University of Miami Law Review


Charisa Smith


Pimps and johns who sexually exploit children garner instant public and scholarly outrage for their lust for a destructive “quick fix.” In actuality, many justifiably concerned scholars, policymakers, and members of the public continue to react over-simplistically and reflexively to the issue of child sex trafficking in the United States—also known as commercial sexual exploitation of children (CSEC)—in a manner intellectually akin to immediate gratification. Further, research reveals that the average john is an employed, married male of any given race or ethnicity, suggesting that over-simplification and knee-jerk thinking on CSEC are conspicuous. This Article raises provocative questions that too many others have avoided, while addressing a topic of immense public interest. CSEC occurs in all 50 states and is estimated to be a $290 million industry in Atlanta alone. The explosion of media attention, high-profile scandals, and sexualized popular culture have put CSEC front and center in law and policy. However, the dominant discourse and policymaking on CSEC rely on criminal law as a quick fix. Scholars in law, social science, and public health have begun joining CSEC survivors and advocates in critiquing criminal law for its ineffectiveness and its dubious expansion of mass incarceration and survivor victimization. Yet, the discourse, law, and policy remain highly flawed. This Article bridges the gaps in crucial ways.

This Article addresses a controversial and fundamental matter: that many CSEC survivors resist “rescue” efforts and narratives, while decrying the pitfalls of criminal, child protective, and public health responses alike. After discussing the pronounced failure of criminal law, the socio-cultural and economic roots of CSEC, and feminist, critical race, and Vulnerability Theory implications, this Article concludes that youth agency is a key, missing element of the socio-legal response to CSEC. This Article traces the history of children’s consent to sex in U.S. law and incorporates scientific findings cited in recent U.S. Supreme Court jurisprudence.