September-October 2010

Tricks are for kids! How In the Matter of B.W. exempted 13-year-olds from the prostitution statute

David C. Newell

Assistant District Attorney in Harris County

A wise man1 summed up for me the recent Texas Supreme Court decision reversing a prostitution case against a 13-year-old juvenile thusly, “I never in a million years thought a court would hold that a 13-year-old kid can fellate someone for 20 bucks.” Obviously this is a bit of an oversimplification, but it does highlight the difficult decision the Texas Supreme Court faced when deciding In the Matter of B.W. How can a child commit the offense of prostitution if the child cannot legally consent to sex with an adult? Any answer to that riddle would necessarily be problematic, but arguably the decision the Texas Supreme Court arrived at leaves more questions than answers.

    The case began when B.W. waved over an undercover police officer driving by in an unmarked car. She offered to engage in oral sex with him for $20. The officer agreed and arrested the girl when she got in his car. She was originally charged with prostitution in criminal court because everyone thought she was 19. However, a background check revealed she was only 13, and the case was refiled in juvenile court. The girl pleaded true that she had engaged in delinquent conduct and the court placed her on probation for 18 months. In a motion for new trial, she argued that she could not engage in delinquent conduct by committing the offense of prostitution because a child cannot legally consent to sex with an adult. The court of appeals affirmed the adjudication.2

        The Texas Supreme Court disagreed and reversed.3 Writing for a six-judge majority, Justice O’Neill initially noted that the Penal Code containing the prohibition against prostitution does not generally apply to juveniles under age 17. Instead, the Family Code establishes that juvenile justice courts have jurisdiction in all cases involving “delinquent conduct,” which includes violating a penal law of the state punishable by confinement in jail. Because prostitution is punishable by confinement in jail, it amounts to delinquent conduct.

    B.W. argued that she could not “knowingly agree” to commit prostitution because children under 14 cannot legally consent to sex. She based this argument on §22.021 of the Penal Code, the aggravated sexual assault statute that makes it a crime to cause a child under 14 to engage in sexual intercourse. The majority found this argument very persuasive and noted that the principle that a child cannot legally consent to sex “is of longstanding origin and derives from common law.” According to the court, Texas took this rationale and incorporated it into the Penal Code, giving defendants an affirmative defense if certain facts are shown and the child is between 14 and 17 but taking that defense away if the child is under 14.4

    From there the court goes on to glean the legislature’s intent based upon the number of different statutes providing protection against the sexual exploitation of children. For example, the legislature has made it a more serious crime to pimp out a child than an adult.5 Additionally, the court notes other statutes that levy harsher criminal penalties for crimes against children, such as aggravated sexual assault and human trafficking. This serves a dual purpose in the opinion: First, it demonstrates the court’s view that the overall goal of the legislature is to prevent the exploitation of children given the legislature’s recognition of their special vulnerability. Second, it feeds into the court’s later argument that the State still has available avenues to prosecute the exploiters of children even if it cannot “prosecute” the child prostitute.6

    More problematically, the court also went on to note children’s lack of experience and mental capacity as justification for its position that children cannot knowingly consent to sex. The court relied upon a number of out-of-state decisions to support this conclusion, as well as its own decisions holding that children cannot enter into contracts and statutes noting the prohibition on child marriages. The court also relied upon the United States Supreme Court decision in Roper v. Simmons which held that a juvenile younger than 18 cannot be given the death penalty, in part because his lack of maturity and responsibility makes his conduct less morally reprehensible.7 Indeed, the court repeatedly referred to Roper for the proposition that minors have a reduced mental capacity as compared to adults.8 What makes this argument problematic is that the court’s rationale could be stretched to invalidate a juvenile’s violation of any provision of the Penal Code, not just prostitution. Unlike Roper, which used the juvenile respondent’s age to diminish the degree of punishment, the court in this case used the juvenile respondent’s age to diminish the child’s ability to formulate a culpable mental state, thereby absolving the child of any culpability. By interpreting Roper in this manner and combining it with generalizations about child victimization to divine the legislature’s intent, the court may have crafted an opinion with some interesting and unintended consequences.

