More than 1,000 open cases related to prostitution and loitering — some dating as far back as the 1970s — will be dismissed in Brooklyn, District Attorney Eric Gonzalez told BuzzFeed News.
The news is a part of a formal announcement that Gonzalez’s office now plans to decline to prosecute or dismiss cases on both charges. It is part of an effort to keep sex workers and other marginalized people — particularly people of color on low incomes — out of court in New York City’s most populated borough, where there are more than 2.5 million people. Gonzalez said his office has been rolling out a program to dismiss all prostitution cases over the last year, along with arrests under the loitering statute, which he said it has declined to prosecute since 2019. Gonzalez said his office has declined prosecution or dismissed all such cases since the end of last year.
“The current way of handling sex workers is dangerous. It drives them underground, it doesn’t keep us safe, and it’s not really getting to the issue of trafficking,” said Gonzalez. “I expect I’ll be criticized that I’m not prosecuting prostitutes and sex workers by a lot of conservative people, but I think that is the right thing to do and I think this will actually keep people safer.”
Sex workers may still face arrest by police, but Gonzalez said he hoped this new approach would limit interactions with the criminal justice system. Prostitution and loitering cases have been down in recent months, likely because of the pandemic. Gonzalez said there were fewer than 30 cases processed last year.
Some sex workers’ rights advocates said the move was a positive step. “We applaud the DA in doing this. It’s a real show of humanity for people burdened by these records, and we think it will make New York safer,” said Jared Trujillo, a policy counsel at the New York Civil Liberties Union and former sex worker, who has campaigned for decriminalization. "I have nightmares about the experiences of trans folks having to come to court because it would feel so dehumanizing."
Jillian Modzeleski, a senior trial attorney at Brooklyn Defender Services, who handles some of these cases as a public defender said she welcomed the announcement, but called for sex work to be fully decriminalized. “This decision will help many people avoid being entangled in the court system. However many harms still remain, including undercover policing by NYPD’s Vice Squad that is mired in racist and sexist abuse and corruption ... All people who carry the burdens of sex work-related records should have their convictions vacated; and the Vice Squad should be abolished.”
Decriminalization is a hot-button issue in all of New York state, and these changes only affect people selling sex and others arrested on the charge of loitering for the purpose of prostitution, often referred to as a ban on “walking while trans,” because of the people it disproportionately targets. Charges for buying sex or promoting sex work will still be prosecuted. Gonzalez faced criticism for continuing to prosecute a substantial number of low-level marijuana possession cases after his predecessor had promised not to. He also got into hot water for previous comments on decriminalizing sex work, and sought to distinguish his current approach to sex work from full decriminalization.
Gonzalez told BuzzFeed News it shouldn’t be up to prosecutors to take unilateral action to fully decriminalize sex work, and he believes the matter should be settled at the state level. “Full decriminalization cannot be done by prosecutorial fiat. The community is divided on this. There are survivors and sex workers who actively disagree with each other,” he told BuzzFeed News. “This is an important conversation that our elected leaders have to take up.”
But he said the current process elsewhere in New York was “punitive” because it requires sex workers who have been arrested to complete court-mandated services — such as mental health counseling — before having their charges dropped. He said Brooklyn’s DA office wanted to continue to provide resources when appropriate, but now aimed to reach people before they arrived in court, and would no longer insist that people complete programs or accept services at all in order to have the cases dropped.
“To arrest a sex worker … and prosecute in the name of giving them assistance just isn’t right,” Gonzalez said. “Forcing people through the criminal justice system is not a way to get them help.”
Gonzalez said that clearing the outstanding cases was necessary because people should not face consequences for something they did in the past that would now be dismissed.
So far, 262 warrants going back to 2012 have already been vacated and the underlying charges related to selling sex and loitering have been dismissed. Around 850 older cases have been delayed due to procedural issues stemming from the pandemic, but Gonzalez said they’ll be dismissed in the coming weeks.
While none of the warrants being vacated would have resulted in prosecution at this point, open warrants would still result in arrest if the person was stopped for something else, and would appear on a background check, potentially causing issues with job applications or access to housing and education.
