NY State Senate Bill 2019-S2253

Senate Bill S2253

2019-2020 Legislative Session

Repeals section 240.37 of the penal law, relating to loitering for the purpose of engaging in a prostitution offense; repealer

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to codes
Jan 23, 2019	referred to codes

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2019-S2253 (ACTIVE) - Details

See Assembly Version of this Bill:: A654
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Rpld §240.37, amd §230.01, Pen L; amd §§60.47, 160.10, 170.30, 170.80, 420.35, 720.15 & 720.35, CP L; amd §447-a, Soc Serv L; amd §3-118, NYC Ad Cd
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8107, A9704
2021-2022: S1351, A3355

2019-S2253 (ACTIVE) - Summary

Repeals provisions relating to loitering for the purpose of engaging in a prostitution offense; makes technical corrections relating thereto.

2019-S2253 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S2253

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to repeal section 240.37 of the penal law, relating to loitering
for the purpose of engaging in a prostitution offense; and to amend the
penal law, the criminal procedure law, the social services law and the
administrative code of the city of New York, in relation to making tech-
nical corrections relating thereto

 
PURPOSE:

This bill will repeal a section of the Penal Law that has led to arbi-
trary and discriminatory enforcement by targeting women from marginal-
ized groups that are at high risk for sex trafficking and other exploi-
tation and abuse.

 
SUMMARY OF PROVISIONS:

Section 1 repeals Section 240.37 of the penal law.

Sections 2 through 12 make technical corrections to parts of the crimi-
nal procedure, penal and social services laws, as well as the adminis-
trative code of the city of New York, based on the repeal of

Section 240.37 of the penal law.

Section 13 sets the effective date.

 
JUSTIFICATION:

New York Penal Law Section 240.37, which prohibits loitering for the
purpose of prostitution, was enacted in 1976 along with several other
anti-loitering statutes at a time when street crime was rampant in order
to "curtail the proliferation of prostitution" and other "maladies" in
New York. The 1976 legislature defined this new crime as: (any) person
who remains or wanders about in a public place and repeatedly beckons
to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly
attempts to engage passers-by in conversation, or repeatedly stops or
attempts to stop motor vehicles, or repeatedly interferes with the free
passage of other persons, for the purpose of prostitution, or of patron-
izing a prostitute as those terms are defined in article two hundred
thirty of the penal law, shall be guilty of a violation.

The 1976 legislature justified this law by citing "harassing" conduct
that "interfered with the use and enjoyment by other persons of such
public place thereby causing a danger to the public health and safety."
However, many repeatedly voiced concerns about the law's constitutional-
ity and its potential for abuse - particularly towards women - at the
time of the law's passage and afterwards. Given the extent to which the
law's premises have changed over the intervening four decades, Section
240.37 is no longer relevant or necessary. Furthermore, concerns about
its enforcement and utility outweigh any benefit it may yield.

As many feared and predicted, Section 240.37's vagueness has led to
arbitrary and discriminatory enforcement. Enforcement of Penal Law
Section 240.37 targets marginalized women in the commercial sex indus-
try, a group at high risk for trafficking and other exploitation and
abuse. It is also duplicative and unnecessary when considered against
other statutes that criminalize the behavior at issue.

Arrests under Section 240.37 disproportionately impact women, partic-
ularly cisgender and transgender women of color and women who have
previously been arrested for prostitution offenses. Eighty-five percent
of the individuals arrested under Section 240.37 between 2012-2015 were
Black or Latina. In particular, women of color have often been unlaw-
fully targeted by officers under this statute during "sweeps" or "oper-
ations" where officers arrest large numbers of women in a given area at
the same time.

In a class action lawsuit brought by The Legal Aid Society challenging
this statute, five of the eight named plaintiffs are transgender women
of color arrested during four separate sweeps in neighborhoods where
transwomen gather and socialize as a community to avoid violence,
hostility and discrimination. These women are arrested simply for stand-
ing outside, speaking to one another, or walking from a subway or
grocery store back to their house.

