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Facing facts: Un-meetable promises in the shadow of municipal prostitution and trafficking diversion and intervention programs

By Poonam Daryani and Ali Miller, Yale Global Health Justice Partnership

Criminal justice reform is a critical piece of conversation on how best to prevent human trafficking and support trafficking survivors. In this piece, authors Poonam Daryani and Ali Miller of the Yale Global Health Justice Partnership (GHJP) share one of many diverse perspectives on this issue.

Facing facts: Un-meetable promises in the shadow of municipal-level “diversion” programs for people arrested under prostitution law

For many of us seeking to support the rights of people caught both the surveillance of the U.S. criminal legal system and the economic and physical precariousness of street economies, “diversion programs” sound compelling. The idea that cities and states can set up systems that divert people from the harms associated with arrest, conviction and detention for low-level offenses seems on point. Equally appealing is the notion that these projects and processes are somehow part of an effective anti-trafficking movement.

But research and analysis carried out over the last three years by the Yale Global Health Justice Partnership (GHJP) of Yale Law and Public Health Schools with the Sex Workers Project of the Urban Justice Center (SWP-UJC) in New York tells a different story — one of ad hoc good intentions but long term misfire, failure, and in the worst cases greater repression, almost always because the programs miss (indeed mis-diagnose) the reasons for the criminal conduct, substituting individual moral failures and trauma as causes of sex selling sex and eliding attention to structural violence, policies constraining the poor, racism and sexism.

Our two reports, Diversion from Justice: A Rights-Based Analysis of Local ‘Prostitution Diversion Programs’ and their Impacts on People in the Sex Sector in the United States and Un-Meetable Promises: Rhetoric and Reality in New York City’s Human Trafficking Intervention Courts, examined municipal-level programs that claim to divert ostensibly “trafficked” or “exploited” people arrested under prostitution and related laws out of the purview of the criminal legal system and into mandated social services in order to end the revolving door of criminalization.

Our reports reveal that despite the popularity and proliferation of prostitution “diversion” programs (PDPs) nationwide, most PDPs operate in ways that are contrary to their claims of doing good in the lives of defendants and may be sources of injustices and harms to rights. Because PDPs are local, jurisdiction-driven systems that vary radically across the country, they are both challenging to monitor as a class of intervention and difficult to hold accountable. Our reports examine how the inconsistent, ad hoc, and often opaque operations of PDPs can mask troubling practices: namely, court overreach, disrespectful and destabilizing practices, limited benefits to defendants and almost no engagement of the views of the persons most affected.

In analyzing the rhetorical narratives that underpin the development of today’s PDPs, we found that these programs are often built upon and promulgate flawed ideologies about gender, race, sex, crime and rehabilitation in the sexualized penal context of prostitution offenses. Many PDPs paradoxically position the sellers of sex as “victims” needing rehabilitation, but then charge them as criminals and embed their treatment in the criminal legal system, thereby conflating all sex work with trafficking while retraining coercive control of people in the sex sector.

In some PDPs, their proposed benefits (i.e., access to services, treatment with respect, etc.) were of tangible value to some defendants. In the interviews we conducted for the reports, a few defendants shared positive aspects of their experiences in PDPs and relayed gratitude for the social service providers they were assigned through the program. While these recounts may appear to legitimize PDPs, we argue that all people who sell sex (not just those in special courts) should be treated with dignity and have access to compassionate services on a voluntary basis, and that these expressions of appreciation are more indicative of the overall failure of court systems to make respectful engagements the standard of practice. Moreover, the services most commonly offered though PDPs (e.g., mental health and trauma counseling) are often not appropriate to address the pervasive structural issues (e.g., poverty, criminalization) and needs (e.g., housing, education) of defendants. One defendant we interviewed regarding their experiences in NYC’s Human Trafficking Intervention Courts expanded on this at length:

Counseling isn’t gonna do shit. Let’s be real. Yeah, it helps with the emotional part but if you want a prostitute to get off the streets and away from her pimp, you gotta to give her money. Or help her financially. Because right now that’s her only financial situation. That’s her only means of survival […] Oh yeah, I can sit here and talk about my feelings and how I feel about the situation but at the end of the day that’s not going to keep me warm at night, that’s not gonna put food in my belly, and that’s not gonna pay my child’s bills…This is the problem, they don’t give a f*** about all that. They just want you to go through a program so it seems like they are actually doing something.

Even when high-quality, ethically-driven connections arise in the context of PDPs, the programs still suffer from the fundamental problem of making access to services contingent on criminal legal system involvement — any level of which can be destabilizing and disempowering. In fact, our reports point to the dangers of nesting social services within a penal framework and sound the alarm over making the criminal legal system gatekeepers and managers of social services.

