp is to break down what feels like a relationship of love:
[If] you’ve never seen a cow, never even see a picture of one or had one described to you, and someone tells you that a horse is a cow, [then] of course you believe them. If you haven’t had proper love and care, then a substitute will feel like the real thing, because you’ve got nothing to compare it to.
Rachel Lloyd, Girls Like Us 58-59 (Harper Collins 2011). Convincing a sexually exploited child that her pimp does not love her, or that what she feels for her pimp is not love, is to challenge to her fundamental reality. The truth is no child who is sold is doing so voluntarily or consensually or with a grasp of the consequences. This is why we say that no child can be a prostitute.
Some suggest that refusing to prosecute children for prostitution makes it easier for pimps to exploit children. The argument goes that if the pimp’s product—in this case an actual living and breathing child—is not taken off the streets, it will make his business life easier. So, it may appear logical that arresting and prosecuting children is a method for combatting trafficking. But consider that logic. If you see the child as somehow complicit in the crime, like arresting a lower-level drug dealer to get the wholesaler, arresting the child to get to the trafficker makes perfect sense. But if you see the child for who she or he is, a victim of a crime, arresting the victim seems absurd.
Domestic violence cases provide a good illustration. It is a fact that many victims of domestic violence recant and refuse to testify against their abuser, again and again. Many abusers fail to be convicted because of this reality. It is undoubtedly true that if a domestic violence victim could be incarcerated for refusing to testify—as a contempt of court—there would be more domestic violence convictions. But specific laws prohibit putting a domestic violence victim in jail for refusing to testify because we understand the person is, indeed, a victim. When the victim returns again and again to the home of the abuser, we still don’t see the domestic violence victim as anything other than a victim because we understand the dynamics of domestic violence that causes this to happen. But then why do some see the child in the clutches of a pimp differently?
Saving the Sexually Exploited Child: Forge Trust and Support
In the child welfare and juvenile justice system there is much talk about providing “trauma informed care.” Of recognizing that the children and families that come into the system have lived lives of physical and emotional neglect, abuse, and deprivation, resulting in post-traumatic stress, impulse and anger control, depression, substance abuse, and a full range of mental health disorders. Trauma informed care requires that every person working in the system regulate their conduct to avoid causing more harm. Trauma informed care is easily talked about and difficult to practice.
The commercially sexually exploited child is hard. These children are some of the most courageous, strong, and complex survivors we work with. Their stories are of deprivation and alienation; they have been beaten and branded, sexually assaulted again and again day after day, whose understanding of caring, support, and love is as twisted as the minds of the pimp who owns them. These stories result in children whose sense of survival demands that they view everyone with distrust, suspicion, and defensiveness. Supporting them means getting past the aggression and anger, not hearing, or at a minimum not being personally offended by, the “F-bombs,” and to see the child for who she or he is, a child who has survived unimaginable trauma. This is the essence of trauma informed care.
The practice of the Orange County Human Trafficking Task Force (OCHTTF) is to support these children. When a child is located on the street, they are brought in and immediately matched with a victim advocate, and given warm clothes, support, and understanding. The child may find herself or himself in Juvenile Court as a dependent or as a delinquent for other pending offenses, but even so, is supported by an attorney, social worker, victim advocate, probation officer, a deputy district attorney, and a Juvenile Court judge. All members of the OCHTTF/CSEC teams are trauma and CSEC trained, and are committed to treating the child as a victim.
Like the domestic violence victim who returns again and again to his or her abuser, so powerful are the psychological chains that bind the child victim to his or her pimp that they frequently run from the people who are trying to save them. But incarcerating them is not the answer. Our experiences working with child victims have taught us that no amount of incarceration can break the chains of compulsion, which is why there is no merit to the argument that we must keep child prostitution laws on the books in order to rehabilitate child victims. True, when a child is incarcerated in juvenile hall we are in control of their bodies, but simply controlling their bodies cannot reframe their hearts and minds. It takes months and years of trauma-informed services and support to begin to break the chains that bind the child to her or his pimp.
In recent media, child welfare social workers often get a bad rap. In Orange County, we have social workers who steadfastly defy that reputation. For example, when one of our runaway child victims calls one of our social worker’s personal cell phone, reaching out, our worker readily ventures out in the darkest hours before the dawn, traveling into some of the grittiest and dangerous places in southern California, to meet them with compassion, understanding, and support. When a girl who had been sexually trafficked since age eleven, and who, from the complex and cumulative trauma of that experience was like a dog that had been continually beaten, physically lashing out at anyone who came near, it was this social worker who simply lay down on the floor and held the little girl until she cried, finally reaching a state of calm.
This is what it takes: relentless dedication, determination, and commitment to view each child as an individual. An individual who has a life story that must be understood. An individual for whom we must search for that particular key that puts him or her on a path toward health, happiness, and success. In this search we often fail, but we must remain undaunted, for the sake of our children and our community.
Conclusion
Our child welfare and juvenile justice system, overseen by the Juvenile Court, is imperfect, and meets its greatest challenge in meeting the needs of the child victims of sexual exploitation. There are huge gaps in resources, funding, services, facilities, and programming. But it is a system made up of many dedicated and committed people who give us the ability to meet our challenges.
A longer version of this article appeared in the Orange County Register on February 23, 2017.
The Honorable Maria D. Hernandez is Presiding Judge of the Orange County Juvenile Court. She can be reached about this article by emailing the Editor-in-Chief at gialisa@gmail.com. The Honorable Douglas J. Hatchimonji also is a judge in the Juvenile Court.