Commentary Law and Policy

Empire State Stupidity: New York’s Condom Policies Undermine Public Health and Human Rights

Martha Kempner

When deciding whether to charge an individual with prostitution, New York City police officers routinely consider if that person was carrying condoms. Even more disturbing, officers frequently destroy condoms in an attempt to get people not to sell sex for money.  Two new reports examine the impact of this misguided law which seems to directly conflict with the city's ongoing efforts to promote condom use. 

When Julia Roberts pulled a strip of colorful condoms out of her boot in her break-out roll as a prostitute in 1990’s Pretty Woman and declared “I’m a safety girl,” I breathed a sigh of relief.  While I was waiting for her inevitable happy ending (and forgetting to be outraged by the offensive messages of this modern fairytale), I was glad to see that she was protecting herself and her future by avoiding STDs (and pimps and kissing on the mouth). Turns out that my reaction to her condoms is one of the many things about the lives of sex workers that wasn’t exactly on-target in this star-making movie. Rather than being considered a sign of good protective behavior, in New York City carrying condoms can be used as evidence of prostitution, and therefore a crime.

Apparently, New York Police officers use possession of condoms (especially more than one condom) as one of the factors in determining whether there is probable cause to arrest someone for prostitution or loitering for the purposes of prostitution.  

One judge told the New York Times that he would not be swayed by condoms as evidence: 

I find no probative value at all in finding a condom. In the age of AIDS and HIV, if people are sexually active at a certain age, and they are not walking around with condoms, they are fools. 

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But most cases of prostitution are never brought in front of a judge because the individuals who are arrested quickly plead guilty. So the fact the police are considering the condoms as evidence is problem enough.

Even more disturbing, officers have been known to confiscate condoms from individuals suspected of prostitution in an apparent attempt to discourage them from engaging in sex work. Finally, an idea more ridiculous than suggesting that making condoms available to teenagers will convince them to have sex — here we’re saying that taking condoms away from sex workers is all they need to be convinced not to have sex. 

The Sex Workers Project of the Urban Justice Center began to work with city’s Department of Health and Mental Hygiene (DHMH) a number of years ago to determine whether these practices did, as suspected, deter sex workers from carrying — and therefore using —condoms. DHMH prepared a report in 2010 but for unknown reasons then refused to make it public. The Sex Workers Project used the Freedom of Information Law to obtain a copy (much of which was blacked out) and then worked with the PROS Network (Providers and Resources Offering Services to sex workers) to conduct additional research and create their own report. Both reports were released at a news conference last week.  

The reports found:  

  • Approximately half of respondents involved in the sex trade reported that police had confiscated, damaged, or destroyed their condoms. In the 2010 DHMH study 57 percent of the respondents reported having condoms confiscated as did 43 percent in the PROS Network study.
  • Forty percent of the people in the PROS Network study who had had condoms confiscated went on to engage in sex work that same day or night. Of these, half engaged in sex work without condoms.
  • Close to half (46 percent) of the respondents in the PROS Network study involved in the sex trade reported that they did not carry condoms at some point, and 23 percent reported turning down free condoms at some point, because of fear of police repercussions. In fact, fear of the police was the most common reason for not carrying condoms.
  • This was even more pronounced among transgender respondents and those who identify as other than female or male — 75 percent of these respondents reported that fear of police had caused them not to carry condoms.

These reports also included moving quotes from individuals who were directly affected by the NYPD’s policies regarding condoms. For example:

  • A 50-year-old black woman in Coney Island described how she is commonly stopped and searched by police: “They ask if I have drugs, search my pocketbook and see condoms and throw them in the garbage.”
  • A 20-year old white woman who engaged in indoor sex work described an incident in which an undercover officer opened her condom package, called her derogatory names, destroyed the condom, and then said “if you don’t have these, you won’t have sex.”
  • A 22-year old black Puerto Rican who identified as a gender non-conforming said: “I’m damned if I do, I’m damned if I don’t. I don’t want to get any disease but I do want to make my money…. Why do they take your condoms? Do they want us to die, do they want us to get something?”

And that is the biggest irony; the police are confiscating condoms just as the health department and other organizations are giving them out. In fact, health workers in New York City gave out 37.2 million condoms last year at an average of 70 condoms per minute. With that kind of effort going into encouraging New Yorkers to practice safer sex it’s inexplicable that rules and policies would exist that discourage those most at risk from having condoms on hand. 

