The Afterlife of Decriminalisation: Anti-trafficking, Child Protection, and the Limits of Trauma-informed Efforts

ABSTRACT

Numerous laws have passed to move away from criminalising youth who trade sex. Specialised courts have also been established to support youth. Despite proponents' contention that specialised, trauma-informed courts are less punitive than typical interventions, research is limited. This article explores one specialised dependency court's efforts to assist youth ‘at risk’. Drawing on interviews and ethnographic observations, I argue that laws and trauma-informed court interventions intensify the supervision of youth and families while inadvertently concealing the gendered-racialised effects of child welfare system involvement. Ethnographic findings contribute to sociolegal and anti-carceral feminist research on carceral control beyond the criminal legal system. This work also explores the ethics of carceral-trauma entanglements that accompany decriminalisation’s afterlife.

KEYWORDS:

• Trafficking
• specialty court
• trauma-informed
• CSEC
• anti-trafficking
• decriminalisation
• trafficking court
• sex trafficking
• problem-solving courts
• alternatives to punishment

Introduction

In the United States, the punitive dimensions of anti-sex trafficking efforts have come into sharper focus in recent years, with mounting empirical evidence that anti-trafficking policies and interventions are tied to carceral systems of punishment (Fehrenbacher et al. 2020; Hoefinger et al. 2019; Musto 2016; Bernstein 2012). A growing number of anti-trafficking stakeholders and state legislators acknowledge that treating people – particularly youth – as criminals is antithetical to anti-trafficking goals. In response, numerous states have passed different versions of Safe Harbor laws, which in principle, though not always in practice, decriminalise activities related to ‘youth who trade sex’ (Showden and Majic 2018, 130; Bath et al. 2019, 2).¹ In California, where this research is based, a series of laws have passed since 2014 that aim to move away from criminalising youth involved in the sex trades, a phenomenon professionals typically refer to as ‘commercial sexual exploitation of children’ (CSEC). For example, California Senate Bill (SB) 855 specifies that youth under 18 in sexually exploitative situations and ‘children who are forced to trade sex to meet their basic needs’ should be assisted by the child welfare system rather than the criminal justice system (NCYL 2015). Another law, SB 1322, asserts that youth who trade sex are victims, not offenders, and unequivocally avows that ‘there is no such thing as a child prostitute’ (Vafa 2017; NCYL 2016), a campaign message advanced by the non-profit organisation Rights4Girls, to which the law owes its name. The law further clarifies that youth identified as ‘at risk’ for child trafficking must be reported to the child welfare system (NCYL 2016).

The passage of laws was only the first step in a series of shifts in California to reimagine system-based responses to identify and assist young people in sexually exploitative situations. Specialised dependency courts emerged too, with the aim of providing an alternative to typical (i.e. punitive) system efforts. Professional assessments of these courts describe their reformulated language, enhanced service offerings, and attunement to youth trauma as demonstrative of a paradigm shift away from punishment and in more trauma-informed directions. Yet empirical research documenting outcomes of these moves has been limited. What little research exists focuses on human trafficking courts for adults in the criminal legal system and CSEC courts in the delinquency system (Douds, Warburton, and Cassidy 2021; Gruber, Cohen, and Mogulescu 2016; Bath et al. 2019). Moreover, despite proponents’ contention that specialised courts for youth in California are less punitive than typical court interventions, this has never actually been investigated. This article fills that gap by exploring the anticipated and unintended effects of one specialised dependency court’s efforts.

Drawing on 10 in-depth interviews with court professionals and more than 100 h of ethnographic observations at a court in California I pseudonymously refer to as the Court of Care (CoC), this article examines its efforts to assist youth the state defines as ‘at risk’ of CSEC. I argue that laws and court interpretations of trauma intensify its surveillance and supervision of youth as well as their families. At the same time, heightened attention to youth trauma obfuscates the structural vulnerabilities that shape young people’s experience of exploitation while concealing the intensified surveillant effects of child welfare system involvement.

Ethnographic findings from this study also illuminate key developments in the ‘afterlife of decriminalization’, a conceptual framework I use to track the priorities, ideological investments, and professional practices that emerge after the passage of laws decriminalising activities linked to youth who trade sex. The ‘afterlife of decriminalization’ offers a critical lens to unpack interventions framed as alternatives to carceral punishment and contributes to sociolegal and anti-carceral feminist research on the shapeshifting dimensions of carceral coercion beyond the criminal legal system. In a moment where campaigns to decriminalise sex work involving adults are expanding and public endorsement for full decriminalisation growing, California’s efforts to decriminalise youth who trade sex are a harbinger for efforts centered on adults. Insights from this research thus have purchase for social science research on laws and interventions framed as non-criminal legal system alternatives to punishment, and telegraph the rise of nascent yet understudied carceral-trauma assemblages and gendered-racialised surveillance strategies that accompany legal decriminalisation’s afterlife.

Theoretical scaffolding

Paradoxes and ‘inadvertent’ harms of anti-trafficking and child protection efforts

Specialised dependency courts at the nexus of anti-trafficking and child protection efforts, like human trafficking court innovations in the criminal legal system, are framed as a ‘paradigm shift’ that purportedly mark a movement toward treating youth as victims, not offenders (Douds, Warburton, and Cassidy 2021, 247). Yet extant social science research on human trafficking and child protection efforts, along with anti-carceral feminist research temper suggestions that transferring efforts from the criminal legal system to the child welfare system mark a clear and definitive departure from carceral strategies. An emerging body of anti-carceral (i.e. prison/penal abolitionist) feminist scholarship reveals how carceral logics are interwoven into a range of systems adjacent to, intersecting with, or which sometimes function as a pipeline to carceral punishment and criminal legal system involvement (Bergen and Abji 2020, 35; Musto 2019; Whalley and Hackett 2017). These revelations demand a fresh look at alternative systems such as trauma-informed court interventions with an eye toward an understanding of their effects and what this reveals about the afterlife of decriminalisation.

As carceral logics extend beyond prisons (Bergen and Abji 2020, 35; Schenwar and Law 2020), a range of ‘punitive mechanisms’ (Roberts 2017, 187) flow between criminal legal and child protection systems such that a ‘constitutive relationship’ conjoins them (Bergen and Abji 2020, 35). In fact, a closer look at research on efforts to address human trafficking in the US shows how carceral strategies recur between criminal legal and social service/humanitarian efforts. Elsewhere, while investigating state (e.g. carceral) and non-state (e.g. non-profit, advocacy, and sociotechnical) anti-trafficking efforts and the collaborations they give rise to, I observed the troubling and ethically dubious ways that punitive interventions were consistently pitched as protective, a sociolegal phenomenon I refer to as ‘carceral protection’ (Musto 2016). Though cloaked in victim-centered language, carceral protectionist interventions and the policies that shape them can lead to the arrest, incarceration, and/or protracted court supervision of people deemed ‘at risk’ of trafficking (Musto 2016). Another concept, ‘net widening’, examines the impact of human trafficking court innovations (Douds, Warburton, and Cassidy 2021). Despite emphasising ‘treatment and rehabilitation', human trafficking courts, like other problem-solving courts, have the capacity to ‘ensnare low level offenders into the criminal justice system’ (Douds, Warburton, and Cassidy 2021, 255). Even in instances where anti-trafficking efforts do not result in arrests, incarceration, or diversion programs, the results can be repressive and stigmatising (Benoit et al. 2019, 1909; Östergren 2020). In fact, socioeconomic, psychosocial, and familial effects emerge too, underscoring the durability of carceral logics in adjacent and sometimes overlapping systems (Hoefinger et al. 2019, 11). And crucially, collateral consequences of laws may but don’t necessarily result in criminal legal system involvement. Instead, they may result in ‘nonformal punishments’ (Natapoff 2015) and ‘shadow carceral measures’ (Selman, Myers, and Goddard 2019; see also Musto et al. 2021).

