AN ARRESTING GAZE
Controlling Bodies in Public Space
On September 30, 2016, The Legal Aid Society of New York and Cleary Gottlieb Steen & Hamilton LLP filed a civil rights class action, D.H. v. City of New York, against the New York City Police Department on behalf of women who had been wrongly arrested for loitering under New York Penal Law Section 240.37. In October, I was introduced to Legal Aid attorneys through my work as a resident artist in the Manhattan Detention Complex in New York City.
These pen, color pencil, and graphite illustrations are based on redacted NYPD arrest affidavits that were shared with me from the lawsuit.
Starting in 1976, New York Penal Law Section 240.37 criminalized loitering in a public place by anyone whom the police determined present for the purpose of prostitution.
“Purpose” is not defined in New York’s Penal Law, thus the reason for one’s presence was decided by the opinions of arresting officers. On any street, sidewalk, bridge, plaza, park, subway, or inside her motor vehicle, a woman could be arrested if an officer took issue with her clothing. Someone could be detained for repeatedly beckoning or attempting to engage passers-by in conversation.
When processing Section 240.37 arrests, officers and prosecutors relied on pre-printed affidavits to select “indications of prostitution” including: the defendant was standing somewhere other than a bus stop or taxi stand; the defendant was carrying money or “sexual paraphernalia”; the defendant was with someone known to have been previously arrested for prostitution-related offenses. None of these behaviors, in and of themselves, are illegal.
The New York City Police Department (NYPD) Patrol Guide also instructed officers to inform prosecutors of an arrestee’s clothing, as “pertinent information” to a probable cause inquiry. But the NYPD offered no objective criteria on what attire would be considered suspect, thus failing citizens the ability to anticipate how their fashion could establish cause for their arrest. Fashion, of course, is also constitutionally protected behavior.
Police officers often made their decisions to arrest through a strange sexualized gaze.
From 2012 through 2015, nearly 1,300 individuals were arrested in New York City under the law, 85% of them were Black or Latina. Transgender women were especially arrested in “sweeps” of places where they gathered as community.
In January 2018, the Southern District of New York court dismissed a majority of the D.H. v. City of New York plaintiffs’ claims. That June, the case entered mediation and the NYPD agreed to modest reforms and to ammend its patrol guide. Nevertheless, in the following months, “loitering for the purpose of prostitution” arrests began to rise. Although such arrests had declined in NY from 2010 to 2016, the number of arrests in New York City nearly tripled from 2017 to 2018, the majority of which occurred after the NYPD amended its patrol guide.
In 2018, legislators introduced a bill to completely repeal New York Penal Law Section 240.37. The bill did not reach a floor vote that year, but the movement to repeal grew, and Section 240.37 became known as the “Walking While Trans Ban.”
In February 2021, after years of legal battle and advocacy from community activists, legislation was signed to repeal the law prohibiting “loitering for the purpose of engaging in a prostitution offense.”
NYPD continues to arrest women for engaging in sex work.
This essay originally appeared on VanityFair.com as An Arresting Gaze: How One New York Law Turns Women into Suspects