When It Comes to Sex Trafficking, “Mistake of Age” Defenses Put Children at Risk

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Adult men are purchasing children for sex in America every day. The least we can do is stop them from saying they did not know what they were doing using “mistake of age” defenses.

States can pass legislation prohibiting traffickers and buyers from claiming they did not know, or were mistaken, about the age of the child they bought or sold. Such legislation would go a long way towards protecting children, often the most vulnerable members of our society, and decreasing the demand for child sex trafficking.

“Mistake of Age” defenses make prosecuting trafficking related crimes even more difficult than they already are. State and local prosecutors face a multitude of challenges such as a lack of law enforcement education and training in sex trafficking, victim unavailability or lack of cooperation, witness unavailability or lack of cooperation, and ambiguity in the law. After suffering sexual abuse at the hands of adults—oftentimes trusted adults and even family members—these child victims are very often unable or unwilling to testify. They are afraid of their abusers and reliving the events is harrowing and can result in re-victimization. Prosecutors face enormous challenges in meeting their burden of proof to establish that a perpetrator has trafficked a child without also having to rebut evidence that the trafficker or buyer thought the child was an adult. Such a defense serves only to shield traffickers while increasing the burden on prosecutors.

Furthermore, the incentives created by such defenses are contrary to decades of work to combat trafficking and protect children.

For example, in the case of a buyer who is being prosecuted for sex trafficking of a child or for soliciting a minor for prostitution, the way a “mistake of age” defense works is as follows: The buyer would be permitted at trial to present evidence that, although he did indeed pay to have sex with a child, he reasonably believed the child to be an adult. Now why would a state provide such a defense? What are the policy motivations? In short: to protect sex buyers. To make sure that sex buyers are not punished too harshly for buying children for sex if they reasonably made a mistake as to the child’s age. It relieves the buyer of the burden to ensure the person they are purchasing for sex is not a child, or to refrain from the activity altogether rather than take the risk of sexually abusing a child. This, in effect, incentivizes buyers not to ask the age of the person they are purchasing and emboldens them to risk buying sex from minors because they have strong defenses against prosecution available to them.

“Mistake of Age” defenses offend all of the work being done around the country to combat demand to sex trafficking and prioritize adult offenders over child victims in child sex trafficking cases.

The National Center on Sexual exploitation urges every state to pass legislation prohibiting so called “mistake of age” defenses for perpetrators of child sex trafficking and related offenses such as, soliciting a child for prostitution, buying a commercial sex act from a minor, promoting prostitution of a minor, and commercial exploitation of a minor. Our Law Center has a model statute that is almost ready to bring to your legislature. Please join us in advocating for victims, ending demand, and eradicating sexual exploitation.

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The Numbers

300+

NCOSE leads the Coalition to End Sexual Exploitation with over 300 member organizations.

100+

The National Center on Sexual Exploitation has had over 100 policy victories since 2010. Each victory promotes human dignity above exploitation.

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NCOSE’s activism campaigns and victories have made headlines around the globe. Averaging 93 mentions per week by media outlets and shows such as Today, CNN, The New York Times, BBC News, USA Today, Fox News and more.

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