July 24, 2012

Criminalizing Condom Possession Puts Sex Workers at Risk

The criminalization of condoms in major cities across the U.S. is preventing sex workers from carrying them, undermining million-dollar public health efforts, endangering sex workers and contributing to the HIV epidemic. This is the conclusion of an important study presented Tuesday, July 24, at the XIX International AIDS Conference (AIDS 2012) in Washington, DC.

HIV continues to be a major public health risk in the United States, where more than 1 million people are living with the virus and 1 in 5 don’t know their status. According to lead study author Megan McLemore, JD, of the Health and Human Rights Division of Human Rights Watch, those numbers rise dramatically and disproportionately when looking at high-risk populations, especially sex workers and transgender persons.

Criminalization of condoms has begun to exacerbate the problem, McLemore explained.

Condoms are a proven method of preventing HIV and other sexually transmitted infections (STIs) and in many cities across the U.S., access to free condoms is a major tenet of public health efforts. However, law enforcement officials have begun using the possession of condoms as evidence in criminal proceedings against sex workers, ultimately discouraging these individuals from carrying and using protection.

“This is prompting sex workers to ask: How can you be handing us a condom on the one hand, and then putting us in jail on the other?” McLemore said.

For the study, McLemore and her Human Rights Watch colleagues interviewed more than 300 individuals in four cities that were consistently reporting the use of condoms as evidence of prostitution: New York, Los Angeles, Washington, DC and San Francisco. The group consisted of 197 current and former sex workers and more than 110 outreach workers, advocates, lawyers, public health officials and police officers.

In all four cities, the survey results showed, the suspicion of prostitution prompted law enforcement officials to stop and search individuals for condoms.

In three cities—New York, Los Angeles and Washington, DC—officials arrested sex workers, relying on condom possession as probable cause.

In three cities—New York, Los Angeles and San Francisco—officials used condom possession as evidence to prosecute.

According to the study, there are two reasons why this is both a human rights problem and a public health issue.

First, it promotes a fear of arrest—especially for transgender women—that deters them from protecting themselves against HIV.

Second, criminalizing condom use promotes misinformation. Transgender sex workers repeatedly asked the Human Research Watch researchers how many condoms were considered legal to carry. When told that it is legal to carry as many as they chose, McLemore said they were shocked, proving that even one condom-related arrest can have a devastating effect on safer sex efforts.

The study outlined key recommendations for better practices and protection of human rights. The recommendations are also highlighted in a Human Rights Watch report called "Sex Workers at Risk," which is available online.

First, police departments and district attorneys in all four cities should stop using the possession of condoms as evidence to arrest, question or detain anyone suspected of sex work or to support criminal proceedings of prostitution. These offices should also improve police training on HIV prevention and underscore the important of condoms for HIV and STI prevention as well as for sexual and reproductive health.

Next, the legislatures of New York, California and the District of Columbia should enact legislation that prohibits the use of condoms as evidence, and reform or repeal vague laws that prohibit loitering for purposes of prostitution. These laws, McLemore explained, afford a too-broad range of power to law enforcement officials and invite profiling of minorities and transgender women.

Finally, the Human Rights Watch is asking that all agencies recognize that human rights abuses—notably interfering with HIV prevention efforts—pose significant barriers to reducing HIV among high-risk groups, that agencies ensure the inclusion of sex workers and transgender women in working groups, that they call upon states to prohibit the use of condoms as evidence of prostitution and that they investigate the police abuse of sex workers and transgender persons

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Previous Comments:

Kevin, , 2012-09-07 02:23:49
I think Patrick has it right. If the local AIDS service org in those cities would encourage everyone to carry condoms, then the defense attorneys can argue that possession of condoms proves nothing.

Rafa, Rio de Janeiro, 2012-08-03 09:04:20
I think the federal system in USA is the main reason of these case. In Brazil the criminal law is federal (just one applied for all country). So this fact easyly would be considered unconstitutional. HIV Criminalization is also considered unconstitucional according to Federal Brazilian Supreme Court. In USA, the laws depending on each State which can have more or less conservative tradition.

BREALNYC, New York, 2012-07-26 15:06:04
Any excuse for the morality police to punish anyone who doesn't adhere to their moral code. I suppose that morality is more of an art and who cares about consistency or reality when you can score political points and punish people for having sex?

dianeb, Texas, 2012-07-26 10:53:42
Utterly ridiculous!!! New York, Los Angeles, Washington, DC and San Francisco have high rates of HIV - are they trying to make it worse???

sam`, san fran., 2012-07-26 09:13:49
We are supposed to be one of the most educated countyries out there but it seems time and time again that we are so ass back wards. Lets step it up into the 2000's and not the 1800's.

Patrick, Fresno, CA, 2012-07-25 21:16:48
This doesn't surprise me, nobody said you have to be educated to be a cop. Condoms should be the last thing they are looking for, everyone should carry one to prove a point. They may be guilty as well.

Jacques Cambell, , 2012-07-25 20:26:00
I can't believe this article. Possession of a condom is being criminalized?! This can't be true. All the outreach, donating condoms to sex workers and teens goes down the drain -- and the HIV infection rate may rise as a result. How about vice police doing real policing, not relying on possession of a condom?

Deibster, Provincetown, MA, 2012-07-25 10:50:07
This is utterly absurd and will increase the cost of health care for decades to come. Are we going Backwards, 30 years, to the days of President Reagan when the bureaucracy wouldn't mention HIV/AIDS?