Oren Yaniv, a spokesperson for the DA’s Office acknowledged that there was the potential for new warrants in the future if the person cannot be reached to offer services either before or during a court appearance. Yaniv said those issues would be handled on a case-by-case basis.
Trujillo said it was also important to recognize many of the arrests on these statutes were likely made by police officers in the vice unit. The unit has been accused of corruption and making false arrests — overwhelmingly of people of color — on prostitution-related charges in order to boost overtime pay. “This is an important start to repairing some of the harm that has been done and continues to be done by the vice unit,” said Trujillo, but that to really address the issue, legislation needs to be passed. “It’s time for state action, as well.”
Gonzalez’s announcement comes as legislators are considering a statewide repeal of the statute on loitering for the purposes of prostitution. The law has been widely criticized as a form of “stop and frisk” that targets trans women and particularly trans women of color, and was the subject of protests this summer.
Gonzalez added his voice to the chorus of advocates who have long called for the repeal of the loitering law. He also called on the state to expunge more than 25,000 old criminal records dating back to 1975 for both prostitution and loitering convictions in Brooklyn.
While the DA’s Office can expunge criminal records on a case-by-case basis, he said an attempt to do so for marijuana possession had been difficult, and he hoped the state would pass legislation to clear the records in one go.
“[It would be] unfair to leave these people with criminal convictions for something that’s no longer a crime,” he said. “That’s another important piece — clearing people from all the collateral consequences that a conviction has, especially a conviction like prostitution or loitering. Those folks tend to get discriminated against in employment and housing. We’ve got to get those things off their rap sheets.”
The treatment of sex work and related offenses in the criminal justice system has been the subject of heated debate in New York in recent years.
Sex workers’ rights advocates and civil liberties groups have pushed for prostitution-related offenses to be repealed as a matter of economic, racial, and gender justice. They seek to distinguish sex work from sex trafficking and say that public safety is best served by harm-reduction measures rather than criminal proceedings.
On the other side of the argument, activists who want to eliminate the sex trade — including some victim services, religious, and conservative feminist organizations — say the focus should be on limiting the demand for sex work through the prosecution of buyers and third parties.
While that has resulted in fierce disagreements over the subject of decriminalization and competing legislation, there is broad agreement on all sides over the loitering statute.
Trujillo told BuzzFeed News that it was important to distinguish between efforts to repeal the loitering law and the broader debate about how to approach sex work.
“When you look at this statute, it is a direct descendent of Jim Crow vagrancy laws that punished Black folks for merely existing,” said Trujillo. “This is not a sex work statute, not at all ... It is a statute that has allowed law enforcement to target people for merely existing, and 85% of those people that they target are Black and brown women of color.”
Prostitution and loitering are both misdemeanors in New York state, and the way in which they are policed and prosecuted — or not — is complex. Both charges are typically prosecuted in what’s called diversion court, where people are mandated to receive various social services and can then have their charges dropped once those services are completed. Gonzalez’s office has previously handled cases in this manner in Brooklyn too.
The fact that the services are required, however, is controversial. Some argue the mandate is necessary to ensure the state can intervene if someone is being trafficked. However, failing to complete the mandated program can result in additional court dates and eventual criminal conviction.
When arrest procedures changed in 2020 as part of New York’s bail reform package, Gonzalez said that opened the door to a new approach, and his office is now trying to offer services to people before court. If his office can reach people beforehand, Gonzalez said it will decline to prosecute the charges. If the office is unable to reach people before court, the same offer of services and screening will take place in person, and the case will then be dismissed.
“I’m not trying to say there’s no one coming to court…[but] the goal is — the absolute goal — is for them to not have to come to court, and really just [do] a screening to make sure they’re not being trafficked,” he said.
While Gonzalez said he doesn’t expect anyone to be 100% satisfied with this new approach, he hopes it will be seen as a positive step toward harm reduction and will show skeptics that sex workers can be treated more humanely without sacrificing public safety.