By Brendan Michael Conner
The second Optional Protocol [1] on the Sale of Children, Child Pornography, and Child Prostitution (OPSC) [2] to the United Nations Convention on the Rights of the Child (UNCRC) [3] entered into force on January 18, 2002, appending a concern for “trafficked” minors to the most widely ratified treaty in the history of the world. The OPSC, however, is not a rights-based treaty in the sense of the main Convention or its partner protocols, but is instead a blueprint for international cooperation in the enforcement of criminal laws to prevent the “sale of children, child prostitution, and child pornography.”[4] While the OPSC includes provisions concerning such crimes as organ harvesting and forced legal labor, the protocol has primarily served to target consumers and procurers of pornography and transactional sex involving persons under the legal age of majority, which according to most State parties is 18—defined as “children” or, in this article, “minors.”[5] In its preoccupation with enforcement, the protocol has sidelined the human rights concern of decriminalizing minors’ participation in the sex trade, which has resulted in involuntary removal from parental custody, secure detention, and deportation. These outcomes are contrary to the “best interest” of those affected, which ought to be a determination made by minors themselves. To this end, efforts to support young sex workers and survivors of trafficking must prioritize voluntary and client-centered services, shelter and long-term affordable housing options—including secure housing for those minors who desire it as protection—living wage alternatives, and safer working conditions for those who choose to trade sex as the best choice among limited economic choices.
The OPSC is not unique in its approach to the “sale of children,” but instead inherits its classification of “children” in the sex trade from definitional analogues in the main Convention’s Article 1 and 34,[6] the Worst Forms of Child Labour Convention Articles 2 and 3,[7] and Article 3(c)-(d) of the Palermo Trafficking Protocol.[8] The OPSC adopts the presumption of victimhood for minors involved in the sex trade as encompassed by these prior agreements, and so also distinguishes this presumption from the standard of proof required for adult survivors as defined by the Palermo Trafficking Protocol, namely proof of force, fraud, or coercion.[9] In other words, minors who seek out transactional sex as a result of limited economic choices, and who have never come in contact with a third party such as a pimp, manager, or trafficker, are, categorically, defined as victims of trafficking. This classification stands in opposition to recent data prioritizing the social and economic motivators of minors’ participation in the sex trade, such as a recent Department of Justice-funded New York City population estimate that found 84% of minors involved in the sex trade did not have a pimp, manager, or trafficker.[10] Additionally, the focus on non-transgender girls operates to exclude boys and transgender minors from services. The same study found that 54% of minors involved in the sex trade in New York City are boys, [11] and yet not one case was known of a boy under 16 who was provided non-secure detention under the New York Safe Harbor Act when being prosecuted for prostitution (and boys make up 46% of the prostitution cases in family court).[12] Instead, boys under 16 in New York’s family court system are “placed” in the infamously abusive Bridges detention center or group homes when charged with prostitution-related crimes. Regardless of numbers or geography, the presumption of victimhood harms both young survivors of trafficking and young sex workers the world over by subjecting both populations to an enforcement approach.
Supporting this proposition, the Global Network of Sex Work Projects (NSWP) conducted a study that found the presumption of trafficking in the OPSC had impliedly justified the criminal prosecution, secure detention, and deportation of those minors in the sex trade who actually do choose sex work as the best choice among limited economic choices, in addition to young survivors of trafficking caught up in the enforcement apparatus targeting consumers and procurers.[13] Additionally, adult sex workers are, in many countries that have adopted the enforcement approach, prosecuted as alleged procurers for sharing workplaces, clients, and safety advice with young people who trade sex. Moreover, in the same study, NSWP expressed concern for the dangers of mandatory reporting in the absence of evidence of force, fraud, or coercion, the collateral consequences of criminal charges for minors, and, even in countries where sex work is regulated or decriminalized, the discrepant application of age of consent laws between the legal age for consensual sex and the legal age for transactional sex.
While the text of the OPSC itself does not explicitly contemplate the prosecution and involuntary commitment of minors to secure detention, its failure to prohibit punitive and rehabilitative prosecution and detention amounts to a crime of omission. At best, OPSC’s Article 8 may be said to source UNCRC’s Article 3, § 1 imperative that state and private welfare intervention must consider the “best interest” of the minor as a primary consideration.[14] More specifically, Article 8, § 3 of the OPSC states:
“States Parties shall ensure that, in the
treatment by the criminal justice system of
children who are victims of the offences
described in the present Protocol, the best
interest of the child shall be a primary
consideration.”[15]
The operative phrase, “treatment by the criminal justice system,” however, remains undefined in the text of the protocol itself. Even when read generously, the “best interest” framework is anchorless without a rights-based approach that prioritizes minors’ self-determination. Thus, the OPSC’s principal function is that of a supplementary treaty to the UNCRC for the enforcement of criminal laws against consumers and procurers, specifically UNCRC Article 34. A summary of the OPSC contents illustrates the point: enumerated offenses (Article 3); jurisdictional guidelines (Article 4); extradition proceedings (Article 5); cooperation in international investigations (Article 6); and the seizure and confiscation of assets (Article 7).
