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“Prostitution-Related” Loitering Ordinance Promotes Racial Profiling in Chicago

The ordinance will facilitate profiling based on race, gender and sexual orientation and is likely unconstitutional.

In an ill-advised move last month, the Chicago City Council passed an ordinance that makes “prostitution-related loitering” a prosecutable offense defined as “remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to facilitate prostitution.” The language of the new statute mirrors the city’s gang-related and narcotics-related loitering statutes, which have been widely criticized for giving officers carte blanche to engage in blatant racial profiling and populate a gang database with the names of people as young as 1 on the flimsiest of presumptions.

Given that it is impossible — without making a series of assumptions — to know the intentions of a person who is seen standing in a public place, the new “prostitution-related loitering” statute throws open the door to rampant racial profiling of Black women, women of color, queer and trans people, and anyone else whose presence in public spaces is presumed to signal an intent to trade sex.

Chicago is not the only major US city to enact and enforce prostitution-related loitering laws. Similar laws in California, New York and Washington, DC, have also long been the subject of controversy and challenges claiming that they facilitate profiling and discriminatory and abusive enforcement. New York State’s notorious “loitering for the purposes of prostitution” law is currently the subject of a lawsuit on the grounds that it is unconstitutionally vague on its face and racially discriminatory as applied, leading lawmakers to introduce a bill to repeal it. In Washington, DC, advocates led a 10-year campaign to get rid of a law establishing “prostitution-free zones” that ultimately led to the law’s repeal. In California, after attempts to get rid of the loitering law, advocates are suing to decriminalize prostitution altogether.

Chicago Mayor Rahm Emanuel still has the opportunity to halt the city’s march down this perilous path — by vetoing this ill-advised bill before a City Council meeting scheduled for Wednesday, July 25, and instead opting to work with City Council to meet the needs of people in the sex trades and the communities they live and work in.

A wide range of critics, including people advocating against loitering ordinances and those advocating for stronger enforcement, note that the loitering statutes are bound to fail to address the root causes of the problems they purport to address. As the conservative Chicago Sun-Times newspaper acknowledges, “the best long-term crime deterrent is a decent education and a good-paying job. But the opportunities for both are few and far between on the West Side, which lacks decent schools and economic development.”

Indeed, Chicago’s new ordinance promises to perpetuate the conditions it claims to correct by imposing fines of $50 to $500 on people who are already trading sex to meet survival needs. Chicago lawmakers can’t claim they don’t know how the people arrested under the new law who are actually trading sex to survive are going to have to earn the money to pay these fines — in $20-$50 hand jobs or blow jobs. They also can’t claim not to know that the law — by giving officers considerable discretion and mandating a five-day jail sentence on a second arrest — exposes people in the sex trade to more violence. Several studies over the past decade have found high rates of physical and sexual violence by police officers enforcing prostitution laws in Chicago. For immigrants, enforcement of the new law represents another potential pathway to being swept up into Trump’s deportation machine.

As options for trading sex online and indoors are becoming more limited following the recent passage of federal laws targeting internet platforms “facilitating prostitution,” more and more people, fearing online police surveillance or entrapment, are being forced into the streets to make ends meet. As a result, according to the Chicago Task Force on Violence Against Women and Girls, “while these bills purport to protect trafficking victims, they will subject sex workers to further surveillance and criminalization.” Increased arrests for street-based prostitution will only force more and more people — including survivors of trafficking — into the revolving door of the criminal legal system.

The Mayor can also expect the Chicago’s new law to be susceptible to legal challenges similar to those being levied against the anti-loitering legislation in New York.

According to the complaint filed by the Legal Aid Society of New York, “New York City Police Department (“NYPD”) officers target and arrest women — primarily women of color, including transgender women — engaged in wholly innocent conduct based on their race, color, ethnicity, gender, gender identity and/or appearance.” The NYPD identified 85 percent of the nearly 1,300 people arrested under the loitering law from 2012 to 2015 as Black or Latina, in a city where those two groups make up only 54 percent of the population. In addition to racial profiling, the lawsuit claims that officers engage in impermissible gender discrimination: the majority of cases are brought against women, and arrest records cite women’s clothing — including bra straps, tank tops and leggings — as evidence of intent to engage in prostitution.