Officers have expressly warned transgender women that "girls like them"
would be arrested if they were seen outside after midnight. One officer,
when asked how he was trained to identify prostitutes, testified that he
was trained to look for women with Adams apples, big hands and big feet.
Although Section 240.37 has provisions that criminalize loitering for
the purpose of patronizing a person for prostitution, it is simply not
enforced against purchasers of commercial sex. Instead, women face
repeated arrest under the statute. With increased awareness of the
pervasiveness of sex trafficking and exploitation, and New York State's
commitment to assist victims rather than expose them to arrest and
detention,

Section 240.37 represents a vestige of an approach that has been
universally disavowed. Arrests under the law foster distrust of law
enforcement, which hurts victims of trafficking and impedes broader
efforts to investigate and punish more serious criminal activity.  Expo-
sure to repeated arrests, and resulting criminal records, make it diffi-
cult for women to leave the commercial sex industry and seek assistance
when victimized.

Finally, the Section is unnecessary as it is duplicative of other penal
law offenses. The conditions which are the subject of most community
complaints can be addressed by several other criminal statutes that
avoid the pitfalls of Section 240.37. Any legitimate application of the
statute is merely duplicative of preexisting criminal prohibitions.
Criminal conduct under Penal Law Sections 140.10/140.15 (Trespass),
230.00 (Prostitution), 245.00 (Public Lewdness), and 240.20 (Disorderly
Conduct) would still be subject to arrest and prosecution. The repeal of
Section 240.37 will not affect public safety or the ability of the
police to respond to community complaints.

 
LEGISLATIVE HISTORY:

S.8107-A of 2018 (Hoylman): Died in Codes

A.9704-A of 2018 (Paulin): Died on 3rd Reading

 
FISCAL IMPLICATIONS:
None to the state.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.

2019-S2253 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2253
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 23, 2019
                                ___________
 
 Introduced  by Sens. HOYLMAN, SALAZAR -- read twice and ordered printed,
   and when printed to be committed to the Committee on Codes
 
 AN ACT to repeal section 240.37 of the penal law, relating to  loitering
   for  the  purpose  of engaging in a prostitution offense; and to amend
   the penal law, the criminal procedure law, the social services law and
   the administrative code of the city of New York, in relation to making
   technical corrections relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. The repeal of section 240.37 of the penal law, as effected
 by section two of this act, is hereby declared to be  ameliorative,  and
 it  is  the  intent  of  the  legislature that no prosecution under such
 section be commenced, continued, or refiled.
   § 2. Section 240.37 of the penal law is REPEALED.
   § 3. Section 230.01 of the penal law, as amended by chapter 189 of the
 laws of 2018, is amended to read as follows:
 § 230.01 Prostitution; affirmative defense.
   In any prosecution  under  section  230.00,  section  230.03,  section
 230.19,  SECTION  230.20, subdivision 2 of section 230.25, subdivision 2
 of section 230.30[,] OR section 230.34-a [or subdivision two of  section
 240.37]  of  this  [part] ARTICLE, it is an affirmative defense that the
 defendant's participation in the offense was a result of having  been  a
 victim  of compelling prostitution under section 230.33 OF THIS ARTICLE,
 a victim of sex trafficking under section  230.34  of  this  article,  a
 victim  of  sex  trafficking  of  a child under section 230.34-a of this
 article or a victim of trafficking  in  persons  under  the  trafficking
 victims protection act (United States Code, Title 22, Chapter 78).
   §  4. Section 60.47 of the criminal procedure law, as added by section
 2 of part I of chapter 57 of the laws of 2015, is  amended  to  read  as
 follows:
 § 60.47 Possession of condoms; receipt into evidence.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01944-01-9

