July 19, 2012

Summary

If I took a lot of condoms, they would arrest me. If I took a few or only one, I would run out and not be able to protect myself. How many times have I had unprotected sex because I was afraid of carrying condoms? Many times. –Anastasia L., sex worker, New York City, March 22, 2012

Felicia C. is a sex worker in the Columbia Heights neighborhood of Washington, DC. When Human Rights Watch met Felicia, it was 2 a.m. on a cold and windy morning. Felicia ran over to an outreach van to get a warm cup of coffee from the volunteers. She took the “bad date” sheet that warns of recent attacks on sex workers, and was offered some condoms. She would not take more than two. When asked why, she said she was afraid to be harassed by the police. She said that a month earlier, she had been stopped and questioned by police and told to throw her condoms into the garbage. She said she’d held her ground and refused, but she didn’t want to be harassed again.

Felicia’s story is not unique. In four of the nation’s major cities—New York, Washington, DC, Los Angeles, and San Francisco—police stop, search, and arrest sex workers using condoms as evidence to support prostitution charges. For many sex workers, particularly transgender women, arrest means facing degrading treatment and abuse at the hands of the police. For immigrants, arrest for prostitution offenses can mean detention and removal from the United States. Some women told Human Rights Watch that they continued to carry condoms despite the harsh consequences. For others, fear of arrest overwhelmed their need to protect themselves from HIV, other sexually transmitted diseases and pregnancy.

Alexa L., a New York City sex worker, said, “I use condoms. I take a lot of care of myself. But I have not used them before because I was afraid of carrying them. I am very worried about my health.” Carol F., a sex worker in Los Angeles who had been arrested partly on the basis of carrying condoms, had a similar story: “After the arrest, I was always scared…There were times when I didn’t have a condom when I needed one, and I used a plastic bag.”

Prostitution—the exchange of sex for money or other consideration—is illegal in 49 states and in all of the cities addressed in this report. Law enforcement agencies in these jurisdictions are charged with enforcing laws, including those relating to prostitution. Enforcement, however, must be compatible with international human rights law and governments should ensure that police policies and practices do not conflict with equally important public health policy imperatives, including those designed to curb the HIV epidemic.

Police stops and searches for condoms are often a result of profiling, a practice of targeting individuals as suspected offenders for who they are, what they are wearing and where they are standing, rather than on the basis of any observed illegal activity. In New York, Washington, DC, and Los Angeles, many people, particularly members of the transgender community, told Human Rights Watch they were stopped and searched for condoms while walking home from school, going to the grocery store, and waiting for the bus. Vague loitering laws invite interference with the right to liberty and security of the person, permitting police to consider a wide range of behavior and other factors suspicious, including possession of condoms and being “known” as a sex worker. The anti-prostitution loitering laws in New York, California, and Washington, DC are inconsistent with human rights principles prohibiting detention or punishment based on identity or status and should be reformed or repealed.

Sex workers in New York, Washington, DC, and Los Angeles described abusive and unlawful police behavior ranging from verbal harassment to public humiliation to extortion for sex, both in and out of detention settings. Transgender women described being “defaced” by police who removed their wigs, threw them on the ground, and stepped on them. Police subjected transgender women to a constant barrage of vulgar insults, mockery, and disrespect. Most disturbing were reports in both New York and Los Angeles that some police regularly demanded sex in order to drop charges or coerced women into sex while in detention. Few of these women filed complaints, fearing further abuse and having lost faith in police to respond with fairness and integrity. Police officials in each of these cities should take action to increase accountability, restore community trust, and end an unacceptable cycle of impunity for human rights abuses against sex workers and transgender persons.

Human Rights Watch interviewed more than 300 persons for this report, which focuses on police use of condoms as evidence to enforce prostitution and sex trafficking laws, as part of an investigation into barriers to effective HIV prevention for sex workers in the four cities covered by this report. Those interviewed included nearly 200 sex workers and former sex workers as well as outreach workers, advocates, lawyers, police officers, district attorneys, and public health officials. In New York, Washington, DC, and Los Angeles our investigation focused on complaints of police using condoms as evidence while targeting sex workers on the street. In San Francisco, condoms were used as evidence for street enforcement to some extent, with police photographing rather than confiscating condoms, in what appeared to be a dubious nod to public health concerns. In San Francisco, much of the anti-prostitution enforcement using condoms as evidence targeted women working in businesses such as erotic dance clubs, massage businesses, and a nightclub with transgender clientele.

