Now: Beyond the Health Center; Confiscation of Condoms By Police

Alvin Tran, 2014.

Condoms advocating against the use of condoms for prosecutory evidence. 

Use of Condoms as Evidence in New York City

In 2013 the New York Senate passed Bill S1379, which “prohibits using possession of a condom as evidence in a trial, hearing or proceeding in certain circumstances.” [1]Before this bill was passed, police were confiscating prostitute’s condoms as evidence of prostitution. During 2012, two major reports on the confiscation of condoms by the police were published: The Sex Worker’s Project’s “Public Health Crisis: The impact of using condoms as evidence of prostitution in New York City” and the Human Rights Watch’s “Sex Workers at Risk: Condoms as evidence of prostitution in four US cities.” The Sex Worker’s Project interviewed a total of 65 people—35 prostitutes, 20 harm reduction service users, and 10 outreach workers. Out of the 35 prostitutes, 15 of the respondents said that the police had taken or destroyed their condoms at least once. The report concluded that: “people in the sex trade in all five boroughs have experienced, observed, or heard of the confiscation of condoms and the use of condoms as evidence.”[2] The Human Rights Watch reported similar findings; many prostitutes were well aware of the fact that cops often confiscated prostitute’s condoms. One interviewed prostitute in Coney Island said: “The cops say, ‘what are you carrying all those condoms for? We could arrest you just for this.’ They use it to push the issue of searching me. It happens all the time around here.”[3]

This practice, however, was not supported by law; "There is no case law or statute that provides any basis which to conclude that possession of condoms is probative of the intent to exchange sexual conduct for a fee.”[4] Despite this not being written in law, many prostitutes believe it is. Sienna Baskin, a lawyer and sex-worker’s-rights advocated, said that many prostitutes often asked “How many condoms is it legal to carry in New York City.”[5] Baskin informed them “that it is legal to carry as many as one wishes”[6]

The condoms that were confiscated, however, were rarely used in court (Most prostitutes plead to lesser charges and thus do not go to trial). Despite this, the NYPD, during the time of this report, continued to confiscate condoms as evidence. More disturbingly, police sometimes destroyed prostitutes’ condoms. While this may be viewed as an attempt to thwart prostitution, it simply served to dually promote intimidation and unsafe sex. As one 50- year-old black women from Coney Island bitingly said: “They ask if I have drugs, search my pocketbook and see condoms and throw them in the garbage.” While I focus on New York City, the Human Rights Watch report shows evidence of these practices in Los Angeles, San Francisco, and Washington DC.

What this Mechanism Achieves

This practice does not achieve much except make prostitution more dangerous for both the client and worker. Ostensibly, the confiscation and destruction of condoms would discourage prostitution. There is some limited evidence for this. According to the Sex Worker Project’s 2012 report, 53.3% of the prostitutes interviewed did not engage in sex work after having their condoms confiscated. Of course, this leaves 46.7% of prostitutes who did engage in sex work after their condoms had been confiscated.

 What this Mechanism does not Achieve?

This practice negatively affects prostitutes in three major ways: 1) it discourages safer sex practices 2) it serves to intimidate prostitutes 3) it further disenfranchises poor, transgender, and non-white prostitutes.

First and most obviously, this practice fails to promote safer sex practices—it is a mechanism of social control that discourages prostitutes to carry condoms. According to the Sex Worker Project report, 46% of interviewed prostitutes had at least once purposefully not carried condoms, due to fear of criminalization by the police. This mechanism of control directly acts on the behavior and safer sex practices of prostitutes. As one prostitute interviewed said: “Am I afraid to carry condoms? Yes I was for a long time. When I was working on the street, I felt like I could only carry two or three, not a lot when I went out.”[7] Two or three condoms may be not enough for a prostitute to engage in a day’s work; if one is a transgender woman, there might be a need for two condoms per exchange. Additionally, condoms often break. If a prostitute is left without any condoms it leaves them with two options: to not engage in sex work and forego potential income or engage in unprotected sex. Both options clearly disenfranchise prostitutes, either limiting their income or putting them at risk for STIs. Sometimes women view the lost income as more risky than the risk of STI transmission. As one prostitute confessed, “Some nights are very successful and you have to do the last one [client] without one.”[8]

Second, confiscating condoms serves to intimidate prostitutes. While it is impossible to analyze the intentions of the police, the effects are clear: prostitutes are intimidated and scared by the police. As the Sex Worker Project reported:

70% of street-based sex workers reported near-daily police initiated interactions with police many of which were not related to criminal activity. Research participants described being routinely stopped and harassed by police while engaging in every-day tasks such as shopping and riding the subway including verbal humiliation, threats, false arrests, and sexual harassment, ranging from extortion of sex and inappropriate touching to rape.[9]

Many prostitutes experience harassment and are subject to a variety of intimidating tactics. Victoria D., a transgender woman, retold her experiences with one policemen. “They don’t care about you, they take your purse, throw it on their car, your stuff they throw it on the floor, they pat frisk you, they ask if you have fake boobs, take them off right there, if you have a wig, take it off, it’s humiliating.”[10] This harassment, by many accounts, pervades the experiences of prostitutes in New York City. However, it is not representative of all prostitute’s experience: In the Sex Worker’s project report, 28.6% of prostitutes felt “neutral” about their relationship with the police, while 20% described their relationship as “good.” Again I point this out to reject homogenizing views of the relationship between prostitutes and the police.

Last, these practices often serve to further disenfranchise poorer, transgender, and prostitutes of color. This is often a result of the profiling of prostitutes based on appearance—a wealthier, white, cis-women prostitute is less likely to get stopped than a poorer, black, transgender prostitute. While this profiling is hard to prove, one report showed that 87% of people stopped by police in the stop and frisk policy were black, or latino.[11] The racial profiling, as well as the numerous stories of transgender maltreatment, show how police control often targets those who are already most vulnerable.

As I have shown, the negative effects of this practice are clear—it serves to socially control prostitutes health and safety, discouraging the use of condoms and putting the issue of suppressing prostitution over the safety and well-being of the already criminalized prostitute.