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A00654 Summary:

COSPNSRSeawright, Dickens, Dinowitz, Galef, Gottfried, Jaffee, Joyner, Pichardo, Rosenthal L, Simon, Steck, Niou, Hevesi, Quart, Cruz, Simotas, Kim, Mosley, Epstein, Walker, Perry, Arroyo, Ortiz, Blake, Fernandez, O'Donnell, Carroll, Reyes, Weprin, Rivera, Richardson, Wright, Barron, Sayegh, Aubry, Hunter, Ramos, Taylor, Glick, Buchwald, Otis, Lupardo, Bronson, Bichotte, Fahy, Abinanti, Lifton, Thiele, Jacobson, Lavine, Hyndman, De La Rosa, Pheffer Amato, Solages, Jean-Pierre, Magnarelli, Stirpe, Braunstein, Zebrowski, McDonald, Cook, Burke, Pretlow, Darling, D'Urso, Miller MG, Davila, Crouch, Nolan, Abbate, Vanel, Cymbrowitz, Benedetto, McDonough, Clark, Burgos
MLTSPNSRDenDekker, Frontus, Lentol, Rodriguez, Rosenthal D
Rpld §240.37, amd §230.01, Pen L; amd §§60.47, 160.10, 170.30, 170.80, 420.35, 720.15 & 720.35, CP L; amd §447-a, Soc Serv L; amd §3-118, NYC Ad Cd
Repeals provisions relating to loitering for the purpose of engaging in a prostitution offense; makes technical corrections relating thereto.
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A00654 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
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 tech- nical 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 haul 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 standing 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: A.9740A in 2018, advanced to third reading cal. 882. Same as S.8107A in 2018, recommit to codes.   FISCAL IMPLICATIONS: None to the state.   EFFECTIVE DATE: This act shall take effect immediately.
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