Should New York Stop Arresting People for Carrying Condoms?

Political victories come few and far between for sex workers, but New York activists got a significant one last month. On June 21, the New York Assembly voted 80 to 48 to pass bill A2736, which would prohibit the use of condoms as evidence in prostitution-related offenses.

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At first glance, it seems a small win. After all, the bill hasn’t actually become law. When the legislature reconvenes next session (around January, 2014), the bill still needs to survive the Senate, then back through the Assembly, and then onto the desk of the governor. But it’s been a long, hard fight just to get it this far; similar bills have been proposed in New York since at least 1993, but they have consistently died in committee. This is the first time that it’s actually made it to a full vote in either chamber. Not only does the legislation have a chance at becoming law for once, but the fact that it was voted on at all is a visible demonstration of changing attitudes in law enforcement.

Condoms and queers came out of the closet at about the same time: the 1980s, when AIDS was devastating gay communities. One of the most notable things about the AIDS crisis was how clearly and publicly the lines were drawn between those whose lives were worth saving, and those who weren’t. While gay men and intravenous drug users dropped like flies, mainstream conversation about the epidemic was dominated by gay-bashing jokes, lectures about traditional values, and worst of all, silence. The last was one of the most notable legacies of Ronald Reagan’s administration: he didn’t so much as speak the name of the disease in public until 1987.

Gay men, intravenous drug users, and sex workers didn’t have the luxury of not talking about AIDS. The slogan of the AIDS Coalition to Unleash Power (ACT-UP), “Silence = Death/Action = Life” was more than a memorable catchphrase: it was a blunt statement of reality. Thanks to the the militant agitation and community education programs of groups like ACT-UP, Queer Nation, and Prostitutes of New York (PONY), condoms went from a slightly quaint method of contraception to being as essential to getting laid as mood music.

But in the eyes of district attorneys and police departments, condoms aren’t for everyone. For white, middle-class, straight-looking people, a few condoms in their pocket or purse represents a sophisticated, responsible sexuality. For those who fit police profiles of sex workers, having condoms on their person might be the thing that gets them arrested on prostitution charges.

“That’s something that we’ve had to clarify again and again,” says Emma Caterine, from New York’s Red Umbrella Project. “I think it’s just a habit in any kind of rights-based activism and organizing to say, ‘Oh, this could happen to me,’ and of course, that really isn’t the case in this situation. The people who are affected by this legislation are people who are profiled as sex workers. That includes sex workers, of course, but it also includes people who are profiled as sex workers because of different stereotypes we have about sex workers.”

The people who fit law enforcement profiles of sex workers are overwhelmingly young, low-income, people of color, or visibly queer or transgender. In other words, arrests target precisely those populations most at risk for transmission of HIV and other STIs.

This seems like a particularly cruel joke in New York, the only major American city to issue its own official condoms. Since 2007, the city’s much-acclaimed “NYC Condoms” program has distributed tens of millions of male and female condoms per month to the five boroughs. In 2012, the city distributed 37.2 million condoms — about 70 per minute. This February, NYU commemorated the program’s five-year anniversary with a retrospective of graphic design and public relations material.

But even as New York’s elite celebrate the condom as a pop icon, thousands of residents are faced with a dilemma: carry condoms to protect themselves against STIs, or risk harassment or arrest by police. “These are the populations that the CDC and other public health authorities have targeted for universal condom access,” says Megan McLemore, a Senior Researcher for Human Rights Watch. “They’re really trying to make sure that these populations use condoms every time. So the fact that people who are doing this work and who are profiled as doing this work are carrying fewer condoms than they need has serious consequences for HIV prevention.”

Sex work advocates and health professionals have long condemned such policies, but to little avail. Those police departments or district attorneys that would even admit such policies existed have insisted that they are essential to anti-trafficking efforts.

Within the last year, that’s begun to change. In New York, district attorneys in Nassau County, Brooklyn, and Manhattan have declared that they will no longer use condoms as evidence; San Francisco’s D.A. did the same. The California State Senate is currently considering legislation very similar to the New York bill.

