Teorías sobre el aprendizaje

The threat of prosecution and the option to prosecute remain key features of New York’s safe harbor legislation. The NYSHA’s use of a rebuttable presumption of victimization is another means in which the law fails to provide complete immunity from prosecution. Specifically, the NYSHA protects some minors by permitting the reclassification of some as a “person in need of supervision” (“PINS”) instead of as a “delinquent.”333 _{The NYSHA helps only some sexually}

327. See Press Release, O’Malley, supra note 324, at 3.

328. Carol Smolenski, Exec. Dir., ECPAT-USA, Remarks on the ATEST National Call on Child Welfare 3 (April 25, 2013), available at http://www.endslaveryand trafficking.org/sites/default/files/Written%20Transcript_0.pdf.

329. See A.B. 08071, 2013 Assemb., Reg. Sess. (N.Y. 2013). 330. See id.

331. See Yuval Sheer, Governor Cuomo Establishes Commission on Raising the Age of

Criminal Responsibility, N.Y. CENTER FOR JUV. JUST. (Jan. 10, 2014),

http://www.nycjj.org/governor-cuomo-establishes-commission-on-raising-the-age-of- criminal-responsibility/.

332. See, e.g., MINN.STAT. § 609.322(a) (2012); see also MENANTEAU ET AL., supra

note 18, at 20 (noting gaps in the Minnesota law).

333. See N.Y.FAM.CT.ACT § 712 (McKinney 2010 & Supp. 2015). Under the prior and revised definition, a PINS included a person less than eighteen years of age who was “incorrigible, ungovernable or habitually disobedient.” Id. The jurisdictional age has been

exploited minors escape the stigma of criminality and does so only if certain conditions are met.334 _{The NYSHA requires that in certain}

juvenile court proceedings involving a minor detained for a prostitution-related offense, the juvenile court judge must substitute a PINS petition in place of a juvenile delinquency petition.335

Specifically, when a juvenile is brought before the family court for a hearing following an arrest for prostitution, the NYSHA affords “a presumption that the respondent meets the criteria for a certification as a victim of a severe form of trafficking as defined in section 7105 of title 22 of the United States Code (Trafficking Victims Protection Act of 2000).”336 _{Based on the presumption that the juvenile is a victim of}

severe trafficking, the juvenile respondent can make a motion to substitute a PINS petition in the place of a juvenile delinquency petition and can do so without the consent of the presentment agency.337

In other words, this presumption that the prostituted minor is a victim of human trafficking remains rebuttable. The family court may only designate sexually exploited children under age sixteen as a PINS instead of a delinquent if the court determines that none of the applicable exceptions apply.338 _{Thus, even after the motion to}

substitute petition has been made, the family court still maintains the discretion to proceed with a juvenile delinquency proceeding if the court finds that the following exceptions exist: (1) the juvenile does not meet the federal definition of a trafficking victim; (2) the juvenile

eighteen since 2002. Merril Sobie, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 29A, FAM.CT.ACT § 712 (2010). The NYSHA also amends section 732 of the Family Court Act by further defining a PINS as someone who is not only delinquent but also one who requires supervision or treatment to cure the delinquency. N.Y.FAM.CT. ACT§ 732 (McKinney 2010 & Supp. 2015). Under the revision, PINS now includes those minors in violation of section 230 (“prostitution”) or section 240.37 (“loitering for the purpose of engaging in a prostitution offense”) of the Penal Law. Merril Sobie, Practice Commentary, supra.

334. See, e.g., N.Y.FAM.CT.ACT § 712(a) (McKinney 2010 & Supp. 2015) (defining

the conditions that must be met for a person under eighteen to be considered a PINS). 335. The NYSHA amends the Family County Act’s section 311.4 to require that the family court judge substitute a PINS petition in lieu of a juvenile delinquency petition for certain juveniles under certain circumstances. See N.Y. FAM. CT. ACT § 311.4(3) (McKinney 2008 & Supp. 2015) (providing that “[i]n a proceeding under this article based upon an arrest for an act of prostitution” and “[u]pon the motion of the respondent, without the consent of the presentment agency, a petition alleging that the respondent is in need of supervision shall be substituted for the delinquency petition”).

336. Id. § 311.4(3) (emphasis added).

337. Id. The safe harbor law deprives the agency of the right to consent to the petition. Id. In hearings involving other crimes, the agency must consent to the substitution of the

petition. See id. § 311.4(1)–(2).

has committed a prior prostitution offense; or (3) the juvenile was previously placed in a social service agency for treatment for prostitution-related offenses.339 _{If the court proceeds with the}

delinquency proceeding, its order must include written findings of fact to support the continuation of such a proceeding.340

The substitute petition requirement does not legalize prostitution. Case law interpreting the NYSHA affirms that the statute did not completely shield all youth from criminal prosecution or delinquency adjudication.341 _{Although New York “expresses a}

preference that children who have been sexually exploited be spared criminal prosecution or adjudication under the juvenile delinquency statute in favor of receiving rehabilitative services,” the law does not provide an absolute shield against adjudication.342 _{As New York’s}

case law makes clear, “a substitution of a PINS petition is not intended to provide automatic and complete immunity from prosecution.”343

These limitations on access to safe harbors undermine the policy goal of recognizing all prostituted minors as crime victims as opposed to criminals. The use of PINS proceedings to determine who is eligible for safe harbor undermines this goal. Some, but not all, prostituted minors will avoid the juvenile delinquency proceedings and the punitive punishments and stigmas associated with adjudication as a juvenile delinquent. By avoiding a finding of juvenile delinquency, these juveniles also avoid placement in a secure facility and the adjudication that they are guilty of crimes.344 _{They also}

avoid the stigma of having committed a sex offense, including the labeling as prostitutes or placement of their names on a registered list

339. Id. Section 311.4(3) was drafted to allow judges to forgo the PINS substitution

where (a) the juvenile was not “a victim of a severe form of trafficking”; (b) the juvenile had been “previously adjudicated as a juvenile delinquent” for a prostitution offense; or (c) the juvenile is now an adult or “expresses a current unwillingness to cooperate with specialized services for sexually exploited youth.” Id.

340. See id. § 311.4(3) (stating that the “necessary findings of fact to support the

continuation of the delinquency hearing proceeding shall be reduced to writing and made part of the record”).

341. See In re Bobby P., 907 N.Y.S.2d 540, 547 (N.Y. Fam. Ct. 2010).

342. Id. (explaining that section 311.4(3) authorizes the substitution of a PINS hearing

for a delinquency hearing for minors sixteen or younger).

343. Id.

344. N.Y. FAM.CT.ACT § 781 (McKinney 2010 & Supp. 2015) (stating that “no person

adjudicated a person in need of supervision in this article shall be denominated a criminal”); id. § 756 (determining the placement of a juvenile after being designated as a PINS).

of sex offenders.345 _{But, through the PINS hearing, some minors may}

be deemed ineligible for such safe harbor.

Other states have taken a different approach. For example, Illinois does not condition immunity on certain conditions. The Illinois Safe Children Act346 _{recognizes all prostituted minors as sex}

trafficking victims and forbids criminal or juvenile penalties against such minors in all cases.347 _{Instead, when law enforcement determines}

that a minor in Illinois has been detained for prostitution, the minor is turned over to the child welfare system from temporary protective custody.348 _{The Safe Children Act then mandates that the state}

provide victim services to prostituted minors without subjecting them to the risk of criminal prosecution or adjudication as a delinquent.349