Typically the term "profiling" is used in discussions of the way police target young men of color, especially for drug crimes or weapon possession. And much police profiling is, in fact, of this type. New York City's stop-and-frisk policy, for example, disproportionately affects black and Latino men—so much so that in 2011 the New York Police Department (NYPD) actually conducted more stops of young black men than there are young black men in the entire city.
As a new report makes clear, however, police profiling isn't only focused on men. The Red Umbrella Project (RedUP), a peer-led Brooklyn organization that advocates for sex workers, has just released the results of a year-long study of New York's Human Trafficking Intervention Courts (HTICs). These courts are intended to provide alternatives to incarceration for people charged with prostitution-related offenses. But while HTICs goal may be humanitarian, their proceedings seem tainted by racial bias. In Brooklyn—where blacks make up about one-third of the total population—black defendants faced 69 percent of all charges brought before the trafficking court. And they faced a whopping 94 percent of charges on the offense of "loitering for the purposes of prostitution."
Loitering for the purposes of prostitution is a particularly subjective charge, heavily based on individual officers' perception of criminal behavior. As Audacia Ray, the director of RedUP and a former sex worker, explained, "the bar for proof of loitering for engaging in prostitution is much lower than for proving a person has been doing prostitution." Loitering charges don't require an exchange of sex for money and are "really based on … what the cops observe and what they say they observe."
Police claim to take into account things such as the clothes a woman is wearing, whether she seems to be talking to people while loitering, and whether she's acting in some manner they deem suspicious. (Until recently, the possession of condoms was also a basis for a loitering charge, though that's thankfully been abandoned due to the health risks involved in threatening people with arrest for practicing safe sex.) But based on the fact that more than 9 out of 10 loitering-for-prostitution arrests are of black woman, it seems that police may also take skin color into account when determining whether someone "looks like" a loitering prostitute.
Anecdotally, there's a lot of evidence that people in general, and police in particular, see black women as more likely to be sex workers, just as black men are often assumed to be violent criminals.
"Black bodies are hypersexualized," says N'jaila Rhee, an adult Web model, phone sex operator, and co-host of radio show "TWIB After Dark." Rhee says she has been in hotels for conferences where black women and Asian women were asked to leave because the staff assumed they were sex workers. She adds, "My mother is Jamaican, a lot of our family are nurse's aids and nurses, and you work very late nights, so you'd be waiting for the bus after a double shift, and have men solicit them for sex."
In August, a security guard at a swanky New York hotel asked three black women—a lawyer and two teachers—to stop soliciting at the establishment where they were merely having drinks. Monica Jones, a black trans woman and activist, was arrested in Arizona in May 2013 for "manifesting prostitution"—a charge which, like New York's loitering for purposes of prostitution law, essentially means a police officer can arrest you if they think you look like a prostitute.
Ray acknowledged that it's "definitely a difficult task" to prove race-based profiling on charges like these. Yes, racial disparities in prostitution arrests are widely documented, but it's hard to know for sure what causes these disparities.
For example, a recent study of arrests in several North Carolina cities looked at escort ads and arrest rates for black sex workers. While the percentage of escort ads for black women was either less than or proportionate to the percentage of black women in each city's population, black women's arrest rates for prostitution were two to three times as great "as both the percentage of ads depicting black females and their percentage of the population." But the study also notes that black sex workers are disproportionately likely to be working on the street, which was the main focus of police attention. Racial profiling isn't mentioned as an explanation.
Regardless of why women wind up there, New York's trafficking courts are a step forward in some ways, says Ray. As the RedUP report points out, these courts signal a move away from treating those arrested for prostitution as criminals and toward treating them as victims. Those who appear before HTIC courts can pursue court-mandated programs and avoid arrest records and jail time. "It's definitely a win to have this realization by the courts that maybe incarceration is not the answer, and it's not actually helping people improve their lives," Ray says.
But the on-the-ground mechanism for helping these "victims" is the same on-the-ground mechanism for punishing criminals—police make arrests, and the state exerts control. "Though based on an intention to help people who are in exploitive situations or working in the sex industry when they would prefer to be doing another job," the RedUP report states, "the blanket assumption that all people in the sex trade are victims does us a grave injustice." Part of that injustice, the figures suggest, comes from law enforcement officials who profile women for arrest on the basis of race.
Note: The NYPD did not respond to a request for comments by press time.