Lawmakers consider bills to stop charging minors with prostitution, close sexual assault loophole

Assembly lawmakers heard testimony Thursday on a bill that would prohibit charging children under the age of 18 with prostitution and a bill that would standardize charging health care professionals with second degree sexual assault if they sexually abuse patients under their care.

Under current Wisconsin law, child sex trafficking is categorized and defined as child abuse. Since 2015, this has allowed for the removal of a child from custodians who are trafficking, to be placed in protective custody. Law enforcement is required to refer such cases to child welfare agencies. Despite the current law, children in Wisconsin can still be charged with prostitution. 

AB 48 — co-authored by  Sen. Jesse James (R-Altoona), Rep. Joel Kitchens (R-Sturgeon Bay), Sen. LaTonya Johnson (D-Milwaukee) and Rep. Jill Billings (D-La Crosse) — looks to remedy this by prohibiting prosecution of a person under the age of 18 for acts of prostitution. 

Emily Rush, who spoke in favor of the bill, told the Assembly Criminal Justice and Public Safety committee about her experience being groomed, sexually abused and sex trafficked as a child during the public hearing. She said she didn’t initially know what the bill was meant to do, but after researching it she was surprised this wasn’t something that had already been addressed.  

“I was shocked and a little disheartened to discover that still, 26 years after the first time I was arrested for prostitution, there have been no changes to our broken and failing system,” Rush told the committee. 

Rush said if someone had asked the right questions or tried to connect with her when she was arrested for prostitution or when she went into the juvenile system she thinks the trajectory of her life would have been altered. 

“I’m one of the lucky ones…, [but] I’ll always be labeled as a prostitute and criminal,” Rush said. “When looking for a job, I have to work twice as hard and pray I’m able to at least get an interview, so I can try to sell myself because anybody that looks at my background just blew me off.” 

Rush said she attended the hearing to speak for the other women who have gone through similar situations, but couldn’t be at the hearing.

“Currently, children who are forced into commercial sex trafficking can be prosecuted for the crime of prostitution causing victimization and burdening a child with the criminal record,” co-author Rep. Jill Billings (D-LaCrosse) told the committee. “Sexually exploited children are often vulnerable to criminal charges, incarceration or detention for actions taken while under the emotional and physical control of their traffickers and AB 48 can alleviate the harm caused by criminalizing sexually exploited children by prohibiting the practice of charging minors with prostitution.”

Sex trafficking is something that all 72 of Wisconsin’s counties have reported, yet Wisconsin received an “F” on the state’s annual child and youth sex trafficking report card from Shared Hope International and ranked 33rd overall nationwide. The state remains an outlier among many others including neighbors Illinois, Indiana, Michigan and Minnesota, which are among the 30 states along with Washington D.C. that have already enacted similar “safe harbor” laws. 

Billings pointed to the results other states have seen in implementing this policy.

“By treating children as victims, the adversarial relationship between minors and the legal system intent on prosecuting them erodes.” Billings said. “Instead, it can create a reformative and therapeutic environment in which child victims speak candidly about their traffickers to law enforcement.”“Across the river from my district in Minnesota,” she added, “convictions of sex traffickers have shown a dramatic increase since passing its hallmark safe harbor legislation in 2011.” 

According to a 2017 report titled “Human Trafficking in Minnesota”, convictions for sex trafficking quadrupled in Minnesota in the year following the passage of the state’s safe harbor law. In 2011, eight people were convicted for the crime, compared to 32 convictions in 2012. In 2016, Minnesota recorded 45 convictions. 

Ragen Shapiro, legislative advisor for the Wisconsin Department of Children and Families, said data from the 2019 Law Enforcement Assessment of Sex Trafficking in Wisconsin can show the disconnect in how Wisconsin is doing things. 

According to that report, there were 24 different agencies in 16 Wisconsin counties that reported at least one arrest for prostitution between 2014 and 2018. In the DOJ release survey for the same time period, no sex trafficking cases were reported. 

In the same survey, 58% of police chiefs and sheriff respondents reported that their agencies enforce prostitution laws against juveniles and 25% reported it depends on the circumstances whether they do so.

“This issue occurs in rural, urban and also in tribal communities throughout our state involving both boys and girls across the ages,” Shapiro said. “Youth who experienced sex trafficking are victims and this legislation acknowledges that youth survivors have experienced significant trauma and that they should be provided with this services and support they need instead of being prosecuted.” 

