Prosecuting a 16-year-old girl for prostitution in criminal court would be an "injustice," a Brooklyn judge ruled Friday, describing New York courts as "out of step" for not recognizing that such cases belong in family court.
Judge John Hecht of Kings County Criminal Court said he was dismissing a charge of loitering for the purpose of prostitution against 16-year old Samantha R. "both as an exercise of my interests-of-justice power and in light of the recently enacted Safe Harbour for Exploited Children Act, which I read to express the intent of the legislature that 16- and 17-year olds who are charged with prostitution offenses should be referred to Family Court rather than prosecuted criminally."
Hecht said his reading of that statute "reveal[s] an understanding that the victim of a prostitution offense may be the prostitute herself," and cited a report finding that commercial sexual exploitation affects an estimated 2,500 children in New York each year. That number does not reflect potentially more "hidden" children who do not come forward because they are runaways, homeless, or ashamed or embarrassed to reveal their sexual exploitation, according to the 2007 report, from the New York State Office of Children and Family Services.
Hecht's ruling comes on the heels of a speech by New York Chief Judge Jonathan Lippman, who in September questioned whether the state ought to follow in the steps of 48 other states and the District of Columbia by allowing 16- and 17-year olds charged with non-violent offenses to be prosecuted in family court instead of criminal court.
'OUR LAWS ARE NOT INFLEXIBLE'
In referencing the Safe Harbour Act, a 2010 law that amended the state's Criminal Procedure Law to allow victims of sex trafficking to vacate convictions for prostitution or related loitering charges, Hecht pointed out that the law does not technically prevent 16- and 17-year-olds charged with a prostitution offense from facing criminal liability. However, it does permit sexually exploited children up to 18 years of age to seek Family Court child-welfare services.
Brooklyn prosecutors offered Samantha R. the option of avoiding incarceration by submitting to counseling through the office's Saving Teens at Risk program, Hecht noted. But even so, Hecht wrote, the child-welfare services offered through Family Court would be preferable in cases where the defendant could be considered a "victim" or "exploited child."
Hecht pointed to a July decision in which Judge Richard Weinberg of New York County Criminal Court denied a motion to dismiss a similar case, reasoning that such cases help prosecutors target broader prostitution and trafficking crimes.
But doing so by bringing cases against teenage girls could undermine the public trust, Hecht said.
"I believe that as a result of a dismissal here, the public will be confident that our laws are not inflexible or unduly harsh and that they do not operate in isolation of a growing awareness that, in the appropriate case, the lessened culpability of a 16-year-old vis-a-vis an adult, as well as the recognition that she is exploited if not also victimized, may require that the allegations against her be addressed outside criminal court," Hecht wrote.
Hecht ultimately dismissed the charge and stayed sealing of the case to give prosecutors an opportunity to remove the case to Family Court or seek leave to appeal his ruling.
A spokesman for the Brooklyn District Attorney's office said the appeals bureau is reviewing Hecht's decision.
The Legal Aid Society, which represented Samantha R., was not immediately available for comment.
The case is People v. Samantha R., in the Criminal Court of the City of New York, Kings County, index no. 09255/2011.