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(Image: Woman profile via Shutterstock; Edited: JR/TO)A New York State prostitution court model of treating defendants as “trafficking victims” needing social services is gaining popularity, but sex workers claim the human trafficking narrative is based on an unreliably narrow view of the sex trade, which should be decriminalized altogether.

The New York state court system announced a “giant leap forward” in criminal justice last year when it rolled out 11 new prostitution courts, which are supposed to treat defendants as “trafficking victims” who are likely in need of medical and social services. More than 2,000 people have passed through these Human Trafficking Intervention Courts (HTICs) in New York City alone since last September, when programs at three pilot courts expanded into the nation’s first statewide system that could serve as a model for the rest of the country.

The HTICs rely on a controversial justice model based on the idea that most people selling sex are “trafficked,” which involves being threatened, forced or otherwise coerced by others. The model is gaining popularity among law enforcement nationwide despite protests by sex workers who claim the human trafficking narrative is based on an unreliably narrow view of the sex trade, which should simply be decriminalized altogether.

A Truthout review of state and other data shows that, despite the increased focus on trafficking, the vast majority of prostitution-related arrests in New York City are for low-level charges like loitering and simple prostitution, not human trafficking. Sex workers and even trafficking victims are far more likely to end up in handcuffs than the sex traffickers allegedly lurking in the shadows.

HTICs work much like a diversion program. Instead of facing charges that could lead to fines or jail time, defendants can choose to participate in court-ordered social service programs that are supposed to help them heal from abuse and exit the sex trade. A defendant could be referred to drug treatment or a shelter for immigrants, for example, or even to groups that provide art therapy and yoga classes. If defendants show up to the assigned programs and stay out of the hands of police for six months, their charges can be reduced or dismissed.

Anti-trafficking advocates have hailed the HTICs as an opportunity to help victims instead of punishing them. But the new courts still raise eyebrows among sex workers. Mandatory yoga may sound a lot better than jail. Nevertheless, many sex workers oppose the practice of being brought before a judge, simply for doing their jobs. Many also oppose being lumped in with human trafficking victims, even when they are doing sex work by choice and setting the terms of their labor.

“I feel like these courts are a huge step forward,” said Balder Rosado, a member of the Red Umbrella Project (RedUP), a peer-led group that amplifies the voices of people in the sex trades in New York City. “However, the issue is that people are still getting arrested for [sex work], and people are going to get services that may not address their needs.”

The media failed to examine the deeper issues surrounding New York’s HTICs, so RedUP decided to conduct its own investigation. Members observed HTICs in Brooklyn and Queens for nine months, tracked more than 360 cases, and released their findings earlier this month in a report titled “Criminal, Victim or Worker?”

“Reports on sex workers by researchers specializing in criminal justice are common, but as sex workers, we believe that it is important for us to turn the tables and report on the criminal justice system and its impact on our community,” the report states.

RedUP discovered that people of color were disproportionately represented in the HTICs, especially in Brooklyn, where cops filed street prostitution charges against black women at especially high rates. Sixty-nine percent of the defendants in the Brooklyn HITC were black, but black defendants faced 94 percent of the “loitering with intent to engage in prostitution” charges, an offense RedUP compared to the NYPD’s now infamous “stop and frisk” policy that accelerated racial profiling across the city and was declared unconstitutional by a federal court last year.

Police can stop individuals for “loitering with intent” if they are doing as little as wearing revealing clothing and hanging out in the wrong part of town, and RedUP is concerned that the high number of black defendants could be an indicator of racial profiling.

Interpreter services were lacking in the HTICs, and defendants who spoke little English often waited longer for their cases to resolve than other defendants, according to RedUP. There are also no public standards for the dozens of nonprofits and other NGOs that host mandatory services for defendants, and defendants are typically ordered to attend only five to six sessions, raising doubts that the short-term programs can address the kind of pervasive problems faced by marginalized people who sell sex for survival.

Victims or Workers?

The RedUP report immediately faced sharp criticism from anti-trafficking advocates, who often find themselves at odds with sex workers.