The Sex Workers Project has been collaborating with lawmakers to change this situation through the introduction of legislation. Bill S323/A1008, known as the No Condoms As Evidence Bill, would stop police and prosecutors from using possession of condoms as evidence of prostitution.  The bill’s sponsor, Senator Valmanette Montgomery (D-Brooklyn), explained:

“When it comes to condom possession and use, New York’s health and criminal procedure policies are at odds… The passage of this bill makes good public health sense and is necessary to help save lives.”

Oddly, New York City’s DHMH is not supporting the law. When the department commissioned the 2010 report it was in support of changing the law and planned to conduct trainings on HIV prevention and condoms at police roll calls.  

The department’s own report found: “A sizable minority [of sex workers] said that condom policing had at some point discouraged them from possessing safer sex materials.” And yet, somehow, these findings (or something else behind the scenes) seem to have convinced the department that the condom policy really isn’t a problem. Not only was DHMH reluctant to release the report (saying that it was an internal document), it no longer supports changing the law.  According to a spokesperson for the city’s health commissioner:

After the commissioner reviewed the study, which found that the current law has not resulted in sex workers consistently failing to carry condoms because of fear of arrest, he decided not to support the legislation. We have seen no evidence that the current law undermines the public health aims of condom distribution.

A perplexing conclusion at the very least.  It seems painfully obvious that any law discouraging condom use among sex workers is ridiculous. If the laws against prostitution aren’t preventing them from trading sex for money how can we possibly believe that the policies allowing condoms to be used as evidence will deter anything other than condom use. 

The No Condoms as Evidence bill has been introduced, and has subsequently died in committee, every year since 1999. The Sex Workers Project held a lobbying day in Albany last week in the hopes that this year will be different but I for one am not getting my hopes up. 

Analysis Law and Policy

State-Level Attacks on Sexual and Reproductive Health and Rights Continue, But There’s Also Some Good News

Rachel Benson Gold & Elizabeth Nash

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education.

State legislatures came into session in January and quickly focused on a range of sexual and reproductive health and rights issues. By the end of the first quarter, legislators in 45 states had introduced 1,021 provisions. Of the 411 abortion restrictions that have been introduced so far this year, 17 have passed at least one chamber, and 21 have been enacted in five states (Florida, Indiana, Kentucky, South Dakota, and Utah).

This year’s legislative sessions are playing out on a crowded stage. The U.S. Supreme Court is considering a case involving a package of abortion restrictions in Texas; that decision, when handed down in June, could reshape the legal landscape for abortion at the state level. Moreover, just as state legislatures were hitting their stride in late March, the U.S. Food and Drug Administration revised the labeling for mifepristone, one of the two drugs used for medication abortion. That decision immediately put the issue back on the front burner by effectively counteracting policies restricting access to medication abortion in a handful of states. (Notably, the Arizona legislature moved within days to enact a measure limiting the impact of the FDA decision in the state.)

Progress on Several Fronts 

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education. By the end of the first quarter, legislators in 32 states had introduced 214 proactive measures; of these, 16 passed at least one legislative body, and two have been enacted. (This is nearly the same amount introduced in the year 2015, when 233 provisions were introduced.)

Although the proactive measures introduced this year span a wide range of sexual and reproductive health and rights issues, three approaches have received particular legislative attention:

