The case of a 13-year- old prostitute has forced the Supreme Court of Texas to consider the manner in which law enforcement and prosecutors should deal with children who may be victims of human trafficking. In the Matter of B.W., a case from Harris County, presents an opportunity for the State of Texas to take a leadership role in the global fight against modern-day slavery. The important question is whether our State will choose to lead that fight forward or backward.
The electronic briefs in case number 08-1044 and the audio and video of the oral argument are currently available online through the website of the Supreme Court of Texas. The 13-year- old prostitute, “B.W.,” is the petitioner; the State of Texas is the respondent. Children at Risk, a nonprofit organization in Houston, has filed a brief as an amicus curiae in the case.
The compelling circumstances of the case show the tragic human side of this legal battle. I particularly direct your attention to the 47:41 mark of the oral argument when Chief Justice Wallace Jefferson asks “Where is B.W. right now?”
The legal issues in the parties’ briefs show how important legislation can be in human-trafficking cases. The issues in the case include whether a 13-year-old child can consent to sex, whether a child so young can be found delinquent for committing the offense of prostitution, and whether due process required the State to investigate whether someone had caused B.W. to work as a prostitute.
The briefs refer to several Texas statutes that existed before the 81st Regular Session of the Texas Legislature in 2009. Those statutes deal with, among other things, sexual assault (Tex. Penal Code § 22.011), aggravated sexual assault (Tex. Penal Code § 22.021), prostitution (Tex. Penal Code § 43.02), compelling prostitution (Tex. Penal Code § 43.05), immunity for accomplice witnesses in prostitution cases (Tex. Penal Code § 43.06), and delinquent conduct (Tex. Fam. Code § 51.03).
The briefs also refer to House Bill 4009 (HB 4009), which the Texas Legislature passed during the 81st Regular Session to address the matter of assistance programs for domestic victims of human trafficking. The State, on one hand, has argued that HB 4009 favors its position [State’s Response to Petitioner’s Brief on the Merits at 5, In the Matter of B.W., Supreme Court of Texas (No. 08-1044)]; the attorneys for B.W., on the other hand, have argued that HB 4009 favors their position (Petitioner’s Reply Brief on the Merits at 4, 8).
The amicus curiae brief of Children at Risk discusses the role of law enforcement in identifying child prostitutes as victims of human trafficking rather than branding them as offenders. Children at Risk argues that, in light of HB 4009, “[t]he intent of our legislature is clear: we must avoid criminalizing victims of human trafficking and instead uphold our responsibility to protect these innocent victims” (Amicus Curiae Brief of Children at Risk in Support of Petitioner’s Petition for Review at xv).
Human trafficking and child prostitution, of course, are not just local or state problems; they are national and global problems. We will move on to examine the plight of B.W. in the broader context of the global fight against human trafficking. That broader context will help us understand how the decision of the Supreme Court of Texas could be a step forward or backward for human-trafficking victims.