In a decision fought by the Harris County District Attorney's Office, the Texas Supreme Court ruled last week that a 13-year-old girl who had made an offer to an undercover vice cop could not be charged with prostitution.Makes sense to me. See the rest of Casey's story for the sad details of the case. Bottom line: Should criminal law treat a 13-year old prostitute as a criminal or a victim? The Texas Supreme Court said she's a victim. But how about a 14 or 15 year old prostitute? The high court's logic would allow them to be prosecuted, but what are the costs of ignoring her victim status to focus on criminal prosecution? Indeed, the courts are not alone in rethinking the status of prostitutes. One of the lessons from the Prostitution Diversion Initiative out of Dallas is that even adults in the business often may be categorized as victims as readily as offenders.
Why? Because, the high court ruled, a 13-year-old cannot legally consent to sex. And if you can't consent to having sex, you can't consent to selling it.
The opinion's logic almost bears resemblance to writings over the years from the Law & Economics movement, burnishing the consensual nature of economic exchange to undermine the precepts of criminal law. Because they usually handle civil cases, justices on the Supreme Court of Texas perhaps are more versed in and amenable to Richard Posner-style "Law and Economics" logic, which I've always suspected could unleash a great deal of mischief along these lines if ever applied wholesale toward criminal law and particularly vice crimes.
Interestingly, this case was decided by the SCOT because crimes by juveniles are handled in family court. That takes them out of the jurisdiction of Texas' Court of Criminal Appeals, where it's hard to imagine a majority of judges denuding prosecutorial power so overtly.
See more discussion from the Supreme Court of Texas Blog.