As more Oakland youth join the sex trade, law enforcement explores alternatives to incarceration

Sex trafficking of minors is big business in Oakland, and according to Lieutenant Kevin Wiley, Commander of the Oakland Police Department’s Child Exploitation Unit, it’s a business that is only getting bigger. “The marketing of sex — especially children — is basically replacing the drug market,” he wrote in a recent email.

Oakland has an unfortunate reputation for being a major hub for underage sex trafficking, Wiley said, a dubious claim to fame rivaled only by Atlanta, Georgia.Wiley was one of two police officers who started the OPD’s Child Exploitation Unit in 1999. In 2009, the unit made a total of 640 arrests—mostly for solicitation, or offering sex for money—and 71 of the people arrested were minors. That’s up from 318 total arrests in 2008, 24 of them of minors.

As the number of teenage sex workers in Oakland rises, law enforcement and legal agencies are struggling to find the best way to deal with this problem. Even figuring out what to call the youngest women engaged in Oakland’s sex trade is problematic: to some, the label “prostitute” is a misnomer because of the likelihood that the people involved are minors coerced into the sex trade by adults. The word “prostitute,” said Sharmin Bock, Alameda County Deputy District Attorney, “implies a willingness and a consent that isn’t legally sustainable: You can’t consent to sex if you’re under 18.” According to the 2009 National Report on Domestic Minor Sex Trafficking, the average age of entry into prostitution and pornography in the United States is 12 to 14 years old.

Three of the advocacy groups shaping the local debate about how to best aid young sex workers are the Alameda County District Attorney’s Office, the Oakland Police Department, and MISSSEY, an Oakland-based nonprofit that provides counseling and advocacy for sexually-exploited youth. All three agencies agree on one thing: Young people working in the sex trade are not criminals, they are victims of human trafficking and sexual exploitation. What the groups don’t seem to agree on is the best way to help them.

According to Wiley, the OPD’s current protocol for dealing with underage solicitation offenders is to arrest and temporarily incarcerate them in an effort to temporarily separate them from their pimps and offer them social services. The police department collaborates with Bay Area Women Against Rape (BAWAR) to provide the young women with an advocate during interrogation. Then, says Wiley, “Most are sent to Juvenile Hall as a protective measure, since it is our experience these victims run back to their pimps, or at least back to the streets or the ‘game.’”

Once in Juvenile Hall, BAWAR will often refer the young women on to another partner, such as MISSSEY, for ongoing advocacy and support. If the teenager is willing to cooperate, she may be able to initiate an investigation against her pimp, Wiley said, but he pointed out that young sex workers often do not want to cooperate because “they basically come out brainwashed” to protect their pimps.

There are those, however, who feel that arresting and incarcerating young offenders is counterproductive. Nola Brantley, executive director of MISSSEY — which stands for Motivating, Inspiring, Supporting and Serving Sexually Exploited Youth — argues that arresting the offenders treats them as criminals, not victims. “They legally meet the criteria not only for human trafficking victims, but the most severe form of human trafficking because its perpetrated against a child,” Brantley said, and then paused.  “But we arrest them.”

Brantley advocates skipping the arrest and incarceration, instead sending young women to a safe house to receive support services. However, some law enforcement and legal experts dismiss this idea as legally problematic and less effective at keeping girls away from the influence of their pimps. They believe that although it’s not ideal, sometimes incarceration is the surest way to keep a child safe.

