Saving Victims, Punishing Criminals
Eva Payne, University of Mississippi
“Mrs. Waln came this morning to take me with her to the Midnight Mission. I said I am sorry but I don’t want to go with you; in fact, I will not go with you…. Well, she said, the Government will send you back to England in the steerage and your baby will be born on the way over, and will it be very nice to have it so with lots of other men and women in the same room? I said, I don’t think they will…. I am so afraid of being sick on the boat going over as I was so seasick coming…. but in the alternative of going back [to England] or the Midnight Mission, I would prefer to go back, as I cannot overcome my aversion to that place.”
-Isabel McCartney, English immigrant, October 28, 1914
“When I met my client outside the courtroom, she explained to me that she was upset about the judge saying that if she didn’t complete services she would get 15 days jail. She was offended by the way the judge had talked to her. That is the problem: the judge means well, but when participation in services is coerced with an arrest and the threat of jail time, the client is disempowered, and the good intentions backfire.”
– Zoe Root, Attorney, Bronx Defenders, recounting a conversation with an unnamed client, June 26, 2014
These two statements, made 100 years apart, relay the words of women apprehended for their supposedly immoral and criminal sexual behavior. Both cases were handled by newly created programs that labeled women engaged in commercial or even extra-marital sex as trafficking victims, with the intention to reform rather than punish them. Yet while viewing women as victims, the programs also treated them as criminals, both roles that render women as incapable of making their own decisions. Taking these quotes together, we see that assumptions about women’s sexuality and sexual labor, codified in early twentieth-century policy, continue to have lasting effects on the state’s treatment of women accused of illicit behavior.
In my recent JWH article, “Deportation as Rescue: White Slaves, Women Reformers, and the US Bureau of Immigration,” I examine the development of one of the first federal government programs designed to help women deemed “white slaves”—women whom we might today term trafficking victims. The 1910 Immigration Act had made noncitizen women deportable for sexual immorality—ranging from selling sex, to being unmarried and pregnant, to indirectly earning income from commercial sex as a maid in a brothel—at any time after their arrival in the United States. The program, called “Rule 22” of the Immigration Rules, was established by white middle-class women reformers to assist the hundreds of immigrant women arrested and held for deportation each year under this Act. The US narrative of white slavery described such women both as innocent victims of nefarious men and as dangerous criminals who threatened the nation. Rule 22 attempted to resolve this contradiction. It called for the deportation process to be carried out with the aid of such women’s organizations as Mrs. Waln’s Midnight Mission, reconfiguring deportation as a means of rescuing and redeeming immigrant women like Isabel McCartney, who had arrived in the US pregnant by a man who was not her husband, and whom officials assumed was a prostitute.
But as Isabel’s statement suggests, some women saw living in a rescue home while awaiting deportation – with mandatory domestic labor, prayer, and moral education – as a crueler form of punishment than being incarcerated in an immigration detention center. Isabel perceived Mrs. Waln’s attempt to coerce her into the Midnight Mission for the threat it was, rather than the offer of assistance that the Immigration Bureau maintained it to be. Moreover, as my article shows, many women experienced deportation itself as a profound hardship. In Isabel’s case, she was separated from the father of her child and gave birth at the immigration detention center before being deported to England with her one-month-old daughter – a US citizen – even though she had asked to remain in the US.
In many ways, little has changed. The second quote relates the frustrations of an unnamed defendant accused of prostitution, whose case was heard in one of New York’s Human Trafficking Intervention Courts (HTICs). Created in 2013, the HTCIs re-envision the courts as purveyors of welfare rather than punishment. These courts still prosecute women, but based on the assumption that women who sell sex are victims of human trafficking, judges can mandate social services instead of jail. Nevertheless, judges in the HTICs also continue to incarcerate women as a means of purportedly helping them, whether to keep them away from their suspected trafficker, or punish them for not using social services or for continuing to sell sex. Non-citizen women may still end up in deportation proceedings as a result of their arrest. Although the HTCIs incorporate arrest, court appearances, and incarceration, many anti-trafficking reformers proclaim them to be a means of rescuing women; one that will, in the words of the judge who founded the courts, “open the door for thousands of people to escape a life of abuse and torture.” In contrast, the legal scholars Aya Gruber, Amy J. Cohen, and Kate Mogulescu argue that HTCIs harm the very women they claim to help, disproportionately targeting poor Black, Latina, and Asian women, and further entrenching them in cycles of arrest and incarceration.
My research shows that at the heart of both Rule 22 and the HTICs is a paradox that dates to the era of white slavery: the programs label women as both victims and criminals, categories which are positioned as oppositional, but which equally demand state intervention. They mandate forms of punishment, including controlling women’s mobility and threatening their relationships with their children, not to mention the threat of incarceration. Yet the programs portray as reform what women themselves often experience as punishment. Thus, forcing Isabel to live in the Midnight Mission before deportation, or threatening the unnamed client with incarceration for missing social service appointments, is rebranded as a means to eradicate trafficking. Moreover, recasting such women as victims gives new powers to those tasked with reforming them, incorporating the purveyors of social services into systems of state surveillance and punishment. In Isabel’s case, because Mrs. Waln’s Midnight Mission was already cooperating with the Immigration Bureau, it was Mrs. Waln herself who discovered Isabel’s circumstances and reported her to immigration officials, leading to her arrest, the arrest of her child’s father, and the deportation of all three. Finally, Rule 22 legitimated—and the HTICs continue to legitimate—the arrest and deportation of women accused of prostitution as a means of helping them, foreclosing the possibility of non-carceral solutions.
I was struck by the similar ways that two very different women experienced these supposedly victim-centered programs. It is alarming that for one hundred years, women on the receiving end of policies that are supportive in name but carceral in method have been telling us that such programs are coercive and disempowering. Yet they persist. Modern policymakers would do well to listen to the critiques of women like the unnamed client to avoid repeating the mistakes of the past. Taking seriously women’s accounts of the harms such programs inflict on them is a small step toward reimagining ways of supporting marginalized women outside the logics of punishment.
 Isabel McCartney, statement, 28 Oct. 1914, RG85 E9, 53835/153, National Archives and Records Administration, Washington, DC.
 Aya Gruber, Amy J. Cohen, and Kate Mogulescu, “Penal Welfare and the New Human Trafficking Intervention Courts,” Florida Law Review 68 no. 5 (Sept. 2016): 1333-1402, 1368.
 Announcement of New York’s Human Trafficking Intervention Initiative, Oct 4, 2013, https://www.courtinnovation.org/articles/announcement-new-yorks-human-trafficking-intervention-initiative
 Gruber, et. al., “Penal Welfare,” 1336 note 14.