Access Denied: Limited ban on the use of condoms as evidence doesn't help anybody, much less the people who most need it.

Access Denied: Limited ban on the use of condoms as evidence doesn’t help anybody, much less the people who most need it.

Access to condoms advocates are celebrating a victory with the inclusion of a partial ban on the use of condoms as evidence in the final New York State budget agreement. And, as stated by my colleague Bianey Paraguya of Make the Road and I in our recent op-ed for Gotham Gazette, we deserve a victory lap. The ban on condoms as evidence for two misdemeanor offenses, loitering for the purposes of prostitution and simple prostitution, is a testament to years of tireless work by advocates and legislators  recognizing the vital role of condoms as a public health tool.

Up until very recently, many held the incorrect position that this effort was part of a movement to decriminalize sex work. To progress from the point where even moderate liberals and conservatives were unwilling to take this issue on, to a place where this issue is prioritized at the highest level of governance, is a feat of dedication, courage and commitment. However, it is a dangerous mistake to go as far as to claim, as some do, that this victory addresses the vast majority of relevant cases of condoms used as evidence and we can therefore end our advocacy here.

It is nearly impossible to quantify with any measure of accuracy how many people are impacted by the use of condoms as evidence. No one is tracking how often condoms are used as evidence in court. Even if this tracking system existed, it overlooks that most prostitution related cases are settled with a plea agreement and never make it to court at all. Rather than pushing back against court procedure, the need for the ban is a direct response to police practices of confiscating condoms as a mode of harassment that usually targets LGBTQ people who engage in sex work or are profiled as sex workers. Simply citing that the majority of prostitution related charges fall under one of the two offenses included in the partial ban overlooks the real-life circumstances that this campaign was initiated to address.

What we do know is that police are likely to circumvent the partial ban by up-charging and increasing their use of charges that are not included in the ban. For example, they may seek out opportunities to charge an individual with prostitution in a school zone rather than simple prostitution. We can also expect they will more often charge alleged clients of patronizing prostitutes, allowing them to confiscate condoms in cases of simple prostitution. With such a narrow ban, there are scores of work arounds for over enthusiastic cops to take advantage. Other police who lack the expertise to discern under what circumstances the ban applies will continue confiscating condoms out of ignorance of the specifics of the law.

Perhaps most importantly, ending our work with this partial victory abandons a minority of people who are in the most dire need of protection. The use of condoms as evidence against traffickers and pimps creates a perverse incentive for these exploiters to prevent their victims from accessing condoms for fear that they will be used against them in criminal proceedings. Youth in the sex trade are less likely to carry condoms when sex trafficking related offenses are excluded because federal law defines all people under 18 who trade sex as trafficking victims. As long as condoms are allowed as evidence to prosecute sex trafficking we cannot equivocally advise youth that condoms are never a criminal liability. Young people will continue to perceive condoms as a potential threat to themselves and their friends.

Good public policy is not a numbers game or a race to the finish line. The partial access to condoms victory in this year’s budget does not signify an end point but a rallying call toward a comprehensive solution. Advocates should take pride in what they’ve accomplished while channeling their renewed energy and optimism toward a complete end to the criminalization of condoms in New York State.

For more information or to get involved in this campaign contact VOCAL-NY organizer Anna Saini at anna[at]vocal-ny[dot]org

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