Judge Linda Poust Lopez
Christine, a 16 year old, was charged with prostitution. She moved for dismissal of the charge as facially insufficient. The court noted there did not need to be a completed sex act for prostitution to be established, stating the mere agreement to engage in sex in exchange for money sufficed. Yet, it found the complaint did not establish Christine agreed, or consented to such transaction as she was a child under the age of 17, thus incapable of consenting to sexual intercourse. Prosecutors argued Penal Law §130.05(3)(a) did not apply to the prostitution charge, citing In re Nicolette R. for the proposition that the prostitution statute contained no age requirement. The court found Nicolette inapposite noting the legislature did not intend the age-of-consent statute to apply in prostitution cases as there has been significant change in the legal framework regarding sex trafficking issues, treating such children as victims, not criminals. It stated the Safe Harbour Act categorized any child under 18 engaged in prostitution as a sexually exploited child who should not be prosecuted under the Penal Law for acts of prostitution. The court concluded any complaint charging a 16 year old with prostitution was facially insufficient, and granted dismissal.
