3/18/2012

By Reid Allison, J.D. Candidate

Under current District of Columbia law, police officers have the authority to establish areas of the city as “prostitution-free zones.”  The Chief of Police may declare such zones on “any . . . verifiable information . . . from which the Chief of Police ascertains [that] the public health or safety is endangered by prostitution or prostitution-related offenses” in the area.  Each zone designation is currently limited to a duration of no more than twenty days at a time.  Once such a designation is made, officers may approach any group of two or more people—whom the officers have articulable suspicion to believe are engaging in prostitution or prostitution-related offenses—and demand that they disperse.  If the group does not disperse within a reasonable time, or if it disperses and congregates again in another area of the prostitution-free zone, the officers can arrest members of the group.  Once arrested, a person can be convicted of violating the statute and fined up to 300 dollars and/or imprisoned up to 180 days.       

Though this act (Section 104 of the Omnibus Public Safety Emergency Amendment Act of 2006 (D.C. Act 16-445)) ought to be repealed (for reasons explained below), D.C. residents should not be begrudged for wanting to keep their neighborhood streets as clean and crime-free as possible.  Residents have legitimate concerns, but this act is simply not effective in permanently and significantly reducing criminal activity in neighborhoods, and it has far too negative of practical consequences to remain on the books.

Overlooking the ineffectiveness of the act as it currently exists, Ward 7 Council Member Yvette Alexander sees the impermanence of the zones as the most significant problem with the act.  As such, she introduced a bill to the D.C. Council in late January that would empower police officers to make the zones permanent rather than limiting them to twenty day intervals.  When it was introduced, this new bill prompted nearly universally negativereactions from interest groups.  Since late January, there has been no vote on the bill, and the D.C. Council has not discussed it further.

Fortunately, it does not appear that this bill will pass.  Even so, the 2006 Act still stands, and it alone is worthy of repeal for multiple reasons.  On a basic level, prostitution-free zones do little to nothing to decrease crime.  Instead, the zones serve best to temporarily push prostitutes and their customers to different areas of the city that are not classified as prostitution-free zones.  When making policies that apply citywide, simple diversion mechanisms seem woefully inappropriate.  The ward-by-ward deficiency of the act is far from its only significant problem, however; were the D.C. Council to permanently render the entire city a “prostitution free zone,” the ineffectiveness of the scheme would not be remedied and the problems with the act would only be compounded.  The act as it currently stands is vastly overbroad and ignores the ways that prostitution transactions have changed over time.

When the act was initially passed in 2006, the D.C. Attorney General’s Office advised the D.C. Council that it was likely unconstitutional.  This is because courts have typically upheld citizens’ right to loiter and have struck down anti-loitering laws that do not require an officer to have probable cause that a crime is being committed. See, e.g. City of Chicago v. Morales, 527 U.S. 41 (1999).  Because the 2006 Act lacks a requirement of intent to commit a crime, both the D.C. Attorney General’s Office and many interest groups like the ACLU strongly believe that the act would not be upheld if it were challenged on constitutional grounds.

While it is easy to speak in general terms and say that the act as it stands is ineffective and unconstitutional, to stop at these facts would overlook the most serious, practical issues with prostitution free zones.  Within this overbreadth fall the civil rights of D.C. residents.  Once the zone is established, all those who assemble are vulnerable to a dispersal order from law enforcement.  The Metropolitan Police Department’s (MPD) description of the act and its enforcement provides a list of acceptable group activities, the broadest of which is “meetings for other lawful civil or personal associations.”  Loitering in groups is itself another lawful association protected by the First Amendment right to assemble.  This enforcement guidance raises questions about what exactly law enforcement look for to differentiate between permissible, run-of-the-mill loitering and impermissible suspicious activity when they issue dispersal orders in prostitution free zones.       

In practice, racial and gender profiling under this act seems inevitable.  Beyond spotting and confronting groups that the officer knows have had previous prostitution-related arrests, it is difficult to understand how else the officer would grow suspicious beyond profiling.  However, even those whom the officer has personally arrested for prostitution retain the right to congregate, so the only non-racial or gender profiling basis that officers seem to have is relatively flimsy as well.  Though the MPD’s description of the act states that “officers are prohibited from relying on stereotypes or ‘profiles,’” this statement does not, nor does any equivalent statement, appear in the text of the statute.[2]  Profiling serves to damage the relationship that D.C. residents have with law enforcement.  This damage is compounded by the fact that those most likely to be profiled—African American and transgender women—have, long before the 2006 enactment, often been maltreated by law enforcement.  

Furthermore, act supporters who cite a decline in prostitution-related police calls since 2006, may not have the act to thank, and the decline may not be indicative of a decline in prostitution.  The act, inherently, only has an effect on street prostitution and does nothing to diminish prostitution itself, which increasingly occurs via electronic transactions that do not lead to suspicious or prolonged congregation in public places.  The District’s Assistant Police Chief, Peter Newsham, stated as much during testimony surrounding the new bill.  Newsham also explicitly stated that the police have not made a single arrest under the act since its inception in 2006.  The lack of arrests does not render the act harmless, because the threatening dispersal orders themselves are sufficient to implicate the negative consequences described above.

The 2006 Prostitution-Free Zone Act does not effectively reduce crime, unconstitutionally tramples on the civil rights of already-marginalized portions of the population, and serves best to increase distrust and acrimony between D.C. residents and D.C. police.  As such, the act should be repealed posthaste.