The 17-Year-Old Child

SUMMARY

Recently enacted EU-legislation will affect interferences with the sexual life of adolescents across Europe in an intensity so far not known in any of the European states. The “Framework-Directive on combating sexual exploitation of children and child-pornography” will oblige all member States of the European Union to create extensive offences of “child”-pornography and “child”-prostitution, defining as “child” every person up to 18 years of age, without differentiating between five-year-old children and 17-year-old juveniles. These offences go far beyond combating child pornography and child prostitution, thus making a wide variety of adolescent sexual behaviour, hitherto completely legal in the overwhelming majority of jurisdictions in Europe, serious crimes; for instance: sex between 16-year-olds for “remuneration”, which includes invitations to cinema or to a dinner; “lascivious” drawings of a 17-year-old girl possessed by a 15-year-old boy; photographs of a 16 year-old girl in her bikini “lasciviously” exposing her pubic area, taken by her 17-year-old boyfriend on the beach; standard pornography involving younger looking 20-year-old adults or “webcam-sex” between 17-year-old-adolescents; even pictures of one's own adult spouse in “lascivious” poses, if this spouse looks younger than 18. No European jurisdiction so far has such a restrictive law. The massive criminalisation and the equation of adolescents with children caused heavy criticisms among experts but this criticism could not prevent the project from becoming law. This essay provides an analysis of the background, the legislative process and the content of the EU-Framework-Decision.     

Sexual Consent

SUMMARY

What role can the criminal law play in the battle against child sexual abuse? Should sexual relations of, and with, persons under a certain age be criminalized regardless of the circumstances, even if they are consensual (“age of consent”, “minimum age”)? Where should such a minimum age-limit be fixed? Should there be a special, higher age-limit for particular conditions (e.g., “seduction”, “corruption”)? Should sexual contacts with minors within a relationship of authority be criminalized generally or just if authority is abused? Should criminal proceedings be instituted ex officio or upon complaint only? Should authorities be provided with a power of discretion or should they be obliged to prosecute and sentence in each case? In answering these important questions, it is highly beneficial to have a look across the borders to the solutions other countries have reached in this area.

This analysis will provide an overview on the criminal law governing the sexual behavior of, and with, children and adolescents in all European jurisdictions and in selected jurisdictions outside of Europe. It will show which categories of offenses exist and from which age onward young people can effectively consent to various kinds of sexual behavior and relations in the different countries. It turns out that all states in Europe and all of the studied jurisdictions overseas do have minimum age limits for sexual relations, do punish sexual relations with persons under a certain age. Nowhere is this age set lower than 12 years. In Europe in one-half of the jurisdictions, consensual sexual relations with 14-year-old adolescents are legal; in two-thirds with 15-year-olds; in a majority, this is also the case when the older partner has started the initiative (and also when the initiative contains an offer of remuneration). In nearly all jurisdictions, such relations are legal from the age of 16 onwards. Nearly all European jurisdictions set the same age limit in the criminal law for depicting sexual activity as for the sexual activity itself. Most states apply a higher age limit for contacts in relationships of authority. If the authority is not misused the age limit in most jurisdictions is set between 14 and 16; if it is misused between 16 and 18. Most states make no difference between heterosexual and homosexual relations.     

14 to 18 Year Olds as “Children” by Law?

SUMMARY

The European Union Council Framework Decision 2004/68/JI of 22.12.2003 “on combating the sexual exploitation of children and child pornography” defines as “child” any person below the age of 18. Under Austrian law there are no children between the ages of 7 and 18. The author criticizes that, up to now, the development of age limits in legal history has taken a clearly different way in the various fields of law of the Austrian legal order. The Austrian legislator's tendency, which has evolved in the course of legal history, to grant rights and permits to young people between 14 and 18 years earlier but, at the same time, to impose on them more and more obligations arising from private and public law, to give them the opportunity to grow into adult life with full powers and responsibilities step by step, totally contradicts the Council Framework Decision.

Today, adolescents live in a cultural environment characterized by globalized pop culture and world-wide communication technology. Access to “extreme ideas” is offered everywhere and anytime. It is highly difficult to grow up without any interference and develop one's own personality and sexual orientation according to one's inherent nature under such circumstances of a world society, and this process may be seriously disturbed or even prevented by inappropriate prohibitions imposed by criminal law. However, the aim of any education is to accompany adolescents while they are growing up so that they become self-assured, self-responsible citizens with an understanding of how to work for peace and common welfare who know “how to walk upright” and do so, and who are informed about their civil rights and are able to exercise the same decidedly. We do not need only consumers but also citizens of the world! Repatriarchalization and criminalization are the wrong answers to the urgent questions of world society. The question how to combat child pornography commerce is certainly one of the most important concerns because it is abused children and adolescents for whom it is most difficult to develop their personalities and become citizens of the world.