While these diversion programs do not reliably connect people to the behavioral and structural services they need and want, they do keep people under the thumb of the court and police. The structure of these programs unduly expands the power and reach of courts and works perversely to keep defendants in a state of permanent anxiety and a sense of not being in control of their own lives. Many defendants described feeling like they were under constant threat of punishment and incarceration given onerous and often unclear and inconsistent program durations and requirements (and even after service mandates are completed, some programs have extensive waiting periods before charges are dismissed and sealed). As one defendant noted in the Diversion from Justice report:

I didn’t know they could do that type of stuff. If it’s not in my stipulations that you can order me to do something or that you could order me to not to do something and that I could go to jail if I didn’t. I didn’t know that. I had specific guidelines in my probation and that was all I had to go by. And then the rules of the program, which were attend IOP, report weekly, and complete all my assignments. You know? That was it. Until I got the full experience of court and saw that I am being monitored, I am being watched, and if my behavior is not deemed healthy by the court system, then I would be ordered to make changes…whatever changes they deemed appropriate to my life.

The anxieties experienced by defendants are often exacerbated by experiences of disrespect or even abuse at the hands of police and court staff, for which there few (if any) accountability mechanisms in place.

One defendant, speaking about the court staff in her jurisdiction for the Diversion from Justice report, said: “Oh gosh. they’re rude […] the correctional court officers who work there treat you like you’re beneath them. And ethically that is just not what you are supposed to do to people […]” She went on to describe how she had been physically abused in the courthouse, as police officers handled her roughly and made her handcuffs too tight.

In general, arrest and police contact are the primary experiences of violence and violation (for more on this, see the 2018 American Public Health Association statement on law enforcement violence as a public health issue). This point is important to emphasize, especially given the eager adoption of pre-booking diversion programs in many jurisdictions across the U.S. (see, for instance, the National Support Bureau for Law Enforcement Assisted Diversion or the Atlanta/Fulton County Pre-Arrest Diversion Initiative). While the GHJP/SWP reports primarily focused on specific post-booking programs, we also flagged the emergent trend of pre-booking programs, in which the referral to social services happens before police booking for a range of low-level petty offenses. While pre-booking programs have some promising elements (particularly when led by affected communities, as in the case of Atlanta’s program), they can still expose primarily street-based individuals to harmful police encounters, as the discretionary authority to arrest or divert is often times held by police officers with limited oversight and accountability.

In reality, the gender- and race-specific needs and challenges facing women (both cis- and transgender) caught in cycles of surveillance and criminalization for low-level offenses is poorly understood — except, of course, by the people living those experiences who are often left out of conversations and decision-making around criminal legal system reform. Our reports, thus, call for affected communities to be meaningfully involved in every stage of programming and resource provision. Community engagement will also enable more attention to the intersection of race and gender as it relates to policing, mass misdemeanor arrests and municipal courts and jails.

The greatest irony and danger is this: these diversion programs get credibility and funding by operating in the shadow of the strongest legal regime that addresses anti-trafficking in the US: the criminal law (see the Trafficking Victims Protection Reauthorization Act). But evidence suggests that the answers to preventing trafficking and protecting the rights of persons in trafficked and other abusive and precarious work sectors are found in more rights and less criminal law — i.e., in local efforts to promote housing, labor (including organizing rights), health and other rights within the most affected communities, including domestic workers, people in the sex trade (sex workers and others), farm workers, etc.

In sum, the way forward lies in re-investing resources into community-led interventions, curtailing the authority of the criminal legal system over the lives of marginalized groups, and establishing stronger mechanisms for public accountability for any interventions. At minimum, this looks like establishing uniform standards for practice and treatment of persons involved in the criminal legal system that are non-judgmental, respectful, and compassionate and that sharply minimize diversion program requirements as well as defendant time in and contact with any and all penal systems.

For people facing arrest and conviction for selling sex, this also means that the decriminalization of the buying or selling of sex and associated practices is not only part of an anti-trafficking intervention, but also enables a structural re-focus toward the distribution of much-needed resources toward those most at risk. Decriminalization will not fix all the problems faced by people in the sex trade in street economies, but it will remove some of the persistent barriers associated with the oppressive cycle of surveillance, policing, arrest, prosecution, diversion and incarceration faced by folks in these circumstances. PDPs do not have the intentions nor the capacities to meet the needs of people involved in the sex sector, but real change can be enacted by dual strategies of decriminalization and reinvestment of resources in community-led efforts that may serve persons in the sex trade — by choice, circumstance, or coercion — according to their needs and rights.

The Yale Global Health Justice Partnership (GHJP) is a program hosted jointly by Yale Law School and Yale School of Public Health that tackles contemporary problems at the interface of global health, human rights, and social justice. The GHJP is pioneering an innovative, interdisciplinary field of scholarship, teaching, and practice, bringing together diverse leaders from academia, non-governmental, and community-based organizations to collaborate on research projects and the development of rights-based policies and programs to promote health justice.

Research for this report was supported by a grant from the Levi Strauss Foundation. This work is an initiative of the Gruber Project for Global Justice and Women’s Rights. Inquiries can be sent to Poonam Daryani at poonam.daryani@yale.edu.

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Pathways to Freedom calls on cities to take urgent action to prevent human trafficking and address the unmet needs of survivors. This third challenge of the Partnership for Freedom focuses on challenging assumptions, spurring innovative city-wide responses, and sharing local solutions. Humanity United and the NoVo Foundation lead this final challenge in collaboration with 100 Resilient Cities.

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