Tuesday, advocates for the health and well-being of sex workers lobbied in Albany for the passage of a bill banning the use of condoms as criminal evidence in prostitution cases. Proponents of the bill—a similar version of which already exists in San Francisco—argue that allowing condoms to be used as evidence for prostitution discourages prostitutes and their customers from using them. Supporters of the law such as the Red Umbrella Project state that passing the bill is not an endorsement of prostitution, but “a common sense measure to ensure that people can protect themselves and each other” from disease and unwanted pregnancy.
Even though the proposed bill does not deny the state’s right to treat prostitution as a crime, the battle over it demonstrates the debate over whether to see prostitution as a criminal justice issue or a human rights and public health one. If you put a priority on prosecuting people for sex work, then letting cops use condoms as evidence is a no-brainer, because it makes it easier to establish the suspect’s intent to have sex that night (and all you have left to do is show they intended to charge for it). But if you put a priority on protecting the health of sex workers, using condoms as evidence to prosecute them is anathema, because the end result is that sex workers will avoid using condoms to avoid getting arrested.
Human Rights Watch published a 112 page report last summer and found evidence that the fear of police harassment, arrest, and prosecution discouraged sex workers from using condoms.
“Sex workers in each city asked us how many condoms it was legal to carry,” said Megan McLemore, senior health researcher at Human Rights Watch. “One woman in Los Angeles told us she was afraid to carry condoms with her and sometimes had to use a plastic bag instead of a condom with clients to try to protect herself from HIV.”
All of this has created a confusing situation where health departments in cities like New York hand out condoms by the bucket load, only to have the police turn around and take them from people. Nearly half of the sex workers interviewed by the Red Umbrella Project had had condoms confiscated by the police. (Just as cops will sometimes take a 12 pack from a minor without bothering to charge him, they will sometimes confiscate condoms from people they believe are sex workers without arresting them.) Forty percent of those sex workers went on to have unprotected sex with a customer.
This bill asks legislators to choose their priorities: Is it more important to prosecute prostitutes as criminals or to protect people from contracting STIs? Legislators are notoriously wary of the bill, which has been introduced annually since 1999, but hasn’t passed. Here’s hoping the health advocates win this round, because no one should have to choose between risking HIV transmission and risking arrest.