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NY State Law: Carrying Condoms is Evidence of Prostitution

This article was originally published by Housing WorksRH Reality Check previously covered a similar story about condoms as cause for arrest in the District of Columbia.

With New York State promoting condoms as an essential tool to stopping the spread of HIV/AIDS, one would think carrying condoms wouldn’t be cause for arrest. One would be wrong. Under New York State law, carrying condoms is admissible as evidence of prostitution in a legal case. This means practicing safer sex is one more thing that can lead a sex worker to get arrested.

But a bill is currently under consideration in Albany that would end this public health hypocrisy. The bill (S.2189/A.3856) “provides that possession of a condom may not be received in evidence in any trial, hearing or proceeding as evidence of prostitution, patronizing a prostitute, promoting prostitution, permitting prostitution, maintaining a premises for prostitution, lewdness or assignation, or maintaining a bawdy house.” The bill is sponsored by Velmanette Montgomery in the Senate and Barbara Clark in the Assembly.

The legislation was referred to the Senate Codes committee on April 20, but has had no traction in the Assembly this session. The Assembly is waiting for the Senate to pass it before it takes further action.

A wide array of advocates agree this bill should be a no-brainer. It is endorsed by ACT UP New York, The Anti-Violence Project, Center for Constitutional Rights, Housing Works, The LGBT Community Center , NYC AIDS Housing Network, NY Civil Liberties Union , New York Harm Reduction Educators – Bronx Office, Positive Health Project, Inc., Safe Horizon?s Streetwork Project, St. Mary's Church (Harlem)  and the Urban Justice Center.

But while the New York City Health Department has rightly spent millions of dollars over the years promoting condom distribution and usage to stem the transmission of HIV, it is unlikely that the Bloomberg administration will endorse this effective public health measure as promoted until the NYPD is on board. Advocates are working to get law enforcement support.

In the meantime, this bill’s holdup is hindering public health by discouraging prostitutes from carrying condoms. According to the Urban Justice Center, in a recent informal survey of street outreach program participants, nearly half of those who regularly carry condoms have had them confiscated by the police. One respondent said the police told her “If you're not prostituting yourself, you don't need condoms” before taking them away. Many think they can only legally carry a small amount of condoms.

“This bill is important because condoms are such an important public health tool,” said Sienna Baskin, a staff attorney at the Urban Justice Center’s Sex Workers Project. “The City and nonprofit NGOs have spent so much effort that there should be no barriers to distributing condoms. When people are afraid to take condoms from outreach workers because they’re afraid of being arrested, it’s damaging to public health in general.”


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