How Anti-Prostitution and Sex Trafficking Laws Victimize People of Color

Almost one year ago, then-Manhattan District Attorney Cy Vance announced that his office would no longer prosecute individuals for prostitution and unlicensed massage.

This policy shift was a significant recognition, not only of the harms of criminalization for sex workers, but also of the way that tangential charges, including loitering and unlicensed massage, have been used to profile, target, harass, and arrest those in the sex trade.

But there’s still a long way to go in protecting sex workers.

Editor’s Note: The text of the policy notes it does not preclude officials from bringing “other charges that may stem from a prostitution-related arrest,” NPR reported at the time, noting that a spokesperson for Vance’s office said it would not change the office’s existing approach to arresting patrons of prostitution.

Policy regarding sex workers has been inherently contradictory, in that it seeks to decriminalize part of a transaction, while maintaining prohibition and criminalization of the very way that this population earns a living.

The DA explained his action by conflating consensual, adult sex work with human trafficking, painting all sex workers as survivors of exploitation, and all clients as abusive criminals.

Vance’s decision to decline prosecuting unlicensed massage, which has long been the charge of choice that NYPD’s notoriously abusive vice squad leverages against massage workers, is significant.

There are 36 licensed professions in New York State but massage therapy is singled out as the only one where licensure is enforced by local law enforcement rather than an industry-specific board.

As a result, police routinely raid massage parlors, profiling and targeting Asian women. A 2017 study by the Urban Institute found that between 2012 and 2016, Asian-identified people arrested for unlicensed massage in New York City increased by 1,900 percent (from 31 to 631 arrests).

While arrests peaked in 2016, 95 percent of the 2019 arrests were Asian-identified, according to data compiled by the New York State Division of Criminal Justice Services (DCJS), and 87 percent of the arrestees were migrant women.

Undercover officers have assaulted individuals during these raids. Yang Song, a masseuse in Queens, leapt from the window of a massage parlor where she worked during one such raid in 2017. Members of law enforcement had sexually assaulted Song and threatened her with deportation during a previous sting.

Song died from the impact.

In New York, unlicensed massage is a class E felony, punishable by up to four years in prison, whereas prostitution is a class B misdemeanor.

Along with other laws that penalize indigence and identity, the consequences of the policing of sex work and human trafficking, disproportionately impact communities of color, immigrant women, and those who are unhoused or living in poverty.

Race and gender bias in arrest and conviction rates persist, even if overall numbers are declining.

Our organization, Decriminalize Sex Work, recently released a report that for the first time collates arrest and conviction data for prostitution and human trafficking-related offenses in New York State.

By the Numbers: New York’s Treatment of Sex Workers and Trafficking Survivors analyzed quantitative and qualitative evidence to assess the efficacy of current policies addressing sex work and human trafficking.

The report includes interviews with law enforcement, public defenders and advocates to understand how these polices play out in the lived experiences of impacted populations and within institutions.

The report found that:

• • In 2019, the enforcement of crimes explicitly involving prostitution, including loitering for the purpose of engaging in a prostitution offense, resulted in the arrest of female-identified individuals 97 percent of the time. Prostitution-related arrests targeted people of color more than 90 percent of the time.
  • In the last 10 years, 90 percent of individuals arrested for patronizing a prostitute in the third degree in New York were Black, Indigenous, and people of color (BIPOC), even though national studies report between 80 percent and 85 percent of sex buyers are white men. Convictions showed a similar racial bias.
  • Prostitution arrests previously accounted for around 70 percent of all sex work and human trafficking-related arrests. Clients were rarely prosecuted. But in recent years this has been shifting. For the first time, in 2017, purchasing arrests outnumbered those for prostitution.

Of those arrested, conviction and incarceration rates still skew disproportionately towards those arrested for selling sex. Those arrested for prostitution are convicted between 10 percent and 46 percent of the time, while conviction rates for buyers hover around 5 percent or 6 percent in most years.

If convicted of prostitution, the likelihood of serving prison time is on average 44.6 percent, a rate that has declined only marginally.

Conversely, the incarceration rate of those convicted of purchasing sex in the third degree is on average 17 percent. When controlling for outlying years, such as 2012 and 2013, this average falls closer to 10 percent.

Our report concludes with concrete policy recommendations aimed at restoring the rights, humanity and dignity of those impacted by criminalization and to prevent any further harm.

Ultimately, New York state must work to decriminalize consensual adult sex work. Evidence demonstrates that this improves public health, reduces rates of STI transmission, and helps combat exploitation and trafficking in commercial sex.

Frances Steel

We urge lawmakers to consider this finding and the report’s other evidence-based policy recommendations, including critical harm reduction measures such as the passage of S.2233-A (Sepulveda)/A.255-A (Gottfried).

As proposed, this law would provide limited criminal immunity for individuals engaged in prostitution who are victims of or witnesses to a crime, allowing them to seek assistance and justice.

Laws governing sex work were not written to keep people safe, but to criminalize those pushed to the margins without access to resources.

We cannot let moral frameworks built on racism, misogyny, homophobia, transphobia, and xenophobia guide policy decisions on the false premise that they keep us safe.

Frances Steele is Research and Policy Coordinator at Decriminalize Sex Work. Follow her at @decrimsexwork (Instagram) or @decrimsex (Twitter).