Social Services Law § 371(10)

Respondent who is charged with committing acts which, were she an adult, would constitute the crimes of Prostitution, Resisting Arrest, Obstructing Governmental Administration in the Second Degree, and False Personation, has moved pursuant to Family Court Act § 311.4(3) for an order directing the substitution of a petition alleging that she is a Person in Need of Supervision for the petition alleging that she is a juvenile delinquent.

A Queens County Sex crimes attorney said that the juvenile delinquency petition filed by the Presentment Agency alleges that the respondent, offered to engage in sexual conduct with an undercover police officer in exchange for payment, in violation of Penal Law § 230.00. The petition further alleges that respondent resisted arrest by fleeing from police officers who intended to take her into custody for committing the crime of Prostitution, and that she obstructed governmental administration by physically resisting arrest and by refusing to follow the directives of police officers after she had been taken into custody. Assault was not charged.

With respect to the prostitution charge, the supporting deposition of an undercover police officer, states that in the vicinity, “a known prostitution location”, the respondent asked what he want. He replied, in sum and substance, a quickie’, which intended to mean oral sex, and made a hand gesture which indicated oral sex’. The respondent then said, in sum and substance, if he want a blowjob’, which he understood to mean oral sex. He asked the respondent how much for the blowjob and she replied, in sum and substance, fifty dollars’. The respondent then got inside of the vehicle.”

Respondent appeared before the Court with the Law Guardian appointed to represent her for the initial appearance upon the petition. A foster care supervisor employed by a Foundling Hospital, an authorized agency as defined by Social Services Law § 371(10), was also present at the initial appearance. The hospital presently has joint legal guardianship of the respondent along with a Children’s Services as a result of unrelated proceedings terminating the parental rights of respondent’s biological parents, and the Presentment Agency appeared by an Assistant Corporation Counsel.

In requesting that the Court order the respondent detained in a secure setting, the Assistant Corporation Counsel noted that at the time respondent had been arrested for the underlying crime, she was absent without permission from Foundling Hospital’s custody, that she had been regularly absent without permission from the agency or her foster parent, and that her whereabouts had been unknown during that time. According to information provided to the Presentment Agency, in addition to running away, the respondent had been engaging in acts of prostitution since she has been twelve years old, she has a child of her own who had to be removed from her care by the Children’s Services, which had thereafter commenced child protective proceedings against respondent on behalf of the child. The Law Guardian moved for substitution for a PINS petition for the juvenile delinquency petition citing Family Court Act § 311.4(3).

At the conclusion of the hearing, the Court concluded that the Presentment Agency had established probable cause to believe that the respondent committed all three of the charges in the petition. In determining that there was reasonable cause to believe that a crime was committed and that respondent is the person who committed the crime, the Court found that the detective was entitled to rely upon police communications and information transmitted by other police officers who were working on the undercover operation with her. The Court again proceeded to consider respondent’s current custodial status as well as the application to substitute a PINS petition for the juvenile delinquency petition. The Assistant Corporation Counsel informed the Court that respondent had also been arrested for an unrelated act of loitering for the purpose of engaging in prostitution. At the time of that arrest, respondent told the police that she was 18 years old. Respondent was therefore arrested as an adult and she appeared in the Criminal Court prior to being released from custody when an Assistant District Attorney confirmed that respondent was less than 16 years old and could not be charged in any court for the offense of Loitering for the Purpose of Engaging in a Prostitution. In addition, respondent had been “picked up at a pimp’s house” along with another underage female, but she had been released without being charged.

In any proceeding under this article based upon an arrest for an act of prostitution, there is 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. Upon 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. If, however, the respondent is not a victim of a severe form of trafficking as defined by the federal Trafficking Victims Protection Act of 2000, or has been previously found under this article to have committed an offense pursuant to article two hundred thirty of the penal law, or has been previously adjudicated under section seven hundred fifty-two of this chapter and placed with a commissioner of social services pursuant to subdivisions (a) and (b) of section seven hundred fifty-six of this chapter, or expresses a current unwillingness to cooperate with specialized services for sexually exploited youth, continuing with the delinquency proceeding shall be within the court’s discretion. The necessary findings to support the continuation of the delinquency proceeding shall be reduced to writing and made part of the court record. If, subsequent to issuance of a substitution order under this subdivision, the respondent is not in substantial compliance with a lawful order of the court, the court may, in its discretion, substitute a petition alleging that the respondent is a juvenile delinquent for the petition alleging that the respondent is in need of supervision.

