You say loitering for sex, I say just hanging out

Are "prostitution-free zones" and other new law enforcement tactics for snaring sex workers constitutional?

Published August 30, 2010 11:01AM (EDT)

This originally appeared at The Crime Report.

In late June I witnessed something unusual in New York City’s Midtown Community Court: a trial on a prostitution charge. Hundreds of people are arrested for a prostitution-related offense in Manhattan each year, but only a fraction challenge the arrest at trial.

This trial was even more interesting because the charge was not actually prostitution. The defendant, a woman, had not been caught in the act of agreeing to sex for money; rather, she had been charged with "loitering for the purpose of engaging in a prostitution offense," a nebulous -- some say unconstitutional -- charge that allows police to arrest a man or woman they suspect is attempting to engage in prostitution. In New York, both charges are B misdemeanors that can carry a penalty of 15 to 90 days in jail.

The testimony of the arresting officer was just as intriguing. He told the court that, while sitting in an unmarked police vehicle early on the morning of May 21, he observed the defendant "engaging in conversation" with two men and "attempting to stop" another on the west side of midtown Manhattan, an area he testified is "frequented by prostitution."

And that was pretty much it. The officer didn’t hear her say anything; nor did he ask any of the men he saw her talking to what she had said. That didn’t faze the assistant district attorney, who attempted to get condoms found in the defendant’s purse admitted as evidence. Judge Richard Weinberg rejected the request, and six weeks later, he rendered his verdict. I was there to witness the judgment.

"The people did not prove their case," he said from the bench. "I find the defendant not guilty."

The 25-year-old defendant -- who, according to her Legal Aid attorney, Kate Mogulescu, had never before been arrested for prostitution -- was visibly relieved.

Mogulescu, who has been assigned to most of midtown Manhattan’s prostitution cases since February, calls loitering for prostitution arrests both "arbitrary" and "discriminatory." Still, although approximately 70 percent of her prostitution-related cases are actually loitering charges, she notes that in the past six months only four of almost 100 clients have chosen to fight the charge in court.

"A lot of my clients are really confused as to what they were actually arrested for," says Mogulescu.

The problem seems to be recognized, at least, by the judges and D.A.s at the Midtown Community Court. During the three mornings I spent at MCC, the D.A.’s office allowed loitering-for-prostitution defendants with no prior prostitution arrests to plead to a disorderly conduct violation instead of a misdemeanor, and the judge then sentenced them to counseling, not incarceration. So, for many, it’s easier to just take the violation, pay a court fee, and put the embarrassing arrest behind them. But of course it remains on their record.

Mogulescu has made it her mission to fight what she calls such "suspicious" arrests, one by one. And she’s making headway.

Two weeks ago, Mogulescu got a not-guilty verdict for another woman with no record of prostitution who had been picked up for loitering for prostitution. And just a few weeks before that another defendant, this time a 21-year-old transgendered woman who was picked up early one morning in Manhattan’s West Village, was similarly cleared of charges after a trial. According to the woman, she was handcuffed by officers after a taxi driver stopped to ask if she needed a ride, and she leaned into his cab to say she was fine.

"These arrests are in danger of criminalizing constitutionally protected behavior," says Mogulescu. "They’re set up to be immune from scrutiny and, traditionally, they’ve been unchallenged."

High-Tech Vice

Before the Internet, vice cops had it relatively easy. Most cities had specific areas known for street prostitution where undercover officers posing as johns could chat up a lady, strike a deal to pay for a sex act, and then pull out the cuffs. But in the last decade, the oldest profession has "gone high-tech," says Jaime Ayala, deputy chief of police in Arlington, Texas.

Anyone who has perused the adult sections of Craigslist or Backpage knows that men and women (and boys and girls) advertise their sexual services online. What this means for police is a lot more legwork. At the same time, a rise in awareness about the ugly world of human trafficking, where women from abroad -- and, in some cases, American children -- are held hostage in brothels disguised as massage parlors, has shifted law enforcement focus and resources away from traditional vice work, according to many attorneys.

"These days, prostitution is a very difficult crime to catch and prove," says Rachel Palmer, an assistant district attorney in Harris County, Texas. Palmer says she is seeing fewer and fewer traditional prostitution cases come across her desk as budgets dwindle and the profession "goes indoors."

But sex work on the streets persists, and the failure of scattered efforts to legalize it around the U.S. demonstrates that it continues to carry unsavory associations, especially for people who live in areas frequented by prostitutes. It is often accompanied by drugs and violence.

So how do you address a problem with dwindling resources in the face of mounting neighborhood pressure? You either get really creative, or you cut corners -- or both.

One solution has been so-called Prostitution Free Zones (PFZs). Portland, Ore., for example, created PFZs in the late 1990s to clean up certain areas that were notorious for prostitution. According to Elizabeth Wakefield, chief attorney at Metropolitan Public Defenders in Portland, a person with a prior conviction for a prostitution-related offense could be arrested for simply being in the zone.

But almost as soon as the PFZs were created, they were challenged. Wakefield recalls that much of the litigation centered around the constitutional right to travel, along with due process and equal protection issues, since the city wasn’t always allowing exceptions for potentially mitigating excuses like medical appointments or family visits in the zones and "public defenders noticed that African-Americans and Latinos were more likely to be excluded."