Washington, D.C. took a unique tack: while not admitting that they ever did use condoms as evidence, the Metropolitan Police Department has begun printing and distributing cards saying that “MPD officers cannot conduct a stop or conduct a search of a person or premises based on whether or not that person possesses condoms.” The cards give information on the back about how to report officers who violate the policy.

The movement forward on anti-condom policies is the result of a combination of research and broad-based activism. Although sex workers and advocates have written and spoken extensively about anti-condom policies, there’s been little documentation of the policies or their harm, making it very easy for skeptics to dismiss their stories as urban legend or exaggerated gossip. But in 2012, several reports were released by groups like Human Rights Watch, the PROS Network (a coalition of sex worker and health organizations), and Open Society Foundations. The Human Rights Watch report looked at policies in four major U.S. cities: San Francisco, Los Angeles, New York, and Washington, D.C. Of the cities studied in HRW’s report, only Los Angeles hasn’t made a move to eliminate the practice since its publication.

Margaret Wurth, a consultant with HRW’s Health and Human Rights division, says that having numbers has clearly changed how lawmakers respond. “Prior to all this documentation, policy makers would say, ‘Okay, from a common-sense standpoint, I understand the problem with this practice. But show me that it’s actually interfering with the city’s public health effort,'” she says. “I think having all these reports come out in the past year…. just shows that there’s a growing body of evidence that this practice undermines public health and puts the lives of sex workers and others who might just be profiled as sex workers at risk.”

But turning those figures into real-world results has taken a lot of hard, grueling work by activists. No matter what the facts are, few politicians are eager to take a stand alongside strippers, escorts, and pro-dommes. Even in liberal districts, that’s a quick route to electoral suicide.

The No Condoms as Evidence Coalition (NCAE Coalition) has been the primary activist force on this issue for the last year. The breadth of the 99+ member organizations is perhaps the single best argument that anti-condom policies are on their way out. Members include not only the usual advocates for sex worker rights, such as the Red Umbrella Project, the Sex Workers Outreach Project, and Streetwise and Safe, but more mainstream organizations such as Planned Parenthood, the New York Civil Liberties Union, Lambda Legal, and of course, Human Rights Watch.

Although anti-condom policies are usually rationalized as essential to fight trafficking, the New York Anti-Trafficking Network is also a member of the coalition and contributed a statement of support for the bill, saying unequivocally that it would not hamper either law enforcement or advocates. Florrie Burke, who received a Presidential award for her anti-trafficking activism, wrote an op-ed in the the Huffington Post enthusiastically supporting the legislation, arguing that anti-condom policies directly harm victims: “[/fusion_builder_column][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”] Traffickers may have an especially strong incentive to forbid their victims from carrying condoms, to ban them from locations where exploitation is occurring, and to make it nearly impossible to use them. The consequences for those forced into the sex trade and NY Asian escort service are severe–unwanted pregnancy often followed by forced abortion, and irreparable damage to their reproductive health from HIV and sexually transmitted infections.”

Despite such strong support, the specter of trafficking was once again a major obstacle when the bill faced the Assembly this year. According to Caterine, opposition came from mainstream feminist groups who were afraid it would enable trafficking and coercive prostitution. At one point, there was an attempt to introduce an amendment that would allow condoms to continue being used as evidence in trafficking cases, something that would have essentially made the bill useless to sex workers. “We were able to convince the co-sponsor that it would make the legislation toothless because without those provisions, not only would trafficking victims not be protected… The police would just say ‘that person must be being trafficked’ rather than saying that they’ve been prostituting themselves.”

The Coalition has also given sex workers themselves the opportunity to speak directly to the people who vote on the laws. For two years running, the Coalition has held “lobby days” in Albany, where sex workers and advocates came to the state capital to meet with legislators and make their case about passing the bill. Over 100 activists went to Albany this year to tell lawmakers face-to-face why the law needs to be passed. Because of confidentiality, Emma Caterine couldn’t give an estimate of how many attendees were actually sex workers, but it’s a significant tactic nevertheless. Every law ever written about sex work has been justified as a way to help sex workers. Whether that help comes in the form of arresting them or feeding them, the sex workers themselves are rarely allowed to say which they think would be best. The lobby days were a rare instance where lawmakers looked the sex workers in the face and heard them speak before voting.

