An Act Relative to the Commercial Exploitation of People

In November 2011, the Governor signed into law “An Act Relative to the Commercial Exploitation of People.” Mass. St. 2011, c. 178. The law creates a new category of CHINS cases for “sexually exploited children”. Mass. St. 2011, c. 178, §§ 7-9, amending G.L. c. 119, §§ 21, 39K and 39L. It also imposes new requirements on DCF and mandated reporters regarding the reporting of children alleged to be victims of sexual exploitation. Mass. St. 2011, c. 178, §§ 10-12, G.L. c. 119, § 51A.

The goal of this law is to treat minors who are alleged to have engaged in unlawful commercial sexual activity as victims, instead of criminals. It establishes a preference for providing services to these youth through a CRA or care and protection case, instead of subjecting them to delinquency or criminal proceedings. The law raises many questions and concerns. Much will depend upon the actions and decisions of law enforcement, the district attorney’s offices, probation, judges and DCF. One thing is certain: the CAFL attorney assigned to represent the youth in the CRA (or care and protection) proceeding must work in close collaboration with the attorney assigned to represent the client in the delinquency or district court proceeding. If criminal counsel has not yet been assigned, the CAFL attorney should seek out assistance from a criminal attorney or contact CPCS for advice.

A sexually exploited child is a person under the age of 18 who fits one of the following categories:

• Is a victim of the crime of sexual servitude under G.L. c. 265, § 50. This includes commercial sexual activity, an unlawful live or public sexual act, or unlawful pornography. G.L. c. 265, § 50.
• Is the victim of the crime of sex trafficking under 22 U.S.C. § 7105.
• Engages in a sexual act for a fee in violation of G.L. c. 272, § 53A.
• Engages in common night walking or streetwalking in violation of G.L. c. 272, § 53.

“A parent or a police officer” may file an application for a CRA petition. Unlike a runaway or stubborn child petition, this section does not permit a legal guardian to file a petition. Also unlike a runaway or stubborn child petition, it does not specify that the parent filing must have custody.

When a youth is charged with a crime under G.L. c. 272, § 53 or 53A , “there shall be a presumption that a care and protection petition on behalf of such child, or a child requiring assistance petition under section 39E, shall be filed.” It is not clear what import this presumption will have in practice, as only a parent or police officer may file the CRA petition (though any person may file a care and protection petition).

More importantly, the law creates a process for the delinquency or criminal case to be effectively stayed if the youth agrees to participate in services through a CRA or care and protection proceeding. (Since the age limit for this new CRA proceeding is 18, there may be some 17 year olds who are charged with a criminal offense in district court.) If it is prior to arraignment, the judge can indefinitely stay the arraignment and put the case on file. If it is post-arraignment, and if the district attorney agrees, the court can place the youth on pretrial probation. However, the criminal proceeding can only be stayed indefinitely if the court has made a “finding” that the youth is a child requiring assistance or a child in need of care and protection. The court must prepare written findings of fact to support its decision. The court may allow a reasonable delay in the proceedings, including any arraignment, to consider the petition and may appoint a guardian ad litem. If the youth does not “substantially comply” with services the delinquency or criminal case will be reinstated and put back on a trial track.

This process may be beneficial in cases where the youth is already adjudicated a child requiring assistance or a child in need of care and protection before criminal charges are filed. If the youth is willing to participate in recommended services, a delinquency adjudication or criminal conviction may be avoided (along with possible incarceration or commitment to the Department of Youth Services). However, if there is no CRA or C&P adjudication at the time criminal charges are filed, the youth will need to weigh the benefits and risks of the criminal or delinquency case going forward, as well as the benefits and risks of a CRA or care and protection case. It is likely that a delinquency or district court attorney will be assigned first, and she will need to advise her client of the benefits and risks of the youth becoming the subject of a CRA or care and protection proceeding as well as the risks of having the criminal matter proceed. The delinquency attorney may wish to consult with a CAFL lawyer before advising her client. The delinquency attorney also will need to talk to the parent about the ramifications of a CRA or C&P proceeding, including the possibility that the youth (and siblings if it is a C&P case) could be placed in DCF custody. This may be challenging in some cases as the delinquency attorney must advocate for her client without providing legal advice to the parent.

Even if a parent chooses not to file an application for a CRA petition, the police may still file a CRA, or the police, DCF, probation or perhaps even the district attorney’s office, may file a care and protection petition. Indeed, the new law requires a mandated reporter to file a 51A report if they have reasonable cause to believe a child is “suffering physical or emotional injury as a result of … (iv) being a sexually exploited child; or (v) a human trafficking victim [.]” Further, DCF must immediately notify the local police and the district attorney’s office of the report. G.L. c. 119,  § 51B(a) and (k)(3). A multidisciplinary service team convened under G.L. c. 119, § 51D, may recommend that DCF provide particular services, including placement.

For youth willing to participate in services, the law provides that DCF, in collaboration with the Department of Mental Health and other appropriate state agencies, shall provide “appropriate services to a child reasonably believed to be a sexually exploited child in order to safeguard the child’s welfare.” DCF must provide these services to all sexually exploited children regardless of whether they are accessed voluntarily, through a CRA proceeding, or through a referral, which may be made by any person.

The statute defines “appropriate services” as:

[T]he assessment, planning and care provided by a state agency or nongovernmental organization or entity, through congregate care facilities, … emergency residential assessment services, family-based foster care or the community, including food, clothing, medical care, counseling and appropriate crisis intervention services, provided … that such agency, organization or entity has expertise in providing services to
sexually exploited children [.].

Services must be tailored to meet the separate and distinct needs of sexually exploited children according to their gender. Every “sexually exploited child” must be assigned an “advocate”. An advocate is a person who works for DCF or another public or private agency that has been trained to work with sexually exploited children. The advocate must accompany the child to all court appearances and may serve as a liaison between service providers and the court.

The law amends portions of G.L. c. 119 to reflect the shift in responsibility for providing services for commercially sexually exploited children to the child welfare system. Specifically, it amends G.L. c. 119, § 51A to require mandated reporters to file a 51A report if they have reasonable cause to believe that a child is suffering physical or emotional injury as a result of being a sexually exploited child or is otherwise a victim of human trafficking. Additionally, the law requires the Department to immediately report these filings to the district attorney’s office and local law enforcement regardless of whether or not the reported child lives with a parent, guardian, or other caretaker.

The law further amends G.L. c. 119, §51D to define the role and purpose of the multidisciplinary teams servicing sexually exploited children. Specifically, the law requires that the multidisciplinary service team have members who are specifically trained and qualified to assess the needs of this population. In particular, the law suggests that the team at least include a police officer or other person designated by a police chief, an employee of DCF, a representative from the district attorney’s office, a social service provider, and a medical or mental health professional. The law specifies that the purpose of the multidisciplinary team in these cases is to first determine if the child has been sexually exploited or a victim of human trafficking and then to make a recommendation to the Department regarding a plan for specific services which may include placement, mental and medical health needs and other social services.

There are two final noteworthy changes. First, the law creates a new privilege for confidential communications between a human trafficking victim and the victim’s caseworker under G.L. c. 233, § 20M. Second, a victim of human trafficking may bring a civil suit for damages under G.L. c. 260, § 4D.