Should New York be the first city in the United States to decriminalize prostitution? The blue-ribbon panel that just issued a forceful argument for closing the jails on Rikers Island within ten years thinks so.
Led by the Honorable Jonathan Lippman, the former chief judge of New York, the Independent Commission on New York City Criminal Justice and Incarceration Reform wrote in its 125-page report that prostitution, turnstile jumping, marijuana possession, and possession of so-called gravity knives should all be treated “as civil, and not criminal, matters.” But this recommendation from the panel is already running up against city prosecutors, judges, and the mayor, who all argue that it’s better for sex workers to be arrested and treated like criminals.
At a press conference touting the commission’s report on Sunday, Manhattan District Attorney Cyrus Vance Jr. was asked if he supported removing prostitution from the criminal code.
“When I was a young assistant, when I was arraigning those cases, I didn’t see any of the men and women — who they really were — when they came before me,” Vance mused. “Now, thirty years later, knowing much more, we do see it — much better, not perfectly but better . . .”
Instead of answering the question, Vance described what he perceives as a “180” in how his office treats prostitution. He mentioned the Midtown Community Court, where prostitution cases are sent; a “full-time trafficking bureau”; efforts to dismiss defendants’ prior prostitution charges; and what he says are steps taken to identify victims of trafficking among people arrested on prostitution-related offenses.
D.A. Vance did not say that he would stop prosecuting people for prostitution charges, as then-Brooklyn D.A. Ken Thompson did in 2014 for marijuana possession. Nor did Vance call for the NYPD to stop making prostitution arrests, like he did last year when he and the department announced a policy that police would issue summonses for low-level offenses like public consumption of alcohol or public urination, an approach that would reduce arrests.
Former judge Judy Harris Kluger, who also sits on the panel, added that the district attorneys were “in essence decriminalizing prostitution offenses” already. As evidence, she pointed to the special prostitution courts like Midtown Community Court, which Kluger said “take people who are arrested for prostitution-related offenses and treat them as victims.” (These courts also direct some defendants to a nonprofit that Kluger runs.)
It was Judge Lippman himself who announced those special courts for handling prostitution cases back in 2013. Yet these “victims” are still arrested, no matter what more noble purpose prosecutors and judges say lies behind that arrest.
The scramble at Sunday’s press conference — to nay-say decriminalization and then claim it already accomplished — revealed once again the power play at the heart of “progressive” criminal justice approaches to sex work: However many special courts, diversion programs, and social services are put on offer, their solutions still depend on arrest, coercion, and the threat of jail.
In a new report released today, the Urban Institute analyzed a year’s worth of cases from the Legal Aid Society’s Exploitation Intervention Project (EIP) — a program that has represented thousands of individuals charged with prostitution-related offenses across all five boroughs, all cases referred to the city’s special courts. The vast majority of clients in these cases are women, and the majority of those, women of color. The Urban Institute found that “most EIP clients interviewed reported being treated as criminals, not victims, by police and the courts.”
In examining 1,400 prostitution cases from EIP between 2015 and 2016, the Urban Institute researchers found that despite the courts’ practice of mandating counseling sessions, “only one EIP client indicated a desire for mental health assistance.” Yet 94 percent of EIP’s clients were required by the court to attend counseling – when what 43 percent of the clients indicated they needed was employment.
When Lippman announced the courts, he said they would “break the cycle of exploitation and arrest,” but, as the report points out, this was done “without emphasizing that this intervention would come through their own arrest and prosecution.”
Jenna Torres is a community organizer with the Red Umbrella Project (RedUP), a peer-led organization based in Brooklyn supporting the rights of sex workers. Torres is a sex worker, and she has been through those courts herself, after a prostitution arrest shortly before she began her first year of college. When her case was sent to one of the special courts, prosecutors offered Torres therapy sessions, between which she would also have to report back to court to answer the judge’s questions about her progress. If she failed to appear, a bench warrant would be issued for her arrest. Faced with this “choice” of treatment or jail, Torres went with treatment, which also meant she missed her college courses and ultimately had to leave school.
“If you’re getting arrested, it’s not decriminalization,” Torres told the Voice.