Scholarly critiques of carcerally-oriented antitrafficking efforts tend to focus on the punitive dimensions of criminal legal system efforts with less attention paid to the effects of child welfare system efforts or the overlapping, ‘spillover’ effects (Chacón 2015, 734) of interventions geared toward individuals but which also affect families. Like anti-trafficking activities, child welfare system efforts are uneven at best, complicating the suggestion that shifting anti-trafficking efforts from the criminal legal to the child welfare system marks a definitive move away from punitive efforts of the past. Agencies comprising the child protection system apparatus (e.g. foster care, dependency courts, etc.) are typically understood as social-service oriented, non-punitive extensions of the welfare state, yet as Erica Meiners cogently suggests, state efforts to promote child protection are in actuality ‘hinged to the carceral state’ (2017, 134).

Social scientists have long observed that child welfare system efforts combined with carceral expansion have contributed to the separation of Black mothers from their children (Haney 2013, 109; Roberts 2017). Dorothy Roberts, for instance, describes the juridical sleight of hand at play between the purported goals of the child welfare system and its empirical outcomes, noting ‘without any preconceptions, you might conclude that the child welfare system is designed to monitor, regulate, and punish Black mothers’ (Roberts 2017, 189). Child welfare system-involvement also poses a ‘significant vulnerability to human trafficking’ (Hannan et al. 2017; 110: Dank et al. 2015). Sexual abuse, family violence and other ‘adverse experiences’ make children vulnerable to trafficking (Hannan et al. 2017, 110). However, experiences of harm and neglect (i.e. the abuse allegations that lead to system-involvement) are not the only risk factors. Involvement in the child welfare system can ‘exacerbate previous traumas’ linked to young people’s removal from their families, educational ruptures or placement changes (Hannan et al. 2017, 111). Strikingly, the system framed as supporting youth by giving the state jurisdiction over them is also the same system that has put them at risk of exploitation. Understanding the effects of nascent system efforts is important on ethical and empirical grounds and encourages examination about whether interventions framed as supportive alternatives in fact depart from punitive efforts of the past. Yet, an assessment of their impact is muddled when system actors neither recognise nor track the effects of system-involvement, including encounters that lead to protracted court oversight and possibly the separation of children from families which have disproportionately and adversely impacted families of color. The fact that youth and families sometimes interface with multiple systems further complicates ethical and empirical assessments aimed at understanding the effects of system shifts framed as innovative.

In her assessment of legal liminalities to address immigration, legal scholar Jennifer Chacón (2015) argues that ‘severe outcomes that arise at the intersection of the criminal and immigration system arise … because they operate in ignorance of one another … some of the most egregious harms wrought by criminal justice actors in immigration courts are imposed inadvertently’ (2015, 761, emphasis mine). In a similar vein, carceral anti-trafficking strategies are often framed as well-intentioned, yet a lack of understanding about their ‘cumulatively injurious’ effects (Flores and Barahona-Lopez 2019, 648) can inadvertently mask the harms they produce. This includes the application of laws decriminalising activities linked to youth who trade sex and the development of system efforts promoted as non-punitive alternatives that may unintentionally amplify structural vulnerabilities for intersectionally marginalised groups (Flores and Barahona-Lopez 2019, 648; 644; Abrego and Menjívar 2011). Failure to address the structural vulnerabilities that shape youth experiences of exploitation and stakeholder inattention (or inadvertent unawareness) to the racial harms induced by system involvement risks perpetuating both. Just as anti-trafficking efforts viewed as uncomplicatedly ‘good’ and uniformly helpful can obscure their punitive dimensions (Showden and Majic 2018; Musto 2013, 261), efforts advanced in the name of child protection can entrench racial disparities and extend carceral coercion despite the discursive gloss of care, protection, and welfarist intent that surround system efforts (Meiners 2017; Roberts 2017). Not only does this raise empirical questions as to whether court-based interventions outside the criminal legal system extend carceral control, it highlights the ethical stakes of investigating decriminalisation’s afterlife in order to illuminate outcomes and harms not presently transparent.

Specialised courts and the rise of the trauma-informed rescue industry

Researchers commonly cite the Adverse Childhood Experiences (ACE) study (Felitti et al. 1998) in both describing trauma involving children (Hickle 2020; Hickle 2019) and advancing research on ‘trauma-informed approaches’ (Sweeney and Taggart 2018, 383). Exposure to adverse events during childhood can have lasting effects on mental and physical health (Hickle 2020, 538; Sweeney and Taggart 2018). Research on the links between trauma and sexual exploitation has grown too, and a broad contingent of policymakers, advocates, and professionals suggest that CSEC/child sex trafficking is traumatising and that ‘trauma-informed’ and ‘trauma-responsive’ interventions are needed in response (Hannan et al. 2017, 114; Hickle 2020; Hickle 2019; Todres and Diaz 2019). For instance, a trauma-informed lens invites professionals to reframe behaviors once understood as criminal, risky, or inappropriate and instead reframe them as manifestations of underlying trauma that requires professional support (Hickle 2019, 156). Increasingly, trauma-informed work occurs outside of mental health settings, including in specialised courtrooms, where professionals work as frontline (non-clinical) interpreters of trauma.

Courts billed as specialised, treatment-focused, and problem-solving alternatives to more typical criminal legal system efforts are animated by a therapeutic culture where assistance and coercion, judicial authority and mandated healing intersect (Leon and Shdaimah 2021, 127–128; Douds, Warburton, and Cassidy 2021, 239–240). Human trafficking and CSEC courts are the latest versions to emerge, though they share many of the same features and ‘contradictory logics’ as prostitution diversion programs for adults where ‘victimization, agency, rehabilitation, and responsibilization often co-exist’ (Leon and Shdaimah 2021, 127–128). Like human trafficking courts in the criminal legal system, specialised dependency courts emerge out of state and federal human trafficking policies and offer therapeutic services for victim-survivors, even though some participants are still treated as victim-offenders (Douds, Warburton, and Cassidy 2021, 239–240; Gruber, Cohen, and Mogulescu 2016; Hoefinger et al. 2019). Yet notably, the aims and professional commitments that buttress specialised dependency courts like the Court of Care also bear the imprint of parallel paradigm-shifting efforts underway, namely the advance of ‘trauma-informed’ practices and approaches developed outside of the anti-trafficking movement but which increasingly overlap with it (Harris and Fallot 2001; Sweeney et al. 2018; Hickle 2020, 538). A watchword suggestive of innovation, ‘trauma-informed’ doubles as a conceptual framework that purports to deliver more supportive, less punitive court interventions compared to typical judicial efforts (Douds, Warburton, and Cassidy 2021; Gruber, Cohen, and Mogulescu 2016).

