Loitering for the purposes of prostitution is a profiling-based crime based on what are typically legal activities, but interpreted by the arresting officer to be indicative of a person looking to engage in prostitution. Behaviors that have been criminalized under these laws include walking down the street, the style of clothing especially trans women wearing feminine clothing, having been arrested before for loitering and carrying condoms. Especially impacted are women of color and trans women, who are assumed to be engaging in sex work while doing things that people with different identities engage in all the time. Because of this, loitering laws are often referred to as “walking while trans.” These laws may also be referred to as manifesting prostitution (Phoenix), common nightwalking (Massachusetts), or under other terms.
Example of a Loitering Statute
Loitering charges can be either in the state criminal code, or a city’s code. A typical example of a state-based loitering statute is Kentucky, (Ky. Rev. Stat. § 529.080), which states:
(1) Except as provided in Section 11 of this Act, a person is guilty of loitering for prostitution purposes when he loiters or remains in a public place for the purpose of engaging or agreeing or offering to engage in prostitution.
(2) Loitering for prostitution purposes is a:
(a) Violation for the first offense;
(b) Class B Misdemeanor for the second offense and for each subsequent offense.
Because the charge often use incredibly vague language, what is considered “for the purpose of engaging in prostitution” will be determined by who is arrested, who challenges their charge, and what a court rules is within the parameters of the statute.
Example of a municipal-level loitering law: Fort Worth, Texas (23-11)
States have state-based loitering statutes. 23 states are primed for change.
Impact of Loitering Laws
Because loitering laws are often vague in what they criminalize, or explicitly criminalize protected behaviors, the history of these practices are often about the targeting of minority groups by law enforcement. In the Supreme Court’s striking down of a vagrancy law, which operate similarly, the Justices noted that these laws had the ability to give police the broad power to “round up so-called undesirables.” Loitering for the purposes of prostitution has disproportionately targeted women of color and the LGBTQ community in particular, who are profiled as exchanging sex, as criminalized behaviors such as motioning to cars or carrying condoms would never be assumed to indicate engagement in prostitution unless read through a gendered, racialized and classed lens. As attorney on the Legal Aid suit (described below) assesses,
“Although unconstitutionally vague, courts sustain LPP laws because these laws sit at a distinct intersection of gender and the policing of public space. Factors that courts legitimize as objective, and therefore find to be safeguards, are impossibly and inextricably gendered, racialized, and antiquated. Courts do not take issue with the kind of policing seen under LPP laws because heteronormative and misogynist reasoning insulates such policing from attack.Kate Mogulescu, Your Cervix Is Showing Loitering for Prostitution Policing as Gendered Stop & Frisk (2020)
While charges for loitering are often low-level misdemeanors, the process of policing has negative impacts on the health, safety and wellbeing of people who trade sex and people profiled as such (Read more: The Impact of Criminalization). In addition to the changes people make in behavior and the emotional and psychological strain of harassment, low level misdemeanors have serious impacts on peoples’ lives. For those who do not dispute their charge, they may face fines and court costs. For example, in Kentucky fines for a first offense are up to $250, on top of a court fee of $140. For someone who is engaged in survival sex work, this means they need to make an additional $400. Additionally, the ramifications of being arrested and possibly held days before arraignment can mean losing other work, having to find emergency child care, missing school or not being able to access medication, on top of the trauma and potential for violence. Arrest records for loitering can make it harder to find employment or housing, and can lead to someone being evicted or kicked out of school. Some jurisdictions also publish mugshots to incur public humiliation as well. Laws which criminalize loitering for the purposes of prostitution overwhelming target and harm the lives of cis and transgender women of color.
Dank, M. The Consequences of Prostitution Policing. 2017.
Kate Mogulescu, Your Cervix is Showing: Loitering for Prostitution Policing as Gendered Stop & Frisk, 74 U. Miami L. Rev. Caveat 68 (2020).
Karen Struening, Walking While Wearing a Dress: Prostitution Loitering Ordinances and the Policing of Christopher Street. Stanford Journal of Criminal Law and Policy. 2016.
Transgressive Policing. Make the Road: New York. 2012.
Challenges to Loitering Statutes: New York
Loitering statutes have been challenged through both legislation and litigation. Legislative change is where a bill moves through the legislature to repeal a section of the legal code, whereas litigation challenges a law through the courts. In multiple places there have been both court-based and legislature-based attempts to repeal the loitering law, and New York is one place where those two efforts worked together.
In 2016, the Legal Aid Society filed a lawsuit against NYPD for the enforcement of the loitering statute, D.H. v. City of New York. The suit noted that 85% of those arrested under the statute are Black or Latina, and that it was criminalizing protected behavior and incentivized targeted harassment of racialized women and women of trans experience. The suit described a “pattern and widespread practice of unlawful surveillance, stops, questioning, frisks, searches, seizures and/or arrests and detention of women of color, including transgender women, engaged in wholly innocent conduct, such as walking in public spaces or speaking with other pedestrians.” One plaintiff in the suit described that the lawsuit “is important because it will change something that is disabling my community, putting us at even more risk than what we already have to endure and face on a day to day basis.” Read the press release and supporting statements.
This article by one attorney on the case describes the process that the litigation went through.
The law suit was able to have a lot of important impacts on the issue of loitering both in New York and nationally. Litigation can be an effective way of getting state actors (cops, in this case) on the record to disclose things that you may not have access to otherwise. One officer gave details about how he profiled transgender women in the court of charging. It also raised the profile of the issue significantly, creating a media and public narrative that the law was racist and misogynist. The lawsuit also spurred a New York state representative to introduce a loitering repeal, bringing the conversation to the legislature. The suit was resolved in 2019, with changes to the patrol guide and requirements to audit loitering arrests.
Spurred by the loitering litigation, and the incredible work of bringing compelling stories forward of how women of color of cis and trans experience, Sen. Paulin introduced a repeal of the loitering bill while the litigation was on-going. Not long later, the DecrimNY coalition began forming around broader issues impacting folks who trade sex, including full decriminalization, and began campaigning in the legislature to begin with passing the loitering repeal. This work included outreach to legislators at the state and local level, public campaign work, and community mobilization.