I was in San José, Costa Rica for about three minutes before I was completely lost. A bemused local later told me that the city government had paid to have the signs ripped down a few years back, in anticipation of new ones. The signage budget item failed to gain funding, so alas, San José has no street signs—and with dim street lamps, the city is a labyrinth for tourists at midnight. With their travel lust rapidly fading and their panic setting in, my three companions blurted out halfhearted directions as I drove up the calles and down the avenidas surrounding the Centro Mercado. I slowed down when a pool of red light broke the monotony of gray nighttime tones. From afar, it looked as though five or six women were perched outside of a party, perhaps smoking cigarettes. As the car drew nearer, two of them disappeared into a nearby house, while the four others remained. The women weren’t women; they were girls—probably about 13 or 14 years old, dressed in short skirts, high heels, painted with dark lipstick. There was no party—I looked to my friends for verification, to confirm that what I was seeing was real. Their eyes were as wide as mine were—these little girls were prostitutes.
The international legal community responded to the problem of child trafficking and prostitution with the near-universal endorsement and ratification of the Convention on the Rights of the Child in 1990. With 191 participatory nations, the CRC is the most widely ratified human rights treaty in history. It is designed to set out the “rights that must be realized for children to develop their full potential.” At the time of its signing, it was praised as the most thorough and all-inclusive of all human rights treaties. Indeed, the CRC set out to protect children from abduction, sale and trafficking, from any other form of exploitation, and from cruel and inhumane treatment. In fact, Article 19 specifically protects against offenses of child prostitution, while Article 34 explicitly protects children from sexual abuse and sexual exploitation.
The international law response did not stop with the CRC. Since the CRC does not enable the United Nations to arrest child sex trafficking offenders, the UN endorsed the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, a supplement to the UN Convention Against Transnational Organized Crime. In 2002, the UN Committee on the Rights of the Child issued an optional protocol in the CRC which signatory nations had the option of ratifying—The Optional Protocol on the sale of children, child prostitution and child pornography. Additionally, the UN adopted the 2004 version of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially women and children, which sought to standardize the international approach to the establishment of domestic criminal offenses and prosecuting trafficking in persons cases. Notably, the protocol is the first global legally binding instrument with an agreed-upon definition for human trafficking.
Despite collaborative international efforts, child prostitution and trafficking remain a serious problem in Latin America. There, an estimated 500,000 children work as sex workers, while there are an estimated 3 million children working as sex workers worldwide. In Costa Rica, sex tourism has flourished. The Costa Rican government estimates that 5 percent of the one million Westerners traveling to Costa Rica annually are pedophile sex tourists who have targeted Costa Rican girls and boys for sexual abuse. In recent years, there has been an uptick in Costa Rican sex tourism after recent sex tourism crackdowns in Asia. The little girls I saw working as sex workers in San José are not alone. Approximately 5,000 children in San José, Costa Rica live and work as prostitutes.
Economic and political upheaval in Latin America have created an environment where child exploitation thrives. The prostitution rings are typically organized involving the complicity of nightclubs, motels, hotels, taxicab drivers—and parents who view their children as a means of making an income. Often parents sell their children, rationalizing that the children may go on to work as a domestic laborer for a wealthy family, who can provide a better life for them. Other families send their children directly into prostitution if there is no other “legitimate” alternative work. Sometimes children voluntarily engage in prostitution for personal money. They may live on the street, or may be self-employed or work in gangs, forced to provide for themselves economically. This is especially true for girls and women, who are not afforded the same educational and economic opportunities available to male counterparts. As the economy worsens, girls and women become more financially vulnerable, and more likely to become financially dependent on men.
Despite the lack of funding and difficulty in enforcement, in 1998, both governmental and nongovernmental organizations developed another body in order to curtail the influx of sex tourism in Costa Rica: the National Action Plan against the Commercial Sexual Exploitation of Children (NAPCSEC). The NAPCSEC seeks to monitor child exploitation and raise awareness, but its framework, void of timelines, lacks the sense of urgency needed to eradicate the problem of child exploitation. However, it did play a role in overhauling the Costa Rican criminal code. It was not until 2002 that those who sexually exploited children could be prosecuted at all. In fact, until that time, the judiciary would drop charges of ‘corruption of minors’ when the accused adult proved that another person had already had sex with the child, reasoning that the child was already corrupt.
Latin American customary law also acts as a roadblock to eradicating child prostitution and sex tourism. While the CRC established the definition of a child as any human being below the age of 18, Latin American countries have yet to reach consensus regarding the age of consent. Even though Latin American countries agree that child prostitution and child sex tourism are immoral practices that demand an international response, the age of consent differs from country to country, and state to state, ranging from ages 13 to 18. Not only do different age of consent laws endanger girls’ well-being, they also make domestic enforcement trickier. The CRC simply set the preferred age of consent at 18, but this suggestion does not preclude other countries from establishing a lower standard. Some scholars argue that far-reaching extraterritorial legislation that aims at prosecuting American citizens who engage in child exploitation with a minor in another country would go beyond the boundaries of the Constitution and interfere with international relationships. On the other hand, some argue that aggressively prosecuting Americans who feed the demand for the Latin American child sexploitation and prostitution industry would be in the best interest of Latin American children, and should be pursued regardless of legal and political repercussions.
While prosecuting Americans for exploiting Latin American children and providing the demand that the industry thrives might seem like the right thing to do, it would not actually ensure Latin American children have more rights. Under the human rights framework adopted by the CRC, judicial analysis does not necessarily consider the “best interest of the child” when prosecuting offenders in their own country. Though Article 3 of the CRC sets forth that the “best interests of the child” should be the primary consideration in all matters affecting children, the human rights framework treats children as independent of adults. At least one scholar cites this as a contributing factor to CRC’s failure: domestic courts may be developing jurisprudence that does not ensure children’s rights. Specifically, a human rights framework treats children as adults, overlooking that children need to be protected by adults. Jurisprudence that truly uses a “best interest of the child analysis” should hold interested adults legally obligated for the protection of children and their best interests within the signatory nation.
Clearly, the international community needs to take further action to eradicate sexual exploitation of Latin American children. Though the human rights approach has successfully established child trafficking as an international crime, Latin American courts may need use a different framework in how to incorporate the “best interest of the child” standard in their jurisprudence. Since recent policies have been successful in eradicating child prostitution in Asia, the international community should employ similar tactics in its relations with Latin America. In addition, policies alleviating the plight of the poor, and supporting education and gender equality will allow girls and young women opportunities to support themselves and their families by working “legitimate” jobs.
Twenty years ago, the drafters of the CRC sought to develop a document delineating the rights that must be realized for children to develop their full potential. However, the international community has failed to provide Latin American courts with adequate guidance as to how the “best interest of the child” standard should be interpreted. In neglecting to do so, the international community is effectively messaging that the children engaging in prostitution have reached their apex. The lackluster approach to enforcing the CRC and subsequent agreements disregards the spirit of the “best interest of the child” standard set forth in Article 3 of the CRC, and leaves the children of San José reflective of the streets they walk on—nameless and forgotten.
A version of this article appeared in print in the December 2010 issue of the Bridge.
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