A trauma-informed variant of state authority is ascendent at the Court of Care and in other specialised, problem-solving courts throughout the United States (Leon and Shdaimah 2021; Douds, Warburton, and Cassidy 2021; Gruber, Cohen, and Mogulescu 2016). In courtrooms explicitly coded or loosely aligned with trauma-informed approaches (TIAs), professionals exercise interpretative authority in assessing whether certain activities, relationships, or arrangements contribute to trauma or help to prevent re-traumatisation (Leon and Shdaimah 2021, 139). While the anti-trafficking field has been described as a ‘rescue industry’ (Agustín 2007), in the United States and especially in CSEC and human trafficking courtrooms, a trauma-informed rescue industry has emerged where judges, attorneys, and a cohort of collaborative partners wield legal and therapeutic authority over individuals deemed ‘at risk’, raising questions about its impact.²

The afterlife of decriminalisation

The ‘afterlife of decriminalisation’ draws inspiration from historian Saidiya Hartman’s concept ‘afterlife of slavery’, a framework highlighting the myriad ways Black Americans endure structural violence and anti-Black racism 150 plus years after slavery was legally abolished in the United States that ‘skew life chances, limit access to health and education, [and contribute to] premature death, incarceration and imprisonment’ (Hartman 2007, 6; see also Gilmore 2007). It also builds on Erica Meiner’s research on how laws and efforts to protect children give rise to forms of carceral control shaped by race, gender, sexual and class assumptions (2017) and Tryon Wood’s incisive analysis about how anti-blackness foregrounds contemporary efforts to address human trafficking. Although anti-trafficking efforts contribute to ‘Black women’s captivity globally', their effects and the ‘ongoing calculus of racial slavery’s afterlife' are obscured by dominant anti-trafficking narratives (Woods 2013, 121, 122). Carceral strategies to address trafficking also figure into slavery’s twenty-first-century afterlife, evidenced by social science research on the racialised effects of anti-sex trafficking efforts. For example, Black girls experience arrest and incarceration at disproportionate rates compared to white girls and teens (Showden and Majic 2018; Musto 2016). Despite federal and state laws that clarify that youth in sex trafficking situations are victims/survivors, not offenders, Black girls are more frequently arrested, placed in locked facilities, and endure a range of coercive interventions even in instances when law enforcement refer to them as victims, often couching punitive carceral interventions in seemingly protectionist terms (Showden and Majic 2018, 50–51; Musto 2016; Lutnick 2016).

A sizeable body of social science research exists documenting harms of anti-trafficking efforts (Musto et al. 2021; Fehrenbacher et al. 2020; Hoefinger et al. 2019; Showden and Majic 2018; Musto 2016). However, the punitive and racialised dimensions of these activities are often obscured by dominant anti-trafficking discourses, ignored by stakeholders, and sidelined in the development of anti-trafficking policy (Showden and Majic 2018). Anti-trafficking stakeholders commonly refrain from grappling with the structural causes and social forces that contribute to exploitation (Vance 2011, 941–942; Showden and Majic 2018). Recent attention to youth trauma, like broader claims made about youth ‘at risk’ likewise tend to erase the structural vulnerabilities that shape them (Greenberg 2019, 57) while advancing colorblind notions of vulnerability.

Consider: Intersecting racial, gendered, and economic inequalities shape youth vulnerability to sexual exploitation (Showden and Majic 2018, 86). Trauma also emanates from exposure to racist systems and enduring the injurious effects of criminalisation and carceral violence tied to state anti-trafficking interventions (Showden and Majic 2018, 86; Musto 2016). While trauma signals a form of [individual] human suffering of ‘unbearable and intolerable’ proportions (Van der Kolk 2015, 1), its sources are invariably structural and its effects intersectional. In judicial settings, the structural forces that make people vulnerable to exploitation and contribute to intersectional vulnerabilities caused by system efforts are often absented. Constrained in their ability to advance structural change, court professionals’ attention to youth vulnerability is commonly laundered through individualising interpretations of trauma. Not only does this tacitly permit court and other frontline professional interventions to be promoted in uncritically assistive terms – a move that elides consideration of what distinguishes a helpful intervention from a harmful one – it ignores the racist histories that shape contemporary anti-trafficking efforts (Woods 2013).

What ties seemingly distinct phenomena (e.g. sex trafficking/CSEC, child protection efforts, carceral control, trauma-informed approaches), purportedly discrete systems (e.g. the criminal legal and child welfare systems), and disparate concepts like ‘afterlife of slavery’ to the ‘afterlife of decriminalization’ is that under the guise of helping groups ‘at risk’ (Musto 2016; Sufrin 2017, 7; Greenberg 2019), a range of actions are authorised by state and non-state actors that appear protective yet have the potential to expand state authority. This unsettles typical understandings of what systems qualify as ‘carceral’, and what activities and interventions ‘count’ as punishment, control, and coercion. Yet it also underscores the need for analytical frameworks with the capacity to capture interventions occurring outside of the criminal legal system and advanced under the aegis of protection for purportedly caring, compassionate, and therapeutic ends. This includes court-based efforts to assist youth authorities deemed ‘at risk’ of CSEC and the ways that professionals’ commitment to address youth trauma simultaneously (though arguably inadvertently) camouflages its spillover, coercive effects.

Methods and affective ethnographic labor in trauma-informed spaces

In 2017, I had the opportunity to visit a court in California that was established soon after the passage of the suite of laws decriminalising activities linked to CSEC/child sex trafficking. What I thought would be a one-time, one-off visit to the courtroom segued into a multi-year ethnographic study primarily though not exclusively based at the CoC. Though it took several months, an expedited and full review through my college’s Institutional Review Board (‘IRB’), and a separate court petition seeking permission to conduct research in the court, all aspects of the study were approved by January 2018.³ Data featured in this article are part of a larger study examining anti-trafficking system shifts. This includes court innovations framed as a paradigm shift away from punishment. For the portion of the study at the CoC, I aimed to learn from professionals and groups most directly impacted, including court-affiliated youth 13 years of age or older. Ultimately, I was unable to interview youth. However, I was able to proceed with other parts of the study, including interviews with professionals connected to its work.⁴

Between February 2018 and June 2019, I completed approximately 100 hours of observations at the Court of Care and meetings linked to its work. Court sessions lasted between three-eight hours per session, and meetings to discuss upcoming cases were around three hours in length. Per the court petition guidelines, at the beginning of court sessions and meetings I observed, I announced my presence, identified my name and institutional affiliation and explained my reason for attending. Parties could object to my presence, which would result in me leaving the courtroom/meeting. However, no party asked me to leave. I was permitted to take notes during sessions and meetings about general case details but prohibited from noting identifying information and details attributable to a specific case or agency. I also conducted 10 semi-structured interviews with court-affiliated professionals (e.g. lawyers, advocates, social/service workers, law enforcement etc.) who were purposively sampled for their work at the court and on adjacent system responses. Later, I engaged in follow-up interviews with two Court professionals in Summer 2020 as part of a separate study aimed at learning about the impact of COVID-19 on the Court’s work. All interviews were voluntary.

Calendar dates, hours spent in the field, and the total number of interviews conducted – the most legible markers qualitative researchers utilise to describe the scope, depth, and rigor of a research project – are misleading in this project as they fail to capture the affective labor demands required to address professional concerns, even and especially when such concerns contrast with established social science research findings.⁵ Yet the combined analytical and affective labor needed to square professional (trauma-informed) concerns with social science research on the harms of anti-trafficking proved clarifying in tracking enduring tensions surrounding frontline professional work and research on young people’s experiences.

Conversations with professionals discussing their concerns and my subsequent reflections of them in the form of memos and reflective write ups shaped the trajectory of the project and informed my analysis of court observations and interview data. For instance, I used these reflections to guide my interpretive analysis (Majic 2014, 470) of interview data and field observations, which considered: Why does the court exist? What gap does it fill? How does participation work? These reflective write-ups had iterative and corroborating purchase too, both in terms of providing a richer context for themes that came up in interviews and fieldwork and in identifying and refining emerging themes.

Data included in this paper draw primarily on interviews with professionals connected to the Court of Care. Informed consent was obtained for all participants. To protect confidentiality and to comply with IRB and court requirements, identifiable details about interview participants, including their real names and agency affiliations of participants have been excluded. Professionals are referred to by pseudonym and to further protect confidentiality, I have refrained from including details about their specific role at the Court.

Out of an abundance of caution in protecting the privacy of court-affiliated youth and families and because court rules prevent me from including case-specific details in research outputs without first seeking advance permission from the court and stakeholders prior to publication, no case-specific information is included. I have also excluded details professionals shared in interviews about specific clients and their cases. The exception to this rule is a few instances where interview excerpts are featured that include professionals’ broad reference to client(s) in order to generalise an idea or theme they have encountered. In those instances, case-specific details are excluded.