Legally useful answers can only be expected by those who address precise questions to the law. In this respect Europe failed. Given the fundamental right to respect for one's private life and the prohibition of discrimination on the grounds of age the creation of new offencesinvolving a definition of the child as a person up to the age of 18, which contradicts well established law and is unrealistic-shoots past the mark in the author's opinion. Such provisions miss the target group of potential offenders, and infantilize and criminalize society instead. With the proposed legal means it will not be possible to attain the actual aims, i.e., to finally destroy the market for child pornography, and to punish its organizers, “wire-pullers” and users as offenders, and to eliminate them once and for all. The legal status of adolescents is weakened or at least serious curtailment of their claims arising from the fact that they have fundamental rights depending on personality and age; and the Council Framework Decision contradicts the equality guarantees in primary law of the European Union that they must not be discriminated on the grounds of age.     

Adolescence,Sexual Aggression and the Criminal Law

SUMMARY

Criminal law and criminal policy history is perceived as an evolution of legitimation: from a morality paradigm before the Seventies of last century to a utilitarian concept of interdisciplinary enlightenment and rationality, and on to a factual paradigm of risk containment, security orientation and mere exclusion since the Nineties. However, in the area of sexual crime, and especially as far as “the protection of minors” is concerned, Western law appears to have undergone an additional paradigm change, namely in reverting to moralistic principles in disregard of scientific insight. This process, for which victimology appears to be the door opener, is reflected in legal doctrine and criminal policy, in law enforcement, in populistic media and politics. This evolutionary process is interpreted as symptomatic for a post-modern trend in the globalised society where sexual behavior on one hand is blatantly and abusively commercialised, and on the other hand, if deviant, represents the psychologically most expedient object of scapegoating and symbolic policy. The article finishes pleading for a return to the ‘project of modernity’ and to interdisciplinary studies rather than morality as a foundation for criminal policy.     

Sexuality,Adolescence and the Criminal Law

SUMMARY

The provisions in the German Criminal Code protecting sexual self-determinationeven after several penal law reforms-are still criminologically not yet coherently structured and carry some contradictions. Recent research implies that in the section of the German Criminal Code establishing sexual offences three very divergent forms of deviant behavior are lumped together in an undifferentiated way: violent offences, infractions of moral norms and commercialization of sexuality (the latter in most cases in the form of organised crime). Some offences lack empirical justification in the sense of a concept of protection, for example due to the fact that damage caused to victims is not proven. In addition the establishment of age limits turns out as a difficult task, i.e., when consensual (love) relations of adolescents and of young adults are concerned. International efforts to approximate (sexual) offences legislation carry the risk that reasoned, criminologically analysed and empirically justified regulations are sacrificed to populistic diffused mainstream-thinking.     

Participation and young people involved in prostitution

This paper discusses a campaign which involves young people with experience of prostitution in influencing policy and practice which affects this group: the National Youth Campaign on Sexual Exploitation (the Youth Campaign). It is argued that participation is critical to improving outcomes for young people involved in prostitution, yet is often overlooked. Through participation, young people with experience of prostitution can build their self‐esteem whilst also helping agencies and policy makers develop more effective strategies on youth prostitution. The paper examines in detail one piece of work undertaken by the Youth Campaign: a workshop run by two young women at a national conference on sexual exploitation. In addition, it gives an overview of current research, policy and practice on participation and young people involved in prostitution and makes recommendations for how practice in this area could be improved. Copyright © 2006 John Wiley & Sons, Ltd.     

Exploring the Role of the Internet in Juvenile Prostitution Cases Coming to the Attention of Law Enforcement

This exploratory analysis examines the role of the Internet in juvenile prostitution cases coming to the attention of law enforcement. The National Juvenile Prostitution Study (N-JPS) collected information from a national sample of law enforcement agencies about the characteristics of juvenile prostitution cases. In comparison to non-Internet juvenile prostitution cases, Internet juvenile prostitution cases involved younger juveniles and police were more likely to treat juveniles as victims rather than offenders. In addition, these cases were significantly more likely to involve a family or acquaintance exploiter. This analysis suggests that the role of the Internet may impact legal and social service response to juveniles involved in prostitution. In addition, it highlights the need for interventions that acknowledge the vulnerabilities of youth involved in this type of commercial sexual exploitation.     

