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Throughout the world, in countries as diverse as Kenya, Namibia, Russia, South Africa, the United States, and Zimbabwe, police often confiscate condoms from sex workers to use as evidence of prostitution, thereby compromising public health interventions aimed at reducing the spread of HIV/AIDS.

This year’s New York State legislative session recently ended, and by failing to vote on and pass the “no condoms as evidence of prostitution” bill, lawmakers missed an opportunity to be national and global leaders in ensuring that counterproductive policing and prosecuting of sex workers does not compromise disease prevention and public health. Passage of the bill would have prevented police officers and prosecutors from confiscating condoms from suspected sex workers and using them as evidence of prostitution in criminal proceedings.

This practice impedes public health by discouraging sex workers — who are at higher risk of contracting sexually transmitted infections and HIV — from carrying condoms out of fear of arrest and police harassment. The passage of the “no condoms as evidence” bill would have ensured that New York will no longer engage in the hypocritical action of flooding the public with free condoms while allowing the police to confiscate them for use as evidence against sex workers.

New York could have distinguished itself by definitively ending this troubling practice, setting an example for other cities and countries. Human Rights Watch researchers have documented how the practice in several U.S. cities, including Los Angeles, San Francisco and Washington, D.C., undermines disease prevention efforts. It’s also a global problem. The Open Society Foundations’ multi-country survey found, for instance, that 80% of Russian sex workers reported having their condoms confiscated by police and 75% of Namibian sex workers who had their condoms destroyed by police later had unprotected sex during the course of their work. My students and I documented the public health ramifications of the practice while working on a sex workers’ rights campaign in South Africa.

During a town hall meeting with South African sex workers in Cape Town, we asked about impediments to condom use with clients. “If the police find condoms in my pocket, they arrest me,” a sex worker quickly responded, as others nodded in agreement. Outreach workers at the Sex Worker Education and Advocacy Taskforce (SWEAT) based in Cape Town echoed this and reported that South African police often take away boxes of condoms from sex workers to use as evidence of prostitution. The head of the African Sex Worker Alliance noted with frustration the hypocrisy of a state giving away free condoms in a bid to promote public health only to tolerate police confiscating these same condoms to use as evidence against at-risk populations.

This hypocrisy is also evident in New York where last year New York City distributed more than 37 million condoms, only to have the NYPD undercut this effort by seizing condoms from individuals they suspect of engaging in prostitution. A 2010 New York City health department survey of 63 sex workers found that 36 had had their condoms confiscated by police, as harassment or a basis for arrest. In 2011, a network of sex workers’ rights advocates conducted a survey that produced similar findings, in which 42.8 percent of the sex workers surveyed stated that police confiscated or destroyed their condoms, and 46% percent confirmed that at some point they had not carried condoms with them out of fear that it would prompt abusive interactions with police.

States should never take action that discourages safe sex practices. As New York distributes free condoms to promote public health while arresting those suspected of engaging in sex work for possessing them, the state wastes resources and muddles public messaging about the necessity of practicing safe sex. New York can still reject this hypocrisy, which impedes disease prevention, by becoming the first state to ban the confiscation of condoms as evidence in prostitution cases.

There is sustained and growing support for the practice’s abolition in New York and elsewhere: numerous New York City-based human rights and public health organizations publicly backed the “no condoms as evidence” bill; San Francisco officials have begun to express misgivings about the practice in their city; and recent and upcoming events are exploring the practice’s harmful effects in other parts of the country and the world. We must keep pushing our representatives to pursue policies that safeguard public health.


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* Chi Mgbako is clinical associate professor and director of the Leitner International Human Rights Clinic at Fordham Law School in New York City. She writes on sexual and health rights, access to justice, and women’s rights in Africa. Follow Chi Mgbako on Twitter, @chiadanna.

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