There are limits to the study, including a lack of details about the regional location of the court and details about professionals, including demographic information and details about their agencies. This is purposeful yet it limits comparison with other specialised courts. The perspectives of youth, parents, and the children of court-affiliated are also glaringly absent in this study and in research on CSEC court innovations more broadly. Finally, the relatively small number of interviews raise questions about the extent to which findings are generalisable. To address these issues and mitigate these limits, I frame, compare, and corroborate ethnographic findings with established interdisciplinary social science research on specialised courts, trauma-informed practices, anti-trafficking interventions, and carceral coercion.

Paradigm shifts for youth: situating the CoC’s non-arrest, service oriented, trauma-informed approach

Why does the court exist?

The creation of the Court of Care (CoC) came on the heels of the 2014 passage of SB 855, which specifies that youth under 18 ‘at risk’ of CSEC fall under the jurisdiction of the child welfare system as victims of abuse and neglect rather than the criminal justice system (NCYL 2015). Yet just as the passage of laws only accounts for one part of the multidimensional shifts underway in the afterlife of decriminalisation, the aims of the Court are also multifaceted, and have ushered in a range of sociolegal developments, including disrupting notions of fault and criminal liability, reframing language, and expanding court-affiliated youth’s access to resources. Savannah, a professional affiliated with the court described how legal changes, perception shifts, and enhanced statutory access to resources explain why the Court exists and what it offers that would not otherwise be available to youth:

The goal was to move from the paradigm of fault on the child … even within the child welfare system, when it [CSEC] wasn't criminalized, there was still the veneer of punishment and blame on the child. So the idea was to shift that … and not defiance or something that needed to negatively be addressed, but rather as an indication of trauma. (Savannah, Court-Affiliated Professional)

By going to the Court of Care, youth gain access to resources and court-ordered referrals, including everything from classes, traditional and alternative therapies, activities and training programs suited to their particular interest (e.g. cooking classes, equine therapy, yoga etc.). Reformulating language, according to some professionals, is another key part of the paradigm shift underway. At the CoC, professionals explicitly refrain from referring to youth as ‘child prostitutes', and some also abstain from using verbs like ‘engage’ or other words suggestive of youth culpability. Yet as researchers Carisa Showden and Samantha Majic argue, language used to describe young people’s experiences is ‘loaded and coded'. The passage of federal and state laws ‘redefining all commercial sexual activity by minors as DMST’ further complicates a topic vexed by ideological tensions and political fault lines (Showden and Majic 2018, 13, 18; Musto 2016). From a legal perspective, youth under 18 cannot consent to ‘trading sex for some type of payment’, and language codified in federal human trafficking laws mean that that irrespective of how they view their own experiences, young people’s age and age-based vulnerability to deception render them incapable of ‘knowingly engaging’ in sex trafficking/CSEC situations (Showden and Majic 2018, 14, 16). Yet like adults, some youth reject the label of ‘trafficking victim’ placed on them by professionals (Showden and Majic 2018; Hoefinger et al. 2019, 11). Professionals’ language is sometimes fundamentally misaligned with how young people describe and make sense of their experiences (Showden and Majic 2018, 5). Nonetheless, language shapes perceptions (Showden and Majic 2018), and in specialised courtrooms for youth, language has sociolegal and psychosocial purchase. By removing ‘child prostitute', professionals perform a double move that recasts youth as CSEC victims who are traumatised.

‘The goal is always to have them work through their traumas’

Professionals sometimes filled the space in between the Court’s official business with observations like, ‘We’re all traumatized', ‘We all have PTSD’ (From my field notes August 30, 2018). Like the ‘trauma talk’ that circulates widely within and beyond mental healthcare professionals (Marecek 1999) talk of trauma is ubiquitous at the CoC, and attention to youth trauma shapes how some professionals understand the Court’s work. A distinctive form of state authority animates the Court of Care’s work where professionals’ attunement to trauma and embrace of ‘trauma-informed’ approaches authorise intensified, coordinated system efforts to monitor court-affiliated youth. ‘The goal is always to have them (youth) work through their traumas’, Kaia explained. Not just ‘the CSEC trauma’, she added, ‘but the underlying trauma so they have a better understanding of it and how it's influencing their behavior or their drawback into human trafficking activity’ (Kaia, Social Worker). The main aim of dependency courts is to reunify families, and technically, the CoC is no different. Yet at the CoC, ‘healing youth trauma’ augments the goal of family reunification by providing an imagined pathway for court-involved youth to ‘be a kid again’. As Inez, explained.

For these kids, [the aim] is to heal their trauma, to help them work through the stages of change, and to help heal their trauma and let them become a kid again. (Inez, Attorney)

Building healthy relationships, going to school, staying in placement, and participating in age-appropriate activities (e.g. attending prom) are part of ‘being a kid again’. Enhanced access to services and activities are offered as incentives to youth who act ‘appropriately’, which Sharmilla explained means not ‘being involved in like human trafficking experiences … not putting themselves in high-risk situations’ (Sharmilla, Social Worker). Court-affiliated youth have access to resources and services, including beauty services and related activities supportive of self-care. The salience of hair and nail appointments, among the two most common requests court-involved youth make, Kaia said, came into clearer view as professionals described their value in helping to sever ties with people accused of exploiting them.

Hair and nail appointments are a ‘big pull for exploiters and our CSEC victims’, Kaia explained. ‘Instead of relying on an exploiter to get your hair done’, she said to me, as if speaking directly to youth, ‘If that's what you need, we can get that. You don't have to go back to the streets. You don't have to go back to your pimp. If that's what you need, we can do it’’ (Kaia, Social Worker). Kaia’s description of hair and nail services, unambiguously gendered activities, reveal how services are seen as helping youth sever ‘trauma bonds’ with the people accused of exploiting them. Though the term is contested by some researchers and advocates outside of the CoC, references to ‘trauma bonds’ came up in interviews and also circulate in anti-trafficking materials to describe the psychological abuse and relational harms presumed to occur between people who have experienced exploitation and those who exploit them (Judicial Council of CA 2017, 24).⁶

A few months into fieldwork, it was clear that Black cisgender girls and Black parents were, at that time, overrepresented in the CoC sessions I observed. Obtaining basic demographic information about youth and families proved incredibly difficult yet interviews helped confirm my hunch that Black and Latinx youth are overrepresented at the CoC, though professionals used typically used terms like ‘African American’ and ‘Hispanic’ rather than Black and Latinx. In interviews, a few professionals clearly acknowledged racial disparities within the child welfare system and some also described how institutional racism shapes child welfare system involvement more broadly. Compared to the fluency with which professionals talked about youth trauma, especially trauma linked to sexual exploitation, however, I was struck by how often race and the intersectional structural factors that shape youth pathways to court involvement were left out of discussions about trauma. Race did come up in discussions about providing youth with access to services, clothing, and age-appropriate activities, and were framed as offering youth incentives to avoid situations and people considered to be the source of their trauma. Some professionals also described the Court’s ‘cultural sensitivity’ to hair care, which I interpreted as indicating its racially inclusive awareness of Black teen’s specific hair care needs. Services have habilitative purchase; by offering youth access to hair, nails, and clothing, the Court aims to habilitate youth into ‘appropriate’ behaviors. And by providing access to culturally sensitive (i.e. racially inclusive) hair care services, professionals envision a pathway to trauma healing and a form of restoration where youth experience some semblance of a childhood.⁷

Ideas about childhood innocence are intricately shaped by notions of whiteness, economic security, cisgender, and heteronormative ideals (Meiners 2017). Offering court-affiliated youth access to state assistance and resources they are otherwise denied appears to loosen entrenched racial inequities and reimagine more inclusive notions of innocence rarely extended to BIPOC youth, (Black, Indigenous and People of Color) involved in the child welfare system (Showden and Majic 2018, 32–36; Meiners 2017, 127). Yet in the process of accessing services and support through the Court, youth must acquiesce to certain ideas: that they are traumatised, that court-ordered services hold the key to reclaiming, or claiming for the first time, the chance to be a kid, and that court monitoring efforts aren’t punitive even it comes with certain requirements like restricting relationships, behaviors, and activities (McCorkel 2017, 295; McKim 2017).