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Nobody knows exactly how many minors are working as sex traders in the United States. Ernie Allen, president of the National Center for Missing and Exploited Children, was quoted in the 2009 National Report on Domestic Minor Sex Trafficking as saying, “The best estimates, the best data, suggests that we at least have 100,000 American kids a year [who] are the victims of the practice of child prostitution; that number ranges as high as 300,000. “

In 2000, Congress passed the Trafficking Victim Protection Act, which defines minors involved with commercial sex acts as victims.  The law’s passage reflected an increasing awareness that many of the youth involved with sex trafficking come from dysfunctional families where there has been prior abuse or trauma, and whose lives have already been touched by the legal system and other government bureaucracies. Ten years ago, said Wiley, he worked on a project interviewing 105 young girls involved in Oakland prostitution and found that each had been sexually abused before escaping to the streets. “Every single one of them had been victims of sexual assault at the hands of someone they trusted: mom’s boyfriend, their own biological parent, uncle,” Wiley said.

Brantley sees evidence of the hard lives these young people have led every day. “We’re talking about heavily system-involved kids,” she said. Brantley said that approximately 90 percent of the youth she works with are either in the foster care or probation systems. These, she said, are “children who’ve already been a part of the public system, that have already had systems and institutions and families fail them.“

Brantley said that the girls’ youth combined with their unstable home lives adds to their vulnerability. Most girls are introduced to prostitution through boyfriends who later become their pimps, she said, and many girls stay involved with them because the pimps are often the people who care the most for them. “[Pimps] don’t just grab a girl, they go through a relationship-building technique,” Brantley said. She identifies a five-stage process—recruitment, seduction, isolation, coercion and violence—that reels girls in and keeps them there. “It’s through those stages that a girl is turned out. It’s not that he just meets her and says, ‘Hey, I’m going to sexually exploit you,’” Brantley said.

Alameda County Deputy District Attorney Sharmin Bock prosecutes sex trafficking cases, and she sees the emotional power pimps often have over their victims. “For some girls, it might be their first love, or even their second love, but they think it’s love,” she said.

Experts say that once a young woman becomes involved in sex trafficking, it’s even harder for her to get out. “We know today that coercion into prostitution is often psychological,” said Dr. Melissa Farley, a research and clinical psychologist with Prostitution and Research Education, a nonprofit human trafficking abolitionist organization based in San Francisco.

Farley spoke in February as part of a human trafficking legislative panel held in San Francisco’s State Building. “Prostitution is not a choice,” she explained to the hushed audience crowding the auditorium. Farley said the conditions that make it possible for a woman to give her genuine consent for sexual activity—physical safety, a power balance between partners, the woman having real alternatives to prostitution—are not present in most cases.

According to Farley, only 2 percent of prostitutes make up the “sexually exploited elite”—women who service men for a lot of money for a brief period and then get out of the sex trade. “These are women who are usually privileged by race or class or education and they usually have options for escape when they’re ready to get out,” she said. Farley said that 38 percent of prostitutes are women who temporarilyneed the money, and they turn to selling themselves as a survival mechanism or to get through an emergency situation, such as losing a job or escaping a violent spouse. The remaining 60 percent are the poorest sex workers, many having been physically coerced into prostitution.

Farley described the desperate situations of some victims, including one woman who told herthat every trick she turned “kept her one man away from homelessness.” Farley paused. “That’s not a choice,” she said.

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Despite the Trafficking Victim Protection Act’s presence on the law books for nearly a decade, in 2009 the National Report on Domestic Minor Sex Trafficking found that juveniles are still often arrested on prostitution or prostitution-related charges. The report also states that minors charged with these crimes face harsher sentences than juveniles arrested on other misdemeanors.

“Traditionally, for most law enforcement, prostitution is a criminal activity where the people engaging in it are [considered] criminals,” said Wiley. But at the Oakland Police Department, he said, things have changed over the last few years. “We’ve really looked at this with a different set of eyes, that this is a victimization,” Wiley said. “It has changed from the old days of just ‘Hook em up, lock em up, don’t look back,’ to ‘Hey, we may have a victim here.’”

