New York's Condom Bait-and-Switch

Department of Health hands them out, NYPD arrests people for carrying them. Is this about improving public health—or arrest numbers?

The issue of condoms as evidence is not new to New York City. One judge who presided over prostitution-related cases in Queens for years first saw prosecutors try to use condoms as evidence 20 years ago. Marilyn, a former sex worker, says she was arrested in Hunts Point in the early 1990s. “I was arrested for carrying condoms,” she recalls as she sits in the Bronx storefront office of New York Harm Reduction Educators, a nonprofit that does grassroots outreach for drug users and prostitutes, where she is now a peer educator. “When they did the sweeps, if you had condoms on you, they would take you with them and charge you with loitering, soliciting,” she says. “I have an arrest record with that.”

Outside the white van on Surf Avenue stands a clear bucket the size of a tall kitchen trash can. It bears a sign: "Please take condoms. FREE! Coje los Condomes. SON Gratis!" Dozens of passersby, men and women, reach into the bucket throughout the day, grabbing individually sealed plastic bags, each filled with 12 NYC Condoms. Some take only one bag, and others take as many as four. Inside the van, a cardboard box sits next to Jennifer Gonzalez-Hermides. It is labeled prominently: "NYC Condoms. Quantity: 1008." The last time Gonzalez-Hermides was arrested, two and a half years ago, she had just come from the van, she says, and she was “carrying tons of condoms.”

The Department of Health is flooding the city with free condoms, and the police department is using those very condoms to make the quality-of-life arrests that are clogging the courts. It is difficult to avoid the impression that the NYPD is deliberately seeking to increase quality-of-life arrests—perhaps even meet quotas—with arrests that are blatantly at odds with the city’s own public-health policy. (The NYPD did not respond to repeated requests for comment.)

The Department of Health distributed 35.5 million NYC-brand condoms last year.
Kelly Schott
The Department of Health distributed 35.5 million NYC-brand condoms last year.
A bucket filled with free NYC condoms on the sidewalk outside an outreach van in Coney Island.
Emily Gogolak
A bucket filled with free NYC condoms on the sidewalk outside an outreach van in Coney Island.

“I hope these arrests aren’t just being generated for numbers reasons,” says Eugene O’Donnell, a former New York City police officer and prosecutor and now a lecturer at John Jay College of Criminal Justice. “I think the public-health concern really has to be weighed heavily.”

The pressure has been building on the Department of Health to take a stand. “I have represented transgender women who have been charged with loitering for purposes of prostitution who had on their arrest evidence sheet ‘nine NYC Condoms,’ ” says Andrea Ritchie, a co-organizer for Streetwise and Safe, an advocacy group for LGTBQ youth of color. “If I were the Department of Health, I would find that outrageous.”

Sienna Baskin, co-director of the Sex Workers Project at the Urban Justice Center, started researching the issue in 2009. She assumed the Department of Health would be a natural ally, and at first it was. In 2010, the DOH and the PROS Network (Providers and Resources Offering Services to sex workers), a New York City coalition of sex workers, organizers, and service providers, conducted a joint study on the public-health effects of using condoms as evidence. But then, in December 2010, the DOH decided not to release the study. (The official DOH position is that the study was an internal document, and a Department of Health spokesperson would not comment further on the record.) The Sex Workers Project and the PROS Network spent the following year redoing the study themselves, and Human Rights Watch filed a Freedom of Information Act request for the 2010 joint study.

The request was granted, and the document was published as an appendix in the PROS Network study in April 2012, with consistent results. “It’s not a myth. The practice of using condoms as evidence is very prevalent in New York,” Baskin says. “And many sex workers are afraid to carry condoms.” According to the redacted Department of Health study that was obtained by Human Rights Watch, 57 percent of respondents had condoms confiscated by the police. And over 45 percent of participants in the PROS Network study reported not carrying condoms at some point out of fear of police repercussions. “This is incompatible with the city’s public-health efforts,” says Margaret Wurth, a public-health consultant to Human Rights Watch.

Perhaps it will take a new law to make clear that arresting people because they are in possession of condoms that are not only legal to possess but are distributed to them by the city itself amounts to something that looks an awful lot like entrapment and a civil-rights violation. A bill that is pending in the New York State Legislature would stop police and prosecutors from using possession of condoms as evidence of prostitution. The legislation was first introduced by Brooklyn Democratic state senator Velmanette Montgomery in 1999. Reintroduced every year since, it has regularly died in committee. But it was reintroduced again in mid-January as the “No Condoms As Evidence Bill,” sponsored by Montgomery and Queens Democratic Assemblywoman Barbara M. Clark, and after the release of the reports last year, there is a new push for the legislation to pass this session. If it does, it will be the first state legislation to take a policy stance on this issue.

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