Posted on October 8, 2014
Are New York’s Sex Workers Getting Their Fair Day in Court?
Originally published in The Nation on October 6th, 2014
Written by Michelle Chen
The labels that get slapped on sex workers as they navigate our country’s court systems are abusive at worst, condescending at best. As subjects of a carceral regime of policing sex, they’re in many ways presumed guilty before setting foot in a courtroom.
But under pressure from rights advocates, New York lawmakers have recently enacted measures to incrementally decriminalize sex work, including alternative sentencing programs designed to avoid criminal conviction and prison time. To track more people facing sex work charges into positive “intervention,” the state launched a new court system in 2013, known as Human Trafficking Intervention Courts (HTIC). The aim was to adjudicate sex work cases with greater “compassion.” One year on, however, advocates say the program’s idea of a humane intervention is driven by legal coercion and disrespect for sex workers’ basic human rights.
Under the HTIC model, eleven courts across the state process cases of individuals charged with prostitution-related misdemeanors, along with victims of sex trafficking. If they comply with the court process, they can attain an Adjournment for Contemplation of Dismissal (ACD) upon completion of a court-ordered program, usually involving rehabilitative services designed to prevent their “revictimization.” If they avoid re-arrest for the next six months, the charge is dismissed and the record is sealed.
But the reality that plays out in court is messier. According to a report by the sex worker advocacy group Red Umbrella, which documented observations of more than 360 individual cases in Brooklyn and Queens HTICs, the reformed court system remains plagued with structural discrimination, including the racial disparities ingrained in the justice system, and an often insensitive approach to behavioral intervention, which ignores complex social factors that lead people into the commercial sex trade.
Red Umbrella’s demographic observations suggest disproportionate criminalization of women of color. Blacks appeared to constitute 70 percent of the Brooklyn court cases. Nearly 60 percent of Queens cases involved people of Asian descent. The defendants were overwhelmingly cisgender women, but transgender woman defendants made up 4 and 10 percent of the Brooklyn and Queens courts, respectively. Blacks make up more than 90 percent of the “loitering” charges—a sign that black women engaging in street-based sex work are especially prone to police surveillance and crackdowns. They’re also highly exposed to harassment or violence. In some cases, advocates say aggressive policing leads to individuals being erroneously profiled as sex workers or falsely arrested. In light of the racial profiling controversies sparked by the NYPD’s stop-and-frisk program, the report recommends that “advocates and criminal justice officials alike must take a look at whether the charge of loitering for the purposes of engaging in a prostitution offense… is constitutional.”
The researchers also found that interpretation services in the HTIC’s were sorely lacking. Many Chinese-speaking defendants experienced much slower processing of their cases; the cases of Mandarin-speaking participants would typically take about five to six months to obtain ACDs—weeks longer than the typical timeframe. Researchers observed alarming patterns of potential miscommunication between the judge and defendants stemming from language barriers. In addition, the HTIC proceedings could potentially complicate a defendant’s immigration application process. In one case, Red Umbrella observed a Chinese-speaking defendant having to request a special acceleration of the dismissal of her case, so that the charges would not interfere with the pending review of her green card application.
The programs also appear to place women in programs of dubious effectiveness. Ranging from psychotherapy to yoga, the array of social services reflects notions that women are in need of self-help and emotional healing. The problem with this approach, Red Umbrella says, is that these services are not only intrinsically coercive, but prioritize “fixing” individuals’ problems over deeper unmet social and economic needs.
Red Umbrella Director Audacia Ray tells The Nation via e-mail: “Even if the services themselves are useful to defendants, mandated participation reduces personal agency. Forced rescue through arrest and court involvement falls short of supporting the human rights of people in the sex trades.”
Nonetheless, Ray notes that as an alternative judicial process, HTIC “is a step forward and an improvement on the prior system, because of the recognition that incarceration is not a solution that addresses the issues that people in the sex trades face.”
Rachel Lloyd of the Girls Educational Mentoring Service (GEMS), a social service provider for the HTICs, told Vice that sex trafficking victims have in the past wound up in Rikers Island, which then led them to cycle back into the trade. Facing these pressures, she said, “some girls, if they hadn’t been court mandated to GEMS, they never would have gotten out.”
Yet the HTICs’ heavy-handed intervention approach still raises ethical issues as to whether the services are rehabilitative or just punitive. By lumping together trafficking victims and other sex workers, the system fails to appreciate the fact that defendants deserve the right to decide on their own if, when and how they want to leave sex work.
Since obtaining an ACD is not an actual admission of guilt, it is unclear to what extent trafficking or other forms of victimization are even a factor. Jillian Modzeleski, an attorney with Brooklyn Defender Services, told Melissa Gira-Grant in the Daily News, “There’s no investigation on the part of the DA’s office or the police or of the courts…as to whether this person is a potential victim of trafficking.” If the intent is to protect vulnerable sex workers, the opacity of the HTIC procedures suggests that actually tracking actual incidents of exploitation or victimization is not as high a priority as the efficient processing of cases.
For Red Umbrella, even the new, purportedly more compassionate HTIC system perpetuates a narrow view of sex work as inherently victimizing or exploitative. The group hopes to develop a grassroots monitoring and advocacy program to help give defendants a greater voice in the HTICs as they navigate through the legal gauntlet.
Sex work is typically never a simple parable of criminality or moral downfall. Yet the two-dimensional legal framework imposed on sex workers fails to contemplate their agency as individuals. Often, crushing social stigma, infused with the legal system’s moralistic “rescue” mentality, further alienates people and impedes their access to justice, which further marginalizes them from both law enforcement and society.
Whether or not they want to leave the trade, that sense of personal sovereignty is key to empowering people who engage in sex work. When appearing before a judge, it’s perhaps less important for an embattled defendant to receive the state’s “compassion” than it is to be recognized as an actual human being.