New York Lawmakers, Advocates Push To Ban Condoms As Evidence Of Prostitution

“If you look at the ways transgender people of color are profiled, this is a key example of how they are targeted by the people who should be protecting them.”

Matt Goins/Lexington Herald-Leader / MCT

NEW YORK — Sex workers advocates and other proponents of New York legislation that would ban the use of condoms as evidence in prostitution cases plan to meet with lawmakers at the state’s capitol next week — a small sign of progress in an effort to pass the bill that has lasted for more than a decade.

Police — particularly in New York City — have seized condoms from people suspected of prostitution or intending to prostitute and have held them as evidence, causing sex workers to fear carrying multiple condoms they might need, according to advocates at the Sex Workers Project, an initiative of the New York-based Urban Justice Center. The practice comes even as the city distributes free condoms as a matter of public health.

“It’s a really big problem and we’ve been working on getting the state to resolve it through this legislation,” Sienna Baskin, co-director at the Sex Workers Project, said to BuzzFeed. “It’s affecting transgender people who are not even doing sex work and condoms are being used against them as well.”

Transgender people of color in the city are often the victims of police violence and misconduct, and with that, are often profiled as sex workers, said Shelby Chestnut, interim co-director of community organizing and public advocacy at the New York City Anti-Violence Project.

“We commonly see transgender and gender non-conforming people are profiled for loitering with the intent to prostitute, and condoms are used as evidence to prosecute them for it,” Chestnut told BuzzFeed. “If you look at the ways transgender people of color are profiled, this is a key example of how they are targeted by the people who should be protecting them. It doesn’t make sense.”

In other words, advocates contend authorities are using the possession of condoms, or multiple condoms, as evidence against people who aren’t doing sex work and at the same time are discouraging sex workers from carrying the condoms they might need to be safe for fear of arrest and prosecution, which ultimately goes against the city’s public health efforts.

Legislation pending before lawmakers in Albany would make New York the first state to prohibit authorities from using condoms as evidence in prosecuting cases of prostitution and goes as far as to extend to cases of “patronizing a prostitute, promoting prostitution, permitting prostitution, maintaining a premises for prostitution, lewdness or assignation, or maintaining a bawdy house,” according to the bill’s summary.

The New York City Police Department did not respond to a request for comment on its policy for handling condoms in prostitution arrests and how it views the legislation targeting its practices. A recent report by the Associated Press indicates the NYPD has opposed the bill, but that it is evaluating its policy in regard to taking condoms as evidence.

The legislation, described by Baskin as a “common sense measure,” passed in the state assembly last year, but has since been stalled in the Senate. However, when reached by BuzzFeed, district attorneys from New York’s boroughs said that while they either do not use condoms as evidence when prosecuting cases involving prostitution or rarely see prostitution cases go to trial, using condoms as evidence in cases involving sex trafficking, rape, and other situations is important.

“We certainly agree that the use of condoms should be encouraged, and that in routine prostitution cases the benefits of encouraging such use might be said to outweigh the evidentiary value of such material. But the blanket policy of complete preclusion may be inappropriate,” said Terry Raskyn, director of public information for Bronx District Attorney Robert Johnson, who said officials there have not seen condoms as evidence in prostitution for “quite some time.”

“Again, we simply have not seen cases involving the seizure of condoms from persons arrested for prostitution,” Raskyn said in a statement. “But, please note the ‘related offenses,’ which include such serious felonies as Promoting Prostitution in the 1st Degree, Compelling Prostitution, and Sex Trafficking (Penal Law §§ 230.32-34), which are aimed at persons who profit from child prostitution or compel others to prostitute themselves. In such cases, this office prefers to keep all options open under appropriate circumstances.”

In separate statements, Queens District Attorney Richard Brown agreed condom evidence could be useful in prosecuting cases related to prostitution, and Staten Island District Attorney Daniel Donovan Jr. said he opposes a total ban on any type of evidence, like condoms, which he contends should be assessed on a case-by-case basis.

“That said, my office doesn’t prosecute people merely for using or possessing condoms,” Donovan said in a statement, and explained that his office does prosecute cases involving prostitution, trafficking, and rape, which often involve condom evidence. “[M]y office will continue to exercise careful discretion over the use of condoms recovered at crime scenes, along with other corroborating evidence, to build strong cases and secure convictions against those who commit crimes.”

Erin Duggan Kramer, deputy chief of staff for Manhattan District Attorney Cyrus Vance Jr., said prosecutors there do not use condoms as evidence in prostitution cases and would not comment on the pending legislation. Brooklyn District Attorney Charles J. Hynes did not respond to a request for comment, but previously said condoms should not be used for that purpose and police in Brooklyn should stop seizing them from suspects as evidence.

Baskin, of the Sex Workers Project, said that talks with the NYPD, district attorneys, and the mayor’s office on the bill are ongoing. “All of these city agencies should take a stand,” she said. “Condoms are still being cited as evidence in arrest records, so we know they’re still being used throughout the boroughs.”

The current iteration of the bill is sponsored by Assemblywoman Barbara Clark (D-Queens Village) and Sen. Velmanette Montgomery (D-Brooklyn), who have garnered the support of several co-sponsors in both chambers. Sandy Stewart, of Montgomery’s office, said she’s unsure what’s next for the bill this session, adding that recent news reports have created “a lot of buzz in the capitol about it.”

“The bill has been introduced now for probably over 15 years,” Stewart said. “Little by little by little, the momentum picked up on this through education. Most people are astounded that this practice is even occurring.”

The issue of authorities using condoms as evidence is not unique to New York City or New York state. Last year, the San Francisco district attorney’s office announced it would cease using condoms as evidence in prostitution cases. And in a report released last December, Megan McLemore, senior health researcher at Human Rights Watch, said, “People who use drugs can’t get clean needles, and police are confiscating condoms from sex workers and those suspected of sex work, such as transgender women.”

What advocates say is the criminalization of condoms also occurs in several other countries, according to Baskin. “Anywhere prostitution is a crime, police are going to be collecting evidence,” Baskin said.

CORRECTION: The Staten Island District Attorney is Daniel Donovan Jr. A previous version of this item misidentified him. (5/1)

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