Stopping Police and DAs from Using Condoms to Convict Sex Workers

By Crystal DeBoise, cross-posted at On The Issues Magazine

Last winter, “Sheila,” a sex worker in her early 20s, had just finished her counseling session with me at the Sex Workers Project, and was heading out the door. Sheila was seeking counseling from the Sex Workers Project to help her make a career change, but had no financial support and was still working in the sex industry. I gestured towards our colorful shoebox of condoms, lube and pamphlets about safe sex and reminded her to take whatever she needed. She looked at me as if I were suggesting she walk into the January snow barefoot and said, “Are you crazy? I’m not carrying those things around! You want me to get arrested or something?”

Sheila was referring to a situation in New York that permits the use of condoms as evidence of prostitution, resulting in their collection and confiscation from women who are detained by the police. This practice is an outright slap in the face to the decades of hard work that public health advocates have undertaken to increase safe sex, decrease HIV and create a positive shift in the cultural acceptance of condom use. This policy discourages a stigmatized and marginalized group of sexually active people from carrying the tools they need to be healthy and safe. And this occurs despite the fact that the New York City itself runs a free condom distribution program because “Using a condom every time you have anal, oral or vaginal sex protects you and your partners from getting HIV and other sexually transmitted diseases … and prevents unplanned pregnancies.”

Staff at the Sex Workers Project had been seeing police reports of arrested sex workers that listed the possession of condoms as evidence of prostitution for some time. Many of the arrests were not of even sex workers, but, rather, incidents of profiling transgender individuals as sex workers — their personal condoms were confiscated and used as “evidence” of prostitution.

Sentiments like the one Sheila shared have become more prevalent among sex workers, and for good reason. Prostitution convictions have an extremely negative impact on the lives of sex workers.

Arrests themselves are often abusive and traumatic, as well as costly. A criminal record is a major hurdle to joining the mainstream job force. Many jobs require disclosure of crimes or out-and-out disqualify people who have such records. When hired despite their records, those with prostitution-related crimes on their record often face discrimination on the job; others encounter sexual harassment when arrests for prostitution are disclosed. If carrying condoms increases the chance that a sex worker will have to experience these consequences, there’s a difficult decision to be made.

New York State Bill A1008/S323, cosponsored by more than a dozen state senators, would stop police and prosecutors from using possession of condoms as evidence of prostitution in specified criminal or civil proceedings. According to the summary of the bill, it “provides that possession of a condom may not be received in evidence in any trial, hearing or proceeding as evidence of prostitution, patronizing a prostitute, promoting prostitution, permitting prostitution, maintaining a premises for prostitution, lewdness or assignation, or maintaining a bawdy house.”

The explanation for the bill says, “It does not promote public health and welfare if the law discourages prostitutes from carrying condoms. If anything, their use by prostitutes should be encouraged by public policy ….” As of fall 2011, the bill was sitting in Judiciary Committee of the NY State Senate and the Codes Committee of the NY Assembly.

The Sex Workers Project is participating in an active campaign to support the passage of the bill this legislative session. Our online public service announcement explains its importance, and we have an ongoing petition with over 5,600 signatures at Change.org. Thirteen organizations have signed statements in support of the bill, and our staff holds legislative advocacy sessions for sex workers and allies where supporters can join our “pink postcard” campaign to send a message to state senators and assembly members.

Our activism is needed to make sure that this simple health and safety measure is put into place. If the bill passes, sex workers and the general public will be able to feel confident that the condoms they have in their pockets will not be used to assist law enforcement in accusing them of committing crimes.


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21 Responses to Stopping Police and DAs from Using Condoms to Convict Sex Workers

  1. LC says:

    I remember when this started, and somehow had convinced myself it was so stupid it had been dropped almost immediately.

    Here’s hoping it passes.

  2. Nia says:

    It hasn’t. And it’s not just New York City that does it either – my city’s done it for as long as I can remember.

