Gay and Lesbian Activists Alliance of
Washington, D.C.
P.O. Box 75265, Washington, D.C. 20013
(202) 667-5139 — www.glaa.org
Testimony
on Bill 19-567, the Prostitution
Free Zone Amendment Act of 2011
Delivered
before the Committee on the Judiciary
January 24, 2012
Good morning, Chairman Mendelson and Councilmember Alexander. I am Rick Rosendall, Vice President for
Political Affairs of the Gay and Lesbian Activists Alliance of Washington. We oppose
Bill 19-567, the Prostitution Free Zone Amendment Act of 2011.
The Metropolitan Police
Department's current use of Prostitution Free Zones (or PFZs) facilitates
discriminatory police profiling of transgender people. Making
PFZs permanent, as this bill would allow, would exacerbate the problem. It would
also amount to doubling down on a constitutionally questionable practice.
We wish to associate ourselves
with the 2005 testimony of Stephen M. Block, then legislative counsel for ACLU
of the Nation's Capital, concerning the bill authorizing temporary PFZs that
was then under consideration. I will summarize some of his citations.
- "The
bill É would punish people for their status, i.e., who they are rather
than the wrong they have done. It authorizes an officer to order someone
to leave an area, if the officer believes that the person is a prostitute
even though the person has not done anything illegal.É This is
antithetical to the fundamental American principle that we are not
required to prove our innocence and cannot be arrested simply because we
might be thinking of committing a crime.É See Johnson v. City of
Cincinnati, 310 F.3d 484, 503 (6th Cir. 2002)."
- "The
Court of Appeals for the District of Columbia threw out convictions for
solicitation for prostitution based on evidence that the defendants
Òlooked and perhaps acted like prostitutes.Ó Ford v. U.S., 533 A.2d
617, 625 (DC 1987). If such evidence is insufficient to sustain a
conviction, it also cannot be sufficient to justify an order that someone leave
a prostitution free zone.É See also Coleman v. Richmond, 364 S.E.2d
239, 244 (Va. App. 1988)"
- "Someone
believed to be a prostitute may be in a prostitution free zone for a
lawful purpose.É Because it would prohibit lawful activities, Title XXI is
unconstitutionally overbroad. See Shelton v. Tucker, 364 U.S. 479,
488 (1960) É Johnson v. Carson, 569 F.Supp 974 (M.D. Fla. 1983) É ACLU
v. Alexandria, 747 F.Supp. 324 (E.D. Va. 1990)."
- "Because
Title XXI vests open-ended discretion in the police to order someone to
leave a prostitution free zone without evidence of wrongdoing, the
proposal is also unconstitutionally vague. See Chicago v. Morales, 527
U.S. 41, 56 (1999) É Akron v. Rowland, 618 N.E.2d 138, 145 (Ohio
1993) É Louisiana v. Muschkat, 706 So.2d 429 (Louisiana 1999); Wyche
v. Florida, 619 So.2d 231 (Florida 1993)."
- "Title
XXI will also be challenged as legally inadequate for failure to
explicitly require specific intent (mens
rea) as an element of
the offense. See NAACP v. Annapolis, 133 F.Supp. 2d 795 (D. Md.
2001)."
- "The
courts have also required the proponents of exclusion zones to demonstrate
that there is no less onerous remedy. See Johnson v. City of
Cincinnati, 310 F.3d at 505."
The ruling in another
case states that the law cannot punish people for their status, but only for a
specific act. Robinson v. California,
370 U.S. 660 (1962).
Jason A. Terry testified
for DC Trans Coalition on November 2, 2011: "Profiling trans people as sex
workers is indeed such a prevalent occurrence that MPD's General Order 501.02
on interacting with trans people explicitly states 'Members shall not solely
construe gender expression or presentation as reasonable suspicion or prima facie evidence that an
individual is or has engaged in prostitution or any other crime.' Yet
Prostitution Free Zones allow for exactly that suspicion to be made, and it
almost always is."