‘The court, by design really has no stick’: ‘consequences’ in trauma-informed judicial settings

When I asked what differentiates the Court of Care from other dependency courts, Inez, noted: ‘I mean it's trauma-informed. Everybody there is trained … We're dealing with abuse and neglect, and it's not a punitive place’ (Inez, Attorney). Unlike in adult criminal and juvenile delinquency courts, dependency court judges lack the authority to use arrests, detention, and penalties associated with adult criminal and juvenile delinquency courts. Being a part of the CoC is not ‘mandatory’ in the same technical sense as being compelled to participate in diversion and other courts, specialised or otherwise, based in adult criminal and juvenile delinquency courts. ‘The court, by design really has no stick’, Savannah explained. Although she views the lack of ‘stick’ as one of the best parts of the court, in practical terms, this requires court professionals to come up with creative solutions in figuring out how to reach youth newly unreachable by the ‘stick’ of criminal laws and attendant policing strategies used in the past to compel participation in criminal and delinquency court settings.

For Jae, the Court’s intentional language and its trauma-informed orientation help to explain what youth get out of participating and what they miss out on when they don’t.⁸ Under this paradigm, youth gain access to court professionals who exercise flexibility and use legal creativity to ‘bend the rules’ as much as is statutorily possible. The Court’s trauma-informed approach is further evidenced by the frequency of youth’s in-person appearances, professionals’ more frequent meetings with one another to discuss cases, and keeping cases open in order to check on youth. As Jae elaborated:

The consequence of them not participating is the language and the trauma-informed approach might not exist … when they’re AWOL’ing, that judge [in a non-specialized courtroom] most likely will close their case … [then] they’re in the wind. And a new petition might be filed but no one is out looking for them … There’s no protective custody warrant. There’s no one involved in the system that’s going to be checking for them. (Jae, Attorney)

Jae’s multi-part explanation describing the Court’s trauma-informed approach in such laudatory terms was compelling, even convincing. Not only does the court’s trauma-informed approach escalate system responses compared to other dependency courts (e.g. ensuring that cases stay open and that professionals actively look for youth who leave placement), its intensified approach is framed as a way to secure youth’s safety. Still, the CoC is situated in a dependency court system bound by statutory rules, which raises some questions: What are the consequences if youth don’t want to participate? What are the effects of having system actors actively look for them?

When I asked Caelyn about the ‘consequences’ of not participating, she seemed taken aback by my line of questioning. ‘Consequences is hard, because I feel like that’s such a strong word' (Caelyn, Attorney). My aim to understand the consequences of the Court and whether it is perceived as punitive was not aimed at callously dismissing what I saw as professionals’ dedication to assist youth in their work at the Court. Rather, my curiosity came out of attending court sessions where I heard professionals offer different versions of more or less the same message: that the Court is not a criminal court, that the Court is not intended to be punitive, nor designed to take people away and lock them up. Instead, its aim is to offer youth support.

It was the frequency with which court professionals stressed what the court isn’t and the repeated refrain that the court isn’t (nor is it intended to be) punitive that prompted me to want to more fully understand the ‘consequences’ of not participating. While some professionals’ surprise surprised me at first, it led me to engage in some self-reflective critique about the limits of the question as I originally posed it. ‘Consequences for whom’, I realised, was the more fitting question to ask about a dependency court designed ‘without sticks’ but which is nonetheless bound by statutory rules that authorise the reach of the state into the lives of youth and their families. Enter: the B2, minor parent cases, and the familial spillover effects of the Court of Care.

The conceptual limits and familial effects of trauma-informed interventions

The imagined court-affiliated young person at the CoC is a cisgender girl of color whose trauma is typically conceptualised in bounded, individualising terms. Services and trauma-informed efforts aim to provide individual youth with support and care otherwise unavailable. Yet efforts designed with individual youth in mind impact their parents and sometimes their own children too. As Jae cogently observed:

We’re so focused on representing just the girl and her dependency case, we forget that we need to bring the trauma-informed lens to the courtroom when there are parents involved and the parent is the CSEC victim herself. (Jae, Attorney)

Jae’s reflection reveals the conceptual boundaries of trauma-informed designed for individual youth but which in turn implicate their families. It also illuminates how a specialised courtroom’s well-intentioned embrace of trauma-informed principles for individuals can conceal its spillover effects on families. Attention to trauma can also give therapeutic cover to some of the Court’s more coercive dimensions.⁹

Consider the impact on parents: The CoC is distinct from other dependency courts because the main focus is on youth, not parents. Resources and services also overwhelmingly cater to youth. The Court of Care and laws authorising its work provide youth with resources once identified by authorities. Yet accessing services within the child welfare system requires their parents to concede that they are unable to protect their child but not at fault. The Court of Care shares some of the same ‘trauma-informed’ touchstones as the Human Trafficking Intervention Courts (HTICs) in New York (Gruber, Cohen, and Mogulescu 2016). However, unlike human trafficking court innovations in adult criminal courts (Gruber, Cohen, and Mogulescu 2016), where an arrest leads to a referral to a human trafficking court, prostitution diversion program or a court-mandated program in the adult criminal or juvenile delinquency system, for youth and teens in California identified by authorities as ‘at risk’ of trafficking, the pathway to court involvement typically follows the filing of a Welfare and Institutions Code Section 300(b)(2) petition, or ‘B2 petition’ for short. The code provides a mechanism for state authorities to notify the Department of Children and Family Services (DCFS) to evaluate whether a child or teen is in an exploitative trafficking situation and to assess whether their parent is equipped to protect them. Once a B2 petition is filed, DCFS notifies parents about pending court hearings and youth, like their parents, are provided with legal counsel.

‘If your child is being exploited there is court jurisdiction’: the CSEC ‘no fault’ carve out

A mechanism that gives courts jurisdiction over youth so that they can access resources and services, this CSEC-specific, ‘no fault’ carve out also stretches typical interpretations of parental fault. As Savannah explained:

The legislative change creating this no-fault jurisdiction had never really occurred before [in California] … Basically allowing the government to take a child from a parent, even though the parent hadn't done anything wrong, or had failed to do something that was foreseeably placing the child at risk.

She went on to describe how unlike in the past, where child system welfare involvement is based on ‘the parent do[ing] something or not do[ing] something’, for instance, in situations involving caretaker neglect of where specific abuse allegations have been made, with respect to CSEC and via the B2 petition, the law requires parents to acknowledge that their child is at risk even if they cannot do anything about it. Court jurisdiction over youth may but doesn’t always mean that they are removed from their parents’ home. Sometimes they are, yet as Caelyn noted, if youth do remain at home but their parents don’t engage with services, this could lead to their removal from home or the enforcement of stricter rules.

