A headline-grabbing candidate for district attorney in New York City — who became a favorite of progressives after getting Alexandria Ocasio-Cortez’s endorsement — plans to single-handedly make the borough of Queens the first major metropolitan area in the country where sex work would, effectively, not be a crime.
If Tiffany Cabán wins the Democratic primary in late June and general election in November — and actually puts her plan in place — it would mark one of the biggest successes for the sex work decriminalization movement that, after years of struggling to gain mainstream traction, has growing popularity and political influence across the country.
Cabán, who was a public defender until March, has framed her argument for not prosecuting sex work as one about class. "We just criminalize the people who have been destabilized by systemic problems, and you know our sex work community falls squarely within that category," Cabán told BuzzFeed News during a recent interview at Mike’s Diner in Queens' Astoria neighborhood.
“This is literally how they put food on their tables,” she argued during a debate Tuesday night.
Sex workers “end up with criminal records for minor offenses that could lead to deportation, could lead to criminal convictions that then make it even harder to stabilize lives,” she told BuzzFeed News.
“We want to support people in sex work who want to engage in sex work because certainly our economy doesn’t work for everybody,” she said. "Or, if it’s survival work, provide other means where their survival is no longer contingent on sex work."
The district attorney in Queens — home to nearly 2.4 million people, roughly the population of Houston, the nation’s fourth-largest city — oversees one of the most heavily policed parts of New York City and the state when it comes to sex work arrests. The office has the power to decline to prosecute people that the police arrest for specific crimes — similar to how former Brooklyn district attorney Ken Thompson declined to prosecute possession of small amounts of marijuana in 2014, paving the way for the current legislative push to legalize marijuana statewide that has recently stalled.
Cabán said that if she’s elected, “on day one it comes from being part of a memo to our district attorneys saying you will not prosecute sex workers, customers, and you will not prosecute under the promoting prostitution charges” — which cover what is colloquially called “pimping,” but which advocates say also impact sex workers supporting one another.
Sex trafficking, sexual coercion, and sex assault would still be prosecuted, Cabán said, adding, “but we are not there to police bodies and take away folks’ autonomy.”
Cabán frames decriminalizing sex work as a feminist issue, in addition to being a human rights, economic, and public health issue. Still, decriminalization has been polarizing for women’s rights advocates.
“Criminal justice reform is imperative,” said Sonia Ossorio, president of the New York chapter of the National Organization for Women. “But that doesn’t include, shouldn’t include, supporting the idea of legalizing an inherently violent business enterprise with connections to organized crime that fundamentally preys on the most vulnerable in our community.”
NOW-NYC is part of a coalition of organizations opposing full decriminalization and has endorsed candidate and current Queens Borough President Melinda Katz. “Katz does not support the wholesale decriminalization of the sex trade, recognizing the harms of an unfettered industry of exploitation and the violence that comes with it,” NOW-NYC said in a press release.
“Instead, she supports removing discriminatory laws such as loitering for the purposes of prostitution, decriminalizing people in prostitution, and increasing services to meet their needs, while retaining the power to legally hold sex buyers and pimps accountable.”
Cabán argues that proposals like Katz’s — known variously as the Nordic model, "end demand," or the equality model, which still target clients and third parties for prosecution — don’t work.
“You can’t police customers without policing sex workers. And you create an environment where there’s an incentivization of police officers harassing and taking advantage of sex workers to get information on their clients,” she said.
Cabán believes decriminalizing sex work would bring stability to the lives of some of the most vulnerable people in Queens, who she says have been failed by a system that sends in police rather than providing services.
In 2018, 19% of the state’s arrests of people selling sex came from Queens alone, and a staggering 44% of the state’s arrests on a charge called “loitering for the purposes of prostitution” came from the borough, according to statistics provided by the Division of Criminal Justice Services. In the borough, which is often celebrated for its ethnic diversity, the loitering charges overwhelmingly target black and brown communities — 97% of arrests in 2018, many of whom were also transgender or undocumented.
Queens has already been at the forefront of addressing sex work as a crime. In 2004 it became home to the state’s first diversion program, which, in most cases, directs people arrested for prostitution to counseling sessions. Once the mandated sessions are complete, the charges are dismissed and the records are sealed.
“It did result in people being less likely to have criminal convictions,” said Leigh Latimer, who is the supervising attorney at the Legal Aid Society’s Exploitation Intervention Project. “But it’s not what I consider the ideal way to address the needs of people who are engaging in sex work, whether that’s voluntarily or not.”