When pressed for comment, a spokeswoman for the New York Unified Court System pointed Truthout to an editorial in the New York Daily News by Judy Harris Kluger, a former New York City judge and state supreme court justice, who helped implement the special courts. Kluger argued that the report’s “dangerous misconceptions provide deeply flawed analysis” that ignores the successes of HTICs.

The misconception Kluger presumably referred to is the RedUP’s assertion that, while some people arrested for prostitution are survivors of trafficking, others enter the sex trades out of economic circumstance, and even choice, and may not need the kind of intervention offered by police and the courts.

Kluger remains unconvinced, even though this assertion came directly from sex workers themselves.

“Anyone who thinks that prostitution is a victimless crime or a chosen ‘profession’ needs a history lesson,” she writes. Kluger, who now runs an advocacy group for domestic violence and sex trafficking survivors, called HTICs a “giant leap forward” from the old system that viewed sex workers as “criminals” and “addicts.” She claimed that the majority of people arrested for prostitution are victims of abuse, rape and assault at the hands of pimps and johns, and “defendants typically entered this ‘profession’ between the ages of 12 and 14.”

However, the reference to shocking – sometimes unsubstantiated – statistics is a common practice among anti-trafficking activists, according to RedUP Director Audacia Ray. “Anti-trafficking organizations do rely on unreliable data,” she said, adding that the “myth” of 13 being the average age of entry into prostitution has been debunked.

“That said, because of the highly stigmatized nature of the sex industry, and because of the problems of self-reporting around sexuality in general, much data produced about the sex industry is faulty, particularly because the population focus for data collection is . . . on people who have been arrested and convicted on prostitution-related charges,” Ray said.

If throwing someone in handcuffs and asking them for information about their involvement in activity that is both illegal and socially stigmatized is not the best way to get accurate information, then can it be a good first step toward helping them heal and leave the sex industry – especially if they are victims of abuse to begin with? As the RedUP report points out, “No other charge calls for the person being exploited to be arrested.”

Shira Hassan, a harm reduction and transformative justice specialist in Chicago, said that anti-trafficking advocates often push for laws and special courts that reduce the penalties prostitution defendants face, in the name of “decriminalization.” These efforts are not about decriminalization, she said. They are about “changing the process by which someone is criminalized.”

“Criminalization is about racism, it’s about your neighborhood, it’s about how you are dressed,” Hassan told Truthout. “It’s about policing.”

The Police Problem

The RedUP report includes the case of one defendant, Ciara, who refused social services offered by the HTIC and pursued a trial instead. Her charges were later dropped when the judge called in sick on the first day of her trial. Like the vast majority of defendants arrested in Brooklyn on loitering charges, Ciara is black. She reported being brutalized by police and had pictures of her bruises to prove it.

“The problem is, when you involve the NYPD in anything, chances are violence ensues,” Rosado said.

In New York City, police can cite revealing clothing like a short skirt, nearby condom wrappers, and even standing in an area that isn’t a bus stop, taxi stand or open storefront, as evidence that an individual is “loitering with intent,” according to the RedUP report as well as recent research by the Columbia Law School. The cops can even argue “probable cause” if someone has been arrested for prostitution in the past, or is standing with someone who has.

Having a case dismissed in an HTIC does not protect a person from being re-arrested by cops on the beat, RedUP points out. Someone who is no longer doing sex work could be rearrested for loitering while hanging out with friends or in a neighborhood where they have been arrested in the past. A re-arrest invalidates a prior case dismissal, and the defendant is back at the beginning of the HTIC program.

RedUP openly asks if NYPD officers in Brooklyn are “encouraged to profile and harass black women” with the intent of pressing loitering charges, and whether arrest is the best way to connect sex trafficking victims to services, especially considering that black women already face racist patterns of arrest in general.

Who’s In Handcuffs?

When New York first announced the HTIC rollout, it boasted that there would be “increased coordination and communication between the court [and] its criminal justice partners,” and that “district attorneys across the state have also affirmed their commitment to investigating and bring charges against traffickers and those who patronize prostitutes and feed the demand.”

