New York Considers Ban on Viewing Condoms as Evidence

Written By Tracy Manzer, Senior Editor

In a nod to public health practices, New York may become the first state in the nation to prohibit the use of condoms as evidence in prostitution cases, according to the Washington Post.

The push for the law stems in part from the estimated millions that New York City spends every year in the distribution of free condoms to combat sexually transmitted diseases, such as AIDS, and to prevent unwanted pregnancies. The practice of law enforcement using the possession of condoms, specifically multiple condoms, has come under fire across the nation, with prosecutors in Brooklyn and Nassau County, as well as San Francisco, Calif., announcing their offices will no longer use condoms as evidence in prostitution allegations.

The Washington Post quotes Nassau County District Attorney Kathleen Rice as determining the so-called benefits of using condoms as evidence fail to outweigh the benefits of public health protection. In her comments, Rice noted that the vast majority of prostitution cases do not go to trial — as they are typically resolved with plea agreements — and that the far more serious allegations of sex trafficking require much more evidence to successfully prosecute.

Still, the newspaper notes, previous attempts at such legislation have failed in New York. Even with the growing number of prosecutors’ offices turning against the use of condoms as evidence, the New York Police Department has so far only consented to reviewing its policy of using condoms as evidence. The NYPD makes an estimated 2,500 prostitution arrests ever year and has long opposed the idea of abolishing the use of condoms as evidence in such arrests.

The article goes on to quote numerous sex workers and public health care workers in New York, Los Angeles, and other cities who witnessed, or experienced, arrests based upon possession of condoms. They are hopeful that the New York bill will finally gain the support it needs, though Assemblyman Richard Gottfried, a Manhattan Democrat, noted wryly, “Sex workers are not a politically appealing constituency to most lawmakers.”

The issue, however, goes far beyond sex workers, though they have every right to have access to protection. Recent rumors that anyone in Washington, DC with more than three condoms could be arrested for prostitution spread fear in the District. Advocates of transgender communities and sex workers were able to work with DC law enforcement, which has since refined its policy. Informational cards were also distributed to make it clear that no one would be arrested for carrying condoms, regardless of the number.

Aside from the obvious criminal defense argument that simply possessing condoms is laughable as proof of alleged prostitution, there is a basic issue of decency and humanity at play here. Despite years of medical and scientific gains against AIDS, the U.S. continues to see increases in new cases of the deadly disease in certain communities; particularly among gay, bisexual, and other men who have sex with men, as well as heterosexuals and injection drug users, according to the Centers for Disease Control and Prevention. Blacks and African Americans also continue to suffer the most severe burden of HIV compared with all other races and ethnicities, the CDC states in an online report which you can read in full here.

Given these sobering statistics, it would seem that every state – and law enforcement and prosecutorial agency – across the country should be revising policies that regard condoms as evidence. The health and welfare of tens of thousands of Americans who are diagnosed with AIDS every year is a far more serious offense, at least in this law firm’s view.