Are The Laws Fair?

One advocacy group believes that child prostitution laws are arbitrary and unfair.

Andrea Powell, the founder and co-director of FAIR Girls, observed that a young rape victim in Texas was immediately given treatment, while a young girl who was a prostitute in Washington, D.C. was arrested and sent to juvenile jail for basically the same conduct. Even in the 12 states which currently have “safe harbor” laws, these girls are often charged with truancy and other unrelated offenses.

Ms. Powell favors the expansion of safe harbor laws and the eventual elimination of child prostitution as a criminal offense.

What Constitutes Criminal Behavior

It is basically up to the legislature to pass criminal laws. Most crimes consist of both criminal behavior and an intent element.

Actus reus, which is Latin for a “guilty act,” is technically the act, or omission, that comprises the physical component of a crime. The idea is that a person must do, or refrain from doing, something specific in a given situation. One of the leading cases is the 1962 Supreme Court decision Robinson v. California. Mr. Robinson was convicted under a statute which made it a crime to be a heroin addict, and sentenced to 90 days in jail. Different justices had different rationales, but the bottom line is that the Court ruled that there must be an act, as opposed to a status, for someone to be convicted of a crime.

An interesting footnote to this case, at least to me, is that Mr. Robinson was dead when the matter was decided. He had actually died before his appeal was even filed. The State of California tried to have the case vacated, but the justices refused to do so.

The second element is criminal intent, or mens rea. In most statutes, the mental element is “intentionally,” although sometimes there is a lower burden of proof, such as knowingly or perhaps recklessly. The most frequently cited case is 1994’s Staples v. United States, wherein the Supreme Court held that the statute could only dispense with the mens rea if there was a clear purpose for doing so and a clear legislative intent.

Not all crimes have a mental element. DUI is perhaps the most common example. The prosecutor does not have to prove that you meant to drive drunk. Driving with a suspended license and possessing an unregistered firearm sometimes fall into this category as well.

For a free consultation with an attorney who makes the state prove its case, contact our office.