Prostitution Ideology and Trafficking Policy: The Impact of Political Approaches to Domestic Sex Work on Human Trafficking Policy in Australia and the United States

Debates over the legitimacy and legality of prostitution have characterized human trafficking discourse for the last two decades. This article identifies the extent to which competing perspectives concerning the legitimacy of prostitution have influenced anti-trafficking policy in Australia and the United States and argues that each nation-state’s approach to domestic sex work has influenced trafficking legislation. The legal status of prostitution in each country and feminist influences on prostitution law reform have had a significant impact on the nature of the legislation adopted.     

Youth prostitution: a literature review

This article reviews the academic literature on young people involved in prostitution. The prevalence and aetiology of youth prostitution and its links with drug use and criminal careers are explored. It argues that whatever the power of personal experiences which incline a person towards prostitution, prostitution can still only be possible in specific cultural conditions. The phenomenon of prostitution has the sexual double standard, poverty and an unequal labour market as prerequisites. We should not expect prostitution to either disappear or occur with equal frequency in men and women while these aspects of inequality continue. This article reviews debates on the particular challenges for service delivery and working together with this vulnerable group. In a civilized society, we should organize that the burden of inequalities which underlie prostitution should not be carried by children. Copyright © 2002 John Wiley & Sons, Ltd.     

Symbolic Justice: The Status Politics of the American Probation Movement

Abstract

This paper addresses in substantive terms an emerging debate between Marxian and Weberian perspectives on crime and law. It is argued that the cooptive character of the American probation movement and its impact on juvenile and criminal law is an anomaly for orthodox Marxian theory and its preoccupation with coercive strategies of crime control. Revisionist Marxian perspectives similarly fail to account for the growth of this movement. An alternative Weberian approach is then articulated. It is found that probation legislation evolved at a federal level in juxtaposition to American temperance legislation, drawing its base of support from status groups reluctant to support the latter social movement, as well as from the leadership and rank and file organization of a voluntary association, the National Probation Association. The attention of a Weberian approach to such factors of organization and status helps to correct a one-sidedness in the Marxian class analysis of crime and law.     

Gay Youth

Abstract

In recent years there has been a growing awareness among parents and social service professionals of the complex sexual identity development of adolescents. Despite this, adolescents continue to struggle to define their sexual identity. Gay and lesbian adolescents in particular are at risk for a host of problems, including substance abuse and suicide. In this context it is important for social service researchers to study adolescent sexual identity and to report their findings in such a way as to be accessible to professionals and to the public.     

Social Work and Criminal Justice

SUMMARY

We shall begin with the principal, and complicated, conclusion: Regrettably, the social work profession has largely abandoned the criminal justice field. That is not to say that social workers are not employed in criminal justice settings. Certainly they are. Significant numbers of social workers earn their living as probation and parole officers, caseworkers in public defender offices, counselors in correctional institutions and halfway houses, and so on. As a profession, however, social work no longer has a major presence in the criminal justice field (Gibelman and Schervish, 1993). Relatively few social workers embark on their professional education with the aim of employment in the criminal justice field. Virtually no courses in social work education programs focus explicitly or comprehensively on criminal justice (Knox and Roberts, 2002; McNeece and Roberts, 1997). Workshops offered at professional conferences or continuing education seminars rarely focus on criminal justice issues per se. And, relatively little serious scholarship on criminal justice issues is authored by social workers.

Interestingly, this has not always been the state of affairs. Earlier in the profession's history, social workers were much more visible and vocal participants in dialogue, debate, research, and practice related to criminal justice. Ideally-in light of social work's unique perspectives on practice and social problems, and the profession's noble value base-the profession will reclaim its preoccupation with criminal justice. As Sarri (2001) concludes with respect to social workers' involvement in the juvenile justice system in particular:

Thirty years ago, social workers were in leadership positions in juvenile justice in the majority of states. In the 1980s, a gradual decline began in agencies and in social work education for practice in juvenile justice. Some have suggested that the decline was at least partially due to professional resistance to working in coercive settings with involuntary clients. However, given the millions of people now caught up in the criminal justice system who are not receiving the social services they desperately need, it is a priority that social work return to a more central role in criminal justice. (p. 453)     

Labour pains: Some considerations on the difficulties of researching juvenile prostitution

This paper reflects on an empirical, retrospective study of juvenile prostitution. It aims to explore the ways in which the practical constraints, practical difficulties and ethical considerations that are inevitably encountered in a 'sensitive' area of research, such as young people who are exploited through prostitution, are intrinsically linked to choice of methods and the process of the research. It argues that in such research pragmatism in choice of methods is necessary to achieve the epistemological aims, of allowing the voices of disadvantaged young people who are exploited through their involvement in prostitution to be heard, while maintaining ethical integrity. In addition the paper reflects on the emotional impact of research such as this on researchers and suggests ways in which research design and the collaborative efforts of research teams may minimise potentially negative impacts on researchers. The author suggests that by anticipating problems posed by research into young people who are sexually exploited through prostitution, ethical and practical difficulties might be negotiated to enable research in this field to be taken forward in the future.     

