Is New York’s Loitering for Prostitution Law Constitutional By Michael Joseph on October 05, 2016

A constitutional challenge has been launched against New York’s law prohibiting loitering for the purpose of prostitution law. The law prohibits remaining or wandering 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 patronizing a person for prostitution. The law also prohibits remaining or wandering 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 promoting prostitution. Westchester criminal defense attorneys who fight prostitution charges keep abreast on the development of the caselaw which pertains to New York prostitution laws. 

To establish a violation of this law, an it is not necessary to prove n that the accused made a direct offer of sex for a fee and a case can be proven exclusively upon circumstantial evidence. It is enough for an officer to testify that he observed the defendant engage in a series of brief encounters with several passing male motorists.

The latest challenge to New York’s loitering for prostitution law asserts that the law is unconstitutionally imprecise on its face because it allows police officers to decide what kinds of activities constitute “loitering” by suspects.The complaint also alleges that the law impermissibly allows officers the discretion of deciding if a suspect’s clothing was provocative enough to signal that he or she was attempting to solicit customers for prostitution. It is also asserted that the New York City police have enforced the loitering statute in a way that discriminates against minorities, women and transgender suspects because between 2012 and 2015, almost 70 percent of the arrests were in New York City were predominately in the heavily black or Hispanic dominated precincts of New York City.

This is not the first constitutional challenge against New York’s loitering for the purposes of prostitution charge. In 1978, the New York Court of Appeals, held that the statute did not violate the due process clause because it is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and the law provides explicit standards for those who apply them” so as to avoid “resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. In that case, the defendant alleged that constitutional infirmity lies in the fact that it encourages police to use unfettered discretion in making arrests solely on circumstantial evidence” requiring them to “infer criminality from wholly innocent or ambiguous activity in which free citizens must necessarily engage to lead normal lives. Thus, the argument continues, since a police officer must speculate as to the purpose of constitutionally protected activity, the statute “impermissibly delegates basic policy matters to policemen. The New York Court of Appeals rejected the contentions that that the law vested unfettered discretion in the police in the arrest of violators and, therefore, was void for vagueness and that the law was overbroad in that it inhibits the free exercise of protected rights.

A person who is convicted of loitering for the purposes of prostitution is convicted of a class A misdemeanor, which can be punished by one year in the local county jail or three years probation. For aggressive defense of prostitution cases in New York, contact our criminal defense attorneys who defend prostitution cases in Manhattan, Queens and the Bronx. 

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