In 2007, then-Governor of New York Eliot Spitzer signed into law human trafficking legislation meant to undercut the demand for prostitution. The law elevated patronizing prostitutes from a Class B misdemeanor, which can carry a maximum of three months incarceration and a $500 fine, to a Class A misdemeanor, which carries a maximum of one year in prison and a $1,000 fine. While prostitution in New York is far from being the problem it is in other states, a number of high-profile cases — including that of the aforementioned former governor — convinced state legislators and prosecutors that a tougher stance was needed.
Some state legislators, however, feel that the state’s approach may be too tough, especially in consideration of circumstantial evidence. The New York State Legislature is currently considering passing a bill that would ban the use of the possession of multiple condoms by an individual as proof of intent to solicit a prostitute. This legislation would make New York the first state that would remove condoms from the list of circumstantial evidence that can be used in prostitution cases — a widespread trend among law enforcement that penalizes the free distribution of condoms and decades of public health advocacy. China stopped using condoms as evidence in prostitution cases in 2007.
“There may be no actual evidence, and the condom is their only way to trying to prove it,” said Hawk Kinkaid, a former male escort who is now an advocate for male escorts. “The fear that this will be used against you — it prevents people from being able to protect themselves.”
As New York state has one of the largest free condoms programs in the United States, the law makes it easy to successfully prosecute alleged johns and sex workers — who must carry condoms as a precaution — with little more than an allegation. This ease of prosecution has led to an increasing number of prosecutors rejecting the practice, arguing that the benefit in securing convictions is not worth the hit to public health if the public shuns free condoms or carrying condoms in public.
“Sex workers are more likely victims than they are criminals, and condom evidence was rarely of any value to a prosecution,” said Kathleen Rice, district attorney of New York’s Nassau County. “If you need that condom so badly in the case against a trafficker, then you don’t have a good case.”
The state Legislature attempted to remove condom possession from the evidence list in 2012, but heavy lobbying from the New York Police Department helped to defeat the effort. The NYPD has indicated that it still opposes a ban, but would consider reviewing its use of condoms-as-evidence in its arrests.
The use of condoms-as-evidence has had a noticeable effect, as an increasing number of johns are soliciting prostitutes without protection.
“We have heard from clients so often that they’re afraid to carry condoms because of police harassment that we know it’s having a public health impact,” said Sienna Baskin, co-director of the Sex Workers Project, in 2012. “This would be New York taking a leadership role and addressing an issue other states haven’t yet addressed.”
In a 2009 survey of 35 New York City sex workers, 16 indicated that they do not carry condoms out of concern they’ll be used as evidence. A 2010 New York City Department of Health study of more than 60 sex workers indicated that more than half have had their condoms confiscated by the police.
The bill passed the Democrat-controlled state Assembly last year. The Republican-controlled Senate will take up the bill when it reconvenes next month.
“The presence of a condom doesn’t tell you anything about what is happening with a person,” said Darby Hickey, an advocate for sex workers in Washington. “It’s really just the tip of the iceberg of the way in which we as a society treat people in the sex trade — or people we presume are involved.”