Wiley says his unit operates differently than similar units in other cities. “For juveniles, there’s an entire triaging process,” he said. A 24-hour staffed receiving desk—the only one in the county, he adds—allows for an immediate background check on each youth arrested. Their records are screened for previous arrests, if they’ve been reported missing, and whether a probation or case manager has previously been assigned to them. The girls are interviewed by trained investigators who, according to Wiley, “do this quite often, and can usually distinguish between the legit and the bullshit,” such as when young sex workers lie to protect their pimps.

According to Ursula Dickson, an Alameda County deputy district attorney who works in the juvenile department, although investigators in Oakland can link the young women up with support services outside of the juvenile justice system, including help from MISSSEY or the West Coast Children’s Center, after their arrest most often the girls are sent to Juvenile Hall, where they are immediately paired with an advocate. Probation officials determine how to process the case: Close it and refer the girls onto support services, or refer it to the District Attorney’s Office to determine if it warrants charging. Dickson said that although the probation department has the option to drop the case, “The young women we’re dealing with, that’s probably not a good idea for these types of cases.”

If the case is referred to the district attorney, the DA’s office has 48 hours while the juvenile is in custody to look at the police report to determine if the case will be charged, otherwise known as “filing a petition.” A probation officer is assigned to investigate the circumstances of the case and the minor’s background.  Once charged, the offender must attend a detention hearing, where the court determines if it is safe for the community and for the juvenile for them to be released, and under what circumstances—for example, the minor may be released but required to wear a GPS unit.

If the young sex worker admits to the charge, which Dickson said is often the case, the court may decide to keep her in custody until her sentencing hearing two weeks later. The charges the young women in this population face are typically for misdemeanors such as disturbing the peace, for which the maximum penalty is 90 days in Juvenile Hall. Dickson said these charges do not follow the young women onto their adult records after they turn 18.

During their time in Juvenile Hall, the women are offered social services from groups like MISSSEY. Dickson points out that the goal of the juvenile justice system is rehabilitation, not necessarily punishment. “The purpose is to get the least restrictive environment to get them the services they need to be rehabilitated,” she said.

Some say that short-term incarceration is a necessary stopgap measure. “Oftentimes [Juvenile Hall] is the one we have to go to because it protects the girls from themselves,” Wiley said. If they are not detained, the girls will often go right back to their pimps, he said.

But some advocates are pushing for an alternative to incarceration, and the Alameda County District Attorney’s Office is developing a new diversion program. In September 2008, Governor Schwarzenegger authorized AB 499, which allowed the Alameda County District Attorney’s Office to create a pilot program to divert sexually exploited youth away from incarceration and into support services. Deputy DA Ursula Dickson is working with other county offices—including police agencies, social services, the probation department, child welfare, and public defenders—to create a program that she says would prevent sexually exploited minors from automatically being sent to Juvenile Hall, and instead enroll them in counseling and support services.

According to Dickson, arrested minors brought to Juvenile Hall who qualify for the program would instead be released to foster care, group homes or their parents’ homes. The diversion program would require the teens to report for classroom instruction for two days a week for twelve weeks. “The program would address the different parts of their victimization,” Dickson said, with curriculum on therapeutic topics like coping with past trauma, or how to have healthy dating relationships. Classes would be provided by groups like MISSSEY or the probation department. Dickson explained that counselors would be on hand “to ensure they focus on the trauma and the issues they will face when they get out of the lifestyle.”

Not all girls arrested for solicitation will qualify for the diversion program, Dickson said. Girls who have had multiple arrests and who have been sex workers for many years will most likely remain in Juvenile Hall for longer periods of time, but they will still be referred to programs such as MISSSEY to receive support services.

The reason for this bifurcated approach, Dickson said, is that it is not uncommon for more experienced girls to be sent by their pimps to recruit girls with less experience from group homes or foster care. A program that mixed girls of different experience levels could backfire, she said. “For lack of a better word, we don’t want this to become a recruiting grounds,” she said.

Dickson said the DA’s office hopes to have the pilot program in place by fall 2010, and that if it is successful, they hope to set up diversion programs for girls at each level of involvement in the sex trade. She says the program is not intended to be one-size-fits-all. “You have to take each child as they come to you,” she said.

