NYC to stop using condoms as evidence – in some cases

New York City will stop using condoms as evidence in some cases against sex workers — but safe sex advocates say a provision that allows the use of condoms as evidence against those “promoting prostitution and sex trafficking” will continue to leave people working in the sex industry unprotected.

Some advocates said the move, announced by the New York Police Department on Monday, is a small step toward making sure sex workers — who are at risk of contracting and spreading sexually transmitted infections (STIs) — are not afraid to carry condoms.

New York City Mayor Bill de Blasio said the police department reviewed the policy and “felt that this was not the right way to go.”

“A policy that actually inhibits people from safe sex is a mistake and is dangerous,” he said.

However, according to a press release from the NYPD, condoms gathered in “promoting prostitution and sex trafficking cases will continue to be invoiced as arrest evidence.” The NYPD had not responded to a request for further comment at the time of publication.

In New York City, sex trafficking charges are felonies, with sentences of at least a year. Prostitution charges are misdemeanors, with sentences of less than a year.

Shelby Chestnut, an activist with the Anti-Violence Project, which works with LGBTQ communities and those at risk of HIV/AIDS, said condoms should never be used as evidence in either prostitution or trafficking cases.

Though it would seem that using condoms as evidence in trafficking cases would help prosecute pimps and sex traffickers, she said, doing so encourages criminals who exploit sex workers to stop their victims from carrying condoms. She added that sex workers remain at risk of arrest and prosecution on felony charges.

“Survivors or victims who are trafficked can still have condoms used against them” if police interpret their actions as promoting prostitution or sex trafficking, Chestnut told Al Jazeera. “Leaving out the trafficking component leaves a big loophole under which people can still be charged.”

Sienna Baskin, a co-director of the Sex Workers Project at the Urban Justice Center, echoed those concerns. “We have already seen cases where traffickers have deprived their victims of condoms and where brothels have hidden and stored condoms in unsafe ways to prevent them from being detected by police,” she said. “We need to prioritize the lives and health of those who are most vulnerable by removing this deterrent.”  

Chestnut said it was ironic that New York City’s Health Department distributes free condoms — which find their way into bars and nightclubs — while its Police Department treats condom-carrying New Yorkers as suspected prostitutes.

Emma Caterine, an organizer with the Access to Condoms Coalition, a group of nonprofit organizations, including the Anti-Violence Project, told Al Jazeera that police single out gender-nonconforming youths and transgender people — often women of color — for “walking while trans.”

One New York City transgender woman, Trina Vuitton, who is not a sex worker, said police arrested her on suspicion of prostitution after stopping her and finding that she had two condoms.

“When the police take our condoms or lock us up for carrying condoms, they are putting our lives at risk,” she told the New York City Council Civil Rights Committee at a hearing shortly after her release at the end of April.

“How am I supposed to protect myself from HIV and STIs when I am scared to leave my house with condoms in my purse?” Vuitton said.

For sex workers, there’s also a risk that the NYPD will be unable to fully communicate the new condom policy. The new directive, simple on its face, is complex in its details.

Caterine, while acknowledging the change as good news for some, worried that the law will “cause confusion among our members and communities as well as restricting protection from those being trafficked and youth.”

Policies regarding condoms vary across the United States. New York City’s new policy resembles one put in place in San Francisco, according to Chestnut. That law went into effect last year.

New York City’s move comes as a similar law winds its way through the New York state legislature in Albany.

Meanwhile, in Louisiana, Human Rights Watch in December identified the state’s condom policies as contributing the spread of HIV because it left sex workers so afraid of carrying condoms that they were more likely to have unprotected sex with customers.

Additional reporting by Massoud Hayoun