Written Testimony in support of Bill 20-760 (Repeal of Prostitution-Free Zone Amendment Act of 2014)

To The Honorable Members of the Council of the District of Columbia,

Human Rights Watch respectfully submits this written testimony in support of Bill 20-760 that would repeal legislation authorizing “Prostitution-Free Zones” (PFZ) in the District of Columbia. Human Rights Watch urges the Council to pass this important legislation that protects human rights as well as the public safety.

Human Rights Watch is the largest non-governmental human rights organization based in the United States. We publish more than 100 reports, on more than 80 countries around the world, each year. For more than 30 years, we have defended human rights by documenting violations in scrupulously accurate and reliable reports and held abusers accountable by engaging in strategic and targeted advocacy with those who have suffered the abuses and their allies. More information about the work of Human Rights Watch is available at our website, www.hrw.org.

In July 2012, Human Rights Watch published a report that included research on anti-prostitution enforcement in Washington, D.C. https://www.hrw.org/node/108771/section/5. In this report, we documented the practice of police interference with condom possession by sex workers and those suspected to be sex workers. Since that time the Metropolitan Police Department (MPD) has taken steps to ensure that this practice does not occur and directed written assurances to affected communities that this is not the policy of the MPD. ^[1]

In its 2012 report, Human Rights Watch also addressed the issue of the Prostitution-Free Zones. As the Council is aware, the Omnibus Public Safety Act of 2005 created the PFZs. Under this statute, the MPD may designate an area a PFZ on the basis of “disproportionately high” arrests for prostitution or calls for police service related to prostitution in the locale in the previous six month period, or “objective evidence or verifiable information” indicating that a high incidence of prostitution is occurring in that locale.^[2]

Within the PFZ, police may arrest or disperse persons determined to be engaging in or soliciting prostitution, based on a range of behaviors and factors similar to those enumerated in New York City’s loitering for prostitution laws. These include not only conduct such as flagging down cars and conversing with passers-by, but being a “known participant in prostitution or prostitution-related offenses.”^[3] In addition, in the PFZs police may arrest two or more persons who are “reasonably believed” to be congregating for the purposes of prostitution and who fail to disperse when ordered to do so.^[4] The declaration of a PFZ can last as long as 480 consecutive hours after notice is posted in the area by the MPD.^[5]

Although prostitution is unlawful throughout Washington, DC, the broadly drawn loitering laws that permit arrest based on a range of circumstantial evidence are enforceable only within an officially declared PFZ. This statute was immediately controversial, drawing opposition from a broad spectrum of community groups and civil liberties advocates. No legal challenge, however, has ever been filed, primarily because MPD has never made an arrest for failure to disperse under the PFZ statute, leaving its legality untested in the courts.^[6]

The MPD practice of dispersing people from the PFZs has been the subject of both research and advocacy in the sex worker and transgender communities. In 2008, Different Avenues, a DC-based advocacy organization, produced a detailed report entitled “Move Along: Policing Sex Work in Washington DC” (2008).^[7] This report, based on hundreds of in-depth interviews with people engaged in sex work or exchange of sex for basic needs, their advocates, and public officials, found high levels of abuse, harassment and extortion for sex on the part of the police; that transgender women and transgender youth had particularly negative experiences with the police; and that health and other social support services were inadequate for sex workers, transgender women and LGBT youth. The report further found that the Prostitution-Free Zones institutionalized the practice of police requiring people to “move along” so as to avoid the charge of loitering for the purpose of prostitution, and that this policy had the effect of regularly removing people from areas where they lived, socialized and found support services. The enforcement of PFZs pushed people into areas that were less familiar to them, less safe and where they were less able to access support services or assistance, including health and HIV outreach services. The report also documented the practice of confiscating condoms from those alleged to be sex workers and using condoms to profile people as engaging in sex work.^[8]

In 2011, the DC Trans Coalition released the preliminary findings of an updated assessment of the needs of the transgender community in Washington DC.^[9] This survey indicated a high level of violence and abuse experienced by transgender people in DC, frequently at the hands of the police. Moreover, the survey’s mapping feature indicated that the areas in the city most heavily policed for sex work activity- those areas that are subject to designation as Prostitution-Free Zones- are often the areas utilized most heavily by transgender people for residing, socializing, support and networking purposes. Again, police efforts to move people out of neighborhoods they are familiar with may be interfering with legal behavior and jeopardizing the safety of groups proven vulnerable to violence and abuse.