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But some advocates like Brantley of MISSSEY object to this type of diversion program on principle, because it still exposes young sex workers to the juvenile justice system—the diversion program and support services don’t kick in until after a girl has been arrested and brought to Juvenile Hall. Brantley believes that arresting young sex workers treats them as criminals, not as victims. “Do you arrest the child being sexually abused by her soccer coach?” she said.

Brantley says that even with a diversion program, eventually young women will return to a community where violence and prostitution are prevalent. “The conditions that created the vulnerabilities still exist,” she said. “They’re not having their basic needs met.” Brantley said it essentially becomes a revolving door: arrest, detention, back on the street, repeat.

Brantley believes a better solution would be for the county to fund a safe house designed specifically to provide health and social services to sexually exploited children. Being able to transport young sex workers to a safe house would also give law enforcement an alternative to arresting and incarcerating young offenders, she said.

Brantley said that a safe house is also necessary in order to protect girls who cooperate with law enforcement by testifying against their traffickers. She said that many of the girls came from the same communities as their pimps, and may be in danger if they testify against them. “If we’re asking victims to participate in law enforcement efforts and to testify, how do we protect them?” Brantley said.

But it’s not that simple, says Sharmin Bock. According to her, a secure safe house was originally part of AB 499. However, the concept of keeping minors in a locked safe house has raised its own legal concerns, particularly with the American Civil Liberties Union, which argued that a locked safe house would be a form of forced detention. “You cannot constitutionally detain someone in our society without findings,” Bock said. On the other hand, she said, without a locked facility, what is to stop the girls from going back to their pimps?

Dickson said organizers at the Interagency Children’s Policy Council of Alameda County (ICPC) are still involved in looking for potential locations for an unlocked safe house, but funding issues are making it difficult. She said the council is trying to find a location far from Oakland — far enough to be kept hidden from pimps, and to discourage the girls from leaving the unlocked building.

But some say that sending young sex workers to an unlocked safe house will undermine the legal system’s ability to encourage completion of social service and diversion programs. The benefit of bringing the girls into custody and through the juvenile justice system, said Dickson, is that it gives the girls an incentive to complete the diversion program instead of going back to their pimps. “Of course you try to engage them, “ she said, but without custody, “How does one make her stay? She could go and there would be nothing we could do.”

“The one thing that we have with a diversion program when they come into the juvenile justice center is at least that you can say, ‘You have to do this, this is going to be part of getting rid of this case. We’re trying to divert you away from the juvenile justice system but to do that you have to go through these steps,’” Dickson said, adding that there would be no other way to legally require the girls to get help.  “Everything else would be voluntary,” she said. Since some young sex workers may not see themselves as victims in the first place, voluntary participation in a diversion program would be unlikely, she said.

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Law enforcement, the district attorney’s office and advocates at MISSSEY all agree that part of the solution to halting the growth of juvenile prostitution lies in focusing prosecution on pimps, not the girls, and encouraging community awareness of the issue.

Part of the problem, said Wiley, is that for pimps, it is currently easier and less risky to sell human beings than it is to traffic in drugs or other contraband. For one thing, he said, the supply of easily exploitable girls — runaways, kids from low-income families or abusive situations — is unlimited, whereas drugs first have to be produced and then navigated through various obstacles to bring them to the streets.

There’s also less risk of arrest. For a pimp to be arrested, Wiley said, he would have to be caught in the act, whereas if someone gets caught with drugs, they go to jail. Wiley said it was rare to see a pimp out directing his girls, which makes the girls themselves easier to arrest. Moreover, he said, “Most of these girls have been so conditioned, they’re not going to roll over on their pimp” and turn him in.

Ultimately, said Wiley, “Where there is money to be made and little, if any, risk of arrest, the bad guys will go.”