    It is a slap in the face. I actually work both sides of the “client” “provider” divide – I’m a sex worker, and also do intravenous drug use outreach, and the cops not only use condoms as evidence, but take the syringes we pass out and break them. Why. WHY.

    So, good article. Thought, tho… why is this sentence relevant to the article?

    Sheila was seeking counseling from the Sex Workers Project to help her make a career change, but had no financial support and was still working in the sex industry.

    I mean, awesome for Sheila, figuring out what she wants to do with her life and what she doesn’t want to do, but the condom arrests unjustly affect everyone, including sex workers who are not seeking to exit the industry. Not sure what your intentions were, but we don’t need to justify our complaints about injustice by making sure everyone knows we are “trying to get out of this.” Kind of like I don’t need to justify being a stripper by saying “don’t worry, I’m just doing this to pay for law school.” I can just do it, and that’s an okay choice too, and I still shouldn’t be arrested for possession of a condom.

  3. Sandy says:

    Nia: why is this sentence relevant to the article?

    The only thing I can possibly think of is that this sentence contextualizes her situation a bit, making it clear that the part of the article that talks about the dire and ongoing consequences of an arrest (when and/or if a sex worker wants to get a mainstream job) applies to her.

    But I totally get what you’re saying, and if that wasn’t the idea behind that sentence, then I agree.

  4. Tim says:

    This was another one of those “I don’t even …” things for me because I had never heard of this. I’m just wondering, are they using possession of condoms as the only evidence of prostitution and getting convictions that way? Don’t get me wrong; I don’t think sex workers should be getting arrested and charged with crimes, but at the vary least if prostitution is against the law, then they should only be convicted with actual proof that they engaged in prostitution. What is wrong with juries, anyway? Or is the pressure so intimidating that it’s better for people to plead guilty?

  5. wl says:

    Tim – Prostitution arrests don’t usually go to trial. People plead out most of the time.

  6. Nia: I’m a sex worker, and also do intravenous drug use outreach, and the cops not only use condoms as evidence, but take the syringes we pass out and break them. Why. WHY.

    A little extra-judicial punishment, I imagine. Prostitutes, their clients, and IV drug users don’t DESERVE to be safe, you see.

    See also: The entire anti-abortion yet also anti-contraception wing of the American Right.

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  8. EG says:

    Nia: I actually work both sides of the “client” “provider” divide – I’m a sex worker, and also do intravenous drug use outreach, and the cops not only use condoms as evidence, but take the syringes we pass out and break them. Why. WHY.

    Because the actual purpose of our legal system is make sure vulnerable people suffer and the property rights of the rich are protected. Any actual justice that gets done is the result of decent lawyers and advocates working their fingers to the bone in uphill battles against the way the system was made to work, and is purely incidental.

    Oh dear, I’ve become my father. But thank goodness for those lawyers and advocates who have the strength, patience and dedication to gut it out and get that justice done.

  9. Donna L says:

    There are lots of trans women — especially, but by no means exclusively, young trans women of color — who are arrested for the crime of “walking while trans” in particular neighborhoods (often the neighborhoods in which they happen to live), regardless of whether they were actually soliciting anyone, because everybody knows that young trans women all do sex work to pay for “the operation,” right? And if they happen to be carrying any condoms, well, too bad for them.

  10. Donna L: There are lots of trans women — especially, but by no means exclusively, young trans women of color — who are arrested for the crime of “walking while trans” in particular neighborhoods

    I was not aware of this until this article, and it really, really sickens me.

  11. Wendy says:

    Nia: And it’s not just New York City that does it either – my city’s done it for as long as I can remember.

    When I was doing my Master’s research in this area, I found reference to condoms-as-evidence practice in New York, DC, England, South Australia, Ghana, South Africa and pre-decriminalisation New Zealand. At that point I decided I had enough examples and stopped collecting them – I’m sure there are more.

    It even happens where selling sex isn’t illegal. In Finland, which bars entry of non-EU sex workers, condoms are treated as evidence of intent to engage in sex work. In Sweden, condoms are confiscated for use as evidence against the client.

