January 21, 2015 – GOVERNOR CUOMO’S PROPOSED EXECUTIVE BUDGET FAILS TO PROTECT ACCESS TO CONDOMS FOR MOST VULNERABLE NEW YORKERS
NYS 2015 Budget Bans Use of Condoms As Evidence of Some Prostitution-Related Offenses; Leaves Victims of Trafficking Vulnerable
New York (THURSDAY JANUARY 22, 2014) – The New York Access to Condoms Coalition today welcomed the inclusion of a ban on the use of condoms as evidence of prostitution in Governor Cuomo’s proposed Executive Budget announced yesterday as an important first step to protecting the health and safety of New Yorkers.
“Inclusion of a partial ban on the use of condoms as evidence of certain prostitution offenses in the Governor’s budget signals that policymakers at the highest level are taking seriously the need to protect New Yorkers’ right to protect themselves,” said Jennifer Flynn-Walker, Executive Director of VOCAL-NY, member of the Governor’s End AIDS Task Force.
The coalition of anti-trafficking organizations, public health advocates, LGBT, civil rights and reproductive justice groups urged the Governor and legislators to go further, and expand the ban to include all prostitution-related offenses – including promoting, patronizing, and trafficking offenses, in the interests of public health, reproductive rights, and safety of victims of trafficking.
“Policymakers shouldn’t leave trafficking victims out of the solution. Their lives depend on it,” cautioned Florrie Burke, recipient of the inaugural Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons from President Barack Obama, in a 2013 op-ed in favor of a comprehensive ban on the use of condoms as evidence in all cases.
“Governor Cuomo and advocates have been working on an ambitious plan to end AIDS in New York by 2020, said Demetrius Thomas of Gay Men’s Health Crisis, also a member of the Governor’s Task Force. “This goal is achievable, but not if condoms continue to be confiscated by police and cited as evidence of criminal activity by prosecutors at any level.”
Failure to enact a comprehensive ban on the use of condoms as evidence of intent to engage in any prostitution-related offense perpetuates stigma around condom possession and contributes to New Yorkers’ documented unwillingness carry or share condoms for fear of police harassment or arrest: almost half of respondents in a study said that they had not carried condoms at some point for fear that they would be used against them by police.
Additionally, excluding trafficking-related offenses from the Governor’s proposal creates a perverse incentive for traffickers to withhold condoms from the people they exploit in order to avoid prosecution, putting the health, safety and dignity of the people they victimize at risk. The vast majority of organizations providing services to victims of trafficking, including Safe Horizon, the Legal Aid Society, the Urban Justice Center, and the New York Anti-Trafficking Network, are in favor of a comprehensive ban on the use of condoms as evidence in all prostitution-related cases, including trafficking cases.
Kathleen Rice, Representative for New York’s 4th congressional district adopted a comprehensive ban on the use of condoms as evidence in all prostitution-related cases, including trafficking offenses, when she served as Nassau County District Attorney. She has been quoted as saying “If you need that condom so badly in the case against a trafficker, then you don’t have a good case.”
According to the Legal Aid Society’s Trafficking Victim Advocacy Project, “if condoms are allowed to be used as evidence against traffickers, we are very concerned about the practical impact – many traffickers will simply not allow those they control to carry and use condoms if there is a chance that those condoms may expose traffickers themselves to criminal liability.”
“Our clients have had access to condoms restricted by their traffickers, resulting in the transmission of HIV and unwanted pregnancy,” said Lynly Egyes, an attorney from the Sex Workers Project at the Urban Justice Center who represents trafficking victims. “Not including trafficking offenses in this ban would only incentivize withholding condoms from trafficking victims.”
Any possible probative value of condoms in felony trafficking, promoting, and patronizing offenses is far outweighed by the public health benefits of excluding them as evidence. While condoms are routinely confiscated and vouchered as arrest evidence, they are rarely actually introduced at trial, in part because prostitution-related cases seldom go to trial. In the rare cases where condoms are introduced, they are neither necessary nor sufficient to secure a conviction or any prostitution-related crime, especially one as heinous as trafficking.