More recently, the Committee on the Rights of the Child (CRC), the monitoring committee of the UNCRC, has taken the “best interest” in the “treatment by the criminal justice system” language a step further. Under the Convention, and by extension the Convention’s optional protocols, State parties must first report to the monitoring committee two years after acceding to the Convention and then every five years.[16] The CRC has increasingly criticized State parties for retaining laws criminalizing minors for prostitution. For instance, the United States was encouraged in its most recent review, in 2008, to “[e]nsure that all persons below the age of 18 [who are] victims of any of the offences under the Optional Protocol are as such neither criminalized nor penalized at [the] federal or state level.”[17] Additionally, the CRC has proposed a third Optional Protocol to establish a communications procedure, which would allow minors and their representatives to file individual complaints for violations of rights under the UNCRC.[18] While this proposal would not eliminate criminal prosecution and involuntary commitment, it would create an enforcement and accountability mechanism that may serve to temper the “best interest” to approximate a voluntary and client-centered model as advocated in this article, and as arguably supported by the rights-based framework of the UNCRC.
There remains, however, no prohibition in the text of OPSC itself upon the criminal prosecution and involuntary commitment of minors involved in the sex trade, despite the liberal interpretations of the Convention’s monitoring committee. Therefore, an enforcement protocol may prove irrelevant for minors involved in the sex trade. Additionally, the alternative enforcement apparatus, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, [19] is only a procedural safeguard and not a substantive bar, and so it is insufficient to protect minors from abuses of state power. Therefore, there are two available remedies: (1) an amendment to OPSC that is specifically crafted to shield minors from criminal and civil commitment proceedings related to their involvement in the sex trade; and (2) a third Optional Protocol, which would similarly institute a prohibition upon involuntary commitment of minors involved in the sex trade, but also incorporate the proposed complaint communications procedure that functions for minors and third parties more generally. Only then would one of the most widely ratified treaties in the world be made to work for the “best interest” of those who are most affected by its provisions.
1 In the technical sense, a protocol to a treaty is ‘optional’ in that it is not automatically binding on the states that have already ratified the treaty. See generally “Key Terms,” United Nations Treaty Reference Guide. Only two of the 192 United Nations member states—Somalia and the United States—are not state parties to the OPSC’s main treaty, the 1989 UNCRC, as of February 18, 2011. Somalia is said to have delayed ratification as a result of its governance crisis. The United States has cited its history of delaying ratification of UN conventions for the purpose of a fully informed signing. However, the United States ratified the OPSC as of Dec. 23, 2002, demonstrating its prioritization of enforcement over services.
2 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC), May 25, 2000, 2171 U.N.T.S. 227.
3 United Nations Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3.
4 Id. Preamble, ¶ 1.
5 I refer to those affected as “minors” and not children in order to respect young people’s resiliency and capacity for choice, even among limited choices.
6 The UNCRC defines “child” to be inclusive of all persons under 18 years of age, unless a treaty party recognizes an earlier age of majority, with exceptions for enumerated benchmarks (e.g., compulsory education through primary school, prohibiting capital punishment and life imprisonment for those under 18)).
7 See Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, adopted June 17, 1999, ILO No. 182, arts. 2–3, available at http://www.unhcr.org/refworld/docid/3ddb6e0c4.html.
8 See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations to the Convention Against Transnational Organized Crime, arts. 3(a), (c), Nov. 15, 2000, 2237 U.N.T.S. 319.
9 Id. art. 3(a).
10 RIC CURTIS ET AL., THE COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN IN NEW YORK CITY, VOLUME ONE: THE CSEC POPULATION IN NEW YORK CITY: SIZE, CHARACTERISTICS, AND NEEDS 77 (2008), available at www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf.
11 Id. at 37.
12 AMY MUSLIM ET AL., THE COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN IN NEW YORK CITY, VOLUME TWO: FORMATIVE EVALUATION: THE NEW YORK CITY DEMONSTRATION 17 (2008), available at www.ncjrs.gov/pdffiles1/nij/grants/225084.pdf.
13 Disclosure is due to this paragraph’s reference to an earlier study conducted by the author, through research with member organizations of the NSWP. BRENDAN CONNER, XVIII INTERNATIONAL AIDS CONFERENCE: WARDS OF THE STATE: LAW, POLICY AND YOUNG SEX WORKERS’ SPECIAL VULNERABILITY TO HIV/AIDS (2010) (on file with author).
14 UNCRC, supra note 3, art. 3 § 1.
15 OPSC, supra note 2, art. 8.
16 UNCRC, supra note 3, art. 43.
17 U.N. Comm. on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 12, Paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child PornographyConcluding Observations: United States of America, 38(a), U.N. Doc. CRC/C/OPSC/USA/CO/1 (June 25, 2008).
18 Press Release, U.N. Committee on Children’s Rights, Committee on Children’s Rights Urges the U.S. and Somalia to Ratify the Convention on the Rights of the Child (Oct. 13, 2010).
19 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”). G.A. Res. 40/33, Annex, U.N. GAOR, 40th Sess. Supp. No. 53, U.N. Doc. A/40/53, at 207 (Nov. 29, 1985).
