John T. Hecht
John T. Hecht (Handout)

This article will address a recent change in the Criminal Procedure Law that extends the relief available in Family Court to 16- and 17-year-old defendants charged with prostitution-related offenses in criminal court and allows for the decriminalization of proceedings against these teens. The new law, CPL §170.80, is an unusual hybrid that appears to evolve from the understanding that individuals charged with prostitution offenses may themselves be victims and that 16- and 17-year-olds may more appropriately be helped with the services accessible through Family Court instead of being prosecuted as criminals.

First, some background. On Sept. 25, 2013, Chief Judge Jonathan Lippman announced the creation of Human Trafficking Intervention Courts, the nation’s first such statewide system of courts that seek to identify and assist victims of sex trafficking and those who may be before a court because of past or present sexual, psychological, physical or other abuse, and to link them to services.

The chief judge’s initiative builds on federal and state legislative efforts that, over the last 15 years, reconceived the response of courts and law enforcement to individuals involved in the sex trade by recognizing that many are victims and not criminals.

The federal Victims of Trafficking and Violence Protection Act of 2000 created the crime of sex trafficking and, as pertinent here, defined 16- and 17-year-olds induced to be prostitutes as “victims” of a “severe form[] of trafficking in persons.”1

New York State followed with legislation that created the crime of sex trafficking at the state level,2 allowed sex trafficking victims to vacate their convictions for prostitution offenses,3 and, most relevant to this discussion, with the Safe Harbour for Exploited Children Act, amended the Social Services Law and Family Court Act to define a 16- or 17-year-old who engages in a prostitution offense as a “sexually exploited child” who may obtain child welfare services and for whom a “person in need of supervision” (PINS), as opposed to juvenile delinquency, proceeding may be brought in Family Court.4 The Safe Harbour Act thereby, in the words of one Family Court judge, “expresse[d] a preference that children who have been sexually exploited be spared criminal prosecution … in favor of receiving rehabilitative services.”5 Despite this apparent legislative preference, the Safe Harbour Act did not explicitly decriminalize a 16- or 17-year-old’s prostitution offense.

The second trend that appears to manifest itself in the law is the effort to raise the age of criminal responsibility. Chief Judge Lippman, on Sept. 21, 2011, proposed that New York raise its defense of infancy to criminal prosecutions of “less serious crimes” from “less than sixteen” to “less than eighteen”6 and implemented an Adolescent Diversion Program in nine counties throughout the state, including each of the five boroughs of New York City, with specialized court parts for 16- and 17-year-old defendants that assess their needs, order appropriate services and allow for non-criminal outcomes upon successful completion of these services. (On April 9, 2014, Gov. Andrew Cuomo appointed a Commission on Youth, Public Safety & Justice to recommend how to raise the age of criminal responsibility statewide.)

Against this backdrop, on Jan. 10, 2014, Cuomo signed into law an expansion of the Safe Harbour Act’s provisions regarding PINS proceedings for 16- and 17-year-olds charged with prostitution offenses and, as the Safe Harbour Act appeared to anticipate, a conditional decriminalization of these offenses. Chapter 555 of the Laws of 2013 added Criminal Procedure Law §170.80, titled “Proceedings regarding certain prostitution charges; certain teenagers,” which provides that a court in a criminal prosecution of a 16- or 17-year-old arrested for prostitution or loitering for the purpose of prostitution may, at any time prior to plea, upon consent of the defendant, “convert such charge and retain it as a person in need of supervision proceeding for all purposes and shall have the authority to grant any relief available under Article 7 of the Family Court Act.”

In other words, a criminal court may provide the relief available in Family Court to teenagers and thereby change its nature from a tribunal whose focus is condemnation and rehabilitation7 to one whose mandate is to “devis[e] an appropriate order of disposition.”8 Or more simply: the legislation provides a way to decriminalize these offenses for these teens.

Such a “conversion” is a profound change from a criminal to a civil proceeding. The district attorney no longer holds the power to determine a disposition. The Administration for Children’s Services, Department of Social Services or Department of Probation must provide needed services to the respondent, formerly “defendant,” and her family, if necessary. The court determines what services may be necessary. Parents must be notified. Jail and bail are not permitted. A “safe house” may be available. If the respondent no longer needs services, the court may dismiss the proceeding. Of particular consequence to a homeless youth or one who needs residential placement because of parental abuse or neglect, the court may make a foster or group home available.

This analysis presupposes that all of Article 7 of the Family Court Act is incorporated by reference into CPL §170.80, an interpretation that is suggested by, but not explicit in, the new law, and adumbrates potential operational difficulties.

For example, new liaisons between criminal court and ACS, DSS and probation must be established. (The Office of Court Administration has recently issued operational directives to this end.) “Cultural” resistance may occur. Although jail is not an option, “remand” to a program or facility under ACS or DSS auspices may be. So is a level of supervision that criminal practitioners who are used to dealing with adult defendants might consider onerous, but which, anecdotally, is more typical in a Family Court that must supervise a person in need of such supervision.

Article 7, for example, authorizes the Family Court to order rehabilitative services, including continued placement in foster care, until the respondent is 21 (if, after she turns 18, she consents). Because a defendant’s consent is needed for conversion, the path of a PINS proceeding may be taken by very few despite the obvious appeal of decriminalization and the serious needs a teen allegedly engaged in prostitution may present.

Section 170.80 has other novel features. or those individuals who choose to make use of “conversion” to a PINS proceeding,9 the law requires that “all records of the investigation and proceedings relating to such charge shall be promptly expunged upon the person’s 18th birthday or the conclusion of the proceedings on the charge before the court, whichever occurs later.”