A recent study from the Yale Global Health Justice Partnership found that the diversion courts, called human trafficking intervention courts by the state, are not living up to their stated ambitions.
The courts view people arrested for prostitution as victims rather than criminals, but structurally, the report said, the courts still treat people selling sex as defendants. Critics also say that the waiting period between an arrest and when the charges are dismissed makes it difficult to find alternative sources of income.
Proponents of the court say that within the context of the criminal justice system, the diversion programs are a good compromise to avoid incarceration for people accused of selling sex. The arrests also provide law enforcement with access to sex workers, which some argue is necessary for obtaining information to go after traffickers.
Cabán says this isn’t working.
She argues that the current model makes it more difficult for people to come forward about sex traffickers, and says that removing the threat of prosecution will provide better opportunities for collaboration.
“We are repairing fractured trust so that we have witnesses for our sex trafficking cases, so that we can start to be successful in those prosecutions,” she said. “Because in Queens we have been dismally unsuccessful through the ways in which we’ve tried to combat trafficking.”
Cabán says those models ignore collateral impacts on sex workers.
“Sometimes I don’t leave my house after 10 p.m. because the harassment is so strong,” said Mayra Colón, a 60-year-old sex worker from Jackson Heights who is supporting Cabán. “If I was somewhere with my husband, the police would ask us if he was a client, and they wanted to put us in jail.”
Colón is one of a group of sex workers who have been knocking on doors, passing out flyers, talking to neighbors, and going to rallies for Cabán.
“Cabán is the first time that sex workers have the opportunity to support someone who is bringing us out of the shadows,” said Bianey García, a former sex worker who organized the group canvassing for Cabán, and who is a member of Make the Road Action, which has endorsed Cabán.
The loitering charges are particularly problematic for this group, who say they are often targeted solely on the basis of their appearance or clothing.
Giovanna, who declined to give her real name because she is undocumented, told BuzzFeed News that she has been arrested twice when coming home late at night after dancing at a club, and that the arrests could affect her immigration status.
Her story is very similar to that of state Sen. Jessica Ramos, who represents the same area in Queens and is supporting a bill to decriminalize sex work at the state level. Ramos told BuzzFeed News that she was personally harassed by the police under the loitering statute as a young woman.
“It was late at night, it was the summer. I was with my girlfriends, our skirts were a little short, and the police officers, you know, suspected that we were sex workers,” Ramos said. “It was humiliating.”
The Legal Aid Society sued the NYPD over the loitering statute in 2016 for what it called unconstitutional enforcement. As part of that settlement, NYPD has changed arrest guidelines so that appearance and clothing can no longer be the sole factors cited for an arrest.
“For crimes that New York State has decided are very low-level crimes, those arrests can have very long consequences for people,” Latimer said, “particularly immigrants.”
“The NYPD is committed to providing clarity to our officers on loitering enforcement, and did so through a combination of amplifications to the patrol guide and enhanced training to ensure compliance,” the department said in a statement to BuzzFeed News. “We will continue to address community concerns about prostitution and at the same time take steps to address and prevent human trafficking and protect victims of sex crimes.”
In addition to the bill introduced by Ramos and others in Albany, lawmakers in Washington, DC, introduced a bill to fully decriminalize sex work in the district earlier in June. Narrower bills have also been introduced in Maine and Massachusetts, and Rhode Island is considering a proposal for a task force to study the issue.
Sex work has also been legal in some parts of Nevada since 1971, but that primarily applies to rural areas of the state, and advocates for decriminalization say the regulatory regime there fails to protect the most marginalized sex workers.
At Tuesday’s debate, all seven of the candidates in the Queens DA race said they would decline to prosecute sex workers themselves, but Cabán is the only candidate supporting full decriminalization, including clients and third parties, and her endorsements from the community and advocates reflect that.
Katz, who has more campaign donations and endorsements than Cabán, told BuzzFeed News that she also supports legislation in Albany to repeal the loitering statute and allow victims of trafficking to vacate related convictions. During Tuesday’s debate, she said that she would also aim to offer more services through the courts, and that she thinks “you can do both.”
Declining to prosecute cases doesn’t change the law — though Cabán has also spoken in support of the bill to decriminalize sex work that was introduced Monday — which would still allow police to arrest people on offenses related to sex work. Cabán said she is prepared to work with the NYPD on alternatives, like pre-arrest diversion programs.
“There’s still a system within which we’re working, and the Police Department and the policing system is part of that,” she said. “I hope over time we’re able to change what policing looks like in our country, in our city, in our borough.” ●