Adolescent American Sex

SUMMARY

Though there has been a decline in the percentage of sexually active high school students in the past decade in the United States, the rate of adolescents engaging in sexual behavior leading to orgasm has actually increased. Such orgasms are achieved without penetration and penetration is how most American adolescents define sex. Most adolescent sex also occurs within intimate relationships with partners at or near their own age but definitions of what constitutes intimacy is different than in the past. Sexuality is very important in the life of adolescents in the United States, and sexual activity broadly defined begins fairly early among teenagers although actual sexual intercourse usually takes place much later.     

Social work and prostitution: an approach to educational practices

Female prostitution is a diverse, complex reality. And migratory processes are multiple and differ greatly. The conjunction of prostitution and immigration generates new challenges in the professional field of social work; but it is a field that has been able to adapt to the versatility and diversity of this reality. This article sets out to explore the educational dimension developed by social work in this context and to highlight its contents and characteristics: a dimension that takes shape in practices and tasks that enable women who engage in prostitution to realise their capability to manage their life in the way they would like.     

The interface between the child welfare and criminal justice systems in England

The development of government guidance can seem a mysterious process to those outside government. This paper, which draws on the author's experience, is intended to give some insight into how guidance in two areas—child witnesses and children involved in prostitution—was developed within the existing legal framework. Since that time, the Sexual Offences Act 2003 has come into force in England and Wales and the Children Bill is currently before Parliament. The paper begins by setting out the key legislation, regulations and guidance that underpinned the child welfare and criminal justice systems as they related to child protection at the time the guidance was being developed. It then describes how the different guidance documents relate to each other and the implications for practice. The development of speci?c guidance is drawn upon to illustrate some of the tensions that had to be resolved during the drafting and the processes by which they were ?nalized for approval by the Government. A key area requiring careful consideration was the differences between the family and criminal justice systems. In the former, the welfare of the child is paramount when making decisions and in the latter, the court has a duty to ensure the defendant has a fair trial. Copyright © 2004 John Wiley & Sons, Ltd.     

Commercial and sexual exploitation of children and young people in the UK—a review

This paper reviews recent information and data relevant to the commercial sexual exploitation of children and young people in the UK. Three main aspects of exploitation are addressed: abuse through prostitution; abuse through pornography; and the trafficking of children and young people to and through the UK for the purposes of commercial sexual exploitation. Most published research in this area relates to young people exploited through prostitution. The review explores the range of vulnerability factors, the processes used to engage young people in prostitution and the types of support strategies for those being exploited. Rather less information is currently available on the scale of child pornography, or the links between the use of pornography and other forms of sexual abuse. The internet as a modern technology for proliferating child pornography is discussed, alongside its role in providing opportunities for paedophiles to access and ‘groom’ children for sexual purposes. Finally, the review provides a summary of research on trafficking of children to and through the UK for the purposes of commercial sexual exploitation and demonstrates the limited knowledge about this topic. Copyright © 2005 John Wiley & Sons, Ltd.     

Practice with Female-to-Male Transgendered Youth

Abstract

This paper examines the multiple experiences of female-to-male transgendered identified adolescents also known as FTMs. The information utilized in this paper is based on the available literature on FTMs and the result of over two years of listening to the narratives of FTM trans-gendered adolescents with whom I have worked and from professional counseling experiences with several FTMs ranging in age from their mid to late teens to their early forties. The paper also focuses on current theories, offers a strengths-based approach to practice, and concludes with implications for practice with FTM clients.     

New York State's Prostitution Statute:

In 1978, New York State upgraded its "patronizing a prostitute" statute from a violation to a misdemeanor offense. It was expected that upgrading the law would accomplish essentially two goals: deter prostitution by giving the police incentive to arrest patrons, and end the disparity that existed between the prositution and patronizing statutes, as prostitution had been a misdemeanor offense since 1969. These goals were not accomplished. An analysis of prostitution arrest information from Buffalo, New york, for the years 1977 through 1980, shows that the Buffalo city police arrest practices did not change despite the 1978 reform of the prostitution statute. In particular, women continued to be singled out for prostitution arrests more often than men. In addition, despite constitutional prohibition of gender based discrimination, New York State courts have not been persuaded to find unconstitutional the differential enforcement practices of the prostitution statute. One Buffalo criminal court, for example, approved gender based discrimination on the basis of insufficient police staffing. The end result was that while the new statute was to be gender neutral, the application of the law was not; police nonenforcement of patron activity perpetuated discrimination against women.