Public radio station WAMU reported on this problem on January
13 of this year. The reporter interviewed Cyndee Clay, executive director of Helping
Individual Prostitutes Survive, or HIPS: "Clay says the prostitution-free
zone law didn't get rid of prostitution in the District. The law simply moved
it from downtown to the outskirts of the cityÉ. [A]n analysis of the District's
crime data shows that Clay is right....
"'It's bad public health,
it's bad social policy,' says Clay. 'It's not even effective judicial policy
because we're not giving people the tools that they need to change their life
or to make a change. We're just re-incarcerating the same people over and over
again for the same thing.' ...
"HIPS keeps track
of every sex worker it encounters, and the group is seeing roughly the same
number of sex workers on the streets now as there was a decade ago. The
difference is now they're more likely to get a criminal record and more likely
to be working in a violent area. The sex workers are more isolated and more at
risk. But they're less visible."
Councilmember Alexander
responded to David Schultz, the WAMU
reporter, in an exchange on Twitter on January 17. She wrote, "Prostitution
is illegal and our residents as well as PG are fed up!" Jason Terry of DC
Trans Coalition replied, "I appreciate your ire, but why not tackle the
roots of injustice instead the symptoms?" Councilmember Alexander replied,
"I'm supportive of that too, but how do you answer my communitiesÕ
frustration? Come with me to Eastern Ave."
We have been to Eastern Avenue.
Last July, many of us had occasion to visit that neighborhood to attend a vigil
in memory of Lashai Mclean, a transgender woman who was murdered on
the 6100 block of Dix Street NE. Like Jason Terry, we appreciate
Councilmember AlexanderÕs and her constituentsÕ frustration. Like him, we think
the proper response to that frustration is to seek real solutions rather than merely
chasing sex workers to different streetcorners.
A 2007 story by Oregon's East Portland News reported that the
Portland City Council had allowed that city's PFZ law to expire due to its
ineffectiveness and discriminatory enforcement. John
H. Campbell, whose firm Campbell DeLong Resources, Inc. was commissioned by
Portland Mayor Tom Potter to study Portland's Prostitution and Drug Free Zones,
found that they were enforced unfairly against minorities. Campbell sent GLAA
President Miguel Tuason some suggestions on Jan. 19 based on Portland's
experience:
"It is one thing to
permit a police chief to designate a zone for a short period of time, but it
seems quite another to grant power to designate such zones in perpetuity. If
there is sufficient discomfort with the law that all agree it should not apply
to the whole city, it seems odd to grant any non-elected official the power to
extend such a law, on a permanent basis, to an ever increasing amount of the
city." He would reserve the designating power for the D.C. Council.
Mr. Campbell continues: "I
would hope that an arrest for engaging in prostitution or 'prostitution related
offenses' as defined in the relevant criminal code would be a minimal
prerequisite before an exclusion can be issued or enforced. A step further
would be to require, in addition to the arrest for prostitution, a past conviction
for related crimes as well in order for a pre-trial exclusion to be issued or
enforced. A step still further would be to require the specific prostitution
conviction, with the full criminal proof that requires, and make exclusion
either part of the sentencing or an option for police at that time for a given
period of timeÉ.
"Suggest suspending
enactment of any ordinance until police have summarized for Council national
best practices for prostitution problem solvingÉ. The tools available cover a very
wide range and depend on the characteristics of the activity and physical
locationÉ.
"Withhold support
for any ordinance that doesn't include a method to measure, report, and take
all appropriate corrective action regarding the incidence of transgender
profiling."
Legislators have a
responsibility to pay attention to whether their policy solutions, and police
methods, actually work. Chasing sex workers into more distant and unsafe neighborhoods
is no solution. Giving them criminal records only makes it harder for them to
escape the streets by finding better jobs. Many transgender people are driven
into sex work by gender identity discrimination that renders them jobless. To
resolve this situation we must step back from a purely crime-based perspective
to recognize and address the intersecting problems that lead to it.
We understand that
police have a job to do, but they must do it in a constitutional manner. We
urge councilmembers to reject Bill 19-567. Let us then work
together—residents, activists, and policymakers—to find solutions
that will work better for everyone as well as hold up in court.
Thank you.