Re: Letter of Support from Human Rights Watch for Bill: AB 336 (Condoms as Evidence in Prostitution)

Human Rights Watch submits this letter in support of AB 336, which would change current California state law by explicitly prohibiting the introduction of condoms as evidence of solicitation or engaging in prostitution. Amendment of the existing law is essential to promoting both public health and human rights.

In 2012, Human Rights Watch conducted research in San Francisco and Los Angeles on the existence and effects of a practice of police seizure of condoms as evidence of prostitution-related offenses, and introduction of condoms as evidence of prostitution-related offenses at certain proceedings. Based on dozens of interviews with sex workers, outreach workers, sex worker advocates, district attorneys and public defenders, the Human Rights Watch report “Sex Workers at Risk” found that condoms in the possession of alleged sex workers are frequently the subject of police stops and searches.[1] Police routinely catalogue the condoms as evidence of a prostitution-related offense, by photographing condoms in San Francisco and by preserving them as evidence in Los Angeles. In San Francisco, campaigns by city and state law enforcement officials to target businesses, including massage parlors, night clubs and bars frequented by the transgender community have also resulted in a reduction of condom availability in businesses.   

Human Rights Watch found that this practice has negative consequences for public health. California has the second largest number of AIDS cases in the U.S., and its HIV epidemics in both San Francisco and Los Angeles are among the top ten worst in the country. Condom distribution has therefore long been a top priority for California health officials.

In San Francisco, new HIV infections are occurring at the highest rate among transgender women.[2]Yet Human Rights Watch found that sex workers are aware that condoms may be used as evidence against them by the police and many have changed their behavior accordingly. The fear generated by this practice leads some sex workers to carry fewer condoms, and sometimes to engage in sex work without the protection of condoms as a result.

Moreover, the association of condoms with criminal activity increases police harassment, not only of sex workers but of transgender women, HIV/AIDS outreach workers and others who regularly fear harassment or arrest by the police. Transgender women in particular experience a high rate of false targeting as sex workers by the police, a practice so widespread in Los Angeles that in 2012, the LAPD issued separate guidelines, negotiated together with representatives of the transgender community. [3] Transgender women whom Human Rights Watch interviewed said that they routinely had condoms confiscated by the police, and transgender Latina women in Los Angeles told of being stopped and harassed for carrying condoms while waiting for the bus, or on the way home from the grocery store. According to these groups who are frequently targeted by the police, the seizure and use of condom possession as evidence deters them from carrying condoms.

Following release of the Human Rights Watch report, the City of San Francisco has changed their policy and has now ceased collection of condoms as evidence of misdemeanor prostitution offenses. [4]This is a significant step forward, but its temporary nature leaves it vulnerable to modification by future public officials. Moreover, although “Sex Workers at Risk” documents these findings in San Francisco and Los Angeles, there are indications that a statewide bill to address this issue is necessary, as reports of this practice have been received from other cities in California, including El Monte, Fresno and other locations. [5]

Police can, and should, partner with public health officials to ensure that enforcement of the criminal law does not undermine the health and safety of all. Condoms are proven and effective tools in the fight against HIV/AIDS and other sexually transmitted diseases. Under international human rights law, governments are obligated to promote public health and ensure access to information and services for preventing the spread of HIV and sexually transmitted diseases without discrimination. Governments should not take actions that interfere with one’s ability to protect their health.^[6] To do so is not only inconsistent with human rights law but also bad public policy. California has distributed millions of condoms to its citizens in an admirable campaign to protect the public health. Legislation that deters people from using these condoms, particularly members of groups at high risk for sexually transmitted disease, undermines the intent of this ongoing effort, wastes tax dollars, and invites increased rates of HIV and other infections.

In sum, the California legislature should expand and strengthen the promotion of condom use among sex workers as well as among the general public by passing AB 336.