Sen. LaTonya Johnson said she hopes the bill will make it easier for law enforcement and child welfare authorities to convince children that they haven’t done anything wrong and are “in no way responsible for the horrific acts that they were forced to commit by their traffickers.”

The Wisconsin Legislature has considered this policy several times before including in 2017, 2019 and 2021. The bill made progress in 2021 being passed by the Assembly, but it stalled out in the Senate. 

“It wasn’t the Assembly that had the issue. It was the Senate and I apologize,” Johnson told the committee members in response to a question about why the bill wasn’t already law. “We just can’t get it together over there.” 

Some lawmakers have previously raised concerns that the bill would be legalizing prostitution or would encourage sex traffickers to more heavily target minors. Co-authors of the bill assured committee members that neither of these are true.

“Prostitution is illegal and will remain so,” Johnson said. “This bill only prevents our children, our child victims, from being charged with prostitution, while providing them with the opportunities and support they need to access services such as counseling, housing, medical treatment, and other resources needed for them to go on to lead healthy, productive lives as adults.”

Sen. Jesse James reiterated the point and emphasized that even if there are individuals underage that are agreeing, they still need help and not to be criminalized. 

“This is a claim that I’ve heard right here in this building: ‘This is legalizing prostitution for our children. Those under the age of 18 will come up with this fantastic business plan to sell themselves’,” James said. “If these children are doing this willingly, they need help and services provided by CPS as well. There are obviously reasons why these children feel the need to engage in these activities and intervention is necessary.”

Johnson also said the bill will not encourage sex traffickers to seek minor victims because that is already the reality. She cited statistics that the average age of a child when first trafficked is 13 years old and that between 70 and 90% of children already have a history with abuse before they’re trafficked. 

“Children are traffickers’ prime targets,” Johnson said. “The younger the children are, they are considered more clean or more pure, which makes them more attractive to traffickers.”

The bill is supported by an array of organizations including the Badger State Sheriffs’ Association, the Wisconsin Professional Police Association, Disability Rights Wisconsin, State Bar of Wisconsin, Wisconsin Coalition Against Sexual Assault and the City of Milwaukee.

Rep. John Spiros, the chair of the committee, said the Assembly would work to pass the bill and urged supporters of the bill to contact their senators if they want to see the bill passed. 

“I mean, the Assembly has already passed this once and we’ll exec this in a couple weeks and get this passed again,” Spiros said. “It’s not up to me when it gets to the floor, but we’ll do our job.”

Closing a loophole on penalties for doctors who sexually assault a patient

Co-authors Rep. Barbara Dittrich (R-Oconomowoc) and Rep. Lisa Subeck (D-Madison) said AB 129, the second bill heard by the committee on Thursday, would fix a technical mistake in current law. 

The bill would ensure all health care providers, regardless of where they practice, face the same consequences if they sexually assault patients under their care.

“This bill and its accompanying substitute amendment raises every health care provider to the same level of criminal responsibility should they sexually assault the patient or engage in unwanted, nonconsensual sexual activity or contact, regardless of where it occurs,” Dittrich told the committee. “Additionally, if they’re convicted under this bill, they would have to register as a sex offender.” 

Subeck explained that the bill is a response to a case on the west side of Madison that happened in 2016. A now-retired UW doctor, who sexually assaulted a patient, used the loophole to secure a lighter charge.

Most health care professionals under current law are charged with second degree sexual assault if they sexually abuse patients under their care. It’s a higher penalty than the one typically levied in sexual assault cases due to the position of power that health care providers occupy.

However, the doctor in this case was charged with fourth degree sexual assault, which comes with a lesser penalty, because none of the entities described in statutes associated with the charge that he faced described the medical clinic where he worked.

Subeck said the bill is necessary because health care professionals who commit sexual assault against patients need to be held accountable for exploiting the power dynamic that exists between them and a patient.

“When you think about the vulnerable position that you are in when you go to your health care provider and the unique power that they have in that position, it should rise to a higher level,” Subeck said. “Health care providers do hold great power over their patients, while simultaneously gaining rampant access to our bodies, to our personal information, and we have to be able to trust these professionals to use that access appropriately. When that trust is violated, particularly in such an egregious manner as with sexual assault, it is our job as legislators to ensure that there are appropriate consequences for these actions.”

Dane County Sheriff Kalvin Barrett told lawmakers the bill would help victims get justice. 

“There is nothing worse than having a case dismissed because of a loophole or because something was poorly written,” Barrett said. “We have to make sure that we close this loophole so that we can continue to provide justice and be voices for victims and survivors.”

Spiros said the committee will likely hold an executive session in two weeks.