PurrVerse: The NYPD Now Limits Using Condoms As Evidence Of Sex Work — But This Issue Is Far From Over

The NYPD has finally agreed to ban the confiscation condoms as evidence from people they suspect of being sex workers. With similar measures having been fought for and won in San Francisco and Washington, D.C., this seems like a win for sexual health, right?

Well, sort of. The headlines I keep seeing aren’t actually accurate: “NYPD to stop seizing sex work suspects’ condoms,” “NYPD To Stop Seizing Condoms From Suspects As Evidence Of Prostitution,” etc. This sort of shoddy reporting might mean that the public thinks that condoms as evidence is an issue over and done with, when in fact there is more to do. The policy announced by  NYPD Commissioner Bratton bars confiscation of condoms as arrest evidence in prostitution, prostitution in a school zone, and loitering for the purposes of prostitution cases, which is a great start. But it’s not as overarching as the mainstream media seems to think it is.

To give some perspective… there are actually 14 different prostitution-related offenses in New York State, according to Audacia Ray, founder and executive director of the Red Umbrella Project in NYC, and condoms can be used as evidence in 11 of them. (Read Red Umbrella Project’s official statement on this policy here.) Cops can still continue to use the possession of condoms to justify an arrest. They can still confiscate condoms from suspected sex workers as “investigatory evidence” if they think trafficking might be involved. They can still confiscate condoms as evidence in promoting and trafficking cases.

“The intention of this is that law enforcement wants to be able to use any evidence they can to convict traffickers, who sexually and economically exploit other people,” said Ray, when I asked for comment. “However, it actually has a chilling effect: traffickers don’t allow condoms to be present in their workplaces, and as a result people are trafficked are victimized in multiple ways: by being forced into sex work and force exposure to HIV, other STIs, and potential for unwanted pregnancy.” So, yes, this is a major step in not actively discouraging safer sex in at-risk populations, there’s still a long way to go for these bans to be as comprehensive as they need to be to be meaningful.

Condoms as evidence seems to be a pretty terrible idea if you think logically about it. Take, for example, the situation in China: a recent report by Asia Catalyst found that fewer sex workers were using available health services provided by NGOs, out of fear of exposure. Many sex workers specifically mentioned not using condoms, the report states, because police use condoms as evidence for sex work. In the name of “education” and “rescue,” large numbers of sex workers and their clients are detained for periods of six months to two years without any form of judicial oversight. During detention, the women are subjected to forced labour and compulsory testing for STIs, while they are not informed of the results of the tests. Sex workers are even obliged to pay the costs of their incarceration. This begs the question: if you truly believe that sex workers are carriers of disease, why on earth would you punish them for restricting the spread of STIs through use of barriers?

Experts have spoken out about how ridiculous (and dangerous!) condoms-as-evidence policies are. In 1994, during the AIDS crisis, the Board of Supervisors in San Francisco adopted a policy to encourage sex workers to use condoms, declaring they could not be used as evidence in prostitution cases. Not that the policy was completely effective even then — Megan McLemore, a researcher with Human Rights Watch, said San Francisco police began photographing condoms for evidence instead of confiscating them, keeping pressure on sex workers not to take free condoms from outreach workers as they could still be used in prosecutions. In 2012, Public Defender Jeff Adachi said he experienced multiple cases where photographs of condoms were used as evidence to prosecute sex workers. It was only in 2013 that District Attorney George Gascon made the ban in San Francisco official and permanent, having found the change didn’t negatively impact public safety.

If the NYPD themselves makes a reported 2,500 prostitution arrests a year, it makes me wonder how many sex workers there are who don’t carry condoms for fear of being implicated. And what are the consequences of that fear? Take the example of New Orleans, as Mother Jones reported last December: according to a report, police in New Orleans used the possession of condoms as evidence of prostitution, even if they don’t witness the crime underway. The result? Of the report’s 169 interviewees, all of whom had exchanged sex for money, drugs, or life necessities, over a third said that they had carried fewer condoms out of fear of police harassment. More disconcertingly, over a quarter of those interviewed had had unprotected sex due to the fear of carrying condoms. The article goes on to discuss the experiences of trans women, who are often insulted and harassed by police targeting them as probably sex workers for, basically, existing while trans. And what is the result of this approach? Higher HIV rates. Not entirely surprising.

As a porn performer, having condoms on me may soon be a legal necessity for my job even outside of LA, with public safety being the justification. “Where, by the way,” Ray pointed out when I asked for comment, “Human Rights Watch documented police using condoms as evidence (in this report: Sex Workers At Risk: Condoms as Evidence in Four U.S. Cities) – so CA is trying to enforce condom use among indoor porn workers, while profiling outdoor workers and folks they suspect as working and as a result discouraging them from carrying condoms.”

I feel like it’s worth mentioning that among the people I know, most of us carry a few condoms in our bags, whether sex workers or not. You never know when you might have a quickie in a bathroom with your sweetie, or, miracle of miracles, have a successful OK Cupid date. Being prepared is sensible and responsible. Why, then, is it that only some of my friends (the ones who are people of color, or trans women, and especially trans women of color) who need to worry about the cops shaking them down, confiscating their condoms and possibly even arresting them?

Oh, right.

Because ultimately, measures like this are not enforced across the board. They are used (like with “stop and frisk“) as an excuse to be racist and transphobic with full institutional support… and because only some bodies are seen as worth protecting (or requiring of outside enforced protection, as in the case of porn). Others, I guess, are socially and legally determined to be disposable.

So, while the NYPD has made some progress, the fight hasn’t been won yet.

[Red Umbrella Project]
[HIV Advocates]
[Human Rights Watch: Sex Workers At Risk]
[NBC News]
[Mother Jones]

If you want to help support the continued work against Condoms as Evidence, check out Red Umbrella Project, St. James Infirmary, the Sex Workers Outreach Project (particularly in New Orleans), and Human Rights Watch.

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