"The ordinances were very amorphous," says Wakefield. "We would attack one reason and then they’d modify the statute."

Washington, D.C., also created PFZs in 2006. But, according to professor John Copacino of the Georgetown University Criminal Justice Clinic, the district "gets around the constitutionality" by making the zones temporary: They can be in effect for just 10 days at a time. Portions of the district’s downtown area were declared PFZs during the inauguration of Barack Obama in January 2009.

In Arlington, Texas, home to the Dallas Cowboys Stadium and site of the 2011 Super Bowl, police have proposed what they called a "Prostitution Exclusion Zone" in the downtown area. The city council’s municipal committee is currently considering the proposal. According to Deputy Chief Ayala, the proposed zone is part of a project called Operation Spotlight, which began in 2006 and includes identifying habitual offenders and creating a public awareness campaign called "You Never Know" -- referring to the fact that "you never know" whether the prostitute or john you’re talking to is a cop or not.

The proposed exclusion zone "isn’t going to fix anything," says Arlington police spokeswoman Tiara Ellis Richard. "It’s just another tool for officers to use when dealing with this problem."

But opponents of these zones say they make an officer’s job too easy.

"A Prostitution Free Zone allows the loitering standard to be so low that anyone who doesn’t look like they belong in a particular neighborhood -- whether they’re a person of color, wearing a short skirt, or transgendered -- they are rounded up," says Cyndee Clay, executive director of Helping Individual Prostitutes Survive (HIPS), a nonprofit group in Washington, D.C.

Georgetown’s Copacino also sees problems. Standing around, even propositioning potential (nonpaying) sexual partners while wearing a short skirt and stilettos, is not illegal. "You can’t criminalize normal behavior, " says Copacino.

The key question for law enforcement, however, is how to distinguish between normal behavior and "loitering for prostitution" or, as it’s called in Arlington, Texas, "manifestation of prostitution," or in Oregon, "unlawful prostitution procurement activities." In 1999, the Supreme Court struck down a Chicago anti-gang statute that allowed police to arrest "suspected" gang members for loitering on city streets. In his majority opinion for Chicago v. Morales, Justice John Paul Stevens wrote that the Illinois law was "impermissibly vague" and that the "freedom to loiter for innocent purposes" was a constitutionally protected liberty."

Who Defines Innocence?

The operative words are "innocent purposes." How do police determine what is innocent and what is, in effect, attempted prostitution? It depends on whom you ask. J.R. Ujifusa, an assistant district attorney assigned to a special Portland police unit on prostitution, argues that police are trained to tell the difference.

"The officers who cite these cases aren’t like a normal person," says Ujifusa. "Their minds are trained. There are very small indications that both men and women look for to decide if that woman is working. The four officers I work with have a great amount of experience and have the ability to recognize those indicators."

Elizabeth Wakefield, the Portland defense attorney who fought the city’s PFZs, says her office has been encouraging women to fight these charges. Like Mogulescu, she sees the arrests as somewhat arbitrary and subject to abuse. "One person’s prostitute is another person’s homeless hippie kid hanging out," she says. Or perhaps a community college writing teacher -- like 36-year-old Ann Marie Selby, who was reportedly detained last year after she missed the bus and decided to walk home in an area known for prostitution. She sued the city and received $5,000.

The problem, says Wakefield, is that the city is now issuing many of these charges as violations rather than crimes, which under Oregon law means that the defendants don’t qualify for court-appointed counsel who could encourage them to challenge the arrest.

"The more cynical among us would say that’s why they’re doing it," says Wakefield. "But really, it’s about budget issues. If you have to decide who goes to jail -- someone suspected of prostitution or someone arrested for DUI -- most people in the community would say the DUI is more dangerous."

New York City’s Mogulescu says the loitering for prostitution cases she sees are similarly not scrutinized: "For most arrests, officers have to talk to a D.A. who accesses the arrest and decides what charges to prosecute," she says. "But for these arrests, and other 'quality of life’ violations like marijuana possession, they just check off boxes so no one is screening to make sure the arrest is actually valid."

The New York Police Department did not respond to requests for information and comment on loitering for prostitution arrests.

"A Reduction of Freedom"

On July 13, at New York City’s Midtown Community Court, Judge Marc Whiten announced his verdict in the case of the 21-year-old transgendered woman arrested in the West Village. But before he pronounced her not guilty, he took a moment to express concern over the woman’s arrest: "I shudder to think that if we allow such convictions of such individuals that it would lead to a very worrisome concern, a reduction in our freedom."

For the young woman, who asked that her name not be used, the experience of being arrested for a crime she says she did not commit shook her. As a veteran of group homes and homelessness, she knows what it’s like to be desperate and vulnerable.

"I’ll admit, there have been times in the past where I’ve taken money" for sex, she says. "But that life is behind me. For someone like me, it’s hard to find a community. My community is in the Village. But now I’m afraid to go down there. I’m afraid if that cop sees me again, he’ll arrest me."

By Julia Dahl

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