It took me some time to fully grasp the ramifications of the B2. Part of my confusion had to do with discrepancies between research on the punitive dimensions of dependency courts and child welfare efforts (Roberts 2017; Meiners 2017) and the framing of the B2 as supportive of parents. My disorientation also stemmed from the limits of the conceptual framework I used in earlier work to describe the impact of carceral efforts centered on individuals. Whereas criminal legal system efforts to address child trafficking reflect an arrest-to-assist, ‘detention to protection pipeline’ (Musto 2013; Musto 2016) that impacts individuals, at the CoC the template is different and more aptly described as a ‘detain-to-refer pipeline'. Here ‘detain’ refers to the court’s jurisdiction over youth. By ‘detaining’ youth from their parents, dependency court judges can sign orders and refer youth to services, programs and activities otherwise unavailable to them if unaffiliated with the Court. Not all kids at the CoC are ‘detained’ in the sense that DCFS removes them from their homes. In fact, sometimes ‘non-detain’ petitions are filed on CSEC youth at the CoC that allows them to remain in their homes with their parents. But even when ‘non-detain’ petitions are filed and kids are allowed to receive services and support from their home with their parents, the pipeline to services is conditional on their parents’ acknowledgment of their ‘failure to protect'. Yet ‘failure to protect’ is not what it seems, according to professionals. Even if the Court finds that a child is exploited and their parent can’t protect them, that doesn’t necessarily mean that the parent is at fault or to blame. That is why Alix takes care to explain to parents that the Court’s interpretation of ‘failure to protect’ is not what it seems: ‘It’s not saying, “Yeah, you failed”. … everything is wording’ (Alix, Attorney).

Wording no doubt matters, as does professional perceptions of a parent’s engagement. To the latter point, attorneys representing different parties consistently stressed that parents at the CoC are ‘more active’, and ‘well-meaning’ than ‘typical’ parents in dependency courts. Some professionals also found that parents tend to accept the Court’s jurisdiction and welcome the chance to participate. By Inez’s estimation, some parents ‘push back, 95 percent of these cases just settle because the parents want help’ (Inez, Attorney). Yet while ‘settling’ and ‘wanting help’ may signal to professionals that most parents tacitly accept the Court’s jurisdiction in their lives – a question future research should explore – the assurances professionals offer parents doesn’t change the fact that a parent’s ‘failure to protect’ has sociolegal consequences. Moreover, parents’ acceptance isn’t static, as evidenced by professionals who described parents who want ‘nothing to do with DCFS’ (Alix, Attorney) and want their cases dismissed. As Tahlia explained:

I’ve had a few parents recently be upset about the court’s involvement in their life. Initially they came in and wanted services for their child and the child was still with them but the child continued to be exploited despite their best efforts and they’re, like, ‘how can the court enforce a jurisdiction on me when I’m doing everything I can?’ and, ‘yeah, I am unable but they’re [DCFS/court] also unable to protect the child, so this seems unfair, I want it dismissed’ … the law’s kind of changed in a way where it’s almost strict liability. If your child is being exploited there is court jurisdiction. (Talia, Attorney)

The strict liability Talia describes helps to capture how acceptance doesn’t necessarily inoculate parents from the effects of court jurisdiction. Parents must still make an admission about the allegations and submit to court requirements. And even when parents successfully complete all of the court’s requirements, that doesn’t necessarily mean the dismissal of their cases. Unlike typical (i.e. non-specialised) courtrooms where a parents’ compliance with court ordered services and the completion of programs (e.g. submitting to drug tests, attending domestic violence classes, completing other court ordered programs) factor into its assessment of progress and when or if a case will be dismissed, at the CoC, the inverse is at play. Even if parents fully comply with the court’s plan and requirements, that doesn’t mean their cases will be dismissed. Additionally striking, while dependency courts are broadly designed to reunify families whose proceeding investigations into parental abuse and neglect may lead to family separation, at the CoC, youth’s experiences of sexual exploitation are what prompt jurisdiction and youth behavior and stability are key factors in determining if and when cases close. Alix and Tahlia unpacked how this works:

The focus [at the CoC] is on how the child’s doing and the services the child’s receiving versus if the parent actually completed the program because if the child can actually stabilize and stop being trafficked … we can see cases close because the focus is whether there’s a current safety risk. (Tahlia, Attorney)

On the flip side of that do we have cases where the parents did everything they’re supposed to do but nothing has changed with the youth, so the case isn’t going to close anytime soon. (Alix, Attorney)

Complying with court programs and attending in-person court appearances pose particular challenges for parents with other children. Other barriers exist too, such as when the parents of court-affiliated youth have other kids at home. In those instances, the filing of the B2 petition risks system-involvement for their other children, not to mention added challenges in attending court hearings that can serve as a deterrent of parental compliance. As Alix explained:

The biggest barriers are usually when there’s other children in the home … even though it’s an ‘unable’ petition like they can’t do it, they’re still in the petition and I think a lot of the petitions come in and there’s one child that’s being trafficked but there’s four other kids and sometimes the department will plead against the other kids based on you know the CSEC case … (Alix, Attorney)

The frequency of progress hearings with youth is part of what makes the CoC trauma-informed and distinct from other dependency courts. Yet these hearings place demands on parents, even if they are not required to make in-person appearances. While CoC professionals may view parents as more involved than parents in typical dependency courtrooms, they must still navigate a system comprised of system actors (e.g. social workers and child welfare actors) who routinely make evaluative assessments about families, parenting, and maternal behavior that hew to racialised, gendered, and middle-class norms (Sufrin 2017, 11). Once the Court has jurisdiction, not only is it possible for system actors to ‘plead against’ the siblings of individual youth, it is also possible to open investigations against court-affiliated youth who are themselves parents.

Minor mothers/minor parents and the limits of the TIA

‘Complicated’, ‘frustrating’, ‘unexpected’, ‘an unfortunate cycle’, and ‘the most difficult cases’, are among the ways that professionals representing different parties at the CoC described situations involving ‘minor mothers’ and ‘minor parents’. Professionals’ detailed reflections on the challenges that arise when ‘CSEC kids have kids’, as Inez framed it, helped me to understand that trauma-informed efforts designed for individuals not only impact parents, but can also spillover in affecting youth’s own children.

When youth get pregnant while involved with the Court, this doesn’t necessarily mean that DCFS opens an investigation. However, a petition can be filed if a court-affiliated minor parent makes decisions or engages in behaviors that misalign with professional interpretations of appropriate parenting. Kaia said that a petition may be filed if youth leave placement, if they are ‘still caught in the life’ or if they don’t have an ‘appropriate plan of supervision’ for their child. She went on the explain:

A lot of times, the fathers of these babies are the exploiters, right? Whether they would leave them with the exploiter because, naturally, that's the father. But for us, it's still a risk because of everything else that revolves around CSEC … You have the minor mother and you have the baby and you're trying to reunify them, knowing what the minor mother is doing and her compliance and how caught up she's still in the life. Trying to assess that risk to this baby, but also servicing her … it's a lot of hats to wear. (Kaia, Social Worker)

Like Kaia, Aria described the challenges of wearing ‘different hats’. She also discussed having to affectively shift her approach with minor parents versus non-parents in order to convey the stakes surrounding their decisions as parents.

I need them to understand how serious it is and so the whole tone of the conversation has to change … ‘if you don’t do what I say, they’re going to come and take your baby today, period. (Aria, Attorney)

Attending court sessions involving minor parents and bearing witness to some of the most wrenching courtroom scenes attuned me to the complexities professionals like Aria and Kaia must navigate. Observations also provided the chance to understand how professionals leveraged ideas about trauma in making certain arguments. While recognition of youth trauma was a through line that animated different parties’ discussions of minor parent cases, the source and salience of trauma sometimes varied depending on whether the arguments were in favor of or against removing minor parent’s children from their care. For example, some professionals argued that a minor parent’s failure to acknowledge their trauma and unwillingness to recognise their trauma-bonds with the father of their children (whom the court believed was also their trafficker/exploiter) and maintaining contact with them was grounds for detaining their children. Or attorneys suggested that the detention of minor parent’s children was traumatising. Even in instances where professionals acknowledged system failures as the source of minor parents’ trauma, this did not necessarily mean that petitions wouldn’t be filed to take their children.