The state court system claimed that sex trafficking was the “most pervasive” form of human trafficking, and police departments and district attorneys across New York City have established human trafficking task forces in recent years. The heat, it seemed, would be on the victimizers, while their victims were taken to social services.

Advocate Sienna Baskin, however, says the heat is still on sex workers. Baskin works with the Sex Workers Project at the Urban Justice Center in New York, an advocacy group that provides direct legal and social services to both sex workers and survivors of sex trafficking who have “diverse experiences with the sex industry.” The group and its clients have plenty of interaction with the HTICs and the police who fill them, and Baskin says the numbers don’t lie.

“The statistics show that there is still an emphasis on arresting people on low-level prostitution offenses, and that is the majority of the arrests made under the prostitution statute, so there hasn’t been any broad changes to the policing,” Baskin told Truthout.

In Brooklyn, 917 defendants have participated in the HTIC since the court opened its door last September, and 211 cases were pending as of October 1, according to the New York Unified Court System. A Truthout review of public information released on the Brooklyn district attorney’s website shows that no major sex trafficking charges or convictions have been announced during 2014.

From 2010 to 2013, 64 percent of prostitution-related arrests in Brooklyn were for engaging in prostitution or loitering with intent, and 31 percent were for patronizing a prostitute. Only 2 percent of arrests nabbed suspected sex traffickers, according to the Urban Justice Center’s analysis of data compiled by the Columbia Law School.

The Queens HTIC has heard more than 2,400 cases since its pilot program began keeping track in February 2010, and 431 cases made it on the HTIC docket in Manhattan since last September, according to state data. Hundreds of other prostitution cases were heard in other courts.

A spokesman for the Queens district attorney’s office did not respond to a request from Truthout, but a review of the office’s press releases shows seven people have been charged with sex trafficking in four major cases since the HTIC program expanded in September 2013. A spokeswoman for the Manhattan district attorney told Truthout that their office has prosecuted seven people for sex trafficking since 2012.

The cases in Queens and Manhattan are brutal. Several cases involve exploited minors, and some defendants also faced rape and kidnapping charges. One woman in Manhattan broke several bones after jumping out of a sixth-story window to escape a trafficker, who is now serving 50 years to life.

Still, the number of sex-trafficking cases is far outnumbered by the hundreds of prostitution defendants filing in and out of the HTICs on a regular basis.

Community courts in Queens and Manhattan with similar prostitution programs predate the statewide HTIC expansion by a decade (the Manhattan court has been around since 1993), but their ability to help reduce trafficking remains unclear. Nearly 60 percent of prostitution-related arrests from 2010 to 2013 in both counties were for low-level prostitution and loitering charges, while sex trafficking arrests accounted for 1 percent or less.

One might wonder whether one is happening in service of the other – whether evidence on traffickers can be gathered from defendants who work the streets. However, Baskin says that’s not usually how things play out. “I think that might happen sometimes, but I don’t think that most people who are arrested for prostitution are screened as potential trafficking survivors by the NYPD,” she said.

Baskin said that although she would much rather see prostitution defendants ordered to social service programs than spend time in jail or prison, it remains a problem that sex workers are arrested in the first place. “A lot of harm can come around just from that police contact – brutality, sexual abuse, verbal abuse, just the trauma of being arrested,” she said. “If the emphasis is changing to be about offering services and other income options to people who are doing sex work, and intervening in violent situations, and giving people what they need without [harming them], then we need to stop criminalizing them.”

Baskin said that’s why her organization advocates for decriminalization of sex work. Handcuffing people and putting them through the legal system – whether they are victims of sex trafficking or engage in sex work by choice to earn their living – is not helping anyone.

“[These services] should be available outside the criminal justice system, and that’s where we think this needs to go, even though these courts are an improvement on the system we had before,” Baskin said.

Advocates may never agree on the extent that human trafficking contributes to the sex trade, but they all seem to acknowledge that New York’s trafficking courts got something right – mandatory yoga classes and job-training programs are always more helpful than spending time in jail. That, the New York court system claims, is a “giant leap forward.”

But when will it be time to take the next leap and take the cops and judges out of the picture for good?