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.”