The complaint goes on to say that the New York State law, “lacks objective criteria and guidelines for determining what conduct is ‘for the purpose of prostitution.’” The complaint adds:

It therefore fails to provide adequate notice of the conduct that will be deemed criminal and gives police officers unfettered discretion to arrest individuals based on subjective determinations of an individual’s ‘purpose,’ leading to inconsistent and arbitrary enforcement…. Absent objective criteria, such determinations are based entirely on a police officer’s subjective views, making it all but impossible for an individual to know when ‘beckon[ing],’ ‘engag[ing] passersby in conversation,’ or other commonplace, innocent conduct enumerated in the statute, may be deemed for the ‘purpose’ of prostitution.”

The same could be said of Chicago’s newly minted ordinance, which offers no guidance as to what kinds of conduct runs afoul of the law.

New York State legislators introduced a bill this spring to strike down a law very similar to the one Chicago alderpersons just endorsed, and the bill is supported by a number of organizations, including anti-trafficking advocates. Washington, DC, wisely got rid of its “prostitution-free zone” law in 2014, after the District’s own attorney general opined that the law was probably unconstitutional, following a decades-long campaign led by local advocates, legal organizations and community groups.

Like the now-defunct DC law, the Chicago legislation enables the police superintendent to declare what amounts to a “prostitution-free zone” — an area in which police officers can order anyone they deem to be engaged in prostitution-related loitering to move out of sight or sound range for a period of eight hours — regardless of whether they live or work in the area, obtain vital services there, or need to care for children or family members. Failure to follow officers’ orders runs the risk of arrest. On a third offense, a person can be banned from the area for 30 days.

Lawmakers claim that Chicago’s new law will target the “demand” for prostitution. In fact, the legislation does nothing to curb the demands driving the sex trade — the demand for income, employment, housing, health care, immigration status, and food on the table. Criminalization simply drives people in the sex trade further into poverty, serving as a basis for exclusion from the housing, employment, shelter and assistance they need. It is also a tool used by abusers to threaten and control the people they exploit by telling them that if they come forward to the authorities, they will be arrested, and if they don’t have status, deported.

Proponents of the new Chicago law note that a person offering sex for sale can assert an affirmative defense that they were trafficked, lessening the chance of conviction for people who are being coerced into trading sex. However, being able to assert such a defense depends on being perceived as a “legitimate victim,” a category that often excludes Black women, trans women, queer people and anyone else who doesn’t fit a singular narrative of what trafficking and exploitation looks like, and who experiences it. It would also do nothing to eliminate the violence of profiling, arrest and prosecution that come before anyone can assert the defense in court. And for immigrants without legal status, that point may come way too late.

Regardless of the professed intention, the reality is that anti-loitering ordinances are inherently about the policing of Black, Brown, trans and queer people’s bodies and access to public ways and space. The first problem is that Black and Brown women, queer and trans people will routinely be profiled through racially gendered stereotypes as old as this country. Moreover, regardless of whether or not people are in fact trading sex to survive, loitering ordinances such as Chicago’s are damaging and unacceptable because they give police a green light to escalate systemic profiling, surveillance and abusive treatment of people they suspect to be involved in the sex trades.

In passing the prostitution-related ordinance, the Chicago City Council took a huge step backward, at the same time as other jurisdictions such as North Carolina, which repealed its loitering law in 2013, DC and New York are recognizing the error of their ways. A number of other states’ loitering laws, including those of Alaska, Nevada and several municipalities in Florida, have been struck down by courts.

Chicago should recognize that loitering ordinances do nothing but create more opportunities for racial and gender profiling, discrimination and harm to people trading sex out of choice, circumstance or coercion.