New York Repeals Loitering For Prostitution Law

Albany Update recently reported on Bill S.1351-Hoylman/A.3355-Paulin. This bill repeals Penal Law § 247, which bans loitering in a public place for the purpose of (a) engaging in prostitution; (b) patronizing a person for prostitution; or (c) promoting prostitution.

On February 2, 2021, Bill S.1351-Hoylman/A.3355-Paulin passed both houses of the State Legislature and was signed into law by Gov. Andrew Cuomo. The Senate vote was 43-20, while the Assembly vote was 104-45. The voting largely fell along party lines. In the Senate, all Democrats voted “yea” except Sen. Simcha Felder (D-Brooklyn), who voted “nay”; all Republicans voted “nay” except Sen. Andrew Lanza (R-Staten Island), who voted “yea.”

The passage of this law does not mean that prostitution has been legalized in New York. Other laws against prostitution remain on the books. The passage of this law does, however, deprive police of one statute that can help them to be proactive in combatting street prostitution.

The messaging used by supporters of this legislation was effective in winning over the Democrat-led New York State Legislature. This law was referred to as a repeal of the “Walking While Trans” law. This nickname refers to anecdotal evidence that some police have used Penal Law § 247 as a pretext for harassing or falsely arresting persons who identify as transgender. The nickname is also reminiscent of the phrase “walking while black,” which refers to situations in which African-Americans have been treated like criminals by police simply for walking down the street. By using this language, advocates were able to play upon legislators’ sympathy for minority groups and to avoid focusing on the substance of the law.

On the Assembly floor, Asm. Catalina Cruz (D-Queens) shared her experiences with Penal Law § 247. Asm. Cruz asserted that she had been arrested multiple times without cause, and that police had used Penal Law § 247 as a pretext for those arrests. Asm. Andy Goodell (R-Chautauqua) acknowledged that “there’s no doubt that this [law] has been used and abused”; however, he noted that state law already provides remedies for false arrests. The Assemblyman added, “My friends and colleagues, let’s focus on the real issue here. The real issue is that there may be discrimination against transgender people who are walking. The real issue is that [there] may be harassment of people who look like they’re part of a protected class… [this bill] doesn’t address [that] problem, does it?” Asm. Goodell explained, “Just because a law has not been enforced properly is not an appropriate ground to repeal the law.”

At New Yorkers for Constitutional Freedoms, we are concerned that the repeal of the loitering for prostitution ban could be used as a stepping stone toward the full legalization of prostitution. In fact, a full legalization bill—Bill S.3075-Salazar/A.849-Gottfried—has already been introduced, and a partial legalization bill is in the works.