  • Allowing a 12-month contraceptive supply. Legislators in 16 states have introduced measures to allow pharmacists to dispense a year’s supply of contraceptives at one time; these bills would also require health plans to reimburse for a year’s supply provided at once. (In addition, a bill pending in Maryland would cover a six-month supply.) Legislative chambers in three states (Hawaii, New York, and Washington) have approved measures. Similar measures are in effect in Oregon and the District of Columbia.
  • Easing contraceptive access through pharmacies. Legislators in 12 states have introduced measures to allow pharmacists to prescribe and dispense hormonal contraceptives. As of March 31, bills have been approved by at least one legislative chamber in Hawaii and Iowa and enacted in Washington. The measures in Hawaii and Iowa would require pharmacist training, patient counseling, and coverage by insurance; the Hawaii measure would apply only to adults, while the Iowa measure would apply to both minors and adults. The new Washington law directs the state’s Pharmacy Quality Assurance Commission to develop a notice that will be displayed at a pharmacy that prescribes and dispenses self-administered hormonal contraception. Under current state law, a pharmacy may prescribe and dispense these contraceptives under a collaborative practice agreement with an authorized prescriber. Oregon has a similar measure in effect. (California, the only other state with such a law, issued regulations in early April.)
  • Expanding education on sexual coercion. Measures are pending in 17 states to incorporate education on dating violence or sexual assault into the sex or health education provided in the state. A bill has been approved by one legislative chamber in both New Hampshire and New York. The measure approved by the New Hampshire Senate would require age-appropriate education on child sexual abuse and healthy relationships for students from kindergarten through grade 12. The measure approved by the New York Senate would mandate education on child sexual abuse for students from kindergarten through grade 8. And finally, in March, Virginia enacted a comprehensive new law requiring medically accurate and age-appropriate education on dating violence, sexual assault, healthy relationships, and the importance of consensual sexual activity for students from kindergarten through grade 12. Virginia will join 21 other states that require instruction on healthy relationships.

Ongoing Assault on Access to Sexual and Reproductive Health Services

Even as many legislators are working to expand access to services, others are continuing their now years-long assault on sexual and reproductive health services and rights. Restricting access to abortion continues to garner significant attention. However, last year’s release of a series of deceptively edited sting videos targeting Planned Parenthood has swept both the family planning safety net and biomedical research involving fetal tissue into the fray.

  • Abortion bans. Legislative attempts to ban abortion fall along a broad continuum, from measures that seek to ban all or most abortions to those aimed at abortions performed after the first trimester of pregnancy or those performed for specific reasons.
    • Banning all or most abortions. Legislators in nine states have introduced measures to ban all or most abortions in the state, generally by either granting legal “personhood” to a fetus at the moment of conception or prohibiting abortions at or after six weeks of pregnancy. Only one of these measures, a bill in Oklahoma that would put performing an abortion outside the bounds of professional conduct by a physician, has been approved by a legislative chamber.
    • Banning D&E abortions. Legislators in 13 states have introduced measures to ban the most common technique used in second-trimester abortions. Of these, a bill in West Virginia was enacted in March over the veto of Gov. Earl Ray Tomblin (D). A similar measure was approved by both houses of the Mississippi legislature and is being considered by a conference committee. (Kansas and Oklahoma enacted similar laws last year, but enforcement of both has been blocked by court action.)
    • Banning abortion at 20 weeks post-fertilization. South Dakota and Utah both enacted measures seeking to block abortions at 20 weeks during the first quarter of the year. The new South Dakota law explicitly bans abortions at 20 weeks post-fertilization (which is equivalent to 22 weeks after the woman’s last menstrual period). The Utah measure requires the use of anesthesia for the fetus when an abortion is performed at or after that point, something that providers would be extremely unlikely to do because of the increased risk to the woman’s health. In addition to these new measures, 12 other states ban abortion at 20 weeks post-fertilization.
  • Banning abortion for specific reasons. In March, Indiana enacted a sweeping measure banning abortions performed because of gender, race, national origin, ancestry, or fetal anomaly; no other state has adopted such a broad measure. The Oklahoma House approved a measure to ban abortion in the case of a fetal genetic anomaly; the state already bans abortion for purposes of sex selection. Currently, seven states ban abortion for the purpose of gender selection, including one state that also bans abortion based on race selection and one that also bans abortion due to fetal genetic anomaly.
  • Family planning funding restrictions. In the wake of the Planned Parenthood videos, several states have sought to limit funding to family planning health centers that provide or refer for abortion or that are affiliated with abortion providers. These efforts are taking different forms across states.
    • Medicaid. Measures to exclude abortion providers (e.g., Planned Parenthood affiliates) from participating in Medicaid have been introduced in five states, despite the clear position of the federal Centers for Medicare and Medicaid Services that such exclusions are not permitted under federal law. In March, Florida Gov. Rick Scott (R) signed a Medicaid restriction into law. By the end of the first quarter, measures had passed one chamber of the legislature in Arizona, Mississippi, and Missouri; a measure introduced in Washington has not been considered. (A related measure enacted in Wisconsin in February limits reimbursement for contraceptive drugs for Medicaid recipients.)

Similar attempts by six other states have been blocked by court action since 2010. These measures include laws adopted by Indiana and Arizona as well as administrative actions taken in Alabama, Arkansas, Louisiana, and Texas.

