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Child victim wins in Texas Supreme Court, but obstacles remain for victims of human trafficking

The decision by a majority of the Supreme Court of Texas in the case of In the Matter of B.W. brought good news for victims of human trafficking. In an opinion that was issued on June 18, 2010, six justices agreed that, because children under the age of 14 cannot consent to sex, the Texas Legislature did not intend to permit the prosecution of a 13-year-old child (in this case, B.W.) for prostitution. In spite of this victory, however, we should not forget that many obstacles will continue to separate human-trafficking victims from freedom and recovery.

The website of the Supreme Court of Texas offers a chronology of events in the case of In the Matter of B.W. (case number 08-1044) [ (accessed July 8, 2010)]. By entering the case number on the Opinion Search page [ (accessed July 8, 2010)], we can access the written opinions of the majority and of the three dissenting justices who disagreed with the decision.

We have already discussed the case on twice this year. On February 6th, we looked at the legal issues in the case and the contentions of the parties [“The eyes of human-trafficking victims should be on the Texas Supreme Court” (accessed July 8, 2010)], and on April 7th, we considered how the history of the case fits into a timeline of events that have taken place in the global fight against human trafficking during the lifetime of B.W. [“Texas Supreme Court considers whether child prostitute is offender or victim of human trafficking” (accessed July 8, 2010)]. Those articles contain links to several relevant Texas statutes and to examples of related legislation, resolutions, agreements, reports, etc. from around the nation and the world.

In the first paragraph of the opinion in which five other justices joined, Justice Harriet O’Neill stated the majority’s conclusion that “transforming a child victim of adult sexual exploitation into a juvenile offender was not the Legislature’s intent.” With that conclusion, the Supreme Court of Texas added its support to the growing local, state, national, and international momentum toward the protection of victims of human trafficking.

As we noted in April, the recognition that child prostitutes are victims rather than offenders is consistent with the victim-centered approaches of not only of our national government but also those of the United Nations, the European Union, and the most modern legislation around the world. Indeed, for the Court to decide otherwise would have worsened the embarrassment that the Office of the Harris County District Attorney caused by pursuing the case as far as it did. Two lower courts had already agreed with the decision of the District Attorney’s Office, which insisted up to the end that it had the “prosecutorial discretion” to ignore a possible trafficker, such as B.W.’s 32-year-old “boyfriend,” and to punish children as young as ten years old for committing the offense of prostitution.

The opinions of the majority and the dissent focus largely upon the interpretation or construction of several sections of the Texas Penal Code and Family Code; the majority avoided a decision on the constitutional issue of due process. The dissenting opinion, in particular, could provide guidance for the preparation of future legislation because it reminded legislators of the unfortunate reality that judges often interpret laws in an unpredictable way. See, for example, page 12 of the dissenting opinion, where Justice Wainwright gives a skeptical analysis of the legislation (House Bill 4009) that the 81st Regular Session passed to address the fate of child victims of prostitution like B.W.

Despite the victory in this case, human-trafficking victims in Houston, throughout the United States, and around the world will continue to be at the mercy of the legislators who write laws, the police officers who decide when to enforce those laws, the prosecutors who determine whether to bring traffickers to justice or take the easier route and punish victims, and the judges who determine how the laws should be applied. The history of the case of B.W. also demonstrates that other factors that may influence the fate of victims include the availability and effectiveness of social services, the involvement of nongovernmental organizations and victim advocates, and the efforts of capable and committed attorneys.

B.W. was fortunate, in a way, because somewhere along the line someone identified her as a victim. Countless victims like her go unnoticed. Although the decision in B.W.’s case will not put an end to that tragic reality, the Supreme Court of Texas has led the fight against human trafficking forward one more step toward the protection of victims.



  • Sami 4 years ago

    That this case defies logic is incredibly clear to me. How can such uneducated folks take so long to concur? Thanks for all the great info!

  • 4 years ago

    It is very sad that when money is traded for sex with children society ceases to recognize it is commercial rape. All minors in commercial sex need to be protected. It is naive to think that age of consent to sex it the same as minors being able to consent to commercial sex. Prostituted children are not "enjoying" sex but being subjected to the most horrible exercise of power and control which they have now ability to choose their fate. It is hideous to charge them with crimes and to let the "boyfriend" proceed uninterrupted.

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