Enacted as the “Safe Harbor for Exploited Children Act” in 2008, the legislation created provisions authorizing, inter alia, the substitution of a PINS petition for a juvenile delinquency petition which charges a juvenile with committing an act which would constitute the crime of prostitution as defined by Penal Law § 230.00. The intent of the Act is to “provide support and services to youth who are the victims of sexual exploitation”. In addition to adding subdivision three to Family Court Act § 311.4, the legislation amends article 7 of the Family Court Act and it created Title 8-A of the state Social Services Law which creates an extensive regime of services for children who are “sexually exploited”.

The overwhelming majority of these sexually exploited youth have a history of psychological, physical or sexual abuse as younger children and many have been raised amidst stark poverty and family dysfunction. Currently, the state’s response to this issue has been to prosecute sexually exploited youth as criminals. This response is ineffective as arresting, prosecuting and incarcerating victimized youth serves to re-traumatize them and to increase their feelings of low self-esteem. This only makes the process of recovery more difficult. Appropriate services for sexually exploited youth do not exist in the juvenile justice system and that both federal and international law recognize that sexually exploited youth are the victims of crime and should be treated as such.

Therefore, sexually exploited youth should not be prosecuted under the criminal penal law for acts of prostitution. Instead, services should be created to meet the needs of these youth outside of the justice system. Sexually exploited youth deserve the protection and services of the family court through processes in place for persons in need of supervision, including diversion, crisis intervention, counseling and emergency and long-term housing services.

While respondent has no prior juvenile delinquency or PINS adjudications which would disqualify her from seeking relief under Family Court Act § 311.4(3), the Court has serious doubts as to respondent’s current willingness to accept and cooperate with specialized services for sexually exploited youth. While the statute does not define “specialized services for sexually exploited youth”, Social Services Law § 447-a and § 447-b indicate that such services may include a “short-term safe house” which is “a residential facility operated by an authorized agency including an approved runaway program or a not-for-profit agency with experience in providing services to sexually exploited youth and approved in accordance with the regulations of the office of children and family services that provides emergency shelter, services and care to sexually exploited children including food, shelter, clothing, medical care, counseling and appropriate crisis intervention services”

Finally, a “community-based program” also qualifies as a specialized service for sexually exploited youth. A “community-based program” means “a program operated by a not-for-profit organization that provides services such as street outreach, voluntary drop-in services, peer counseling, family-therapy ad referrals for services such as educational and vocational training and health care”.

Although the respondent is merely 15 1/2 years old, she has suffered deprivation at the hands of her own parents who have previously neglected her and whose parental rights have long been terminated. Notwithstanding the demonstrated inability of her own parents to care for her, the state through its courts and public and private social service agencies have attempted to provide the respondent with stability and the necessities required to become a healthy and well-adjusted adult. However, there is no indication that these efforts have proved successful.

According to the supervisor at the Foundling hospital, respondent has been involved in prostitution since the age of twelve, and attempts to correct this self-destructive and dangerous behavior have failed. Respondent has regularly run away from her foster home for long periods of time when her whereabouts have been unknown to those charged with caring for her. She was arrested for Loitering for the Purpose of Engaging in a Prostitution Offense, found in the home of a known pimp by police along with another underage female, and arrested for Prostitution thereafter.

According to the Foundling hospital, that agency had referred the respondent to the program, which is recognized as highly effective in addressing the needs of young women who are victims of sexual exploitation, but respondent ran from the program. Respondent has now given birth to her own child and despite efforts by social services officials to keep mother and child together, it appears that respondent has been unable or unwilling to properly care for her infant, leading to the removal of the child from respondent’s custody and to the institution of child protective proceedings against her. While respondent did offer to assist the District Attorney’s office in prosecuting her pimp, the extent and usefulness of that assistance is questionable as the respondent ultimately failed to cooperate with the prosecutor and she misled the Assistant District Attorney about her intention to visit with the program for the purpose of reentering their program.

While the Law Guardian argues that her client is currently willing to accept and cooperate with specialized services, that claimed willingness cannot be considered. Rather, giving proper consideration to respondent’s extensive history, her behavioral pattern, her choice to engage in the “street life”, even at the cost of temporarily losing custody of her own infant child, and her demonstrated lack of sound judgment and maturity, the Court finds that it would be unwise and inappropriate to simply substitute a PINS petition at this stage of the juvenile delinquency proceedings. Greater control over respondent’s movement and self-destructive behavior is required at this time, although with the provision of appropriate services in a controlled setting, an outcome other than an adjudication of juvenile delinquency may be appropriate at some later stage of the proceedings.

Accordingly, respondent’s motion for the substitution of a PINS petition for the juvenile delinquency petition is denied at this time for the reasons set forth herein.

Children engaged in sexual behavior should be helped and educated rather than putting them to jail. Here in Stephen Bilkis and Associates, our Queens County Criminal lawyer will help these children not to commit such criminal acts by educating them. We also have our Queens County Sex Crimes attorneys who will prosecute the assailants committing sex abuse to these children.