  • Other family planning funds. Legislators in 13 states have introduced measures to prevent state or federal funds that flow through state agencies from being distributed to organizations that provide, counsel, or refer for abortions; the measures would also deny funds to any organization affiliated with an entity engaging in these activities. Measures in three of these states have received significant legislative attention. In February, Wisconsin enacted a measure directing the state to apply for Title X funds (the state is not currently a grantee under the program); if the state’s application were approved, the measure would ban this funding from going to organizations that engage in abortion care-related activity. A measure that would deny funds to organizations engaged in abortion care-related activity passed the Kentucky Senate in February. A similar measure in Virginia, which would both prohibit an abortion provider from receiving funding and give priority to public entities (such as health centers operated by health departments) in the allocation of state family planning funds was vetoed by Gov. Terry McAuliffe (D) in March.
  • Related funds. In February, Ohio Gov. John Kasich (R) signed a measure barring abortion providers or their affiliates from receiving federal funds passing through the state treasury to support breast and cervical cancer screening; sex education; and efforts to prevent infertility, HIV in minority communities, violence against women, and infant mortality.
  • Fetal tissue research. The Planned Parenthood videos have also led to legislation in 28 states aimed at research involving fetal tissue. Measures have passed one legislative chamber in four states (Alabama, Iowa, Idaho, and Kentucky), and new laws have been enacted in four states (Arizona, Florida, Indiana, and South Dakota) in the first quarter alone. All four laws ban the donation of fetal tissue for purposes of research. These new laws are the first to ever ban the donation of fetal tissue. The Arizona law also bans research using fetal tissue, and the new South Dakota law strengthens the state’s existing ban by now considering fetal tissue research as a felony; four other states (Indiana, North Dakota, Ohio and Oklahoma) have similar provisions in effect.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

Commentary Human Rights

How New York City’s Treatment of Sex Workers Continues to Harm Us

Jenna Torres

In fall of 2013, the State of New York established the Human Trafficking Intervention Courts to change the way courts handled those arrested for prostitution. But I know firsthand that using this model can still cause violence to sex workers, because we don’t need treatment.

I am a native New Yorker and a product of its foster system. I’m currently a community organizer at the Red Umbrella Project, which works to build power with cis and trans women who are impacted by the criminalization of sex work in New York City.

In fall of 2013, the State of New York established the Human Trafficking Intervention Courts to change the way courts handled those arrested for prostitution and loitering for the purposes of prostitution. Rather than jail time, judges offer defendants guilty pleas where, in exchange for attending multiple sessions at a “prostitution diversion program,” the defendant is granted an Adjournment in Contemplation for Dismissal, or ACD. After a probationary period, the charges are dropped, though local law enforcement retains a record of the arrest.

This system was modeled after the drug treatment courts, and it is spreading to states such as Illinois and Michigan. It aims to treat defendants as victims rather than criminals. But I know firsthand that using this model can still cause sex workers harm, because we don’t need treatment. Instead, we need meaningful engagement to give us the tools to create a better environment for ourselves on our own terms.

As a child, I was in foster care, trying to transition out on my own. I had the first of my three babies when I was 13. My foster mother would provide for my children with the money she got from the state, but not for me. I appealed to the foster agency to provide stipends for me to pay for clothing, but I was denied: The social worker that visited us felt that I had enough clothing, though most of it no longer fit me. So I began to take care of myself.

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Starting at the age of 15, whenever I needed clothes, school uniforms, or school supplies, I engaged in sex work. I engaged in sex work to keep my phone on, to have a way to reach my child-care provider. I engaged in sex work to pay for basic things, like bus fare for when school was out, and for my personal care items.

In addition to being a teen mother, I was going to an alternative high school where they accept teens 16 and older who are deemed at risk or failing at “normal” high school. Passing or excelling was never actually a problem for me, but I didn’t get the grades I deserved because of my unexplained absences. No one could believe that a 16-year-old with two kids and pregnant with her third was capable of handling such a workload, so I was able to enroll in this school. There, they had a learning-to-work program. I was allowed to work 15 hours a week, making $7.25 an hour—still nothing compared to what I needed.