In reflecting on challenges, Inez relayed, ‘We all follow these kids on their social media’ (Inez, Attorney). When professionals keep tabs on court-affiliated youths’ social media content as individuals and use this information to locate them in the event they leave home or placement, this is implicitly understood as a way to ensure for their safety. Yet for minor parents, such surveillance techniques can lead to the filing of petitions leading to the detention of their children. Moreover, strategies employed to aid individual youth sometimes take on an intensified, acutely surveillant effect when those court-involved youth also have kids.

Aria seemed to agree with the half question, half comment I posed in an interview: the Court of Care is trauma-informed, but couldn’t losing one’s children be interpreted as the harshest forms of punishment?

Absolutely. It is. And it’s not trauma-informed … Because that part has nothing to do with being trauma-informed. That is a different issue. The CSEC portion is trauma-informed. Yes. Your child being detained when you are a dependent has nothing to do with trauma-informed. (Aria, Attorney)

For her part, Caelyn noted that well-intended laws and interventions mean little to a person who has lost their kid(s):

While legally, it is not intended to be punitive, it is intended to protect and give a child the best shot possible and the best home life possible … who cares what the intent is if at the end of the day I lose my kid, I’m being punished … that’s true whether minor mother or, you know, 45 year-old not necessarily victim of anything … ‘You’re taking my kid away because you perceive that I did something bad.’ How is that not punitive? Of course it is. (Caelyn, Attorney)

That some court-affiliated youth’s own child(ren) may get detained underscores the conceptual limits of laws and court innovations framed as a paradigm shift away from punishment but which result in family separation. It also shows how efforts to assist individual youth, even if trauma-informed, can get mottled in a dependency court setting when different parties are involved (i.e. the state, youth, their parents, and/or their children) and in which court assessments about individual youth risk, vulnerability, and behavior can spill over and affect their families. The Court of Care’s attentive, intensive trauma-oriented approach promotes professional understanding of youth’s unique circumstances and offers them some flexibility in meeting their needs. Yet when youth have kids, the flexibility and understanding applied to them as individuals can lead to heightened scrutiny over their behavior and decisions as parents, sometimes resulting in the harshest outcome of child welfare system involvement: the separation of children and parents.

Afterlife of decriminalisation redux

Ethnographic findings from the CoC highlight three interconnected developments that shine light on the ‘afterlife of decriminalization’, a framework I use to describe legislative efforts in California specific to youth, but which has broader purchase in tracking emerging logics and practices arising from the passage of laws decriminalising sex work involving adults as well. First, insights from the CoC underscore how the afterlife of decriminalisation gives rise to nascent carceral-trauma assemblages that may not be recognised as punishment, but which nonetheless contribute to protracted system involvement and carceral control beyond the criminal legal system. A distinctive form of state authority shapes the Court of Care’s work in which professionals’ attunement to trauma and integration of ‘trauma-informed’ approaches lead to intensified system efforts to monitor ‘at risk’ youth. For instance, professional concerns about youth who are ‘trauma bonded’ with exploiters can underwrite a particular kind of trauma-informed intimate surveillance (Levy 2014) that may not be intended (or intelligible to professionals) as punishment, but which court-affiliated youth may still perceive as coercive. Relatedly, familial, interpersonal and relational harms (e.g. when youth who are assumed to be ‘trauma bonded’ with people alleged to exploit them) were among the most legible ‘underlying traumas’ that the Court aimed to heal. Yet a focus on individual trauma singularly sourced from experiences of CSEC can cloak the complexity of trauma, obfuscating how structural inequities and system interventions contribute to and amplify experiences of trauma, whether from sexual exploitation, institutional racism, or a range of intersectional vulnerabilities.

Therapeutic court monitoring efforts don’t diminish state control over youth per se; they reformulate it in decidedly trauma-informed directions. Like hybrid penal-therapeutic innovations for adults (Leon and Shdaimah 2021; Gruber, Cohen, and Mogulescu 2016), care and surveillance are intertwined in burgeoning carceral-trauma arrangements designed for youth. A courtroom’s trauma-attunement implicitly suggests that the heightened attention and extended system involvement it offers produce benefits, such as enhancing youth access to resources, services, and coordinated supports unattached to the criminal legal system. Yet, as highlighted by the B2 and minor parent cases, a double bind surrounds trauma-informed approaches designed to support individual youth that can adversely affect their parents and sometimes their own children. These cases show that strategies to move away from punishment by leveraging system resources in the service of healing youth trauma can still expose youth and families to a child protection system in which Black mothers and children are overrepresented (Roberts 2017).

A second significant finding from the CoC reveals how new laws and system efforts designed to move away from punishment in the afterlife of decriminalisation reproduce existing system inequities, even if inadvertently, while creating new risks, particularly for BIPOC youth and families. Specialised dependency court efforts and the laws that authorise them are connected to past and ongoing state efforts to control Black families in general and poor Black mothers in particular (Roberts 2017). Carceral incursions into the lives of Black families don’t just separate families, however; they restructure them by imposing a range of conditions and making evaluative assessments about what constitutes appropriate and inappropriate child–parent relationships (Haney 2013, 109; Roberts 2017). Dorothy Roberts highlights the operative yet questionable formula undergirding child protection efforts in the United States, that ‘hinge family assistance on state custody of children’ (Roberts 2017, 191). At the CoC, a mutated version of this formula plays out where efforts to assist individual youth prompts court jurisdiction that involves and implicates their families. Yet it also amplifies extant system efforts. Unlike more typical dependency cases, the B2 empowers the state to separate a child from their parent or impose conditions on their relationships. This is despite professional contentions that parents are not technically at fault. Not only does this highlight the need to broaden frameworks scholars use to account for the ‘collateral consequences’ of anti-trafficking efforts such that they count child welfare efforts as a form of state control that impacts individuals and families, it underscores the importance of evaluating the impact of laws and system efforts in decriminalisation’s afterlife. This includes the inadvertent aftereffects of laws and system shifts, including and especially when such interventions are framed as an ‘alternative’ to and paradigm shift away from punishment.

Third, research at the CoC underscores the ways in which current system alternatives to punishment continue to fall short in addressing the structural conditions that shape exploitation. Arguably in the afterlife of decriminalisation, efforts pitched as system-changing are likelier to be system-sustaining, an area where more research is needed. The Court of Care is but the latest example in a long history of court and adjacent system innovations rolled out under the guise of reform and which purport to offer ‘a more caring and effective approach’ but which in practice expand mechanisms of social control, including through court-monitoring and attendant gendered-racialised surveillance strategies (Leon and Shdaimah 2021, 129). These types of ‘reformist-reform’ (Spade 2020) are framed as a paradigm shift away from punitive approaches of the past. Yet, specialised dependency courts are embedded within (and thus cannot be separated from) the larger child welfare system where Black mothers are ‘disproportionately involved’ and Black children are ‘grossly overrepresented’ (Roberts 2007, 186; 189).

At the CoC, professionals wield therapeutic authority to assess youth vulnerabilities. Language and perception shifts, enhanced service offerings, and heightened attention to youth trauma are part of the trauma-informed turn cited by some professionals as evidence of change. Professionals I interacted with seemed deeply concerned about young people’s well-being, and most were also keenly aware of the racial disparities afflicting the child welfare system. Yet youth experiences of harm from CSEC were often discussed separately from discussions about racial disparities or the ways that system-involvement may cause or amplify trauma (Showden and Majic 2018).