    For example, did the legislature really draw the line at 14? Under the court’s reasoning, the legislature’s statutory limitation of consent demonstrates its position that a child of that age cannot consent to sex. Well, the legislature also crafted an affirmative defense to sexual assault that prohibits children between the age of 14 and 17 from consenting to sex with someone who is more than three years older than they are. Does the legislature’s limitation of the child’s ability to consent in that circumstance also suggest that the child lacks the mental capacity to knowingly consent to sex with someone more than three years older than the child? Remember, the juvenile respondent in Roper was a 17-year-old, so presumably the court that relies upon this case repeatedly would have to acknowledge that kids over 14 can also have maturity and responsibility issues. Thus, the court’s linking of a limitation on the ability to consent to sexual assault with the requisite culpable mental state of prostitution creates the potential to exempt various categories of individuals from criminal culpability.9

    And does this rationale apply equally to prostitution through solicitation? After all, B.W. was charged with “agreeing” to engage in sexual conduct for a fee. The court held that she was legally incapable of knowingly agreeing because she could not legally consent to sex. But what if the State had alleged B.W. engaged in delinquent conduct through solicitation of her services as a prostitute presumably without ever proving that there was a meeting of the minds?10 In fact, the majority even notes this distinction between prostitution by agreement and solicitation of prostitution when it attempts to rebut the dissent’s argument that the inability of the juvenile to agree to engage in prostitution makes it impossible for the State to prosecute the adult male for prostitution (because the intercourse would not have been consensual). According to the majority, “section 43.02 expressly allows for the prosecution of a person who ‘solicits another in a public place to engage with him in sexual conduct for hire,’ regardless of the solicitee’s consent.” So if there’s no need for “knowing consent” under a solicitation theory, why does the juvenile’s legal inability to consent to sex matter at all? Doubtless the court would hold that child prostitution under any theory would be legally barred when the juvenile respondent is under 14, but it would be hard pressed to do so while remaining consistent with the rationale set out in this opinion.

    This opinion may also have ramifications beyond the offense of prostitution. If juveniles’ legal inability to consent to sex prevents them from forming the requisite culpable mental state for prostitution, it may also prevent them from forming the requisite culpable mental state for aggravated sexual assault. There also may be some precedent for that position from the Texas Court of Criminal Appeals. In Lawhorn v. State, the CCA explained the difference between legal and factual impossibility. One of the examples the court gives to illustrate an example of legal impossibility is “attempt of a minor to commit rape.”11 Admittedly, the Court of Criminal Appeals got this example out of a treatise and only uses it as an example in dicta, but the case might make it a little harder to argue that extending the holding of In the Matter of B.W. to aggravated sexual assault leads to absurd results, particularly if the juvenile respondent comes from the same type of abusive background that B.W. did.

    But perhaps the court can draw a distinction between the requisite mental state for aggravated sexual assault and prostitution. After all, according to the court’s view, prostitution contemplates some form of agreement between both participants, but the aggravated sexual assault statute does not require a “knowing agreement,” only that the actor knowingly cause the intercourse.12 Not surprisingly, the statute does not consider the defendant’s ability to consent to his own conduct. Moreover, the juvenile respondent who commits aggravated sexual assault is less a victim of his own exploitation than a juvenile respondent who engages in prostitution. This may be a fragile distinction to be sure, but perhaps in a particularly egregious case it may garner some consideration.

    Both the majority and the dissent noted B.W.’s history of physical and sexual abuse along with her troubled childhood in and out of CPS placements. These references to B.W.’s history point to something larger in the opinion that deserves mentioning. The policy considerations at work in cases involving the exploitation of children are significant. In 2001 it was estimated that 293,000 American youth are currently at risk of becoming victims of commercial sexual exploitation.13 These children tend to be runaways or thrown-away youth who live on the street who generally come from homes where they have been abused or from families who abandoned them.14 Once these children become involved in prostitution, they are often forced to travel far from their homes, further isolating them from their friends and family and making it difficult to develop new relationships with peers or adults other than the person victimizing them.15 Their lives often revolve around violence, forced drug use, and constant threats.16 The average age on entry into prostitution is from 12 to 14.17 It is not for nothing that the majority writes that “children are the victims, not the perpetrators, of child prostitution.”18 The desire to protect and not punish the children caught up in such a nightmare existence is certainly sincere and deserving of respect. (See the cover story in this issue for a related article on human trafficking.)