The first real turning point came last October, when Nassau County District Attorney Kathleen Rice ordered a department-wide prohibition against using condoms as evidence. Wurth describes Rice’s action as a game-changer: “She was the first District Attorney to issue such a comprehensive policy calling on all prostitution related offenses, calling on condoms to be excluded from all such offenses. She’s really been an outspoken advocate about the bill, and she’s also called on other DA’s to adopt similar policies. Her support really showed that law enforcement officers, leading law enforcement agencies can find a way to balance their obligations to protect public health and to uphold the criminal law, and she’s really been a model of that for us.”

It’s almost shocking that such a breakthrough would come out of Nassau. Located on Long Island, Nassau is home to wealthy professionals who want a tidy distance between their doorsteps and the grit of the five boroughs, yet still close enough to commute to Manhattan. And yet, Rice has been outspoken about the harm caused by using condoms as evidence. In the Huffington Post she wrote: “Under any reasonable analysis, the seismic public health impact of using condoms as evidence of prostitution dwarfs the limited courtroom gain in the isolated number of cases that make it that far.”

In May, Brooklyn D.A. Charles Hynes followed in Rice’s footsteps by sending a letter to Police Commissioner Raymond Kelly saying that his department would no longer use condoms in prostitution-related offenses. (For more on Hynes’s letter, read Tizzy Wall’s article here on Slixa.) “The collection and vouchering of condoms as evidence by members of your department…” Hynes wrote, “should immediately cease.” The Manhattan D.A.’s office has also stated that they do not enter condoms as evidence.

But although Rice’s decision broke new ground in New York and gave the movement some visible momentum, she’s also the textbook example of how politics can make strange bedfellows. In June, Rice proudly announced that 104 clients had been arrested in “Operation Flush the Johns.” On her Twitter feed, Rice said, “Prostitution is not a victimless crime. Our undercover investigation targeted the johns who fuel & fund it.”

A heated exchange about the sting took place online, building to a confrontation between two prominent writers and former sex workers: columnist Tracy Quan and journalist Melissa Gira Grant. Quan tweeted that the “Sex workers’ movement is… in danger of throwing obvious scapegoats under the bus.” She also claimed that the Coalition and the Red Umbrella Project in particular were “schmoozing with DAs who arrest people for buying sex,” and verged on being “snitches.” Gira Grant confronted Quan, defending RedUP for doing the hard work of organizing around issues and being “sensible.” (The exchange and related articles are archived on Storify.)

Not only did the exchange show different philosophies at work within the sex worker activist community, but it was an excellent example of a dilemma that every movement faces more and more the closer they get to their goals: where is your line? How far should you go to build alliances, and when do you need to discard them? And for the most part, there will never be any good answers. On either side, there are real lives at stake.

Audacia Ray, director and founder of the Red Umbrella Project, gave a practical and blunt explanation of how the Coalition handled this particular dilemma:

At the time, the Coalition decided not to confront [Kathleen Rice] about [Operation Flush the Johns], because her support in moving the no condoms as evidence policy was important. We made a strategic decision, not to totally abstain from the conversation, but to postpone our response until after the close of the legislative session. The Coalition first approached Rice about establishing a no condoms as evidence policy in Nassau County in June 2012, and we have been educating her on the issue and asking for her support since then.

The New York bill has come a long way, but it’s not law yet. In February, the Legislature will come back into session, and the bill will be put to the test. It has yet to go to the Senate; if it survives there, a quirk of New York law requires that it survive the Assembly again. (Bills need to go through both houses in one session.) Then, to the governor’s desk.

It’s going to be a long and complicated path, but there’s hope. The Orwellian logic of arresting people for carrying condoms is becoming more and more unsustainable. As shown by the actions of Kathleen Rice, Charles Hynes, and the cities of San Francisco and Washington, even the people who have traditionally defended these policies are turning away from them like an embarrassing relative. Next year will tell if New York lawmakers are ready to show that relative the door for good.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]