The power to name and source youth vulnerability to specific activities and origins does more than train attention to specific harms they have experienced. It suggests the Court’s movement in trauma-informed directions reflects a commitment to structural change. The ascendency of trauma-informed approaches in general and trauma-informed anti-trafficking/child protection efforts in particular likewise purport to facilitate system-level change by offering ‘a new way of working with traumatized people’ grounded in ‘principles of safety, trust, choice, collaboration and empowerment’ (Hickle 2020, 538), and which emphasise supporting youth in building safe and ‘persistent relationships’ with professionals (Hickle 2020, 546). Research on the intersections of child sexual exploitation and trauma-informed professional efforts expressly situates racial inequality and discrimination as contributing to trauma. This means that in principle, trauma-informed approaches are not fundamentally misaligned with efforts to recognise racial trauma and support intersectionally oriented racial justice and healing (Hickle 2019, 153).

Yet the institutional design and statutory mandates of courts severely limit professionals’ ability to address structural vulnerabilities. Framing services and trauma-awareness as evidence of a paradigm shift away from punishment gives therapeutic cover to interventions ill-equipped to address extant structural vulnerabilities. Worse, it forecloses exploration of how well-meaning efforts, whether trauma-informed or not, contribute to vulnerabilities linked to protracted child welfare system-involvement. In fact, there is a clear contradiction between the language articulated in trauma-informed principles and the mechanisms by which the CoC is attempting to carry them out. We might ask, for example: Where does ‘safety, trust, choice, collaboration, and empowerment’ (Hickle 2020, 538) fit in a specialised dependency court and child welfare system that is rule-bound, inflexible, and coercive by statutory design? What are the costs of focusing on individual youth’s trauma and utilising trauma-informed principles that emphasise ‘persistent relationships’ with professionals if youth’s relationships with their parents, siblings, children, and community risk being severed?

Empirical data on the effects of laws and court innovations framed as alternatives to punishment are desperately needed to answer these questions, and I would argue we have an ethical obligation to carry out this research. Yet ironically, concerns about youth trauma/re-traumatisation make research with young people directly impacted by court interventions exceedingly difficult. System interventions designed for youth ‘at risk’ are already opaque. Courtrooms and adjacent carceral system interventions described as ‘trauma-informed’ present additional barriers to researchers commited to investigating the effects of court-based interventions where professionals concerns about youth re-traumatisation may and likely will be used as justification to foreclose empirical inquiry with the capacity to assess their longitudinal effects and ethical merits. In the absence of empirical research, laws and interventions framed as assistive can inadvertently reproduce harms linked to system involvement. As selected findings from the CoC make clear, ‘harms’ don’t necessarily include formal punishments, nor do they necessarily or always singularly impact individuals. Harms can also emanate from reform efforts framed as a paradigm shift away from punishment when they are invariably system-sustaining and reinforce or replicate existing inequalities. This highlights the need to refine critical analytical tools and methods in the afterlife of decriminalisation such that researchers are equipped to describe collateral consequences beyond the criminal legal system and beyond individuals. It also shows how specialised court efforts are ill-equipped to address the structural inequalities that give rise to exploitation, and that frontline actors are themselves invariably constrained in addressing existing structural inequalities already baked into anti-trafficking efforts. Put otherwise, professionals’ dedication and commitment, no matter how stalwart or well-intentioned cannot – and I would argue should not – stand in the way of asking foundational questions: Why should youth have to go to a court to access services? Why should services for youth require the court’s jurisdiction? Do the risks of trauma-informed efforts designed for individual youth outweigh the benefits, especially if the ‘consequences’ hold the possibility of separating them from their families or their own children?

Conclusion

A built-in structural tension surrounds judicial efforts framed as a paradigm shift away from punishment in that these efforts do not necessarily curtail state authority or do away with carceral control so much as therapeutically realign it. Constrained in their ability to actualise structural change, court professionals’ attention to youth vulnerability and trauma-informed efforts can inadvertently mask the court’s wider effects. Framing such efforts as a paradigm shift away from punishment obfuscates the actual impact of these efforts and draws attention away from addressing structural vulnerabilities that give rise to exploitation and trauma in the first place. Yet it also draws much needed energy away from coming up with solutions to advance trauma justice and lasting transformative, structural change.

Acknowledgement

I offer a special thanks to Chrysanthi Leon, Erin O'Brien, Corinne Schwarz, Corey Shdaimah, and the anonymous reviewers for their insightful feedback on this paper. I also immensely grateful to Samantha Majic and K. Surkan for their nuanced feedback on earlier drafts of this paper. Finally, I would like to thank and acknowledge the Knapp Social Science Center and Library and Technology Services at Wellesley College for supporting this research.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Wellesley College.

Notes on contributors

Jennifer Lynne Musto

Jennifer Lynne Musto is an Associate Professor of Women's and Gender Studies at Wellesley College. An interdisciplinary scholar, her research explores human trafficking and sex work in the United States, with particular attention to how laws and carceral strategies shape anti-trafficking efforts and to what effect.

Notes

1 ‘Youth who trade sex’ is an intentional framing based on empirical research. Social scientists suggest using ‘sex trades’, ‘selling sex’, or ‘trading sex’ as they carry fewer assumptions than terms like CSEC (Showden and Majic 2018, 13–14; Lutnick 2016, 2). However, this language is fiercely contested and professionals who work with youth typically use terms like commercial sexual exploitation of children (CSEC), domestic minor sex trafficking (DMST) or sex trafficking (Showden and Majic 2018, 130). I use ‘youth who trade sex’ and ‘sex trades’ when describing activities that led to youth’s court involvement. When describing the Court of Care and professionals’ work with youth, I use ‘CSEC’ as that is the language that the state and most professionals use to refer to youth and their situations.

2 For a brilliant exploration of hybrid judicial-therapeutic arrangements within prostitution diversion programs, see Leon and Shdaimah (2021).

3 After I received IRB approval, I submitted a court petition seeking permission to conduct observations and interviews with youth and professionals connected to the CoC. The court petition was approved in January 2018.

4 The court’s approval required me to work with an agency that had concerns about the study. Over several months, I engaged in a series of phone calls, email exchanges, and an in-person meeting with agency representatives to discuss their concerns. I filed a detailed IRB amendment in July 2018 to address their concerns. While none of these efforts resulted in any introductions or interviews with court-involved youth, some professionals’ discussion of their concerns helped me to understand how discourses of trauma and professional concerns about youth re-traumatisation made research with groups most directly impacted, in this case, court-involved youth untenable.

5 I am referring to a particular kind of affective labor that corresponds with ethnographic research in trauma-informed spaces where interpretations of vulnerability and injury may be used as justification to advance or foreclose particular activities, including but not limited to research. Corinne Schwarz’s incisive analysis of the emotional labor and ‘edgework’ that accompanies frontline professionals’ anti-trafficking work provides a generative framework to more broadly theorise the edge/care work and affective labor demands that accompany ethnographic research on trauma-informed spaces (Schwarz 2021).

6 In a toolkit for judicial officers in California, trauma bond is defined – without citations or references – as ‘the act of being controlled by a trafficker, coupled with the complex nature of the relationship with the trafficker … the “trauma bond” might have been created by promises of love and affection (the Romeo pimp) or through threats of violence and force (the Guerilla pimp) or a combination of the two’ (Judicial Council of CA 2017, 24).

7 This reflects what I call a penal welfare makeover, a concept inspired by sociologist Allison McKim’s coined term penal makeover (McKim 2017, 85). Like penal makeover projects where authorities frame beauty practices as key to facilitating participants’ recovery from addiction and abuse (McKim 2017, 91–92), a version of this phenomenon plays out at the CoC.

8 Asking ‘What happened to you?’ instead of ‘What is wrong with you?’ (Sweeney et al. 2018) is an established trauma-informed practice that came up in interviews as an example of a TIA some professional’s use.

9 See also Leon and Shdaimah (2021) for a complementary discussion of how professionals cultivate ideas about trauma in prostitution diversion programs for adults.