The Legal Aid Society of New York and the law firm Cleary Gottlieb have launched a constitutional challenge on behalf of women of colour, many of whom are transgender, who have been wrongly arrested under New York Penal Law Section 240.37. “The plaintiffs challenge Section 240.37, loitering for the purpose of prostitution, because it is unconstitutional on its face and also because it is unlawfully enforced by NYPD officers who target women for arrest based on race, gender, ethnicity, gender identity, and/or appearance,” says the Society. The Society goes on to note that, “under Section 240.37, a woman can be improperly arrested and detained simply because an officer takes issue with her clothing or appearance and decides that her purpose is to engage in prostitution.”
Over the years the Society has represented women assumed to be loitering for prostitution based on clothing deemed by the police as indicative of prostitution, yet “an outfit considered appropriate elsewhere becomes the basis for an arrest when worn by a woman of color on Pennsylvania Avenue in Brooklyn or Jerome Avenue in the Bronx,” says the Society.
“When you look at who is arrested under 240.37, and the pattern since the law was enacted four decades ago, a clear picture of discrimination emerges,” said Tina Luongo, Attorney in Charge of the Criminal Defense Practice of The Legal Aid Society. “The statute must be struck down because it allows this injustice to go on.”
According to the complaint filed in the Southern District of New York, data show that 85 percent of the individuals arrested under Section 240.37 are Black or Latina. Between 2012 and 2015, five precincts in New York City accounted for nearly 70 percent of all citywide Section 240.37 arrests. These precincts (Bushwick, Brooklyn; Belmont/Fordham Heights, Bronx; East New York, Brooklyn; Hunts Point, Bronx; and Brownsville, Brooklyn) are all in neighbourhoods where the majority of residents are people of colour.
Legal Aid Society attorney Kate Mogulescu says the case involves two essential arguments:
- the New York State law is unconstitutional and overly broad and,
- specific to New York City, where it is most commonly enforced, they take issue with the New York Police Department’s enforcement of the law.
Mogulescu, who has written about false trafficking panics and the Super Bowl, reiterates that they “understand the law to unfairly target women of color, in neighborhoods the NYPD deems ‘prostitution prone’.” Mogulescu compares the enforcement to stop and frisk and says the data mirrors this type of racial profiling. The arrests, she says, “are primarily trans women” who are told by police, “if we see girls like you outside after midnight you will be arrested.” The law also allows police to consider previous arrests for prostitution, assigned by their own standards, sufficient grounds for rearrest.
As in the case of Monica Jones, even if a woman is a sex worker yet not working, she risks being arrested for unrelated charges. “Our strongest argument is that this law allows for too much unfair arrest,” says Mogulescu “and these loitering laws allow for unfair arrest based on identity like no other law does.”