    And that’s not even getting into the number of countries that discourage efforts to actively promote condom use among sex workers and their clients, because they think it “encourages prostitution”.

    It’s really shocking how widespread such self-evidently dangerous policies are.

  12. macimay says:

    fyi-New York legislators have introduced this bill for many many years in a row from what I understand from speaking to their legislators last year about this same bill.

    The reality is that if this type of bill passes it won’t stop the police from taking our condoms and a) throwing them on the ground before they arrest us and take us to jail, b) throwing our condoms in the trash at the jail, c) arresting us for loitering or something else besides prostitution upon which our condoms will be confiscated and end up who knows where.

    Or even if the condoms end up with our clothes and other possessions of which we get back when we get out of jail, I wouldn’t use condoms that have been out of my control and in the control of the police for my own health and safety.

    As someone who has been arrested for prostitution many times and has been through the court system I believe they’ll still be taken away from us…And I disagree that activism towards this end is the best use of time, but then again, the agency sex work project, that is supporting this legislation, are using paid staff to do. Go for it!

    Or is it the lazy sex worker activism in play here?

    On a political level this route is not good for us because its not decrim and any prostitute will tell you that health and safety are not her primary concern. Getting arrested and suffering the hell of having a case and all the negative stigma for the rest of your life is a life sentence with the prostitution arrest. Just look at the amount of providers offering GFE, exchanging body fluids….I’d say catching something isn’t that big of a concern.

    Additionally, the condom thing is leverage. Its leverage used in the court of public opinion. Just look at how quick you all are hoping to. It makes no sense to give away this leverage.

    This kind of legislation misdirects our volunteer time towards an outcome that’ll just make the politicos look good, like they did something for us when really they haven’t. This type of effort falls short.

    Keep your eyes on the prize.

  13. Ceres says:

    I saw a TED Talk once about how drug addicts act rational when they share needles. The police would check for use of needles in rounding up drug users, so then having a needle with you could get you in jail, where you were sure to get HIV or something. So it was better to just take a chance with the needle of a friend to prevent arrest.

    I imagine it can be quite hard for low-paid sex workers to refuse men who don’t have condoms with them, or perhaps it will be easy to refuse them, in which case they lost a client. In general, it’s making it a more risky business for them.

  14. Ang says:

    Eep, as a transwoman with no ties to any sex work, who happens to always carry condoms as a matter of practice (not only for my own use but to help out friends if they find themselves short), this makes me worry about traveling to NYC :(

  15. wl says:

    It’s not just NYC. This happens across the world. Definitely it happens in D.C. and San Francisco, and probably in most other cities in the U.S.

  16. smash says:

    Thanks for this important article, Crystal DeBoise. The cops in NY shouldn’t be arresting sex workers; they should be going after the johns! I’m really sad to see women become targets simply for trying to protect themselves.

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  18. Nia says:

    The cops in NY shouldn’t be arresting sex workers; they should be going after the johns!

    No. Sex work should be legalized. That is what will protect sex workers lives. That is what sex workers rights organizations the world over have been asking for.

  19. some dude says:

    Being that the author seems to be kinda liberal, I find it odd that the author never pointed out how attacking the government using condoms as evidence of a crime *that shouldn’t be a crime ethically* is attacking the branches of evil and not the root of it.

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  21. EG says:

    some dude: I find it odd that the author never pointed out how attacking the government using condoms as evidence of a crime *that shouldn’t be a crime ethically* is attacking the branches of evil and not the root of it.

    I don’t see any conflict there. Sometimes you do one, sometimes you do the other, depending on what seems most effective/necessary at the moment. I don’t think marijuana should be illegal, but I’d sure as hell support a move to prevent the possession of rolling papers, a perfectly legal product sold legally, being used as evidence of marijuana possession (this is an imaginary example; I have no idea whether or not it could actually happen). Anti-abortion advocates have gotten pretty far with the incremental chipping-away approach.

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