“Governor Cuomo has shown that New York State is taking steps to help victims of trafficking by declaring January Human Trafficking Awareness Month,” said Mike Selick of New York Harm Reduction Educators. “Unfortunately, he missed an opportunity with his budget proposal, which bans the use of condoms as evidence of certain prostitution related offenses, but does not include protections for charges relating to trafficking.”
Because both federal and New York law defines all people under 18 who trade sex as trafficking victims, continuing to use condoms as evidence of trafficking offenses will create additional obstacles to condom use and access among populations facing the highest rates of new HIV infections according to the Centers for Disease Control, including LGBTQ youth of color.
“As long as condoms can be confiscated by police from people under 18 as potential evidence of trafficking, young people will continue to perceive carrying and sharing condoms as a potential threat to themselves and their friends,” said Verónica Bayetti Flores, Policy Coordinator at Streetwise and Safe (SAS).
“I want to thank Governor Cuomo for positively impacting the lives of transgender women who usually get harassed walking down the street and arrested under charges of prostitution just for carrying condoms,” said Bianey Garcia, a Translatina Organizer of the TLGBQ project of Make the Road NY. “We must continue to work together to ensure a more inclusive and comprehensive approach that protects all the LGBTQ community, youth and victims of trafficking, so they too can feel like they can use a condom without the fear of arrest.”
“We thank the Governor for putting forth this budget item as it is directly aligned with the initiative to end AIDS by 2020, which has a deep impact on LGBTQ and HIV-affected New Yorkers,” said Shelby Chestnut, Co-Director of Community Organizing and Public Advocacy at the New York City Anti-Violence Project. “However we ask for a comprehensive ban on all instances where condoms are used as evidence against some of the most but vulnerable populations or we will continue to see a chilling affect and people will fear carrying condoms.”
“Any time possession or presence of condoms on the premises of a business can be used as evidence of intent to engage in any prostitution-related offense, including over thirteen misdemeanor and felony New York Penal Law offenses not covered by the Governor’s budget proposal, police will continue to take condoms out of the hands of people who are the most vulnerable to exploitation – youth and trafficking victims, the people who are exploiting them will stop using or deny access to condoms in the hopes of avoiding prosecution, and businesses and individuals will be discouraged from carrying and distributing them.”
Corinne Carey, Assistant Legislative Director of the New York Civil Liberties Union, agreed that the budget proposal ought to have gone further to prevent law enforcement from seizing condoms as evidence of sex trafficking and other prostitution-related crimes.
“The Governor’s proposal is a step in the right direction toward acknowledging the public health risks of criminalizing condoms, but it doesn’t go far enough and its protections are really too limited for us to be content with it,” she said. “The message needs to be that, no matter who you are, carrying condoms isn’t criminal.”
“Unless we comprehensively ban the use of condoms as evidence, we continue to put the most vulnerable – young people and people facing force, fraud, and coercion in the sex trades – in harm’s way for HIV, unwanted pregnancy, and forced abortion.”
The Access to Condoms Coalition is made up of over 40 anti-trafficking, public health, reproductive rights, LGBTQ, anti-violence, and civil and human rights organizations.
A comprehensive ban on the use of condoms of evidence for all prostitution-related offenses has been endorsed by over 100 groups across New York State.
Download the full Press Release Here – http://www.accesstocondoms.org/wp-content/uploads/2015/04/PRESS-RELEASE-ATC-NYS-Budget-112215_FINAL-for-DISTRO.pdf
May 29, 2014 – New York City Council Members Introduce Resolution Calling for Comprehensive State Legislation to Ban Use of Condoms as Evidence of All Prostitution-Related Offenses
New York City Council Members Jumaane D. Williams and Carlos Menchaca, with the support of the Access to Condoms Coalition—a coalition of public health, anti-trafficking, reproductive rights, LGBT and civil and human rights organizations —introduced a resolution today calling for passage of state legislation (A. 2736 / S. 1379) that would prohibit the confiscation and citation of possession or presence of condoms as evidence of all prostitution-related offenses across New York State.
