When is rape not really rape?

February 10, 2017 | Swanee Hunt

In the years I’ve spent combating sex trafficking, many of the worst crimes I’ve known have involved children. The intrepid Cindy McCain and the extraordinary staff at the McCain Institute understand the extent of the harm being inflicted on young people. They also know that there’s nothing magic about an eighteenth birthday.

The near-total impunity enjoyed by the perpetrators – the men buying the girls — makes their violations even more infuriating. But last week I was heartened to learn more about how several bold anti-trafficking organizations are changing the way we fight it – and how we talk about it.

During a discussion I moderated in Washington on Feb. 6th at the McCain Institute’s Second Annual Symposium on Human Trafficking, experts Malika Saada Saar and Bradley Myles argued that part of the problem is the language we use. For those searching for the heart of the problem, this is a layer deeper than most of us have looked. So rather than leaving depressed by the topic, I left feeling hope in the approach.

Malika, a human rights lawyer who is Google’s Senior Counsel on Civil and Human Rights, reminded us that when children are bought and sold for sex, that’s sexual violence. “But we don’t call it that. We call it prostitution. In any other context, it would be child rape.” Instead, because the rape has been paid for, the perpetrator is dismissively called a “john.” “When we allow this kind of normalization of child rape… we allow the violence to continue.”

Working with partners including Demand Abolition (the non-profit I founded) and Arizona State University’s McCain Institute, Malika and Brad are champions of a national movement to change the way we confront child sex trafficking in the United States. They are campaigning to stop our legal system from viewing it as prostitution, and instead to prosecute the buyers under much tougher statutes.

As Malika put it, “We have to change the culture. This is not about ‘vice.’ This is about child abuse.”

Brad, who leads the groundbreaking non-profit Polaris, said only an unbelievably small handful of communities are even arresting those who buy children for sex. “We need to ask the rest: why not?” Worse still, some of them are arresting the victims of these rapes on prostitution charges.

Brad said Washington State is setting a powerful positive example in this battle: it has a law that specifically names and punishes “commercial sexual abuse of children.” (I concur with Brad’s praise: Demand Abolition works closely with prosecutor Val Richey (short for “Valiant,” how perfect is that?) and others in the Seattle area to test new tactics to stop buyers.)

Brad, Malika, and our Demand Abolition team have been collaborating with Boston University researchers to develop a handbook for attorneys general that will guide them toward tougher treatment of those who pay to rape a child. Brad reminded us that “what we are talking about on a macro level is a whole series of paradigm shifts. It’s norm-changing.” But we also need micro-fixes in law enforcement practices, including much better training of officers to treat this offense as statutory rape. Brad told us that it wouldn’t be too costly to lobby the other 48 states to enact tough child sex abuse laws like those in Washington State.

The audience at the McCain Institute event included leading national experts such as Carol Smolenski, a founder of ECPAT-USA, which has fought against child trafficking for years in the US and abroad. Carol cited an unspoken concern: while there’s much anguish when a prepubescent child is raped, “as soon as a child starts to develop, society treats that child completely differently once they are made part of the adult sex industry.”

Malika noted that most perpetrators buying girls for sex are white men, while their victims are black and brown. She said it’s important to bring more racial justice analysis into our work. “There is a long-entrenched narrative that the black and brown body is unrapable.”

With stirring passion in her voice, Malika said it’s essential to recognize that young girls of color are often sexualized at a young age then denied their status as children. “It is absolutely critical that we be able to say that this 16- or 17-year-old is a girl.”

I was so glad she said that. As I’ve ask them their life stories, I’ve realized that the women we sneer at as prostitutes were usually impoverished girls who were exploited. As Carol said, when they reach puberty, they’re “just streetwalkers” in the public’s mind.  Don’t black and brown females have a right to a childhood?

And further, the crime doesn’t end with a birthday. I pointed out that a girl who has been sexually abused over and over doesn’t suddenly become an adult with free will the moment she blows out 18 candles on a cake. (By the way, girls being prostituted don’t have many birthday parties.)  At that point, her pimp has often made sure she’s hooked on drugs. She doesn’t have a high school degree. And she sees no choices. She’s often still being forced or coerced or tricked into being sold – the factors that define sex-trafficking of women, under federal law.

Do we still care after her 18th birthday? And just why wouldn’t we? Malika, Brad, Carol, Cindy, and I agree: The buyer isn’t asking for a birth certificate. He’s asking for a price.