Last week The Daily Beast reported—in a sensational title, “Sex Trafficking Victims, Not ‘Prostitutes,’ Finally Getting Help (and a New Name) in Court”—that New York has set up a new provisional court system that tries to funnel arrested sex workers into counseling rather than jail.

Recognizing that many sex workers have been exploited by third-party profiteers and may be victims of trafficking, the courts are intended to intervene in the further victimization of sex workers by the criminal justice system. The courts seek to identify sex workers as trafficking victims, rather than law-breaking prostitutes, and by mandating counseling as an alternative to jail they hope to break the cycle of exploitation that is imagined to characterize the sex trade. Moreover, by characterizing sex workers as trafficking victims, the courts echo the dominant paradigms put forth by the United Nations, the U.S. State Department, the U.S. Department of Justice and the Trafficking Victims Protection Act (TVPA). This paradigm posits all sex work as illegitimate and sees sex workers as victims in need of rescue.

All three entities share a common definition of sex trafficking. Sex trafficking is defined as “when an adult engages in a commercial sex act, such as prostitution, as the result of force, threats of force, fraud, coercion or any combination of such means.” For children, defined as those under the age of 18 years, the burden of proof is even lighter. Any child who is “recruited, enticed, harbored, transported, provided, obtained or maintained to perform a commercial sex act” is a victim of trafficking according to both domestic and international policy.[1] As former Ambassador-at-Large to Monitor and Combat Trafficking in Persons Luis CdeBaca noted bluntly to an audience of historians and activists at the GLC’s “Abolition, Past and Present” conference, the current legal definitions of trafficking no longer requires movement, mobility or the crossing of jurisdictional borders.[2] Thus, any sex worker who encounters coercion, most commonly in the form of a pimp, can be classified as a victim of sex trafficking.

In New York, the effort to aid these victims comes from the Human Trafficking Intervention Initiative (http://www.courtinnovation.org/topic/human-trafficking-0) which has established 11 Human Trafficking Courts. According the Chief Judge Jonathan Lippman, “When these victims arrive in our courts, even as defendants in criminal cases, it gives us an opportunity—an opportunity for judges, prosecutors and defense lawyers to work together to link victims with the services they so desperately need.”[3] All prostitution related offenses are funneled into one of the Human Trafficking Courts, and once there, the defendants have a choice between serving jail time or getting their cases dismissed on the condition that they attend counseling sessions.

Historical Precedents

As innovative as the Human Trafficking Courts may seem, they are not without historical precedent. Indeed, as Michael Willrich has shown in his wonderful City of Courts, separate courts for juvenile offenders and female offenders date back to the Progressive Era when it was believed that separate courts would offer vulnerable and exploited defendants important social service interventions. Women’s Courts (frequently called Morals Courts) primary targeted arrested prostitutes. One Chicago journalist celebrated the founding of that city’s Morals Court by describing in it 1913 as “the first tribunal in Chicago in which kind words and a helping hand greet the guilty prisoner instead of the prospect of fines and prison sentences.”[4] Yet, in spite of the optimistic idealism that underwrote the establishment of these courts, they quickly gave way to repressive measures. These courts became sites of persecution and prosecution of juvenile offenders and adult prostitutes, and they routinely upheld traditional gender bias and racial prejudice. For example, though black women only accounted for 3.5 percent of Chicago’s population in 1930, they represented 69 percent of the total number of convicted prostitutes in the Morals Courts.[5] The politics of redeeming prostitutes quickly gave way to more standard policies of policing and prosecuting prostitutes, and the legal infrastructure created to humanize the courts instead became yet another bureaucracy with its own vested interests.

My own research shows how central anti-trafficking policy was to the growth of the FBI into a national agency. Concern with the prevalence of international and domestic sex trafficking dominated civil society in the early twentieth century with harrowing tales of white slavery appearing in films, magazines, newspapers and books. Anti-white slavery activists feared that thousands of women were imported into the United States where they would serve as sex slaves in the country’s public brothels. One activist estimated that Chicago alone had 30,000 sex slaves.[6] To combat the scourge of sex trafficking, 48 states passed anti-trafficking laws by 1916, the U.S. Congress passed the White Slave Traffic Act (Mann Act) in 1910 and the U.S. joined the 1904 International Agreement for the Suppression of the White Slave Traffic – the world’s first international agreement on sex trafficking.

