On Wednesday, Sept. 25, New York state's highest-ranking judge announced a first-of-its-kind initiative. In an effort to combat human trafficking and stop criminal courts from punishing victims of trafficking, New York will no longer treat sex workers as criminals. Instead of prison time, a special court will provide victims with social services, such as medical treatment and job training. However, the policy fails to distinguish between sex workers and sex slaves. This is a paternalistic perception that strips women of agency in an attempt to protect them from their own choices. "Saving" sex workers, after arresting and arraigning them, will not accomplish the court's goals.
Federal law regarding human trafficking specifies that the difference between a worker and a slave is force or fraud, except in the case of sex. The law disregards the possibility that someone would choose to engage in prostitution. In doing so, it not only ignores sex workers, who must risk arrest and prison to earn a living, but fails the victims of force and fraud.
The message from our court system on respect for women's agency is clear. In 2006, a press release announcing an FBI, Bureau of Immigration and Customs Enforcement, and New York City Police Department prostitution sting called the story of the 31 arrests "Halting Human Trafficking," although there was no evidence presented that the sting uncovered any force, fraud or coercion, only prostitution.
Following the sting, FBI Special Agent Andrew Arena spoke at a press conference and the real target was obvious from his words: "The FBI is part of the apparatus in place to protect people, sometimes even from their own poor choices."
The first task of New York's new trafficking court is determining whether the arraigned persons are sex slaves or sex workers. This is a curious task, since trafficking law does not acknowledge the possibility of voluntary sex work, while prostitution law does not acknowledge the possibility of sex slavery. If every sex worker is considered a human trafficking victim, how could anyone be arrested for or charged with prostitution?
Beyond that quirk of law, if history is any guide, trust in the New York court system to differentiate between consensual employment and trafficking is entirely misplaced.
Last June, Manhattan's District Attorney attempted to send two pimps to prison for 25 years on human trafficking charges. However, the effort failed after two of their "slaves" testified in the pimps' defense. One of the women described their relationship as "family." One defendant, Vincent George, apparently supported the woman and the daughter they have together for years after she gave birth and while she took a break from prostitution.
Once the determination is made that the state has a victim on its hands, the treatment begins. All "recommended" services, such as drug treatment, education, job training, health care, and immigration help, are mandatory and must be completed before prostitution charges are dropped. It is similar to the way drug courts handle offenders, with all the attendant problems.
A special court is a recognition that existing laws make it possible to be both a victim and a criminal. They're an attempt to avoid further hurting victims with prison time and fines, as well as an attempt to offer help to people who need it. But special courts fail to recognize the people who are not hurting themselves or anyone else, but are criminals only by law.
There are genuine human trafficking victims in the U.S. Some arrive in the country through threats or fraud, and are then forced into sex slavery. But these are not the same people who have chosen sex work.
Additionally, sex workers are potentially human trafficking's most effective foes, as they are ideally situated to identify sex slavery and alert the authorities. Or they would be if they did not risk arrest and prosecution for doing so.
Special courts allow the state to pretend it's doing something while not implementing the best solution: ending prohibition. Forcing people into treatment for "problems" like deciding to use drugs or engage in sex work creates new problems for them. A woman in state-mandated courses isn't earning money or taking care of her family. A man in a state-mandated drug-treatment program is likely to lose his job.
A UN Human Rights Council report from the Global Alliance Against Traffic in Women calls for countries to consider decriminalizing sex work, "As a strategy to reduce the opportunities for exploitative labor practices in the sex sector."
New York state's attempt to stop further victimization of people caught up in human trafficking is admirable. But in the process these special courts strip women of their agency while failing to address the biggest problem in the sex trade.
Today it is incredibly difficult for law enforcement and other organizations to differentiate between sex workers and sex slaves. Arresting everyone for prostitution and then sorting them out in court is not the answer. The only thing that will work is allowing sex workers to work, free from the threat of arrest and prosecution. The job of law enforcement should be to keep sex workers safe from violence and recruit them in the fight against slavery.