New York’s criminal justice system is still failing sex workers

Former Brooklyn prosecutor Lauren Hersh is demanding that New Yorkers “eliminate the demand for prostitution by going after buyers.” Hersh argues that “people in prostitution shouldn’t be held responsible.” As someone who has worked in the criminal justice field, Hersh knows that the system has its own demands – it will always seek to arrest its way out of a problem, even if that means arresting people she now wants us to regard as victims: sex workers.

Over the course of one month, I watched in Brooklyn Criminal Court as well over 100 women – nearly all women of color – faced prostitution charges in its newly dubbed “Human Trafficking Intervention Court.” According to Hersh, these courts came about because “the vast majority of women arrested for prostitution were, in fact, victims of trafficking or other forms of exploitation,” and, in turn, “sought to provide people in prostitution with exit strategies and comprehensive services, instead of jail time and criminal records.”

I spent time in the courts to better understand a recent study of how they worked by the Brooklyn-based Red Umbrella Project, the first organization to examine if this promise – to treat those arrested as “victims” and not “criminals” – made a difference in the lives of people going through that system. In fact, members of the Red Umbrella Project have been through those same courtrooms themselves.

I saw that the courts do little, if anything, to determine if someone arrested and sent there is a victim. Anyone arrested on a prostitution-related offense is assumed to be a victim. This is the partial aim of this system: to redefine anyone and everyone engaged in sex work as a victim.

Even if the aim is to help those who are victims, why are they arrested and appearing before a court? Why are they mandated to participate in services that are freely available to them without arrest? As the Red Umbrella Project noted, “No other charge calls for the person being exploited to be arrested.” Victims’ advocates and attorneys have told me, time and again, the best thing New Yorkers could do for their clients is to stop having them arrested.

Jenna Torres, a Red Umbrella Project member, spoke before members of the New York City Council this fall about the mandated counseling sessions she was given by the court, how attending them meant facing the choice between caring for her infant son or missing a session and risking the consequences – which could include a warrant issued for her arrest. Torres had to drop out of the college classes she was already enrolled in to meet the court’s mandate.

Hersh’s solution, arresting “the demand for prostitution,” does not address the needs of the women I saw in trafficking court. It will not provide what the Red Umbrella Project and many other groups in New York that serve the needs of people engaged in sex trade agree that this community needs: housing, health care or education. Instead, it arrests their income without offering an alternative. In fact, human rights organizations like Amnesty International have found this approach can magnify violence and exploitation for sex workers.

Any sex trade policies that are proposed should be in service to the people they are supposed to help, not exposing them to further harm and violence. This idea is so simple, it should be solution enough.

Melissa Gira Grant is a journalist in New York, covering sexual politics, technology, and human rights. She's the author of Playing the Whore: The Work of Sex Work.