Criminalizing Condoms: Sex Workers Get Policed but Remain Unprotected

Michelle Chen

Under New York law, condom possession can be considered evidence of prostitution by police targeting suspected sex workers. (Photo by Brendan Smialowski/Getty Images)

If you worked a dangerous job, you’d expect the law to help protect you from workplace hazards. But for many workers in the sex trade, protecting their health on the job could land them in jail.

A new report by Human Rights Watch reveals how the criminalization of sex work in U.S. cities undermines civil rights and puts lives at risk.

Researchers say regressive prohibitionist policies make sex workers more vulnerable to sexually transmitted diseases as well as mistreatment and violence, sometimes at the hands of the very authorities that are supposed to be protecting them. The report focuses on a controversial police practice for targeting prostitutes: profiling people who are caught” carrying condoms.

Taking a human-rights centered approach that views the selling of sexual services as a form of work, HRW found that sex workers are often deterred from carrying condoms for fear of getting nabbed by the cops. In New York, Washington, DC, Los Angeles and San Francisco, an item that would in any other circumstance be seen as a reasonable — and responsible — protective measure against sexually transmitted disease or pregnancy becomes form of contraband in anti-prostitution crackdowns. As a result:

despite millions of dollars spent on promoting and distributing condoms as an effective method of HIV prevention, groups most at risk of infection — sex workers, transgender women, and lesbian, gay, bisexual, and transgender (LGBT) youth — are afraid to carry them and therefore engage in sex without protection as a result of police harassment. Outreach workers and businesses are unable to distribute condoms freely and without fear of harassment as well.

In New York City, the anti-prostitution measures play on moldy stereotypes of moral turpitude. According to HRW, New York’s broad anti-prostitution laws enable police to consider condom possession as evidence when targeting suspected sex workers for arrest or sometimes prosecution in criminal court. Under a sweeping loitering” statute, police have broad leeway to go after someone who wanders about in a public place” and appears to be trying to solicit sex. People can be targeted based on where they’re standing or what they’re wearing. And some fear that what’s in their purse could lead to their incrimination.

Tanya B., a Latina transgender sex worker in Queens, testified in the report:

I was stopped and threatened. The cops said empty your purse.’ I cleared out everything but left the condoms at the bottom — I got caught. They said how come you didn’t pull out the condoms? I can arrest you because of this.’ I said it’s not a problem, I have no weapons, no drugs’ and the police officer said next time I will arrest you because this is evidence you are a prostitute.’

The war on prostitution is one of many controversial aspects of the city’s massive police apparatus, which has provoked public outrage over police profiling and abuse. Since sex workers are exposed not only to abuse but to racial, gender and sexual discrimination as well, the hostile climate police create leaves them especially marginalized and stigmatized. In New York, D.C. and Los Angeles, HRW documented harassment, sexual coercion and unjust imprisonment of sex workers as a tragically routine part of their work:

Transgender women described being defaced” by police who removed their wigs, threw them on the ground, and stepped on them. Police subjected transgender women to a constant barrage of vulgar insults, mockery, and disrespect. Most disturbing were reports in both New York and Los Angeles that some police regularly demanded sex in order to drop charges or coerced women into sex while in detention.

Police are seen by many sex workers not as protectors but potential predators. Brenda D., a transgender sex worker, recounted a recent encounter with NYPD impunity:

I went into a car with a person. He said he was a police officer and said if you help me I’ll help you.’ He said he wanted oral sex. He showed me a badge. He said if I didn’t have oral sex with him he would call the police and arrest me for prostitution.

For undocumented immigrants, the danger of sex work is aggravated by an immigration system that could turn an arrest into grounds for deportation:

Barbie M., an undocumented sex worker, described it, I pled guilty to prostitution, my lawyer said to plead guilty, I had no other option because if I didn’t plead guilty I would stay in jail and be deported.”

HRW researcher Megan McLemore told In These Times, Lawyers for women like Barbie told us that their clients were in an untenable dilemma — plead guilty or go to jail where ICE screens incoming inmates for immigration violations.” The threat of deportation may soon expand dramatically, now that the city is participating in Secure Communities, a federal program that expands police powers to screen people for immigration violations. 

Noting that the cities in the study had all launched major public health campaigns to prevent HIV/AIDS, especially among vulnerable populations like transgender women, McLemore remarked on the irony that city authorities shower the general public with condoms but confiscate them from sex workers: In each of these cities condom distribution is a highly visible campaign on the part of public health officials… Yet on the other hand the police are taking the condoms (often with the city logo on them!) out of the hands of those who need them most.” 

In the report, published to coincide with the 19th International AIDS Conference, HRW calls on law enforcement authorities of New York City, Washington, DC, Los Angeles, and San Francisco to Immediately cease using the possession of condoms as evidence” to apprehend, detain and prosecute people on sex work-related charges, and in New York, to enact legislation against discriminatory policing. Advocates also want police to be trained on why carrying condoms should be seen as, in fact, a wise thing for sex workers to do and not grounds for arrest. 

No matter what the NYPD or any other police department does, this is the oldest profession, it’s not going nowhere,” said Tiffany, trans former sex worker who now aids sex workers at the Positive Health Project. New York City should follow countries that have moved toward decriminalizing sex work, she said, by focusing on monitoring and providing health services to people in the sex trades. Here, you’re taking condoms from these girls. These girls are homeless, they’re addicted, they need their hormones, they’re trying to get surgery, and they’re taking chances. Because the client says listen, I’ll give you more money if you don’t use a condom.’ And a lot of them get tempted. And it’s horrifying. It breaks my heart, cause I’ve been there.”

While the debate rages over government’s role in policing prostitution, the government undoubtedly has a duty to protect public health and worker safety, and sex work entails risks that affect all communities. Andrea Ritchie, co-coordinator of the New York-based advocacy project Streetwise and Safe, told ITT, There should be no question that every individual has the right to health and safety — and eliminating a practice that deters or penalizes the use of condoms is essential to protecting the rights of all people involved in the sex trades.” 

If the government refuses to protect sex workers from brutality and exploitation, at the very least, it has no business taking away one of the only tools they have to protect themselves.

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Michelle Chen is a contributing writer at In These Times and The Nation, a contributing editor at Dissent and a co-producer of the Belabored” podcast. She studies history at the CUNY Graduate Center. She tweets at @meeshellchen.

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