TESTIMONY OF:

Jillian Modzeleski

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Women and Gender Equity

Hearing on Res 0923-2019 and Res 1444-2020

December 3, 2020

My name is Jillian Modzeleski and I am a Senior Trial Attorney in the Women’s Defense Practice at Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for nearly 30,000 clients in Brooklyn every year. I would like to thank the New York City Council Committee on Women and Gender Equity, and in particular Chair Helen Rosenthal, for the opportunity to testify today about Res 0923-2019 and Res 1444-2020 regarding loitering for the purposes of prostitution

BDS’ Women’s Defense Practice provides trauma-responsive defense to cisgender and transgender women who are charged with crimes in Brooklyn. This specialized unit serves women who have a history of violence, exploitation and abuse that has directly or indirectly led to their involvement in the criminal legal system. We also practice in the Human Trafficking Intervention Court, where we represent sex workers and victims of trafficking who have come in contact with the criminal legal system.

Background

In 1976, New York State passed legislation to criminalize loitering for the purpose of prostitution. New York Penal Law Statute 240.37 is commonly referred to as the “walking while trans” ban or “stop-and-frisk for women” due to the biases in enforcement. This statute allows police to interpret innocuous, lawful behavior—including “repeatedly” waving at a person in a vehicle or “attempt[ing] to engage passers-by in conversation”—as cause to stop, frisk, and arrest people. Since its enactment, the statute has disproportionately been used to profile and arrest Black and Latinx transgender and cisgender women and LGBTQ people for simply existing.

NYPL 240.37 is used as a pretext to stop and frisk Black and Latinx women, simply for standing on the sidewalk, hailing a cab, or wearing tight or revealing clothing. I represented one woman whose criminal complaint included the accusation that “she was wearing tight pants that showed the curves of her lower body.” To make an arrest, the New York Police Department (NYPD) are not required to show that they heard any discussion about exchanging sex for money, nor is there a requirement that they witness any exchange of money. Officers can simply make an arrest based on observing benign behavior. In practice, we have seen clients arrested for wearing form fitting clothing, being in an area known to be frequented by sex workers, or standing in a group with other women.

This loitering law only serves to give law enforcement the discretion to profile, arrest, and charge those whom officers deem likely to commit prostitution in the future—or those whom they want to harass—with a lower standard of proof. Enforcement of the law, if not the law itself, is patently sexist and racist. In 2018 alone, 91% of those arrested were Black and/or Latinx and 80% were identified as female by the NYPD. All of the people I have represented in cases with loitering for the purposes of prostitution have identified as women and all have been Black, Asian or Latinx.

Resolutions 0923-2019

Brooklyn Defender Services supports Resolution 0923-2019 which calls on the New York State Legislature to pass and the Governor to sign A654 (Paulin) / S2253 (Hoylman), which would repeal New York Penal Law Section 240.37, loitering for the purpose of prostitution. Repealing NYPL 240.37 is a racial justice issue and a gender justice issue – but it is also a New York City issue. In 2019, over 75 percent of arrests for loitering for the purpose of prostitution came from Queens and Brooklyn alone. The Council must pass this resolution and show Senate and Assembly leadership that the City is committed to ending this gender-based stop-and-frisk.

Resolution 1444-2020

BDS supports Resolution 1444-2020, which calls on the New York State Legislature to pass, and the Governor to sign, a bill to amend the criminal procedure law to allow convictions for Loitering for the Purpose of Engaging in a Prostitution Offense (PL § 240.37) to be sealed and have the law apply retroactively.

Current State law allows all Violations and Traffic Infractions to be sealed, except for Driving While Ability Impaired (VTL § 1192(1) and Loitering for the Purpose of Engaging in a Prostitution Offense (PL § 240.37). A criminal record imposes life-long, detrimental effects — limiting access to employment and educational opportunities, financial resources, and housing. A criminal record can also result in severe immigration consequences, including the threat of deportation and the inability to adjust immigration status or become a citizen. Passing a law to amend the sealing provision will allow people who have been criminalized under NYPL 240.37 to over the last 44 years to move forward without the burden of a violation.

Conclusion

Thank you for your time and consideration of my comments. If you have any questions, please feel free to contact Kathleen McKenna, Senior Policy Social Worker at 718-254-0700 ext. 210 or kmckenna@bds.org.