As a result, county and state officials are currently introducing a crop of innovative programs and laws to target—and prosecute—traffickers while protecting their victims.  In October, 2009, Alameda County District Attorney Nancy O’Malley and California Assemblymember Sandre Swanson (D-Alameda) celebrated the signing into law of the state Human Trafficking Accountability Act, which Swanson wrote. The law strengthened the penalties for traffickers, raising the fine from $5,000 to $20,000 per count, and it dedicated half of these penalty funds to support programs that serve sexually exploited minors.

Bock said the DA’s office has recently proposed additional state legislation, AB 2319, that will clearly include coercion into prostitution as a trafficking crime. She said that current state law does not state that coercion itself constitutes human trafficking, and that doing so will more clearly define what is punishable under the umbrella of sex trafficking. “This law will clarify that force, fear and coercion are a substantial deprivation of liberty when a minor is induced or encouraged to perform commercial sex with an adult,” she said.

Meanwhile, Californians Against Slavery (CAS), an all-volunteer nonprofit based in Fremont, is collecting signatures to get an initiative on the November 2010 ballot that would increase jail time for traffickers. According to the CAS website, the current penalties for traffickers are less than those served by convicted rapists — three to eight years. “It is atrocious that someone can be convicted and walk after three to four years,” said Cate Kuhne, the group’s acting regional director for Northern California. “It was imperative that the penalties be increased. That is the most important thing in this initiative.”

The initiative would also mandate that law enforcement officers must be trained in how to handle human trafficking cases. According to Kuhne, past assembly bills have outlined training for law enforcement, but there’s nothing in place that says departments have to do it. The initiative proposes a mandatory two-hour training block for all members of law enforcement assigned to field or investigative duties. Californians Against Slavery hopes to get one million signatures by March 31 in order for the initiative to be included on the November ballot.

Meanwhile, in February, the Alameda County District Attorney’s Office unveiled a program designed to raise community awareness about sex trafficking and encourage the community’s cooperation in stopping it. The program is called “H.E.A.T. Watch” — H.E.A.T. stands for Human Exploitation and Trafficking. The program’s goal is to get the community involved in preventing human trafficking, coordinate law enforcement activities and intelligence, and to educate elected officials and policy makers on the prevalence of human trafficking.

Bock heads up the H.E.A.T. unit in the District Attorney’s office. “It’s modeled on the neighborhood watch program,” she said. “It engages community businesses, schools, and faith-based organizations to be the eyes and ears of the neighborhood.” Bock said members of the H.E.A.T unit staff have been handing out flyers to hotels and motels to engage them in the fight to stop human trafficking by reporting suspicious behavior. “Many don’t report what is happening because they fear ramifications from that,” Bock said. “It’s important to let them know they are a partner and not a target.”

H.E.A.T. Watch is also establishing a standardized training curriculum for law enforcement officers, designed to help facilitate interagency sharing of information and allow for a more coordinated effort of enforcement operations. “Human trafficking knows no borders,” Bock said. “But we need to work with other jurisdictions, because these girls are being crossed against state lines.” She said there is a common misconception that human trafficking only occurs when girls are kidnapped and sold into sex slavery in other countries. “It’s not just an international problem, and it’s no less serious domestically,” she said.

Other legislators are now looking to Alameda County’s efforts to stop the sexual exploitation of minors as an example. Ursula Dickson has received multiple calls from state assembly members asking about the county’s diversion program and other steps the county is taking to combat human trafficking. “The more people that want to get involved and the more legislators that want to do something for their specific area, is great,” Dickson said.  “We can talk about it all day, but now we have the [lawmakers] who are saying, ‘Let’s do it.’”

Image: Nola Brantley, right, talks with some of her MISSSEY staff members at the Safe Place Alternative, or SPA, at the Alameda County Family Justice Center. The SPA is a drop-in transition and recovery center for sexually exploited children in Oakland.