Should New York State Save Sex Workers From Themselves?

A groundbreaking new court system treats prostitutes as victims rather than criminals. But one sex-worker-turned-advocate reveals the flaws in that equation.

Should New York State Save Sex Workers From Themselves?

At 9:30 in the morning, there’s a steady-moving queue that snakes through the metal detectors into the central building of Kings County Criminal Court on Schermerhorn Street in Downtown Brooklyn. The elevator is full but silent up to the eighth floor, where a young woman who calls herself Skylar is waiting on a wooden bench in the hallway, her frizzy hair pulled back into a tight bun, dressed in a faded red hoodie and cradling a cream-colored canvas bag, lumpy with books and leaflets, on her lap.

Around the corner, two sheets of paper are taped to the walls, listing the names of those being brought before the judge today in the courtroom shared by domestic violence defendants and suspected victims of sex trafficking. Many of the latter have multiple prostitution-related charges under different known aliases, pasted on the crisp page for anyone to see.

Skylar was up late last night, praying over the phone with her sister. She’s just been offered an official position with the Red Umbrella Project, a Brooklyn-based sex-worker-led organization. She’s been working on and off for them over the past few months, coming to this court on a weekly basis to observe. “What are sex workers?” her sister asked when she Googled the organization. “Is that another name for prostitutes?”

Skylar, who requested to publish only her working name, got involved in sex work at the age of fifteen, through free Craigslist advertisements, seeing clients only rarely at first and then increasingly often after finishing school. She had her first child at the age of thirteen and now has three to support.

Sex work paid a lot more in a lot less time than a nine-to-five job in a department store that was difficult to keep while going to school and caring for her kids.

As Skylar sees it, to dismiss sex work, or any other job, as something she could never do, would be a luxury. “I can’t think like that. For me that’s being selfish,” she says. “I have children, and they mean more than anything at the end of the day, so if I have to go through a sucky-ass job for five hours than I can do that, I can do that for them.”

Now her mornings start around seven a.m. most days. In the evenings, she sometimes fits in make-up sales sessions, bringing together groups of women to demonstrate a brand of cosmetics, another freelance moneymaker on the side. Most weeks she takes an evening off to attend a regular poetry slam in the Lower East Side. Spoken word poetry for her is taking the lid off a boiling pot. Her name is well known, the MCs and organizers have watched her grow up and embrace her like family. On stage she speaks her mind in raw, fast-paced stanzas.

It’s hard to imagine this girl being cuffed and slammed face-first onto the hood of a car. But that’s how she describes her first and only arrest, during a vice sting operation in Manhattan in 2013, when she was only seventeen. She’d decided last-minute to meet a client who answered an ad she placed on Craigslist. She didn’t even change out of the baggy pajama pants and t-shirt she was wearing at home; she just got in a town car that took her across the bridge from Brooklyn to what seemed like a vacant building.

The undercover John asked Skylar what she was willing to do, trying to get her to describe exactly what she would perform for money, but she told him she never discussed that in public. When she felt uncomfortable with the situation and turned to leave, vice officers turned up and arrested her. She says they pushed her down onto the car and searched her. They found condoms, she said, and decided that was evidence enough to book her.

After a night in a jail cell she was brought before a criminal court in Manhattan and then assigned to the Midtown Manhattan Community Court a few weeks later for arraignment, in a room half the size of the Brooklyn courtroom she sits in as an observer now. These days the courts use a code for prostitution charges to protect potential victims of trafficking. But in August 2013, before the approach changed, her charge was publicly stated in the public courtroom: solicitation for prostitution.

The police officer who arrested her two years ago was convinced she had a pimp or some other form of handler, she says, telling the judge she wasn’t smart enough to work alone. They wanted her to identify the person who had trafficked her, she remembers, and when she wouldn’t name anyone — because there was no one to name — they accused her of not cooperating with the process. She says her legal representation told her the judge was reluctant to seal her case immediately, even though she was a minor and it was the first time she’d ever been arrested. They wanted her to complete six mandated counseling sessions and then wait the six months before sealing her case. But because she was due to start college, her lawyer fought for her to participate in more sessions in return for having her case sealed right away. She was given ten mandated sessions with an organization working with exploited youth, based uptown in Harlem.