Researchers from Amnesty International and the United Nations Global Commission on HIV and the Law have found that when sex work is criminalized, not only are sex workers made criminals, but the actions they take to stay safe at work are also criminalized. This makes it risky for them to seek outside help if they need it, as they’re potentially outing themselves to law enforcement and agencies who work with them.
With decriminalization, said Torres, nonprofits that serve sex workers could more easily reach their clients and their members. “We could do a much better job — because we are already on the ground talking to people — without the fear of being arrested,” she explained.
One of the authors of the Urban Institute report, Legal Aid’s EIP supervising attorney Kate Mogulescu, has been representing New Yorkers facing prostitution charges throughout the life span of these special courts.
“We still hear judges say to clients all the time, ‘If you’re arrested again,’ when the prevailing philosophy of these courts — which I don’t necessarily agree with — is that victimization drives arrest,” Mogulescu says.
That is, according to the courts, women should be arrested for prostitution but should also be treated as victims, because women engaged in sex work don’t have agency over themselves. As Judge Kluger has written, “The notion that most people affirmatively choose prostitution as a preferred way of life is pure fantasy.” But whether or not someone chooses to do sex work, they have the same rights in a court of law. And, as Mogulescu observes of the conduct she’s seen in court, “If someone lacks agency, you would never tell them that they need to stop getting arrested. We don’t tell our clients not to get arrested because we know very well it’s the NYPD who controls who gets arrested, not our clients.”
A prostitution arrest itself exposes New Yorkers to further harm, Mogulescu explained. “Any sort of arrest-based encounter, whether it results in prosecution in diversion court or in criminal court, has collateral consequences,” Mogulescu said. At Legal Aid, they see so-called prostitution activity used in family court proceedings as proof that their clients aren’t “fit parents,” even when there is scant evidence to back that claim up. It’s also used to pressure landlords to evict people arrested for prostitution, even if there’s no evidence of sex work at their residence, under “nuisance abatement” laws. For noncitizens, prostitution arrests mean they might face immigration detention and deportation. “Clients are terrified to go to the subway station if they live in heavily immigrant communities, let alone walking in the doors of criminal court,” said Mogulescu.
None of these are new problems in the city. “It was prostitutes — ‘sex workers,’ would be the current language — who brought this issue to my attention twenty years ago,” said Ruth Messinger, former Manhattan borough president and former president of American Jewish World Service (AJWS), who now serves as the organization’s global ambassador. “It was important for city residents to understand the difference between minors who are by definition being trafficked and adults who are being trafficked, on the one hand, and people who have made prostitution or what is now sex work a choice,” Messinger said. “Nevertheless, in the city we continue to not only punish them, but to put them through a kind of meaningless revolving door.”
At AJWS, Messinger worked with sex workers’ organizations around the world, including Nicaragua, Thailand, and Uganda. They, too, faced harassment and abuse from police. If there is a lesson for New Yorkers to learn on changing sex work policies, she said, it’s to “listen to the people who are affected by the situation. . . . Listen to them, when it comes to what kinds of outside support or remedies they want.”
In the city, sex workers have already voiced their needs. Torres, along with other RedUP members, testified before City Council in September 2015 about her experience in the special prostitution courts. A group of cisgender and transgender women of color are now pursuing a class-action lawsuit against the city and the police, as reported by the Voice, alleging a system of racial and gender profiling in arrests for loitering for the purposes of prostitution.
Mayor Bill de Blasio is on record opposing the panel’s recommendation to decriminalize sex work. According to Politico [paywall], de Blasio said that if prostitution were no longer a criminal offense, “You wouldn’t be able to create a situation where you can isolate her from her captors and from those controlling her life.”
The mayor and the will of Albany lawmakers aside, decriminalization in reality will come down to one powerful group in the city. “Let me know when NYPD comes to the table and has a conversation with sex workers and with sex worker advocates,” Torres said. “I’m not talking about sergeants, I’m talking about cops who do this work. I need vice at the table. Because, like all these conversations about prisons, and all the reports you put out: You have to change the way people are policed. That is the issue.”