When I graduated from high school, things became even harder. I didn’t have the basic essentials I needed to be done with foster care and live on my own and I wasn’t able to get a job during the summer. Still, I was able to enroll in college in the fall. Meanwhile, I continued turning to the only thing I knew would make ends meet, which was sex work.

In August 2013, the day I was supposed to pick up my college schedule, I was arrested for prostitution. I never did the things the police accused me of, like agreeing to sexual acts or taking money for sexual services, but they arrested me anyway. After 23 hours in jail, I finally saw a public defender. She prompted me to take a plea, so that I could get my six sessions of “treatment” and an ACD. I was 17 years old at the time. While in holdings, I was unable to use the bathroom because of the unsanitary conditions. Shortly after being released, I was admitted to the hospital for five days because of resulting health problems.

Later, my mandate was changed to ten sessions and an immediate ACD, instead of having to wait six months after completing the sessions to have my charge cleared. The whole process almost ended my journey to college before it even began.

I had missed my final opportunity to register for classes. I went to the school—I begged and pleaded to start on time. But to get back into school, I was forced to disclose my hospital record stay, as well as my arrest papers. The students working in the administration department, which was in charge of making decisions about how flexible to be about latecomers and scheduling them, now knew I had been arrested for prostitution. I also received a very long and uncomfortable “talk” from the school board about how I got to this place, in which they asked how I could manage what I had going on while I attended school. I had to divulge very personal, embarrassing, and sensitive information in order to save my semester.

And the court-mandated sessions didn’t help me. They entailed showing up to the “diversion program” and speaking to a woman who I believed really did want to help me but just didn’t understand the situation I was facing. Oftentimes I had to lie and say that everything was fine when it really wasn’t, just so I could return as quickly as possible to sorting things out on my own, as I usually did. If I didn’t lie, it could’ve extended my sessions—more time I didn’t need to waste.  

As a teen mother, we are expected to fail and I wasn’t going to be that. I was going to be educated and financially responsible for my children. But it was impossible to do that trying to be everywhere at once.

It took me a couple of months to finish the court-mandated sessions at all, because I was trying to balance the program along with school, studies, and the life that comes with being in foster care like meetings and visits from social workers. I lived in Brooklyn, my college was in Staten Island, and my program was in Harlem. From my house, it usually took around two hours to get to school, and that travel included a bus, a train, a ferry, and a campus bus that only operated during the week. So on weekends, I could be subjected to the unreliable Staten Island MTA bus services as I tried to get to my Saturday classes. If I went to college and failed to do the programs, the police would arrest me. They would put a warrant out for me and then arrest me possibly with my kids watching or with my college peers watching. But it was physically impossible for me to get to school and try to go to my programs too. Eventually, I just had to drop out of college—the one thing could have helped me in the long run.  

The treatment program the courts provided was not a good fit for me. I didn’t need to be treated for sex work. That isn’t an illness. All the sessions did were occupy my time in ways that weren’t at all useful. I really needed that time for more important tasks. The sessions hampered my ability to create a better environment for myself and my children so I wouldn’t have to rely on sex work.   

They didn’t give me what I needed, either. They gave me options that didn’t fit my situation, suggesting that I just stop sex work and my life would be magically improved. Stopping sex work for me means not being able to make money. All the odds were stacked against me. Nobody was hiring a 18-year-old parent of three young children with a full college schedule.

It wasn’t until after I was finished with the programs and the court that the damage was really done. I had dropped out of school. I had to postpone my journey out of foster care. I was living off part-time work at Payless, still barely meeting the needs of my children and myself.

However, thanks to the Legal Aid Society, I was referred to the Red Umbrella Project for voluntary job assistance and training. The Red Umbrella Project and similar groups center people like me and our needs in a way that most programs ignore. They offer the things that we really need, like real job assistance that includes comprehensive resume writing and networking, housing resources, leadership opportunities, and health resources. My colleagues and I at the Red Umbrella Project pay attention to each member and also understand that one size doesn’t fit all models. But most importantly, we take care of each other as a community, not just as clients.

All I ever wanted to do is show everyone that teen mothers can be successful. Without an alternative, I made choices that I needed to do in order to take care of myself. It shouldn’t have taken me getting arrested and violated by the police and courts to hear my needs. There are bigger problems that needs to be addressed that aren’t, because this whole system was created without the input of the people filtering through it. Without our voices, it will continue to inflict harm and violence to us, the people that are supposedly “victims.”