As we approach LGBT Pride weekend, it is worth noting that San Francisco's leadership in fighting the HIV epidemic is alive and well. Under a new policy, San Francisco law enforcement no longer will use condoms as evidence of misdemeanor prostitution charges. The practice of making condoms part of an arrest made some sex workers reluctant to carry condoms, the most effective tool for preventing sexually transmitted diseases.
This very mixed message undermined the health department's efforts to distribute millions of condoms a year, particularly to sex workers, transgender women and others highly vulnerable to HIV.
In 1994, sex workers and their allies first challenged the practice of making condoms part of an arrest. After a series of heated public hearings, the Board of Supervisors passed a resolution urging the police and district attorney to end the practice, finding that "the law enforcement value of condoms as indirect evidence of prostitution-related crimes is exceeded by the AIDS prevention value of condoms."
Then-District Attorney Arlo Smith agreed, and suspended condom collection. But condoms gradually were used again to support prostitution arrests, massage parlor raids and other law enforcement activities.
Until a few months ago, the San Francisco Police Department photographed condoms that people accused of prostitution were carrying and included them in the evidence package sent to prosecutors. As a practical matter, the effect of photographing the condoms was the same as the old practice of taking them away.
The St. James Infirmary, a San Francisco clinic that offers medical and social services to sex workers, documented that sex workers were refusing to take more than one or two condoms. Strip clubs removed condoms from their outreach materials before permitting them to be distributed to the women working inside.
In massage parlors, owners hid condoms in bleach containers or refused to make them available at all. In July 2012, Human Rights Watch documented the health risks of criminalizing condoms in San Francisco and three other major cities in the United States.
The San Francisco Human Rights Commission got involved. Invoking the "San Francisco model," the commission invited not only the district attorney and police department but sex workers and antitrafficking groups, the public defender, the Board of Supervisors, the Mayor's Office, Department of Public Health and the Office of Civilian Complaints that monitors the police.
To their credit, everyone showed up. More important, they sent someone who had the authority to make a decision. Misunderstandings were cleared up on the spot. Police said they would follow instructions - if prosecutors didn't want condoms, the officers would not collect them.
District Attorney George Gascón agreed to suspend the use of condoms as evidence for a 90-day period, later extended to 180 days, to assess whether the absence of condoms interfered with enforcement of the laws. On March 30, the district attorney told the Human Rights Commission that it had would no longer introduce condoms as evidence in its criminal prosecution cases.
Gascón noted that, "After six months of evaluating the arrests made by the SFPD and the outcome of the cases we charged, I feel confident that the public safety concerns can be addressed without endangering the health of sex workers."
There are still outstanding issues to resolve. Condoms can still be collected in prosecuting sex trafficking cases despite concerns by antitrafficking groups and others that this will make condoms less available for the victims. Reports from Los Angeles, El Monte, Fresno and other California cities suggest that the practice might need to be banned statewide, and a bill has been introduced in Sacramento.
But by refusing to criminalize condoms for misdemeanor prostitution cases, San Francisco demonstrated the value of leadership through collaboration and found a way to balance public health with criminal justice. Of this, San Franciscans can certainly be proud.
