Why Are New York Courts Lumping in Sex Workers With the Victims of Human Trafficking?
Red Umbrella Project executive director Audacia Ray speaking to sex-worker advocates last year.
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One year ago, a coalition of New York state prosecutors, judges, and defense attorneys announced a bold plan: a system of special courts to try people charged with prostitution-related offenses, one meant to help those defendants leave the sex trade by offering them counseling and assistance instead of jail time. It was dubbed the Human Trafficking Intervention Initiative. In the words of Judge A. Gail Prudenti, one of the judges involved in helping to define the court's scope, the system sprang from a desire "to intervene in the lives of trafficked human beings." Prudenti added, "While there still is an antiquated view that prostitution is a chosen profession, many individuals who end up in New York courts on prostitution charges are victims of trafficking, recruited into the commercial sex industry by force, fraud, or coercion."
In other words, from the start, the Human Trafficking Intervention Courts (HTICs) assumed that there was little difference between victims of trafficking and people voluntarily undertaking sex work. Any notion that prostitution could be chosen as a form of work was dismissed as an "antiquated notion." That assumption, says the Red Umbrella Project, has led to some strange, sometimes troubling issues during the human trafficking courts' first year.
The Red Umbrella Project is an advocacy group run by current and former sex workers. When they first heard about the new trafficking courts, they decided to start observing the cases that were referred there. They observed two courts, one in Brooklyn and one in Queens (there are eleven total throughout the state.) Their observers attended court hearings related to 364 cases, about half in each court. Today, they released a new report, "Criminal, Victim, or Worker?" outlining their findings.
The model for the courts is pretty simple: People facing prostitution-related misdemeanors are referred to an HTIC. If they successfully complete a court-mandated treatment program, they're given an Adjournment for Contemplation of Dimissal (ACD), meaning that their charges will be dismissed and sealed as long as they're not re-arrested within six months.
"Just the idea that the courts are figuring out ways to not incarcerate people arrested on prostitution charges, that's a big deal," says Audacia Ray, Red Umbrella's founder and executive director. "The implementation leaves a lot to be desired, but that's a big deal."
Based on Red Umbrella's observations, the courts seem to proceed from the assumption that every defendant is a victim of trafficking, a one-size-fits-all model they argue is both inappropriate and unhelpful.
"Though based on an intention to help people who are in exploitative situations or working in the sex industry when they would prefer to be doing another job," the report says, "the blanket assumption that all people in the sex trades are victims does us a grave injustice." But if the HTICs truly do proceed on the assumption that the people being tried there are victims, not criminals, the court adds, arresting and trying them doesn't make a lot of sense: "No other charge, be it domestic violence, kidnapping, labor exploitation, or sexual assault, calls for the person being exploited to be arrested."
The courts are not set up to encourage a defendant to proceed to trial, and most don't seem to know they have a constitutional right to a trial by jury. In many cases, a defendant who said she didn't want to accept that deal was simply told by the judge to reconsider, and another court date was scheduled for a later time.
"A public trial by a jury of one's peers is the right of any person charged with a crime," Red Umbrella writes. "We observed one Brooklyn defendant attempt to pursue a trial during our study period."
The racial and gender makeup of the HTIC defendants is also highly specific: In the Brooklyn cases that Red Umbrella observed, almost 70 percent of the defendants were black, while in Queens, the majority, about 60 percent, were East Asian, many speaking only Mandarin Chinese. Nearly all of the defendants were cisgendered women. Transgendered women made up 4 percent of the Brooklyn defendants but nearly 10 percent of the Queens defendants. The majority were being charged with prostitution, but some faced more nebulous offenses, like "loitering with the intent of committing a prostitution offense," a misdemeanor. In those loitering cases, NYPD officers sometimes used what the defendant was wearing as a justification for the arrest, noting in deposition forms, for example, that a woman had on a "tight pink cut off shirt, revealing midsection, and low-hanging sweat pants."
In her experience doing outreach, Ray says, "Loitering is definitely a charge that police use to harass people doing street-based prostitution. In the Brooklyn court, we saw that 94 percent of people arrested on that charge were black." It reflects a larger concern Red Umbrella has about the overwhelming number of minorities being arrested for prostitution and funneled through the HTIC system.
"There has never really been useful data on who is actually doing prostitution, the demographics," she says. "And most of that data we do have comes from records of who gets arrested, which is a different thing than who's doing the work." Red Umbrella's report questions if racial profiling played a factor in the arrests.
The group sees other serious procedural issues at work in the HTICs. In some cases, Ray says, especially ones where the defendant's primary language wasn't English, it was unclear if the women understood that the special court system they found themselves in wasn't meant to be punitive.
"There's a really big gap in the information that defendants actually receive about what their situation is," she explains. "The courts can say, 'We're helping' all they want to, but the defendants just know they've been arrested and that's how they ended up there. Arrest does not have good connotations. That's a major concern for us."
Red Umbrella says it is also concerned with the quality of the interpretation being provided for the non-English-speaking defendants. The group found that Mandarin-speaking people typically spent five or six months in the HTIC system before receiving their ACD, with court dates re-set multiple times because an interpreter wasn't available.
Sometimes, too, an interpreter was present, but the quality of his or her work was questionable. In one case that Ray personally observed, a defendant was asked by the judge, "How are you doing?" The interpreter relayed the woman's response as "Very good." It was obvious to everyone in the room, including the judge, that that's not what the defendant had said.
"She was slumped over and just looking irritated," Ray remembers. "And she also said many more words than what the translator translated."
The judge sternly told the translator to relay what the defendant had actually said. As it turned out, she was telling the court that she was upset and saying she wasn't guilty. The judge explained that the program was voluntary, and that accepting an ACD is not an admission of guilt. Armed with that information, the defendant chose to accept the deal.
In another case, Ray says, "We saw a Russian-speaker in Brooklyn who didn't get interpreter services for her last court date. She completed the program and got her ACD, but she didn't get the full explanation, that [the charges against her] don't just go away. That you have a six-month window in which you can be re-arrested. She completely missed that, because there was no interpreter for her. It's not legal. Having an interpreter is a constitutional right."
Based on its observations of the HTIC system, Ray says, Red Umbrella has decided to start conducting direct outreach to the defendants. "We created Know Your Rights cards that have information about what's happening in the court, what your rights are, what the different charges you might face are, and what the process looks like," she says, all information that Red Umbrella doesn't believe is being adequately conveyed to the defendants. "We want to give folks a friendly, non-court-involved face, to tell them, 'We're not lawyers. No one's paying us to be here. We're sex workers.' "
The full report is fascinating and well worth a read; it can be downloaded here.
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