By Susan Crile | 61 Am. U. L. Rev. 1783 (2012)
The doctrine of federal preemption provides a framework for resolving the tension between the treatment of prostituted minors under federal sex trafficking law and criminal prostitution laws in many states. Federal preemption doctrine holds that state laws are preempted if they conflict with a federal law by frustrating its purpose. The federal Trafficking Victims Protection Act (TVPA) defines individuals under age eighteen who engage in commercial sex as per se victims of severe sex trafficking. The TVPA seeks to protect these individuals by treating them as victims and providing them with services. Many states, on the other hand, define prostitution without regard to age and enforce criminal prohibitions against the same category of minors that the federal law seeks to protect.
This Comment argues that states’ enforcement of criminal prostitution laws against minors frustrates the TVPA’s purposes with regard to prostituted minors by (1) treating prostituted minors as offenders, rather than victims, (2) contributing to misidentification of victims, and (3) discouraging prostituted minors from cooperating with law enforcement, thereby impeding federal efforts to investigate and prosecute trafficking. This Comment concludes that the TVPA preempts states’ enforcement of criminal prostitution laws against minors.