Police use of condoms as evidence of prostitution has the same effect everywhere: despite millions of dollars spent on promoting and distributing condoms as an effective method of HIV prevention, groups most at risk of infection—sex workers, transgender women, and lesbian, gay, bisexual, and transgender (LGBT) youth—are afraid to carry them and therefore engage in sex without protection as a result of police harassment. Outreach workers and businesses are unable to distribute condoms freely and without fear of harassment as well.

Sex workers and transgender women are highly vulnerable to HIV infection as a result of many factors including stigma, social and physical isolation, and economic deprivation. In San Francisco one of three transgender women has HIV; in Los Angeles the Department of Health has identified HIV prevention for transgender women as an “urgent” priority. It is not surprising that those on the front lines are confused about the message city governments are sending on condom use. Maria, a sex worker in Los Angeles asked, “Why is the city giving me condoms when I can’t carry them without going to jail?” Ironically, if Maria went to jail in Los Angeles or any of the cities addressed in this report she could get a condom, as condoms are available in detention settings for prevention of HIV and other sexually transmitted diseases.

Police and prosecutors defended the use of condoms as evidence necessary to enforce prostitution and sex trafficking laws. However, the use of any type of evidence must be determined by weighing the potential harm that occurs from its use and the benefits provided. In legal systems everywhere, categories of potentially relevant evidence are excluded as a matter of public policy, with laws excluding testimony regarding a rape victim’s sexual history providing but one of many examples. Law enforcement efforts should not interfere with the right of anyone, including sex workers, to protect their health. The value of condoms for HIV and disease prevention far outweighs any utility in enforcement of anti-prostitution laws.

In the summer of 2012, Washington, DC will be hosting the 19th International AIDS Conference. As more than 30,000 delegates from all over the world converge on the nation’s capital, the US response to the epidemic will be in the spotlight. This is an extraordinary opportunity for the city of Washington, DC as well as the cities of New York, Los Angeles, and San Francisco to enact policies that protect those at risk of HIV and to eliminate those that undermine HIV prevention such as the use of condoms as evidence of prostitution.

Strong federal leadership is also needed. The US government provides millions of dollars of funding to each city addressed in this report to prevent HIV among groups at high risk of HIV infection. Condoms as evidence of prostitution should be identified as a barrier to implementing the National HIV/AIDS Strategy and federal, state, and municipal agencies should work together toward its elimination. Most importantly, the US recently pledged at the United Nations Human Rights Council to protect the human rights of sex workers, a commitment that should begin without delay. A critical step towards meeting this obligation would be to call for the end to the use of condoms as evidence of prostitution, a policy that endangers the health and lives of sex workers, transgender persons, LGBT youth, and all members of the community.

Key Recommendations

To the Police Departments and District Attorneys of New York City, Washington, DC, Los Angeles, and San Francisco

  • Immediately cease using the possession of condoms as evidence to arrest, question, or detain persons suspected of sex work, or to support prosecution of prostitution and related offenses. Issue a directive to all officers emphasizing the public health importance of condoms for HIV prevention and sexual and reproductive health. Ensure that officers are regularly trained on this protocol and held accountable for any transgressions.

To the Legislatures of New York State and California and the District of Columbia Council

  • Enact legislation prohibiting the possession of condoms as evidence of prostitution and related offenses.
  • Reform or repeal overly broad laws prohibiting loitering for purposes of prostitution as incompatible with human rights and US constitutional standards.

To the United States Government

  • The Office of National AIDS Policy and the federal agencies charged with implementing the National HIV/AIDS Strategy should:
    • Recognize that human rights abuses such as interference with a means of HIV prevention are significant barriers to reducing HIV among sex workers, transgender persons, LGBT youth, and other vulnerable groups and prioritize structural interventions to address those abuses;
    • Ensure the inclusion of sex workers and transgender women in the efforts of the Working Group on the Intersection of HIV/AIDS, Violence against Women and Girls, and Gender-related Health Disparities;
    • Ensure that HIV research and surveillance data adequately reflects the impact of HIV on sex workers and transgender persons;
    • Call upon states to prohibit the use of condoms as evidence of prostitution and related offenses, and develop a plan to provide guidance, technical assistance, and model legislation to accomplish this objective.
  • The Department of Justice should investigate the treatment by police of sex workers and transgender persons in New York City, Washington, DC, and Los Angeles. The Department should provide ongoing review, enforcement and oversight to ensure that policies and practices comply with human rights and US constitutional standards.