Carrying a condom in New York could lead to your arrest. Why? Because it is legal for law enforcement to cite condom possession as evidence that a person engaged in prostitution. Targeting condoms, however, is an ineffective deterrent to prostitution and threatens public health. The practice also contributes to police discrimination against New York’s LGBT community. Thankfully, the city’s five district attorneys can end the policy without having to wait for Albany lawmakers to fix the problem. So it’s time to act.
Law enforcement is inadvertently discouraging sex workers from using protection without actually keeping them from engaging in prostitution. Multiple studies have found that sex workers are opting not to carry condoms for fear of being prosecuted. In addition to the thousands of formal prostitution prosecutions in New York City every year, the NYPD routinely seizes condoms from suspected sex workers without actually making arrests. These efforts at deterrence are obviously not working: In one recent study, 20 percent of local sex workers reported that they engaged in unprotected sex mere hours after police confiscated their condoms. Every one of those cases represents a potential new infection of a sexually transmitted disease.
Targeting condoms is directly at odds with New York City’s public health agenda. There are at least 110,000 people with HIV/AIDS in New York–many more are unaware of their condition–and the rate of new infections is three times the national average. The city distributes tens of millions of free condoms every year to battle the spread of HIV/AIDS, yet law enforcement is discouraging their use. This is both absurd and dangerous.
NYPD searches for condoms also contribute to police harassment against the LGBT community. As Make the Road New York noted in a recent report, transgender New Yorkers–especially those of color–are stopped and questioned by the police more frequently than the rest of the population. Make the Road and Human Rights Watch documented multiple instances of transgender New Yorkers being harassed, profiled, accused of prostitution because police discovered they were carrying condoms. There is absolutely no reason for New Yorkers, of whatever color or sexual identity, to worry that simply carrying condoms could lead to their arrest.
Since 1999, Democrats in the state legislature have proposed a law to bar the use of condoms as evidence. The bill has faced opposition from a number of quarters, including my opponent in this year’s election for Brooklyn district attorney, incumbent D.A. Charles Hynes. Hynes has said that he opposed “any law that would restrict [his] use of evidence.” In fact, police in Brooklyn are specifically ordered to document the number of condoms they seize when arresting suspected sex workers.
D.A. Hynes’ evidentiary concerns are both unwarranted and outweighed by public health and civil rights considerations. As Nassau County D.A. Kathleen Rice argued, condoms provide “nearly worthless” evidence to prosecutors. Ending the condoms-as-evidence is actually an opportunity to strengthen law enforcement efforts. Police could focus on collecting more compelling forms of evidence through techniques like undercover stings and surveillance. Our priority should be to arrest human traffickers and others who prey on vulnerable people, and it will take more than circumstantial condom evidence to put them behind bars.
New York prosecutors should study Rice’s example for another reason: Last year she ordered prosecutors in her office to stop using condoms as evidence of prostitution. Rice showed that a D.A. has the authority to unilaterally end the condoms-as-evidence policy, at least in her own jurisdiction.
As a general philosophy, I believe it is time for New York’s District Attorneys to stand up and help reform abusive or counter-productive law enforcement policies. When it comes to condoms-as-evidence, the case is clear: the policy undermines vital public health efforts, facilitates discrimination, and does little to help fight crime. I urge the New York State legislature to ban the practice altogether. But New Yorkers should not have to wait for Albany to act. The five District Attorneys should immediately order prosecutors not to use condoms as evidence of prostitution. By exercising their authority and showing some leadership, the D.A.s can make the city healthier and safer for everyone.
Abe George is a former prosecutor and candidate in the 2013 Democratic primary for Brooklyn District Attorney.