    But while the Texas Supreme Court certainly approached this very serious subject with the best of intentions, the court’s concern that the juvenile avoid the “stigma” of a juvenile adjudication may have made it the perfect enemy of the good. A juvenile adjudication is not a conviction of a crime; it imposes no civil disability nor does it prevent a child from any civil service application or appointment.19 Additionally, an adjudication of delinquent conduct based upon the misdemeanor offense of prostitution can be sealed by the trial court two years after discharge of the probation.20 Surely this blemish on the juvenile’s record is not significantly worse than the life-long scars the child undoubtedly receives actually living some portion of his or her life as a prostitute. Yet, to spare B.W. the stigma of a juvenile adjudication, the court has crafted an opinion that seems to place the sole job of rehabilitation for these types of juvenile respondents upon CPS. Tragically, it did so in a case where CPS had already demonstrated an inability to prevent the child from becoming a child prostitute. And, as my wise friend pointed out, the court also somehow turned the inability of a child to legally consent to sex into a pass (for the child at least) to engage in sexual conduct with an adult for money.

    And that is no small trick.


1 OK, it was Dan McCory, the dude who handled the appeal.
2 In the Matter of B.W., 274 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2008, writ granted)
3 In the Matter of B.W., ___ S.W.3d ___; 2010 WL 2431630 (Tex. 2010).
4 Compare Tex. Penal Code §22.011(e)(2) with Tex. Penal Code §22.021(2)(B).
5 Compare Tex. Penal Code 43.03(b) (promotion of prostitution is a class A misdemeanor) with Tex. Penal Code §43.05(b) (compelling a child to commit prostitution is a second degree felony).
6 The court repeatedly refers to the “prosecution” of juveniles implying that the court regards the juvenile adjudication as more of a “criminal” proceeding than a “quasi-criminal” one. And while the court does note that the purpose of placing jurisdiction with civil courts is to “provide for the care, the protection, and the wholesome moral, mental and physical development of children,” it appears to have more confidence in the rehabilitative aspects of CPS custody than those found in the juvenile justice system. Compare Tex. Fam. Code. §51.01(3) with Tex. Fam. Code §51.01(2)(C). This is ironic, of course, given that B.W. had run away from her third CPS placement when she became a prostitute.
7 Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005).
8 Surprisingly, they did not cite to Bill Cosby’s experiences with his own “brain-damaged children.” Bill Cosby: Himself, 20th Century Fox, 1983.
9 Indeed, the legislature has also said that sexual assault of elderly or disabled individuals deserves more severe punishment. Tex. Penal Code  §22.021(2)(C) (Vernon 2003). Does this mean Betty White or Abe Vigoda can have a second career in the world’s oldest profession?
10 Compare Tex. Penal Code §43.02(a)(1) with Tex. Penal Code §43.02(a)(2).
11 Lawhorn v. State, 898 S.W.2d 886, 891 (Tex. Crim. App. 1995).
12 Tex. Penal Code §43.02(a)(1); Tex. Penal Code §22.021(a)(1)(B).
13 Richard J. Estes and Neil Alan Weiner, Commercial Sexual Exploitation of Children in the U.S, Canada and Mexico, University of Pennsylvania, Executive Summary at 11-12 (2001).
14 Id.
15 Francis T. Miko & Grace Park, Trafficking in Women and Children: The U.S. and International Response, at 7 (2003)
16 Id.
17 Estes and Neil Alan Weiner, Commercial Sexual Exploitation of Children in the U.S, Canada and Mexico, University of Pennsylvania, Executive Summary at 11-13 (2001)
18 In the Matter of B.W., slip op. at 7.
19 Tex. Fam. Code §51.13(a).
20 Tex. Fam. Code §58.003(a).