 S. 2253                             2
 
   Evidence  that  a  person was in possession of one or more condoms may
 not be admitted at any trial, hearing, or other proceeding in  a  prose-
 cution  for  section 230.00 [or section 240.37] of the penal law for the
 purpose of establishing probable cause for  an  arrest  or  proving  any
 person's commission or attempted commission of such offense.
   §  5. Paragraphs (c) and (d) of subdivision 1 of section 160.10 of the
 criminal procedure law, paragraph (c) as amended by chapter 762  of  the
 laws  of 1971 and paragraph (d) as amended by chapter 232 of the laws of
 2010, are amended to read as follows:
   (c) A misdemeanor defined outside the penal law which would constitute
 a felony if such person had a previous  judgment  of  conviction  for  a
 crime[; or
   (d) Loitering for the purpose of engaging in a prostitution offense as
 defined in subdivision two of section 240.37 of the penal law].
   § 6. Subdivision 4 of section 170.30 of the criminal procedure law, as
 added by chapter 402 of the laws of 2014, is amended to read as follows:
   4.  After arraignment upon an information, a simplified information, a
 prosecutor's information or misdemeanor complaint on a charge of prosti-
 tution pursuant to section 230.00 of the penal law [or loitering for the
 purposes of prostitution pursuant to subdivision two of  section  240.37
 of  the  penal law, provided that the person does not stand charged with
 loitering for the  purpose  of  patronizing  a  prostitute,  where  such
 offense  allegedly  occurred  when  the  person was sixteen or seventeen
 years of age,] the local criminal court may dismiss such charge  in  its
 discretion  in  the  interest  of justice on the ground that a defendant
 participated in services provided to him or her.
   § 7. The opening paragraph of subdivision 1 of section 170.80  of  the
 criminal  procedure  law, as amended by chapter 402 of the laws of 2014,
 is amended to read as follows:
   Notwithstanding any other provision of law, at any time  at  or  after
 arraignment  on  a  charge of prostitution pursuant to section 230.00 of
 the penal law [or loitering for the purposes of prostitution pursuant to
 subdivision two of section 240.37 of the penal law,  provided  that  the
 person  does not stand charged with loitering for the purpose of patron-
 izing a prostitute, where  such  offense  allegedly  occurred  when  the
 person  was  sixteen  or  seventeen  years  of  age except where], after
 consultation with counsel, a knowing and voluntary plea  of  guilty  has
 been  entered  to such charge, any judge or justice hearing any stage of
 such case may, upon consent of the  defendant  after  consultation  with
 counsel:
   § 8. Subdivision 2 of section 420.35 of the criminal procedure law, as
 amended  by  chapter  189  of  the  laws  of 2018, is amended to read as
 follows:
   2. Under no circumstances shall the mandatory surcharge, sex  offender
 registration fee, DNA databank fee or the crime victim assistance fee be
 waived  provided,  however,  that  a  court  may  waive the crime victim
 assistance fee if such defendant is an  eligible  youth  as  defined  in
 subdivision two of section 720.10 of this chapter, and the imposition of
 such  fee  would  work an unreasonable hardship on the defendant, his or
 her immediate family, or any other  person  who  is  dependent  on  such
 defendant  for  financial  support.  A  court  shall waive any mandatory
 surcharge, DNA databank fee and crime victim assistance  fee  when:  (i)
 [the  defendant is convicted of loitering for the purpose of engaging in
 prostitution under section 240.37 of the penal law  (provided  that  the
 defendant  was not convicted of loitering for the purpose of patronizing
 a person for prostitution); (ii)] the defendant is convicted of  prosti-