This proposed resolution builds on the recent NYPD directive partially banning the use of condoms as evidence in certain prostitution offenses, urging passage of legislation that would extend protections to victims of trafficking by expanding the ban to include all prostitution-related offenses and apply across the state.
The New York City Police Department’s welcome announcement that it will end the confiscation of condoms as arrest evidence in prostitution, prostitution in a school zone, and loitering for the purposes of prostitution cases in New York City demonstrates that the seizure and use of condoms as evidence of prostitution by the police is unnecessary to the administration of justice, inconsistent with promoting public health, and further marginalizes already vulnerable New Yorkers engaging in or suspected of providing sex for money.
The pending state legislation would close a critical loophole left open by the NYPD’s recently announced policy change: police can still continue to confiscate and cite the possession or presence of condoms as evidence in cases where promoting or trafficking is suspected. Continued use of condoms as evidence in these cases will have the unintended consequence of leaving victims of trafficking and young people without protection, creating a strong incentive for traffickers and exploiters to withhold or deny access to condoms to the people they control. It can also have the effect of discouraging businesses and other establishments from participating in New York City sponsored condom distribution programs. In the words of the Nassau County District Attorney Kathleen Rice, who has implemented a policy banning the citation of condoms as evidence in all prostitution-related cases, including promoting and trafficking cases, “condom evidence was rarely of any value to a prosecution. If you need that condom so badly in the case against a trafficker, then you don’t have a good case.”
The resolution introduced today urges passage of state legislation that would expand full protection to all New Yorkers, and ensure lasting change that will be binding across New York State.
Download the full press statement here: May 29 Introduction Press Release_FINAL
May 12, 2014 – NYPD Bans Use of Condoms as Evidence of Prostitution & Loitering Offenses
The policy announced by Commissioner Bratton today barring confiscation of condoms as arrest evidence in prostitution, prostitution in a school zone, and loitering for the purposes of prostitution cases represents a welcome and important step in the direction of protecting the public health and reproductive rights of New Yorkers. Unfortunately, it does not go far enough, and creates a loophole big enough to drive a truck through: police can still continue to use the possession of condoms to justify an arrest, confiscate condoms from sex workers and survivors as “investigatory evidence” where promoting or trafficking is suspected, and confiscate condoms as evidence in promoting and trafficking cases.
As long as possession or presence of condoms on the premises of a business can be used as evidence of intent to engage in any prostitution-related offense, including over thirteen more serious New York Penal Law offenses and civil proceedings not covered by this policy, we are concerned that cops will continue to take them out of the hands of people who are the most vulnerable to exploitation – youth and trafficking victims. We are also concerned that the people who are exploiting them will deny access to condoms in the hopes of avoiding prosecution, and that businesses and individuals will be discouraged from carrying and distributing them. Also, we are concerned that under this policy, police can still use the fact that a sex worker has condoms in their possession as a basis for arrest for prostitution, even if they don’t physically voucher them as evidence. This continues to send a message that it is unsafe to carry condoms.
We hope that the NYPD will continue to move in the direction of a comprehensive ban on the use of condoms as evidence of all prostitution-related offenses, and protect the rights of all New Yorkers, including victims of trafficking and young people in the sex trades, to protect themselves and the health and safety of their communities.
We will be monitoring implementation of this policy closely, and are looking forward to working with the NYPD to expand the policy.
Police in New York will stop and frisk a person who is carrying condoms to prove that they are engaging in prostitution-related offenses. The people most often targeted for these stops are those who are or are profiled as involved in the sex trades. LGBTQ youth of color and trans women of color are disproportionately affected by this practice, leading many to be afraid to carry, or even not use, condoms. NYPD officers regularly confiscate condoms from people they allege are engaged in prostitution to justify arrests or to use as evidence against them at trial. District Attorneys in several New York counties routinely refer to the number of condoms a person had on them in criminal court complaints accusing them of engaging in prostitution-related offenses such as “loitering for the purposes of prostitution” (NYPL 240.37)
As a result people are hesitant to carry condoms to protect themselves and others, for fear that it will lead to arrest or be held against them in court. Sound public health policy would encourage condom use by eliminating the fear that carrying a condom will be used against you or anyone else by police or in a court of law.