The month after Skylar was arrested, in September 2013, New York State established the nation’s first statewide Human Trafficking Intervention Courts (HTIC), allowing the criminal court system to treat people arrested on prostitution charges as victims rather than criminals, likely in need of medical treatment and services.

Protocol used to be that those charged with selling sex would be punished with fines or jail time. The new courts can offer mandatory sessions with approved nonprofits. The sessions — typically five or six — can include counseling, immigration assistance, and even yoga, depending on which provider the person is assigned. If a defendant complies and doesn’t reoffend for six months, their record can be sealed.

While announcing the initiative at the Citizens Crime Commission in 2013, New York State Chief Judge Jonathan Lippman assured the public that each court participating in the program would have a trained judge knowledgeable of the dynamics of sex trafficking, and that the new system would allow thousands to escape a life of abuse and torture. By linking defendants to services, the courts would be rescuing these people and assisting them to pursue “productive lives.”

“Within the new framework that we are creating, New York will be a trail blazer,” said Lippman. “The first state in the nation to create a statewide system of courts, designed to intervene in the lives of trafficked human beings and to help them to break the cycle of exploitation and arrest.”

The new court system is a step toward recognizing that not all people who sell sex are criminals, that fines and jail time actually push people back to the trade, with a criminal record making it even more difficult to get work and stable housing. But the approach of treating sex workers like victims doesn’t work for everyone, either. The courts are mandating therapy when many people, like Skylar, started selling sex not because of coercion at the hands of a pimp but out of need to pay for rent, school, and to provide for kids. “Simply labelling those in the sex trade as trafficking victims obscures the economic needs of those driven to work in commercial sex,” said Kate Mogulescu, a supervising attorney at The Legal Aid Society, which works with clients going through the courts.

Streetwise and Safe, a Manhattan-based organization working with LGBT youth of color, recently released a report in partnership with the Urban Institute about youth engaged in survival sex in New York City. They found that only six percent of nearly 300 interviewed became involved in the sex trade through an exploiter. Most were introduced through peers and their main motivations were economic necessity and covering needs such as housing and food.

“The definition of trafficking doesn’t apply to many of the people we work with,” said Brendan O’Connor, a lawyer working with SAS. “Anyone going to a Human Trafficking Intervention Court is not there by their own will — the idea of helping people with handcuffs is something that SAS stands against.”

While sex-worker-led groups in New York have welcomed the acknowledgment that people in the sex trade need better access to services, and that criminal charges do nothing to break a cycle of reoffending, they are quick to point out the contradiction in continuing to arrest, jail and bring to court people who are supposed victims. The courts won’t end the police profiling and general criminalization, which advocates say often prevent sex workers from voluntarily accessing critical services in the first place.

“We believe in self determination, safety and human rights, and we don’t think those things can be achieved under criminalization,” said Sienna Baskin of the Sex Workers Project in New York, stressing how traumatic the experience of arrest is for their members. “It’s hard for us to have any other goal than to remove criminalization, but we also believe in harm reduction in all its forms and, in theory, the courts provide an opportunity to reduce harm.”

While some service providers take a harm-reduction approach, Baskin believes that the rescue model is flawed, that people in the trade — whether there consensually or by force — can only get help on the condition they immediately stop selling sex, despite the fact it might be their only source of income.

The waiting lists for service providers and lack of state funding is another issue. In 2014, Red Umbrella Project released a report documenting what goes on inside the Brooklyn and Queens courts, based on months of observations. They reported that in Brooklyn, most defendants took one to three months to complete their sessions and have their case closed. If arrested within six months of their case being sealed, on any charge, they start from scratch.

“People who might have done a couple of days in jail now have open cases for months and months,” said Baskin. “If it were true that everyone involved in prostitution is a victim of trafficking, why are we arresting them in the first place?”

Skylar was frustrated by her mandated sessions because she saw it was a great program for many people, but did not feel she fit into the profile of a trafficked or exploited person. “Nobody pressured me, so I wasn’t exploited, I was not a victim,” she said. There was also an emphasis on helping her leave sex work. She told them she wanted to because she knew that was what they wanted to hear, but she also knew it was not something she was going to quit just yet. What she really needs is a job that pays enough to cover rent, school uniforms, books and everything in between. “Give me a job that pays enough and I won’t have to do this,” she said. “Because $8.25 an hour, working fifteen hours a week is not going to pay no rent, it’s not going to take care of no kids.”

