NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9704A
SPONSOR: Paulin (MS)
 
TITLE OF BILL: An act to repeal section 240.37 of the penal law,
relating to loitering for the purpose of engaging in a prostitution
offense; and to amend the penal law, the criminal procedure law, the
social services law and the administrative code of the city of New York,
in relation to making technical corrections relating thereto
 
PURPOSE:
This bill will repeal a section of the Penal Law which has led to arbi-
trary and discriminatory enforcement by targeting women from marginal-
ized groups that are at high risk for sex trafficking and other exploi-
tation and abuse.
 
SUMMARY OF PROVISIONS:
Section 1 provides the legislative intent of the bill which states no
prosecution shall be commenced, continued, or refiled under Section
240.37 of the penal law.
Section 2 repeals Section 240.37 of the penal law.
Sections 3 through 12 make technical corrections to parts of the crimi-
nal procedure, penal and social services laws, as well as the adminis-
trative code of the city of New York, based on the repeal of Section
240.37 of the penal law.
Section 13 sets the effective date.
 
JUSTIFICATION:
New York Penal Law Section 240.37, which prohibits loitering for the
purpose of prostitution, was enacted in 1976 along with several other
anti-loitering statutes at a time when street crime was rampant in order
to "curtail the proliferation of prostitution" and other "maladies" in
New York. The 1976 legislature defined this new crime as: (any) person
who remains or wanders about in a public place and repeatedly beckons
to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly
attempts to engage passers-by in conversation, or repeatedly stops or
attempts to stop motor vehicles, or repeatedly interferes with the free
passage of other persons, for the purpose of prostitution, or of patron-
izing a prostitute as those terms are defined in article two hundred
thirty of the penal law, shall be guilty of a violation.
The 1976 legislature justified this law by citing "harassing" conduct
that "interfered with the use and enjoyment by other persons of such
public place thereby causing a danger to the public health and safety."
However, many repeatedly voiced concerns about the law's constitutional-
ity and its potential for abuse - particularly towards women - at the
time of the law's passage and afterwards. Given the extent to which the
law's premises have changed over the intervening four decades, Section
240.37 is no longer relevant or necessary. Furthermore, concerns about
its enforcement and utility outweigh any benefit it may yield.
As many feared and predicted, Section 240.37's vagueness has led to
arbitrary and discriminatory enforcement. Enforcement of Penal Law
Section 240.37 targets marginalized women in the commercial sex indus-
try, a group at high risk for trafficking and other exploitation and
abuse. It is also duplicative and unnecessary when considered against
other statutes that criminalize the behavior at issue.
Arrests under Section 240.37 disproportionately impact women, partic-
ularly cisgender and transgender women of color and women who have
previously been arrested for prostitution offenses. Eighty-five percent
of the individuals arrested under Section 240.37 between 2012-2015 were
Black or Latina. In particular, women of color have often been unlaw-
fully targeted by officers under this statute during "sweeps" or "oper-
ations" where officers arrest large numbers of women in a given area at
the same time.
In a class action lawsuit brought by The Legal Aid Society challenging
this statute, five of the eight named plaintiffs are transgender women
of color arrested during four separate sweeps in neighborhoods where
transwomen gather and socialize as a community to avoid violence,
hostility and discrimination. These women are arrested simply for stand-
ing outside, speaking to one another, or walking from a subway or
grocery store back to their house.
Officers have expressly warned transgender women that "girls like them"
would be arrested if they were seen outside after midnight. One officer,
when asked how he was trained to identify prostitutes, testified that he
was trained to look for women with Adams apples, big hands and big feet.
Although Section 240.37 has provisions that criminalize loitering for
the purpose of patronizing a person for prostitution, it is simply not
enforced against purchasers of commercial sex. Instead, women face
repeated arrest under the statute. With increased awareness of the
pervasiveness of sex trafficking and exploitation, and New York State's
commitment to assist victims rather than expose them to arrest and
detention, Section 240.37 represents a vestige of an approach that has
been universally disavowed. Arrests under the law foster distrust of law
enforcement, which hurts victims of trafficking and impedes broader
efforts to investigate and punish more serious criminal activity. Expo-
sure to repeated arrests, and resulting criminal records, make it diffi-
cult for women to leave the commercial sex industry and seek assistance
when victimized.
Finally, the Section is unnecessary as it is duplicative of other penal
law offenses. The conditions which are the subject of most community
complaints can be addressed by several other criminal statutes that
avoid the pitfalls of Section 240.37. Any legitimate application of the
statute is merely duplicative of preexisting criminal prohibitions.
Criminal conduct under Penal Law Sections 140.10/140.15 (Trespass),
230.00 (Prostitution), 245.00 (Public Lewdness), and 240.20 (Disorderly
Conduct) would still be subject to arrest and prosecution. The repeal of
Section 240.37 will not affect public safety or the ability of the
police to respond to community complaints.
 
LEGISLATIVE HISTORY:
This is a new bill.
 
FISCAL IMPLICATIONS:
None to the state.
 
EFFECTIVE DATE:
This act shall take effect immediately.