Police profiling of transgender persons as prostitutes was a significant factor in organizing the transgender community to push for the addition of transgender and non-gender conforming people to the city’s Human Rights Act in 2005.^[10] After two years of negotiation between the transgender community and the MPD, the MPD issued guidelines for members of the police force addressing their interaction with transgender individuals that includes a prohibition on profiling transgender persons as sex workers.^[11]Despite these guidelines, Human Rights Watch found that transgender women were regularly profiled as sex workers by the MPD and documented numerous allegations of verbal and physical abuse by police as well as of extortion by MPD officers for sex. ^[12] In its 2012 report Human Rights Watch recommended the immediate repeal of the statute authorizing Prostitution Free Zones as undermining the human rights of sex workers and transgender women in the District. ^[13]

In addition to significant human rights concerns, there is no evidence that the PFZs served a legitimate criminal justice purpose. In January 2012 the DC Council considered a bill sponsored by Councilwoman Yvette Alexander to expand the prostitution-free zones.^[14] The new bill would have permitted the MPD to declare a PFZ on a permanent basis for an unlimited period of time. Between 2009 and 2012, arrests for prostitution-related offenses decreased by nearly 50 percent, from 1,695 in 2009 to 845 in 2011.^[15] In testimony before the Committee on the Judiciary regarding the bill, Assistant Chief of Police Peter Newsham opposed expansion of the PFZs, explaining that they had little to do with the drop in prostitution arrests in recent years. Chief Newsham stated that the PFZs had not reduced prostitution in the District in a meaningful way, rather subjecting it to “temporary displacement.”^[16] He noted that prostitution complaints from citizens as well as arrests had steadily decreased in the last several years, a decrease he attributed to several factors other than the PFZs, including the movement of many prostitution activities indoors and onto the internet. With regard to street prostitution, he stated that in his experience, many people engaging in this type of prostitution are drug dependent or have mental health problems, and “this is not a problem we can arrest our way out of.” Chief Newsham urged an increase of social services to the population engaged in prostitution.^[17]

The Office of the Attorney General for the District of Columbia also testified against expansion of the PFZs, noting that the original PFZ legislation was vulnerable to constitutional challenge and the expansion bill was even more likely to be found unconstitutionally vague.^[18] The Council declined to expand the Prostitution-Free Zones.

Criminal laws must be compatible with fundamental human rights. The Universal Declaration of Human Rights guarantees to every person the right to health and well-being as well as life, dignity, and the right to be free from discrimination.^[19] The US has ratified the International Covenant on Civil and Political Rights (ICCPR) which protects the right to life, a right that is implicated in any state policy that interferes with HIV prevention or access to health services.^[20] The ICCPR also guarantees to all persons the rights of freedom of assembly, to liberty and security of the person, and to be free from arbitrary detention and discrimination based on race, gender or other status.^[21] Overly broad loitering and anti-prostitution laws are inconsistent with human rights obligations as they invite discrimination on the basis of status and identity rather than actual criminal activity.

The combination of human rights concerns, questionable constitutionality and lack of support from law enforcement officials convinced the Council in 2011 to refrain from expanding the Prostitution-Free Zones. It is now time to repeal this misguided and ineffective legislation altogether. Human Rights Watch urges the District of Columbia Council to pass Bill 20-760 and repeal the Prostitution-Free Zones as incompatible with the human rights of some of the District’s most vulnerable residents.

Respectfully submitted,

Megan McLemore, J.D.,L.L.M.

Senior Researcher

Health and Human Rights Division

Human Rights Watch

350 5^th Avenue, 34^th Floor

New York, NY 10118

646-784-4827/ mclemom@hrw.org