NYPD Commissioner James O'Neill said recently that he is shifting the department's sex trafficking policing tactics, in an effort to prevent people coerced to perform sex from also being criminalized—arrested for prostitution, fingerprinted, and sent through the court system. "Like all crime, we can't just arrest our way out of this problem," he said.

O'Neill's new plan, he explained, is to focus on arresting pimps, johns, and traffickers. But prostitution arrests continue, and this week, O'Neill told reporters that while he has an "open mind" about moving prostitution from the criminal code to the civil code, doing so would "impede our ability to identify the people involved in it," and get them help.

Mayor de Blasio agreed. "I think that the concern at the jump is that if you only have those civil penalties, that it is harder to stop these crimes," he said.

"I don't know what movie the mayor is watching," said Kate Mogulescu, who heads up the Legal Aid Society's human trafficking advocacy program.

"Please don't justify arrests by saying we're helping people, when what they need can't be obtained through criminal court," she added. Her team has argued that not all prostitution is exploitative, and that focusing the narrative on trafficking—suggesting that police sweep in as saviors—has bolstered criminalization all around.

The NYPD and City Hall affirmed their stance days after the Independent Commission on New York City Criminal Justice and Incarceration Reform suggested that prostitution shift to the civil code, along with turnstile jumping and marijuana possession—part of a broader plan to decrease overall arrest rates and close Rikers Island over the next decade. (While momentum for decriminalizing sex work is building, in the US only Nevada currently has legal brothels.)

A new report this week also details the shortcomings of NYC's current approach to policing prostitution: the vast majority of people arrested on prostitution charges in NYC between mid-2015 and mid-2016 were women of color. And while most of them ultimately had their charges vacated—part of a recent effort to clear the records of sex trafficking victims—cops and courts often leave sex workers and victims of trafficking feeling like criminals.

"Anybody that's trafficked isn't looked at as a victim," one 32-year-old woman told researchers. "They're a criminal until after the aftermath. That's when they find out we're really victims and not criminals."

The Urban Institute, a liberal think tank based in Washington, DC, reviewed the cases of 1,413 defendants arrested for prostitution or related charges in NYC between February 2015 and March 2016. All were clients of the Legal Aid Society's Exploitation Intervention Project, which represents the vast majority of people prosecuted for prostitution in NYC. Thirty-five percent of the defendants said that they had been trafficked into sex work at least one time in the past.

Of the total, 93 percent were female. Just over a third were black, 32 percent Asian, and 17 percent were Hispanic.

One prostitution-related arrest charge in particular, unlicensed massage, has soared in NYC in recent years, disproportionately impacting Asian women. Arrests of Asian women on this charge jumped 1,900 percent between 2012 and 2016: from 31 to 631. 91 percent of Legal Aid clients facing this charge were non-citizens, and 37 percent were undocumented.

This is increasingly concerning for defendants in light of new Department of Homeland Security memoranda that expand deportation priorities to include anyone who has entered the country illegally, as well as visa holders who are arrested but have not yet been convicted of a crime.


New York has passed legislation in recent years to assist victims of trafficking. A 2009 law helps human trafficking victims vacate prostitution and related convictions from their criminal records. And in 2013, new statewide human trafficking intervention courts (HTICs) offered alternatives to incarceration for sex trafficking victims, including counseling. Of the total cases reviewed for the report, 84 percent have been dismissed.

"That's a very large percentage," said Meredith Dank, a report author and research professor at John Jay College. "But there's still the trauma around the arrest itself... the arrest, going into court, being held in a holding facility."

In 2015, the Urban Institute interviewed 21 people who had applied to have past prostitution convictions vacated, some decades old. "Most clients described overwhelmingly negative experiences, which consisted of verbal abuse, intimidation, humiliation, sexual harassment, and profiling" at the hands of police, authors wrote.

"I was going to the store, like just to go to the store, and they arrested me for prostitution," one 24-year-old black woman said. "Just because they knew me. So they locked me up. And I was literally in pajamas and bed slippers."

A 19-year-old black woman said that she "actually walked into the precinct myself to make a report." A cop "laughed at my face like this is the life you chose. So, of course, I'm like, 'Oh wow, nobody's even going to listen to me, that's fine.'"

Another women described an abusive arrest. "You know, parading me in the hotel with the handcuffs," she said. "They were like, I can't explain it, it was like a show."

"We continue to gather reports about inappropriate policing, coercive policing," Mogulescu, the Legal Aid attorney, said. "We have inappropriate sexual conduct during the course of arrest, officers who want to take photos of clients on their personal cell phones."

NYPD Commissioner O'Neill announcing his new approach to policing sex trafficking in February, with the First Lady (via Mayor's Flickr).

Many defendants also reported that they weren't satisfied with the incarceration alternatives meted out in HTICs. Services they are offered, typically counseling, do not match with the services they feel they most need: employment, followed by housing, education and healthcare. Of the roughly 1,400 people surveyed for this report, only one listed mental health assistance as a primary need.

"Criminal Court is not in a position to provide housing for women who need it," Mogulescu said. "If we're talking about offering meaningful assistance, we need pathways to a stable living wage. We could get it all out of criminal court and think about economic development programs for women with criminal histories."

The Village Voice reports that Manhattan District Attorney Cy Vance also sidestepped a question about decriminalizing prostitution, at a press conference last weekend. Instead, he praised the "180" that his office has made, focusing on efforts to vacate prostitution charges.

"I feel like somebody took ten tons off my shoulders," one 60-year-old woman said, of her charges being vacated. "I feel like a gorilla has been on my back all this time."

"Vance is totally right," Mogulescu said. "The Manhattan DA has been great about vacating prior convictions. But we don't have to be here. Because we're not ending prostitution by doing this, and we're not ending trafficking by doing this."