What You Should Know About Condoms As Evidence

What You Should Know About Condoms As Evidence

Over the past few years, the problematic use of “condoms as evidence” has caught public attention.

Research, activism, and legislative action have all recognized that there are significant dangers at play when the criminal and/or legal systems see condom possession as evidence of prostitution. But let’s back up for a moment—what exactly is “condoms as evidence?”


What’s the issue?

“Condoms as evidence” or “condom criminalization” refers to the practice, by police and/or prosecutors, of using the fact that someone is carrying condoms as evidence that they are engaging in criminal offenses related to prostitution.

The criminalization of condom possession has been criticized as a risk to public health. It creates a disincentive from carrying condoms and thus being able to practice safer sex—particularly for people who already live in fear of being stopped by the police. It means that sex workers, to avoid arrest, must put themselves at risk of contracting HIV and other sexually transmitted infections (STIs), as well as unwanted pregnancy. It also means traffickers may be less likely to allow their victims access to condoms, so the use of condoms as evidence creates a more dangerous environment for those whom anti-trafficking laws should be designed to protect

In addition, certain populations are at a far higher risk of dealing with the consequences of “condoms as evidence” whether or not they are actually engaging in sex work. Police tend to profile trans women and gender nonconforming people, particularly if they are people of color, as sex workers. The use of condoms as evidence of prostitution means that these populations are at a higher risk for negative police contact, including arrest, based on nothing more than their appearance and the fact that they have condoms on them.

In the words of the New York Access to Condoms Coalition, “No one should be forced to choose between safer sex and arrest, regardless of whether the person is engaged in sex work or profiled as such.”

What does the research say?

Several major studies address the issue of condoms as evidence. At the July 2012 International AIDS Conference in Washington, D.C., Human Rights Watch published a study examining the effects of the practice in New York City, Washington, D.C., Los Angeles, and San Francisco. Through interviewing more than 300 sex workers, outreach workers, advocates, lawyers, public health officials, and police officers across the four cities, HRW found that law enforcement officials were likely to stop and search people for condoms based on the officials’ suspicion of prostitution, as well as to use condom possession as probable cause for arresting sex workers (in all but San Francisco) and to use condom possession as evidence to prosecute (in all but D.C.). The study reported that the fear of arrest, especially for trans women, was a deterrent from protecting against HIV, and that the practice created a misperception that carrying condoms is, in and of itself, illegal.

Also in 2012, the Open Society Foundations published a separate study on the risks of condom criminalization in Kenya, Namibia, Russia, South Africa, the U.S., and Zimbabwe. It reports:

“Officially sanctioned and unsanctioned police practices work in concert to compromise sex workers’ health and safety. The criminalization of sex work and use of condoms as evidence make sex workers particularly vulnerable to police abuse. This report documents that police in all six countries harass and physically and sexually abuse sex workers who carry condoms and use the threat of arrest on the grounds of condom possession to extort and exploit them.”

And in 2013, the Journal of the International AIDS Society published a paper, advocating for the decriminalization of sex work, which found a high HIV prevalence in female sex workers and transgender women. The study found that the police using condoms as evidence led to a decrease in condom use among those vulnerable populations, which further increased the risk of HIV transmission.

The use of condoms as evidence relates back to many important issues: abusive police behavior, whether or not to decriminalize sex work, and the issues of who is most sexually vulnerable in our society and who has access to sexual agency through things like safer sex methods.


What changes have we seen?

Current and former sex workers and their allies have drawn attention to these risky, discriminatory, and ineffective police practices in several places such as California and New York. In San Francisco, the use of condoms as evidence led individuals and businesses not to take full advantage of the health department’s free distribution of condoms, an important aspect of the city’s fight against HIV and AIDS. Under pressure from activists in the community, various non-profit organizations, and the San Francisco Human Rights Commission, in April 2013 the District Attorney’s office and the San Francisco Police Department banned the practice. In September 2014, California adopted statewide legislation limiting the possible use of condoms as evidence. And in New York City, the NYPD announced in May 2014 that it would stop using condoms as evidence of some, but not all, prostitution-related offenses.

There is still work to be done. In the U.S. and worldwide, there needs to be more attention drawn to this practice where it is used. And where legislation exists limiting the use of condoms as evidence, it is often inadequate; for example, the original bill introduced in the California Assembly universally prohibited the use of condoms as evidence of prostitution, but in order to pass it was amended. It now requires courts to state that condoms are specifically relevant to the case at hand if prosecutors want to use them as evidence of prostitution-related offenses. And in New York, condoms are still used as evidence in cases of sex trafficking, though the same groups that have been advocating for years against the use of condoms as evidence are organizing around legislation to ban the use in all cases, including trafficking cases.

Let’s keep talking about this issue, and pushing back against it. As more research and action emerges around the criminalization of condom possession, we will hopefully see more legislation prohibiting it, and deeper conversations linking it to the broader issues at play.