Dark SevierOn
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.