Empire State Stupidity: New York’s Condom Policies Undermine Public Health and Human Rights

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Commentary Law and Policy

Empire State Stupidity: New York’s Condom Policies Undermine Public Health and Human Rights

Martha Kempner

When deciding whether to charge an individual with prostitution, New York City police officers routinely consider if that person was carrying condoms. Even more disturbing, officers frequently destroy condoms in an attempt to get people not to sell sex for money.  Two new reports examine the impact of this misguided law which seems to directly conflict with the city's ongoing efforts to promote condom use. 

When Julia Roberts pulled a strip of colorful condoms out of her boot in her break-out roll as a prostitute in 1990’s Pretty Woman and declared “I’m a safety girl,” I breathed a sigh of relief.  While I was waiting for her inevitable happy ending (and forgetting to be outraged by the offensive messages of this modern fairytale), I was glad to see that she was protecting herself and her future by avoiding STDs (and pimps and kissing on the mouth). Turns out that my reaction to her condoms is one of the many things about the lives of sex workers that wasn’t exactly on-target in this star-making movie. Rather than being considered a sign of good protective behavior, in New York City carrying condoms can be used as evidence of prostitution, and therefore a crime.

Apparently, New York Police officers use possession of condoms (especially more than one condom) as one of the factors in determining whether there is probable cause to arrest someone for prostitution or loitering for the purposes of prostitution.  

One judge told the New York Times that he would not be swayed by condoms as evidence: 

I find no probative value at all in finding a condom. In the age of AIDS and HIV, if people are sexually active at a certain age, and they are not walking around with condoms, they are fools. 

Roe has collapsed and Texas is in chaos.

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But most cases of prostitution are never brought in front of a judge because the individuals who are arrested quickly plead guilty. So the fact the police are considering the condoms as evidence is problem enough.

Even more disturbing, officers have been known to confiscate condoms from individuals suspected of prostitution in an apparent attempt to discourage them from engaging in sex work. Finally, an idea more ridiculous than suggesting that making condoms available to teenagers will convince them to have sex — here we’re saying that taking condoms away from sex workers is all they need to be convinced not to have sex. 

The Sex Workers Project of the Urban Justice Center began to work with city’s Department of Health and Mental Hygiene (DHMH) a number of years ago to determine whether these practices did, as suspected, deter sex workers from carrying — and therefore using —condoms. DHMH prepared a report in 2010 but for unknown reasons then refused to make it public. The Sex Workers Project used the Freedom of Information Law to obtain a copy (much of which was blacked out) and then worked with the PROS Network (Providers and Resources Offering Services to sex workers) to conduct additional research and create their own report. Both reports were released at a news conference last week.  

The reports found:  

  • Approximately half of respondents involved in the sex trade reported that police had confiscated, damaged, or destroyed their condoms. In the 2010 DHMH study 57 percent of the respondents reported having condoms confiscated as did 43 percent in the PROS Network study.
  • Forty percent of the people in the PROS Network study who had had condoms confiscated went on to engage in sex work that same day or night. Of these, half engaged in sex work without condoms.
  • Close to half (46 percent) of the respondents in the PROS Network study involved in the sex trade reported that they did not carry condoms at some point, and 23 percent reported turning down free condoms at some point, because of fear of police repercussions. In fact, fear of the police was the most common reason for not carrying condoms.
  • This was even more pronounced among transgender respondents and those who identify as other than female or male — 75 percent of these respondents reported that fear of police had caused them not to carry condoms.

These reports also included moving quotes from individuals who were directly affected by the NYPD’s policies regarding condoms. For example:

  • A 50-year-old black woman in Coney Island described how she is commonly stopped and searched by police: “They ask if I have drugs, search my pocketbook and see condoms and throw them in the garbage.”
  • A 20-year old white woman who engaged in indoor sex work described an incident in which an undercover officer opened her condom package, called her derogatory names, destroyed the condom, and then said “if you don’t have these, you won’t have sex.”
  • A 22-year old black Puerto Rican who identified as a gender non-conforming said: “I’m damned if I do, I’m damned if I don’t. I don’t want to get any disease but I do want to make my money…. Why do they take your condoms? Do they want us to die, do they want us to get something?”

And that is the biggest irony; the police are confiscating condoms just as the health department and other organizations are giving them out. In fact, health workers in New York City gave out 37.2 million condoms last year at an average of 70 condoms per minute. With that kind of effort going into encouraging New Yorkers to practice safer sex it’s inexplicable that rules and policies would exist that discourage those most at risk from having condoms on hand. 

The Sex Workers Project has been collaborating with lawmakers to change this situation through the introduction of legislation. Bill S323/A1008, known as the No Condoms As Evidence Bill, would stop police and prosecutors from using possession of condoms as evidence of prostitution.  The bill’s sponsor, Senator Valmanette Montgomery (D-Brooklyn), explained:

“When it comes to condom possession and use, New York’s health and criminal procedure policies are at odds… The passage of this bill makes good public health sense and is necessary to help save lives.”

Oddly, New York City’s DHMH is not supporting the law. When the department commissioned the 2010 report it was in support of changing the law and planned to conduct trainings on HIV prevention and condoms at police roll calls.  

The department’s own report found: “A sizable minority [of sex workers] said that condom policing had at some point discouraged them from possessing safer sex materials.” And yet, somehow, these findings (or something else behind the scenes) seem to have convinced the department that the condom policy really isn’t a problem. Not only was DHMH reluctant to release the report (saying that it was an internal document), it no longer supports changing the law.  According to a spokesperson for the city’s health commissioner:

After the commissioner reviewed the study, which found that the current law has not resulted in sex workers consistently failing to carry condoms because of fear of arrest, he decided not to support the legislation. We have seen no evidence that the current law undermines the public health aims of condom distribution.

A perplexing conclusion at the very least.  It seems painfully obvious that any law discouraging condom use among sex workers is ridiculous. If the laws against prostitution aren’t preventing them from trading sex for money how can we possibly believe that the policies allowing condoms to be used as evidence will deter anything other than condom use. 

The No Condoms as Evidence bill has been introduced, and has subsequently died in committee, every year since 1999. The Sex Workers Project held a lobbying day in Albany last week in the hopes that this year will be different but I for one am not getting my hopes up.