She knows all too well that coercion takes place within the trade. She knew people, now in jail, who sometimes helped her connect with clients when she was underage, and who looked on Facebook, trying to find girls as young as twelve. They even asked her to help them

“I’m not subjecting nobody to this life, I refused to do that,” she said. “It’s not fair to take away somebody else’s childhood innocence, I would never be okay with that.”

In the mandated sessions, she said “I never disclosed to the case manager who was working with me that I was currently still living the life,” because her case manager reported to the court. “Once you’re mandated to a program, there’s no trust there.”

She found herself in group-counseling sessions where participants were not allowed to use terms like “sex work” because they could be triggering. “If I can’t use the term ‘trade sex’ or ‘sex workers’ in my safe space then how am I healing, how am I expressing myself?” she asked. “For someone who has been trafficked or exploited, that’s fine, but for someone who hasn’t then you’re harming them because we can’t discuss this; we can’t talk about where we’ve been and what we’ve experienced. And if we’re not talking to each other we’re not keeping each other safe.”

When Skylar joined a sex-worker-led organization in Brooklyn called Persist Health Project, which focuses on improving access to care for those in the sex trade, she saw a different approach than the one she’d experienced in her mandated sessions. Their focus is more on making sure that if someone was in the sex trade, they were doing their work as safely as possible and had access to support and resources if they need them, rather than focusing on helping them leave the sex trade.

Whether creating bad-date lists of abusive clients or serving as a safe call for someone, sex workers have developed community-led ways to keep each other safe. It’s not just a harm reduction tactic; creating space to speak openly about their experiences in a world that wants to squeeze them into narrow categories is empowering.

At a recent edition of a regular open mic night held by Red Umbrella Project in a snug little bar on the Lower East Side, members took to the stage, riffing on strange fetishes, opening up about abuse and violence they had survived at the hands of clients and police, or lyricizing proudly about their own sex appeal. Skylar performed her latest poem, one of the first in which she explicitly talks about her sex work. She described a feeling of empowerment in making bank on her own terms, but also months struggling to go straight and pay bills; “the program that served no other purpose than to piss me off”; and how she gets tired of performing for strangers, leaving pieces of her real self on the bed sheets. At a poetry slam a few weeks earlier, she had performed it publicly for the first time. A few young women came up to her after and thanked her for sharing. They had been involved in sex work in the past, they told her, but had never been able to talk about it publicly.

One girl who Skylar saw regularly, who was around the same age as her, disappeared for a few weeks before her body was found in a dumpster, suspected to have been killed by a client. It was a stark reminder of the real dangers of doing outcalls to clients who you don’t know and can’t trust. Skylar described it as dealing with a wild dog, never knowing how it will react.

Through her outreach at the courts she hopes connecting other girls with peer-led groups can help them access support and services on their own terms. Because prostitution is illegal, many people in the trade doubt there are going to be support groups to help sex workers. Skylar didn’t know community-led groups like Red Umbrella Project existed until she was arrested and her legal aid told her about them. “Now I can definitely help change and keep people safe,” she said.

On a quiet afternoon, her kids home from school and carousing in their bedroom, Skylar folded the still-hot laundry her boyfriend lugged up from the basement into ordered piles on a black faux-leather couch. She flung large cotton panties at a friend sitting across from her. They talked about boyfriends and family and fibromyalgia. They talked about her friend’s grandfather who came to the United States during World War II, who worked on the Sabbath even though that felt sinful, to feed his kids. They chatted about what comes up if you Google yourself. Skylar knows women charged for prostitution for whom the first thing that comes up is about their arrest, even their mug shot. One positive thing about the new court approach is that her record isn’t publicly available.

Skylar was arrested just as she was about to start college, the day before she was due to enroll for classes. Even though her case was sealed, because she missed the official college registration date she had been forced to fax proof of her arrest, including the charge, to convince the school to let her register after the deadline. But juggling classes with court appointments and mandated sessions made her miss too much, she says, and she eventually dropped out. Now she wants to finish; she has been thinking of pursuing a degree in psychology.