 S. 2253                             3
 
 tution under section 230.00 of the penal law; [(iii)] (II) the defendant
 is convicted of a violation in the event such conviction is in lieu of a
 plea  to  or  conviction  for  [loitering for the purpose of engaging in
 prostitution  under  section  240.37 of the penal law (provided that the
 defendant was not alleged to be loitering for the purpose of patronizing
 a person for prostitution) or] prostitution under section 230.00 of  the
 penal  law; [or (iv)] (III) the court finds that a defendant is a victim
 of sex trafficking under section 230.34 of the penal law or a victim  of
 trafficking  in  persons  under  the  trafficking victims protection act
 (United States Code, Title 22, Chapter 78);  or  [(v)]  (IV)  the  court
 finds that the defendant is a victim of sex trafficking of a child under
 section 230.34-a of the penal law.
   § 9. Subdivision 4 of section 720.15 of the criminal procedure law, as
 added by chapter 402 of the laws of 2014, is amended to read as follows:
   4.  Notwithstanding  any  provision  in this article, a person charged
 with prostitution as defined in section 230.00  of  the  penal  law  [or
 loitering for the purposes of prostitution as defined in subdivision two
 of  section  240.37  of the penal law, provided that the person does not
 stand charged with loitering for the purpose of  patronizing  a  prosti-
 tute,  and  such  person  is aged sixteen or seventeen when such offense
 occurred,] regardless of whether such person (i) had prior to  commence-
 ment  of trial or entry of a plea of guilty been convicted of a crime or
 found a youthful offender, or (ii) subsequent  to  such  conviction  for
 prostitution  [or loitering for prostitution] is convicted of a crime or
 found a youthful offender, the provisions of subdivisions one and two of
 this section requiring or authorizing the  accusatory  instrument  filed
 against a youth to be sealed, and the arraignment and all proceedings in
 the action to be conducted in private shall apply.
   §  10.  Subdivision 1 of section 720.35 of the criminal procedure law,
 as amended by chapter 402 of the laws of 2014, is  amended  to  read  as
 follows:
   1.  A  youthful  offender adjudication is not a judgment of conviction
 for a crime or any other offense, and does not operate  as  a  disquali-
 fication  of  any  person  so  adjudged  to hold public office or public
 employment or to receive any license granted  by  public  authority  but
 shall be deemed a conviction only for the purposes of transfer of super-
 vision  and  custody pursuant to section two hundred fifty-nine-m of the
 executive law. A defendant for whom a youthful offender adjudication was
 substituted, who was originally charged with prostitution as defined  in
 section  230.00 of the penal law [or loitering for the purposes of pros-
 titution as defined in subdivision two of section 240.37  of  the  penal
 law  provided  that the person does not stand charged with loitering for
 the purpose of  patronizing  a  prostitute,  for  an  offense  allegedly
 committed  when  he or she was sixteen or seventeen years of age], shall
 be deemed a "sexually exploited child" as defined in subdivision one  of
 section four hundred forty-seven-a of the social services law and there-
 fore shall not be considered an adult for purposes related to the charg-
 es  in  the  youthful  offender proceeding or a proceeding under section
 170.80 of this chapter.
   § 11. Paragraphs (c) and (d) of subdivision 1 of section 447-a of  the
 social  services law, as amended by chapter 189 of the laws of 2018, are
 amended to read as follows:
   (c) is a victim of the crime of compelling prostitution as defined  in
 section 230.33 of the penal law;
   (d)  engages  in  acts  or  conduct  described  in article two hundred
 sixty-three [or section 240.37] of the penal law.

 S. 2253                             4
 
   § 12. The third undesignated paragraph of  subdivision  a  of  section
 3-118  of the administrative code of the city of New York, as amended by
 chapter 189 of the laws of 2018, is amended to read as follows:
   Sexually  exploited  youth.  The term "sexually exploited youth" means
 persons under the age of 18 who have been subject to sexual exploitation
 because they (a) are the victim of  the  crime  of  sex  trafficking  as
 defined  in  section  230.34  of the penal law; (b) engage in any act as
 defined in section 230.00 of the penal law; (c)  are  a  victim  of  the
 crime  of  compelling  prostitution  as defined in section 230.33 of the
 penal law; (d) are a victim of the crime of sex trafficking of  a  child
 as  defined  in section 230.34-a of the penal law; or (e) engage in acts
 or conduct described in article [263  or  section  240.37]  TWO  HUNDRED
 SIXTY-THREE  of  the penal law.   The term shall also mean persons under
 the age of 18 who have been subject  to  incest  in  the  third  degree,
 second  degree  or  first degree, as defined in sections 255.25, 255.26,
 and 255.27 of the penal law, respectively, or any of  the  sex  offenses
 enumerated in article [130] ONE HUNDRED THIRTY of the penal law.
   § 13. This act shall take effect immediately.

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