The Policy That Keeps Prostitutes From Carrying and Using Condoms

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New York isn't the only place where cops can use condom possession to justify arrest, but sex worker advocates there are pushing a new bill.

A Red Cross volunteer on World AIDS Day Oleg Popov/Reuters

Among New York's most contradictory sets of policies is this: Since 1971, the city has pushed aggressively for condom use, distributing more than 200 million free condoms, turning the NYC condom into an icon with its own tag line (NYC Condom: Get some!), even creating an iPhone application that helps users locate the nearest distribution site. In the same time frame, however, city police have destroyed or confiscated thousands of condoms found in the possession of suspected sex workers, using condom possession to justify arrest.

Sex workers and their advocates say this practice has had a dangerous, chilling effect, causing many who engage in prostitution to stop carrying and using condoms. A bill written by State Senator Velmanette Montgomery would change that, barring the use of condoms as evidence of prostitution in criminal cases. Since the bill's introduction in 1999, it is has languished, orphan-like, in the state legislature. Recently, though, it has received a wave of media attention -- and advocates like Sienna Baskin think this could be the year it passes.

"There are organizations that may not on a daily basis think about sex workers that are now putting their lobbying machines into motion for it," said Baskin, co-director of the Sex Workers Project at the New York City-based Urban Justice Center.

Sixteen of 35 sex workers said they have not carried condoms when working because they feared they would get in trouble with the police.

What few realize, however, is that New York is not the only state where condom possession is used to target and arrest people suspected of engaging in prostitution. If passed, the New York bill would be a first-of-its-kind law, according to bill sponsors and sex worker advocates across the nation, perhaps paving the way for similar policies in other places.

"Prostitution is a scary issue for politicians to take up," said Stephany Ashley, programs director at St. James Infirmary, a San Francisco non-profit that helps about 6,000 former and current sex workers a year. "I think this would open up the doors for a lot of other cities and states to do the same."

A former sex worker herself, Ashley oversees all of St. James' services and frequently counsels the men and women who come through its doors. Over and over, she speaks with clients who say they limit the number of condoms they'll carry, for fear of arrest. Others hide condoms in sanitarily questionable places -- think used bleach bottles -- to conceal them from cops. "Nobody should ever have to make a choice to put themselves at that kind of risk," she said.

In 1994, in the midst of the AIDS crisis, San Francisco's legislative body passed a non-binding resolution that urged the police to stop confiscating condoms, and the district attorney to stop using them as evidence of prostitution. Both parties initially implemented the policy, but over time they have stopped honoring it, according to Naomi Akers, the executive director at St. James. "We need to have our own legislation," said Ashley. "We need to follow the lead of New York."

Robert Childs runs the North Carolina Harm Reduction Coalition, which assists groups that include sex workers, drug users, and undocumented immigrants. On weekly walking trips through East Durham's subsidized housing projects, Childs and his team spoke regularly with out-of-work moms engaged in sex work who were afraid that carrying multiple condoms would lead to arrest. So his team devised an alternate delivery route: They drop condoms in bushes so that individuals don't have to carry them all at once.

The irony does not escape him: "It's very strange, in order to promote something that would be beneficial to the greater society, we have to be sneaky," Childs said. "As a fiscal conservative, you should be really worried about that, because [limiting condom use] leads to HIV, Hep C, and then we spend a lot of money paying for these diseases."

To be clear: Condom possession in itself is not illegal in New York, nor in any other state. Rather, the fact that condoms can be used in court as evidence of prostitution means that police will sometimes confiscate condoms, interrogate those carrying several, and use them as part of the basis for arrest. A law like the one in New York would clarify that possession is permitted, quelling fears among those who want to use them. "If there is no way an item will ever be used as evidence, then there's no excuse to ever take it or put it in an arrest sheet," said Baskin.

In New York, few have actually come out against the bill. Last week, Brooklyn district attorney Charles J. Hynes told The New York Times that he opposed "any law that would restrict our use of evidence." But Manhattan district attorney Cy Vance has not publicly opposed the law. A spokeswoman in his office declined to share his stance on the bill.

The problem for the bill's advocates haven't been its enemies, but rather a paucity of out-and-out backers. "Most politicians ... they're afraid that 'sex worker rights' anything is going to make it look like they are enabling exploitation," said Ashley. "And there is just a really unfortunate disconnect there."

Human Rights Watch is compiling a report that examines condom possession policies in several cities. The organization will release it in July.

The Urban Justice Center recently conducted its own survey on the issue in New York City. Preliminary results released to the media show that 16 of 35 participating sex workers said they have not carried condoms when working because they feared they would get in trouble with the police. Fifteen of those respondents said that police had confiscated or damaged condoms the individuals were carrying.

The center will officially release that survey and a larger report in April, when it leads a crew to the capitol to lobby for passage of the condom-carrying bill. "We think people's health and abilities to protect themselves from really serious illness and serious health risks is more important than making some arrests for prostitution," said Baskin. "So we think we have a really good argument. But it's an ongoing campaign."

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Julie Turkewitz is a New York-based journalist. She also writes for the New York Times.

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