The FBI was an infant agency in 1910 when Congress passed the Mann Act. The law made it illegal to take a woman or girl over state lines for the purpose of prostitution, debauchery or ‘any other immoral’ purpose. It is the nation’s first domestic anti-trafficking law (and it is very much still in use as an anti-trafficking measure). Coupled with the 1904, 1907 and 1910 Immigration Acts, these laws constructed an anti-trafficking fence around the U.S. in order to, in the words of Congressman Thetis W. Simms (D-TN), “prevent, I hope forever, the taking away by fraud or violence, from some doting mother or loving father, of some blue-eyed girl and immersing her in dens of infamy.”[7] The first director of the FBI believed the Mann Act would help protect women and girls from exploitation, and he believed the law would offer sex workers the opportunity to reform their errant ways by criminalizing the exploitation of sex workers by pimps and madams.

Almost immediately the courts began to suggest that not all sex workers were exploited victims. In 1915 the Supreme Court ruled in US vs. Holte that a woman who had been transported for the purposes of prostitution could be held legally culpable as a co-conspirator to violate the Mann Act—that she could be both a victim of trafficking and a co-conspirator in the trafficking of herself. In 1917 the Supreme Court clarified the scope of the Mann Act when it ruled that the ‘any other immoral purpose’ clause of the law actually applied to any other immoral purpose. Suddenly, the Mann Act could be used in a wide variety of morals crimes rather than just isolated incidences of sex trafficking.

Enforcement of anti-sex trafficking laws was critical to the growth of the federal criminal justice state. When handed the mandate to enforce the Mann Act, the FBI had only 61 agents, no authority to arrest suspected criminals and was located in the area around Washington DC. Yet, after the first decade of enforcing the Mann Act, the agency had grown to have over 300 representatives spread throughout the expanse of the nation. Mann Act investigations commonly accounted for 20 to 50 percent of special agents’ caseloads during the 1920s and 1930s, and J. Edgar Hoover reported that from 1921 to 1936, the FBI investigated around 47,000 Mann Act cases. Enforcement of a sex trafficking law was essential to the growth of the FBI. Similarly, several historians like Martha Gardiner and Grace Peña Delgado have interrogated the ways that the moral panic surrounding sex trafficking provided a rationale for strengthening the Immigration Bureau and its administrative apparatus, yet rarely succeeded in promises to aid victims. Before World War II, the FBI and Immigration Bureau worked hand in hand to police prostitution (and sexual morality more broadly), deport foreign-born prostitutes and protect their bureaucratic territory from incursion.

Challenges of the Law Enforcement Approach

Looking at the history of Morals Courts, the Mann Act and Immigration Law enforcement illustrates some of the pitfalls that New York’s Human Trafficking Courts may encounter. As The Daily Beast journalist Batya Ungar-Sargon noted, the entire scheme relies on police continuing to arrest sex workers, a process that is in itself punitive. Because it relies on police bringing in prostitutes, the women who appear before the Human Trafficking Courts reflect the gender bias and racial prejudice of police and the courts. Within the Brooklyn Human Trafficking Court, African American defendants accounted for 69 percent of all of the charges brought forth in the court, and more outrageously, black women faced 94 percent of all charges of loitering for the purpose of engaging in prostitution.

U.S. sex trafficking policy is driven by a pro-prosecution paradigm. Since 2004 the Department of Justice has allocated over $21 million to cities and counties in the form of grants to fight sex trafficking. The vast majority of these monies has gone towards law enforcement agencies.[8] As long as sex trafficking policy translates in action to building only more robust law enforcement and criminal justice responses, then perhaps New York’s experimental court system is well positioned to provide more victim-centered approaches, if only because it is located within the pro-prosecution space, even as it seeks alternatives to jail sentences.

The Human Trafficking Intervention Initiative should be commended for the way that it is trying to interrupt the endless cycle of arrest that traps most street level sex workers. Yet, treating all sex workers as trafficking victims denies both the structural factors that encourage women to take up sex work, as well as their agency. As Audacia Ray, the founder and director of the Red Umbrella Project, argues, “The court system is stripping that from people. It’s saying, ‘These people are so traumatized that they don’t get to have any choice in what happens next.’ And that is exactly wrong. Part of giving people support should be restoring their ability to have decision-making power in their lives. Services should be voluntary, not coerced.”[9] In trying to link sex workers to social services (rather than incarceration), the Human Trafficking Courts are relying on their institutional authority to compel action. It casts all defendants as victims and requires them to play that role. But one must wonder: what fate meets the sex workers who reject the court-mandated mantle of victimhood? 

Jessica R. Pliley is the author of Policing Sexuality: The Mann Act and the Making of the FBI (Harvard, 2014). She is an assistant professor of women’s and gender history at Texas State University.

Topics: Sex Trafficking, Academia