Two years ago the city of Seattle changed the name of the misdemeanor crime of patronizing a prostitute to sexual exploitation. The change has gotten at least one man fired from a job after a faulty background check. For an immigrant, says his lawyer, it could mean deportation.
A 24-year-old former Seattle man did everything a judge ordered him to do after he took a plea deal last year and was convicted of the misdemeanor crime of sexual exploitation.
Arrested by Seattle police during a prostitution sting at a motel on Aurora Avenue North, he received a deferred sentence and agreed to a variety of conditions, including attending a six-hour class for sex buyers, serving 80 hours of community service, providing a DNA sample and undergoing an HIV test.
“I took the class and it really opened my eyes to what some of the women go through. It’s scary to be in their shoes,” the man, who now lives in Arizona, said of women involved in prostitution.
He spoke to The Seattle Times on the condition his name not be published. Though he’s fulfilled his sentence requirements, the 24-year-old is paying an even steeper price that was wholly unexpected: His criminal-background check erroneously shows he’s been convicted of a sex-related felony, making it virtually impossible for him to get a job.
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Outside of Seattle, the misdemeanor crime is known as “patronizing a prostitute.” While the elements of the crime — and the punishment — remain the same, the name change is exclusive to the city. No other jurisdiction in the state, or country, uses the same language.
The Seattle City Attorney’s Office argues “sexual exploitation” better describes a defendant’s conduct by recognizing many women involved in prostitution have been forced or coerced. The name change for the crime also was a way to signal the city’s resolve to hold sex buyers accountable for creating the demand that fuels the sex trade.
“We explained our reasoning and the City Council accepted it unanimously and agreed that words matter and we’re going to call it what it is — sexual exploitation,” City Attorney Pete Holmes said of the change, which went into effect in January 2015.
Bellevue defense attorney John Tymczyszyn (pronounced Tim-chiz-in) understands the intent behind the language, but said it’s confusing and misleading.
He said it has resulted in serious errors on criminal-background checks and led to significant fears that a conviction could have immigration consequences for foreign-born men here on visas. That’s because federal immigration officials, who are unlikely to research a city ordinance, have broad discretion when it comes to approving visas and allowing entry into the country, he said.
“ ‘Sexual exploitation’ sounds like you’ve got a woman in a cage in the basement,” said Tymczyszyn. “They’ve renamed it to something that sounds like a felony.”
Tymczyszyn, who represents the 24-year-old Arizona man, said the error on the man’s background check isn’t simply a computer glitch.
The man got a job at an Arizona grocery store, but was fired after a private data-mining company ran his criminal history, determined he had been convicted of sexual exploitation and wrongly labeled his crime a felony, according to the man and Tymczyszyn. After being denied a second job, the 24-year-old contacted the company to explain the mistake, but the company continues to insist the charge is a felony, he said.
The man’s case is to be dismissed in August, but Tymczyszyn doesn’t know if that will have any impact on his background check.
“Sexual exploitation, for potential employers, insinuates my client — or anybody with this on their record — is a registered sex offender,” Tymczyszyn said. “Misdemeanors aren’t supposed to render you unemployable.”
A Seattle Times review of a handful of background checks from the Washington State Patrol, which compiles arrest and conviction data and provides background checks, also revealed errors.
For instance, the crime of sexual exploitation is listed on the background checks as “classification unknown” instead of a misdemeanor, although the checks do note the crime is a nonfelony.
Background checks normally list the state statute that corresponds to a crime, but not so in the case of sexual exploitation. Listed instead are title numbers for some noncriminal statutes that apply to counties, cities and towns.
In contrast, a background check for a 58-year-old man convicted in Federal Way Municipal Court of patronizing a prostitute — same crime, different name — clearly indicates the crime is a misdemeanor and includes the correct state statute.
“We’re the state repository — whatever gets submitted to us is what gets added to our database,” said Deborah Collinsworth, the State Patrol’s identification and background-check section manager.
She thinks the problem originates with either Seattle police or Seattle Municipal Court, where sexual-exploitation cases are prosecuted. But Collinsworth acknowledged that while there are state crime codes for sexual exploitation of a minor and sexual misconduct, there isn’t a separate code for the misdemeanor crime of sexual exploitation.
The Seattle City Attorney’s Office wasn’t aware of problems with criminal-background checks until the topic was raised by The Seattle Times. Officials plan to look into it and contact the State Patrol, said Heidi Sargent, an assistant city prosecutor who serves as a liaison with the Seattle Police Department’s Vice & High Risk Victims Unit.
It’s still unclear what immigration implications could result after a conviction for sexual exploitation.
Holmes, the city attorney, said his office has had discussions with the legal defense bar and the Northwest Immigrant Rights Project, whose lawyers provide legal assistance in immigration matters, about ways to mitigate possible immigration consequences.
“We’re really trying hard to get on the same page. We’re trying to make sure we’re appreciating unintended consequences,” Holmes said.
Though it’s been more than two years since the city changed the crime of patronizing a prostitute to sexual exploitation, Tymczyszyn said the impact wasn’t readily apparent until recent months. His own understanding came in the aftermath of a Seattle police undercover sting that resulted in the arrests of 204 men last summer.
“We never anticipated this volume,” Sgt. Tom Umporowicz, of the Vice & High Risk Victims Unit, said of the number of arrests made over 10 days in July after undercover officers set up shop at a massage parlor.
To keep from overwhelming the Seattle Municipal Court, the City Attorney’s Office filed sexual-exploitation charges in batches against men caught up in the sting, according to Tymczyszyn and Sargent, the assistant prosecutor. As of last month, the city was getting ready to file the last of its cases related to the operation, Sargent said.
It can take up to a year for an individual case to be resolved, either through a plea agreement or jury trial.
It was through conversations with other attorneys and his own clients that Tymczyszyn realized mistakes on criminal-background checks weren’t anomalies and that foreign-born men faced the possibility of deportation or visa revocation as a result of a sexual-exploitation conviction.
“The Trump administration is tightening immigration policy, tightening visa requirements and looking for reasons to deport people,” Tymczyszyn said.
A single conviction for a misdemeanor crime of “moral turpitude” — a category that includes patronizing a prostitute — “doesn’t make you deportable,” said Seattle immigration attorney Hilary Han. But someone with a previous conviction for say, theft, who is then convicted of sexual exploitation could be deported and barred from coming back into the country, Han said.
Noting the U.S. Embassy “always has discretion” to issue or renew a visa, Han said it’s conceivable an embassy officer could refuse a visa to somebody convicted of sexual exploitation.
“I don’t know of a case where a person has been denied (a visa) for a single patronizing conviction, but I don’t think it’s out of the question it could happen” if there’s confusion over the crime of sexual exploitation, he said.
According to a spokesperson for the U.S. State Department’s Bureau of Consular Affairs, visas are considered on a case-by-case basis and waivers are sometimes available for those convicted of crimes of moral turpitude.
Still, a 27-year-old native of Japan who was arrested during the July massage-parlor sting worries his career as a highly specialized tech engineer could be destroyed if he’s convicted of sexual exploitation.
“I was very proud to come to the U.S. … My job, my career, is everything,” said the man, who spoke on condition of anonymity. The possibility of being denied a work visa, he said, “would be the end, basically.”