Court Finds that Statute Providing for Vacatur of Prostitution Convictions does not Bar Initial Prosecutions

By Lewis Tesser, Partner, and Timothy Nolen, Associate, of Tesser, Ryan & Rochman, LLP

A recent New York County Supreme Court case has held that the Federal Trafficking Victim’s Protection Act does not bar a defendant’s prosecution for Prostitution. The case, People v. Lewis, NYLJ 1202502663175, No. 035660 (Crim. Ct. N.Y. County, July 12, 2011), involved issues of criminal law, statutory interpretation and federal preemption.

Lewis concerned a 17-year-old charged with one count of Prostitution. The defendant argued that she was precluded from prosecution under recent amendments to the Criminal Procedure Law which provide that a court may vacate a judgment where the charge is Prostitution and the defendant’s participation is the result of being a victim of sex trafficking under New York State or Federal law.  Judge Weinberg’s opinion for the Court rejected the defendant’s argument that there was a “certainty of future vacatur,” noting that motions to vacate under the newly-enacted amendments are highly fact-specific and require that certain evidentiary burdens be met. Furthermore, the Court rejected defendant’s argument that New York State’s Social Services Law or the Federal Trafficking Victim’s Protection Act—both of which provide social services to victims of sex trafficking—precluded prosecution, explaining that the statutes’ language and history did not impede prosecutions.

Lewis provides interesting insight into the complexities of criminal proceedings and the interaction between Federal and New York State Laws: although the Federal and State laws sought to provide services to individuals involved in prostitution and allowed for vacatur of some convictions, the laws were not intended to prevent prostitution trials in the first place.