Are all sex workers victims of human trafficking? And should trafficking victims be treated as criminals?
Those are two central questions raised in a new report released today by Brooklyn's Red Umbrella Project, a peer-led sex worker advocacy group known as RedUP. It spent the past year monitoring proceedings at New York's Human Trafficking Intervention Courts (HTICs), a new system of courts designed to treat those arrested on prostitution-related charges as trafficking victims and offer them diversion options.
New York State Chief Judge Jonathan Lippman announced the establishment of the courts in September 2013.
"The Human Trafficking Courts, in urban, suburban, and rural areas throughout the state, will identify appropriate defendants charged with prostitution and related offenses and provide linkages to services that will assist them in pursuing productive lives rather than sending them right back into the grip of their abusers," he said at the time.
But trafficking victims aren't the only ones being tracked through the HTICs. Everyone arrested on a prostitution charge, including loitering for the purpose of prostitution, is now brought to a trafficking court.
'The flaw in the system is there's clearly an effort in the hands of these courts to have a less punitive, more helpful approach, but I don't think that message has trickled down to the police.'
The courts didn't come out of nowhere. A prostitution diversion 'pilot' court had launched in midtown Manhattan in 1993, with Queens and Nassau County courts added later. But the announcement that eight more courts would be added to the list statewide dramatically expanded the pilot program into a systematic criminal justice approach. Lippman estimated that 95 percent of defendants charged with prostitution offenses would be served by the HTICs, and imagined that the courts would "provide a template for the rest of the country."
One year after the statewide HTICs went into operation, some sex worker advocates are critical of the program, while others think it's a step forward.
The RedUP study, based on a year of observing court proceedings in a new Brooklyn HTIC and in the older Queens pilot court, points out one major flaw in the concept of trafficking court: it calls defendants victims but still treats them like criminals.
"No other charge, whether it be domestic violence, kidnapping, labor exploitation, or sexual assault, calls for the person being exploited to be arrested," reads the report, "As long as people who are in the sex trades by coercion, economic circumstance, or choice are 'rescued' through arrest and mandated services, they will continue to be re-victimized by the police and the courts."
The HTICs are based on a mandated service model where a judge assigns a defendant to anywhere from five to ten "sessions" at a variety of social service and advocacy organizations. Those include groups like Girls Education and Mentoring Service (GEMS), Hidden Victims Project, and New York Asian Women's Center. The services are determined by the judges and attorneys, along with advocacy groups, according to the needs of the defendant. They often include individual and/or group therapy, life skills workshops, and art therapy.
When a defendant completes the mandated services, they are granted an Adjournment for Contemplation of Dismissal (ACD). In order to make sure that no charge goes on their record, they have to stay out of trouble for six months after the ACD is granted. If they are arrested for any offense during the six months after the ACD, the original charge is "unsealed" and they go back to court.
"Try getting a job if someone wants to do a background check and you have an open record," Ariel Wolf, a RedUP community organizer, told VICE News. "An open record really is a barrier if you're trying to get out of a life of prostitution."
RedUP says that its yearlong scrutiny of the HTICs also uncovered disturbing trends in racial and gender profiling.
"There are a lot of trans women being picked up in the area of Jackson Heights," Wolf said. "We've been working with the Access to Condoms Coalition and finding that a lot of trans women are profiled and charged with prostitution just for having condoms on them."
Perhaps most disturbing was the news that in the Brooklyn HTIC, a whopping 94 percent of those charged with loitering for the purpose of prostitution are black.
The report cites the case of a black woman named Breanna, who was arrested in Brooklyn on a prostitution charge in October 2013. She completed the HTIC mandates and successfully received an ACD in May 2014. But just fifteen days later, Breanna was arrested again for loitering and was mandated to repeat a ten-session program. She was still working to close her re-opened case in August. While the case is open, her prostitution charge is searchable to anyone.
Despite the apparent oddity of continuing to arrest people that are complying with court mandates and considered trafficking victims, other advocates note that the system is an improvement. They say that the options used to be even worse.
"If someone was given jail time, that didn't prevent them from getting arrested as soon as they got out. The revolving-door nature of the criminal justice system works that way," Sienna Baskin, staff attorney with the Urban Justice Center's Sex Workers Project, told VICE News. "We have clients who were doing sex work and getting arrested every other day. Clearly that wasn't working either, in terms of keeping people outside of the criminal justice system."
A Sex Workers Project report from 2003 found that most street-based sex workers in New York City were caught in a cycle of pointless frequent arrests, and 50 percent of the sex workers interviewed said that they'd never been offered any social services after arrest. All had criminal records that could prevent them from successfully finding other employment.
A reprieve of sorts was granted in 2010, when legislation that the Sex Workers Project helped to write was passed into law. The Vacating Convictions bill allowed a trafficking victim to petition for expungement of their criminal charges related to prostitution.
The law went into effect immediately in the Queens diversion court, where advocates say Judge Toko Serita has been compassionate to trafficking victims, even getting non-prostitution charges cleared if they are related to a victims' trafficking experience.
But that bill only helps those who can prove that a pimp or trafficking network forced them into prostitution. People who found themselves in sex work for any number of complicated reasons, or by choice, were still subject to jail time.
GEMS founder Rachel Lloyd recalls working with clients whose multiple prostitution offenses got them sent off to NYC's Rikers Island prison despite their status as trafficking victims.
"When I first started GEMS, we were seeing 12 and 13-year-old girls going to Rikers," Lloyd told VICE News. "And some girls, if they hadn't been court mandated to GEMS, they never would have gotten out. We've got pimps who bring them here, drop them off a few blocks away. It's not like they get car fare."
Lloyd told VICE News that the HTICs might not be perfect, but for the type of clients GEMS sees, court mandated services are literally the only escape from a brutal life where every move is controlled by a pimp.
"If you're a trafficking victim and you're under the control of a pimp, you aren't going to have the option to come to services," said Lloyd.
"I see girls coming in every week with black eyes, handprints around their neck," she added. "And to see some of those girls a few years later showing me the keys to their new apartment, their college books? If court is what it took to get here, I'm fine with that."
Whatever improvement the HTICs have brought to the way sex workers are processed through the criminal justice system, it seems some tweaks are still necessary. All of the advocates VICE News consulted said that the time it takes for defendants to complete mandated services is too long, and noted that a lack of appropriate services creates a kind of waiting list.
RedUP's study found that a lack of sufficient language interpreters in Queens led to Mandarin-speaking sex workers spending about twice as long in the system because most of the social service and advocacy organizations offering mandated services could not accommodate them.
The group plans to launch a new program called Court Advocacy for Those who Trade Sex (CATTS) to do outreach and support for sex workers who are being tracked through the new courts and mandated services.
Advocates like Baskin and the Sex Workers Project say that the goal in the long run should be to decriminalize prostitution. Baskin noted that this is the only way to ensure that trafficking victims aren't re-traumatized and treated as criminals.
"The flaw in the system is there's clearly an effort in the hands of these courts to have a less punitive, more helpful approach, but I don't think that message has trickled down to the police," Baskin said. "Police are still arresting people for prostitution or profiling them as such. They're arresting people who are attempting to complete services and do their mandate."
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