School was something she fought for since she was young. After her mother died of an overdose when she was a child, Skylar ended up in foster care with an elderly lady. When she got pregnant for the first time at twelve years old, she didn’t even believe it could happen. She stayed in school until she was eight months pregnant and went back as soon as she was able to. She did the same with her following pregnancies, making it into a popular high school in New York and graduating with her diploma three months early.

One of the things she admired most about the organization she was mandated to attend by the court was that it gave great support to girls to continue their education and go to college, which she hopes to take full advantage of.

Her brother was a student at an Ivy League school, and inspired her to make school the most important thing, for her and for her kids. Sex work was one way she was able to afford to keep them in school uniforms and with textbooks and stationary every year, and to pay for day care when she needed to work her regular job and they were on vacation from school.

“It’s a very slow day,” Skylar sighs, perched on one of the long wooden benches in the courtroom beside a Red Umbrella Project colleague in her late 30s with bird-like shoulders and sneakers on. A man a few rows ahead slumps back against the stiff backrest, waiting to be called. Skylar has spoken with women who have come in on prostitution-related charges and had to face seeing ex-boyfriends in the same courtroom, even clients. She watched one woman have a breakdown in court, she said, because her past abuser was in the room. The women mostly sit at the edge nearest the aisle, one to each row. Legal aids flit back and forward among the rows to update their clients, sometimes taking them out to hold hushed discussions in the hall. While she was waiting earlier, Skylar keeps an eye on those who had checked the list for prostitution charges.

A white middle-aged male judge, slate-grey haired and bespectacled, sits on the bench at the head of the room.Two police officers in uniform — one male, one female — stand in the back corner, near the door that leads to a holding cell, sometimes passing comments under their breaths and breaking into grins between themselves. The phrase “In God We Trust” looms over the judge in large, bold lettering. The dark wood paneling, cream walls and high ceiling give the courtroom an old-time feel but the lights are large modern ovals hanging low. A single cracked window lets in a thin breath of air.

A heavy young Hispanic woman with black hair hanging in bangs over her face, dressed in a bright pink tracksuit, is called up to the front. Her caseworker reports that she has completed four mandated sessions with the Brooklyn Justice Initiatives. Another woman, who looks Eastern European, dressed in a smart black suit jacket and blue denim jeans, is reported to have completed three sessions with the district attorney’s office, doing counseling with a human trafficking victim counselor.

“Not all the mandated programs can help them the way they need,” Skylar says quietly, her eyes fixed up front. She makes a quiet joke that the free services she is trying to spread awareness about are “after-care programs” for people who have to go through mandated sessions, which she describes as “traumatizing” for some.

She worries that the judge sitting here today doesn’t understand the background of being in the sex industry. She worries his decision in these cases depends on his personal views on prostitution. “They need to do a better job of identifying peoples’ needs,” she says. “Definitely there is a dire need for services, but definitely not through the courts.”

As they talk, an eighteen-year-old with bleach-blonde hair is brought out in handcuffs from the holding cell behind the judge’s bench, flanked by the police officers. She has eight charges under at least three aliases. The judge lists off the AKA’s. She has been incarcerated overnight waiting for court to open. Her case has been labeled “CSEC,” which stands for Commercial Sexual Exploitation of Children, the same as Skylar’s was. Dressed in white socks, pulled up to her knees, over black leggings, her slender frame is lost in a baggy sweater. Her hands are pink, clasped behind her back, fingers rubbing at each other shakily. The judge flicks through the pages of her case and lists the treatment options, deciding whether to send her to outpatient or inpatient sessions. He decides to adjourn for two weeks while they see if an inpatient bed can be found.

Skylar’s colleague sucks in air through her pursed lips. “Inpatient programs are harder,” she says under her breath. She has done both in the past. “I’d take jail,” she decides, after weighing the two.

Outside again on the bench, Skylar sits waiting for a defendant who is leaving. As the slender woman with a head of black and bright blue dreads walks out, Sklyar catches her eye, asking if she was there for the HTIC. She says yes, slowing her beeline to the elevator and stepping back. Skylar hands her leaflets with information about Red Umbrella Project and Persist, telling her they are organizations run by people who have gone through the same experience, and can help her access nonjudgmental health care, prepare her resume and offer free writing workshops, if she is interested. The woman’s body relaxes some as she stands listening. She nods as she listens and takes the leaflets. “Thank you so much,” she says before leaving.