This provision has no equivalent in the Criminal Procedure Law. The word “expunge[]” is not typically used in the CPL, which, in §§160.50 and 160.55, refers to the “ sealing” of records. Perhaps “expunge[ment]” derives from Family Court Act §375.3, which appears to supplement the Family Court’s own sealing provisions in delinquency cases and observes that the court has “ inherent power to order the expungement of court records.” But even if “expungement” means no more than “sealing,” it assures that all records of “converted” prosecutions of 16- and 17-year-olds will be sealed when the individuals turn 18 or graduate from court-mandated services.

For those defendants who do not choose to “convert” their cases to PINS proceedings, §170.80 remarkably expands the protections of CPL Article 720 as to the confidentiality of their records, and in so doing addresses an unfortunate lacuna in that article. Ostensibly in recognition of the lessened culpability of youth and to protect their futures, Article 720 provides that a youth under the age of 19 who is convicted of her first misdemeanor in criminal court (if she is otherwise eligible), must be adjudicated a “youthful offender,” resulting, among other things, in the replacement of her “conviction” by an “adjudication” and the confidentiality of her records. Additionally, a criminal court may, in its discretion, afford an eligible youth the same “adjudication” and attendant confidentiality for subsequent misdemeanor convictions.

CPL §170.80 significantly adds to Article 720′s protections (without, however, cross-referencing it) by requiring a court to “find that the person is a youthful offender” if she is convicted of prostitution or loitering for prostitution. Thus, all 16- and 17-year-olds charged with these offenses will, as a result of §170.80, have the opportunity for the clean slate that the youthful offender provisions of the law offer—even if they were previously adjudicated a youthful offender or ineligible to be so adjudicated. That is, any conviction of these offenses will be replaced by a youthful offender “adjudication” for these teens.

This will be of particular significance to repeat offenders and defendants convicted of loitering for the purpose of prostitution, because that offense is denominated a “violation,” as opposed to a “misdemeanor,” and thus outside the scope of Article 720 (which applies only to misdemeanors and felonies). Notwithstanding that the conviction is for a low-level offense, it may stigmatize an individual.

A final ameliorative aspect of CPL §170.80 is that it limits the punishment that might be imposed for a conviction of loitering for the purpose of prostitution. As noted, this is a “violation” or petty offense, unless the defendant has previously been convicted of prostitution or loitering, in which case it is classified as a “B” misdemeanor, which the Penal Law normally would allow to be punished by a sentence of up to 90 days jail or 1 year probation. CPL §170.80 now allows no greater punishment than 15 days jail for a 16- or 17-year-old defendant.

The statute leaves questions unanswered. For example, Article 7 of the Family Court Act defines a PINS as a “person less than eighteen years of age.”10 Thus, if the individual was less than 18 at the time she allegedly engaged in the conduct at issue, but the proceedings were not initiated until after she turned 18, the Family Court would appear not to have PINS jurisdiction.11 Would a criminal court be able to convert a criminal proceeding to a PINS proceeding in these circumstances?

What if there are charges besides prostitution and loitering on the docket?

A more pragmatic question: What will the police do? Will they still arrest 16- and 17-year-olds or, instead, take them to Family Court, in light of the preference the Legislature has appeared to express in the Safe Harbour Act and again in §170.80 that services accessible through Family Court be offered to persons under 18, as well as the fact that the needs of adolescents, including LGBTQ youth, are typically Family Court’s bailiwick?

Section 735 of the Family Court Act provides that police, parents, and others may seek “diversion” services so as to obviate the need to file a PINS petition. Will such diversion be available in a “converted” proceeding? (OCA’s operational directives anticipate that diversion may be sought in connection with conversion.)

These questions are in part generated by the unusual nature of §170.80, which is unlike anything else in the criminal procedure law. The new law assures that for some of the most vulnerable of our population there will be no conviction and, for those who consent to “conversion,” the proceedings will not be criminal but characterized by the parental attitude of a Family Court that will order services, including, if it is available, a “safe house,” without the threat of jail or the stigma of a record.

Indeed, the law assures that, no matter the outcome, youth charged with these offenses will suffer, at worst, lesser punishment than had previously been thought appropriate, as well as, perhaps even more importantly, the confidentiality of their records.

Whether this new law is effective in helping such teens, as it clearly is intended to do, and whether it presages further changes in the criminal law’s approach to adolescents and to persons charged with prostitution offenses remain to be seen.

John T. Hecht is a Brooklyn criminal court judge assigned to the Human Trafficking Intervention Part. Sheridan Chu, the judge’s court attorney, contributed to the preparation of this article.

Endnotes:

1. Victims of Trafficking and Violence Protection Act of 2000, §103 [8] [22 USC 7102 [8] [a]].

2. Penal Law §230.34 (as added by The Anti-Human Trafficking Act of 2006, L 2007, ch 74, sec 2 [eff Nov. 1, 2007])

3. See CPL §440.10 [i] [eff Aug. 13, 2010]).

4. See Safe Harbour for Exploited Children Act (as added by L 2008, ch 569 [eff April 1, 2010]) secs 1 and 3.

5. See Matter of Bobby P., 28 Misc.3d 959, 969 [Fam Ct Queens County 2010]; see also Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Family Ct Act 732 ["The intent is to immunize most children who have committed sexual offenses from criminal prosecution…, substituting PINS adjudication and services."].

6. Chief Judge Jonathan Lippman, Remarks to Citizens Crime Commission of New York City [Sept. 1, 2011], available at http://www.nycourts.gov/ip/sentencing/CJLippmansRemarksCitizensCrimeCommissionSeptember21201.pdf.

7. Penal Law §1.05.

8. Family Ct Act §711.

9. The statute’s use of the word “finding” as opposed to “conviction” suggests that this provision relates only to a “converted” PINS proceeding.

10. Family Ct Act §712 (a).

11. Family Ct Act §714 (b).