NY Bill Would Bar Condoms as Proof of Prostitution

New York City spends more than a million dollars every year to distribute free condoms to combat unintended pregnancies and diseases such as AIDS. Yet police are allowed to confiscate those very condoms as evidence of prostitution.

That conflict is behind the latest legislative proposal to make New York the first state to prohibit condoms — specifically the existence of multiple condoms — from being used as evidence in prostitution cases, a widespread practice that advocates say undermines decades of public health goals.

"There may be no actual evidence, and the condom is their only way of trying to prove it," said Hawk Kinkaid, a former male escort who now advocates on their behalf in New York City. "The fear that this will be used against you — it prevents people from being able to protect themselves."

The practice has come under criticism across the country, with prosecutors in San Francisco, Brooklyn and Nassau County announcing last year they will no longer use condoms as evidence in prostitution cases.

Nassau County District Attorney Kathleen Rice said she decided the benefits of condoms as evidence don't outweigh the public health impact. Most prostitution cases don't go to trial, and trafficking cases typically require much greater evidence.

"Sex workers are more likely victims than they are criminals, and condom evidence was rarely of any value to a prosecution," Rice said. "If you need that condom so badly in the case against a trafficker, then you don't have a good case."

Legislation to formally abolish the practice across New York state has so far fallen flat. The NYPD, which makes about 2,500 prostitution arrests a year, has long opposed the bill but said Friday it was taking a look at its policy of using condoms as evidence.

A 2010 study by the New York City Department of Health surveyed more than 60 sex workers and found that more than half had had condoms confiscated by police. Nearly a third said they had at times not carried condoms because they feared getting into trouble.

Two years later, the group Human Rights Watch interviewed 197 sex workers in New York, Washington, D.C., Los Angeles and San Francisco and found that many limited the number of condoms they carried — or went without — because they feared police attention. The report concluded that transgender teens, street-level sex workers and immigrants were especially targeted because of their appearance or behavior.

One respondent, a Los Angeles sex worker identified as Carol F., said there were times when she used a plastic bag in place of a condom because she was afraid of being caught with one.

"The cops say, 'What are you carrying all those condoms for? We could arrest you just for this,'" a Brooklyn sex worker identified as Pam G. told the researchers. "It happens all the time around here. I may be carrying eight condoms. If you have more than three or four, they will take them."

J Starks works with a health care organization in the Bronx that distributes condoms and offers HIV tests to sex workers. He said he has seen police search women and confiscate condoms.

"People need condoms. I say, 'Take a handful. Take as many as you want,'" he said.

The New York legislation passed the Assembly last year, and advocates are optimistic the Senate will follow suit soon after it reconvenes this month. A spokesman for the Senate's Republican leaders said the bill is under consideration.

"Sex workers are not a politically appealing constituency to most lawmakers," said Assemblyman Richard Gottfried, a Manhattan Democrat who has supported the legislation for several years.

The NYPD is reviewing the legislation, as well as its condom policy, according to a statement Friday.

In Washington, a rumor spread among sex workers that police could arrest anyone carrying more than three condoms. Advocates for transgender youth and sex workers worked with law enforcement to clarify the policy, and informational cards were distributed in the community to make it clear that it wasn't a crime to carry any number of condoms.

"There is no three-condom rule," the cards read.

"The presence of a condom doesn't tell you anything about what is happening with a person," said Darby Hickey, an advocate for sex workers in Washington who was part of the effort to change the policy. "It's really just the tip of the iceberg of the way in which we as a society treat people in the sex trade — or people we presume are involved."