Sex Workers at Risk From Condom Policy
July 19, 2012

Sex workers in each city asked us how many condoms it was legal to carry. One woman in Los Angeles told us she was afraid to carry condoms with her and sometimes had to use a plastic bag instead of a condom with clients to try to protect herself from HIV.

Megan McLemore, senior health researcher
(Washington, DC) – Police in New York, Los Angeles, Washington, DC, and San Francisco are confiscating condoms from sex workers and transgender women, undermining health department campaigns to reduce HIV, Human Rights Watch said in a report released today.

The 112-page report, “Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities,” documented in each city how police and prosecutors use condoms to support prostitution charges. The practice makes sex workers and transgender women reluctant to carry condoms for fear of arrest, causes them to engage in sex without protection, and puts them at risk of HIV and other sexually transmitted diseases. The report was released prior to the 19th International AIDS Conference, in Washington, DC, starting on July 22, 2012. The US response to the epidemic will be in the spotlight before 20,000 delegates gathered from around the world. The four cities investigated are among the hardest-hit in the US, with over 200,000 people living with HIV among them.

“Sex workers in each city asked us how many condoms it was legal to carry,” said Megan McLemore, senior health researcher at Human Rights Watch. “One woman in Los Angeles told us she was afraid to carry condoms with her and sometimes had to use a plastic bag instead of a condom with clients to try to protect herself from HIV.”

 
Human Rights Watch interviewed more than 300 people for the report, including 200 current and former sex workers as well as outreach workers, advocates, prosecutors, public defenders, police, and health department officials.

The report includes testimony from sex workers and transgender women who said that police harass, threaten, and arrest them for carrying condoms. In New York, Los Angeles, and San Francisco, prosecutors introduce condoms into evidence at trial, asking courts to consider them indicators of criminal activity. For immigrants, arrest for prostitution can mean detention or removal from the United States. Some women told Human Rights Watch that they continued to carry condoms despite the potentially harsh consequences, but many did not.
One sex worker in Washington, DC, said, “Police always ask ‘why do you have so many condoms?’ No one walks around with a lot of condoms because of it.”

New York, Los Angeles, Washington, DC, and San Francisco have reported high rates of HIV among sex workers and transgender women, and targeted HIV prevention among these groups as an urgent priority. The US government provides millions of dollars to each of these cities to prevent HIV among groups at high risk, including sex workers and transgender women. Yetsex workers told Human Rights Watch that they turned down offers of condoms from outreach workers.
 
“These cities gave out 50 million condoms last year,” McLemore said. “But the police are taking them out of the hands of those who need them the most.” Police and prosecutors defended the use of condoms as evidence, saying that the practice was necessary to enforce anti-prostitution laws and that condoms are one tool that helps obtain convictions against prostitutes, their clients, and those involved in sex trafficking.
But law enforcement efforts should not interfere with the right of anyone, including sex workers, to protect their health, Human Rights Watch said. State or city governments should ban the use of condoms as evidence of prostitution. A bill proposing this ban recently failed to pass in the New York State legislature.
 
Barring the use of specific types of evidence in criminal proceedings is not uncommon where there are competing public interests. For example, in each city addressed in the report, clean needles are available for drug users to reduce HIV and hepatitis C infection, and municipal law enforcement and public health officers collaborate to ensure programs can reach those most at risk. In all 50 states, “rape shield” laws forbid the use of a victim’s sexual history in court, even if it has probative value in a given case, because the harm generally in admitting such evidence is simply too great.
 
“In legal systems everywhere, evidence is excluded because it is judged to do more harm than good,” McLemore said. “Eliminating HIV infections is a national priority and ensuring the availability of condoms among those at highest risk is critical.”
 
Human Rights Watch found that police stops and searches for condoms are often a result of profiling, targeting suspected offenders for the way they look, 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 had been stopped and searched for condoms while walking home from school, going to the grocery store, or waiting for the bus. Broad loitering laws in these cities invite profiling and discrimination and should be reformed or repealed, Human Rights Watch said.

Sex workers in New York, Washington, DC, and Los Angeles also described abusive and unlawful police behavior. Police sometimes subjected transgender women to vulgar insults, mockery, and disrespect. Transgender women described being “defaced” by police who removed their wigs and other clothing, in one case throwing it to the ground and stepping on it. In New York and Los Angeles, women reported that some police had demanded sex in exchange for dropping charges.

Few of these women filed complaints, both for fear of further abuse and because they had no faith that police would respond with fairness and integrity. The US Department of Justice should investigate police treatment of sex workers and transgender people in New York, Los Angeles, and Washington, DC, Human Rights Watch said.
 
The report also called for local, state, and federal leadership to stop the use of condoms as evidence of prostitution. The Obama administration has highlighted the need to reduce HIV among women and girls, a goal that remains out of reach for many sex workers and transgender women.
 
“The AIDS Conference is a perfect opportunity for Washington, DC, and the other cities to announce their intention to end the use of condoms as evidence of prostitution,” McLemore said. “Criminalizing HIV prevention undermines human rights and endangers the public health.”