13-Year-Old Can't Be A Prostitute Because She Can't Consent To Sex, Attorneys Argue

The Texas Supreme Court is scheduled to hear arguments in a case involving the Harris County District Attorney’s prosecution of a 13-year-old girl for prostitution. Attorneys for the girl, called “B.W.” in the proceedings, say that, because a minor cannot consent to sex, B.W. should not have been charged with prostitution. But to better understand this case, we need to back up and figure out how authorities in Houston sometimes deal with children who are discarded like trash.

In January 2007, B.W. stood on a sidewalk in an undisclosed part of town and waved down a police officer. After a quick exchange through the car window, B.W. offered to give the cop a blowjob for $20. Once she hopped inside, she was arrested for prostitution.

At some point after her processing, authorities figured out that she had been placed with Children’s Protective Services in November 2004, but she had run away in October 2005. She would have been about 11 at the time.

When questioned by a psychologist for the state, B.W. said that after she ran away she moved in with a 32-year-old man she called her “boyfriend.” By the time she was arrested, she had “used a variety of illegal drugs, acquired several sexually transmitted diseases, and had two abortions.” Cops never investigated the “boyfriend.”

Appearing before District Judge John Phillips, B.W. did not deny being a prostitute; she plead “true” to the charge. Technically, she was found to have engaged in “delinquent conduct” and placed in a juvenile lockdown facility for 18 months. At this facility, according to the state, she would be “afforded numerous programs, including individual counseling and the use of an educational specialist, designed to benefit her in all matters of her life.”

In their appeal, B.W.’s lawyers are arguing legislative intent as it applies to the state penal code — specifically, the Juvenile Justivce Code, which “includes a blanket adoption of all penal offenses (except traffic offenses) as ‘delinquent conduct’ for which a child between 10 and 16 years old may be found delinquent…and subjected to punishment.”

Her lawyers, Michael Choyke and Ann Johnson, argue that it’s absurd to believe the Legislature intended this to mean a 13-year-old can be prosecuted for prostitution when lawmakers “otherwise specifically determine that a child of that age is legally incapable of consenting to sex.” This, they say, “leads to the inherently inconsistent result that a child is at the same time both legally capable and legally incapable of consenting to sex.”

But prosecutors say B.W. was charged with agreeing to engage in a sex act — and an agreement does not require legally-effective consent. The state also argues that, because the Juvenile Justice Code allows minors to be charged with prostitution, consent doesn’t even matter. The statute prohibiting prostitution has nothing to do with consensual or non-consensual sex; only engaging in sex — or agreeing to — for a fee.

Prosecutors also argue that charging juveniles like B.W. is the best way the criminal justice system has of protecting them. By getting them off the street and out from under the clutches of their pimps, the state can get them the rehabilitation and counseling they need.

“If juveniles are immune from prosecution for prostitution, pimps would be encouraged to seek out juveniles to act as their prostitutes since there would be no criminal liability for the prostitute herself,” prosecutors argue.

But here’s the thing: B.W. has been prosecuted, as the Harris County District Attorney’s Office says justice and law dictate. And as for her pimp — you know, the 32-year-old guy who was fucking a 13-year-old girl who had two abortions and turned tricks on the street? Whatever happened to that guy? Or maybe it just doesn’t matter.