Shortcomings of laws in preventing abuse by law enforcement officers
Delaine Powerful
Wed 12/14/2016, 12:00

Reproductive Justice was a term created in 1994 by Black women as a way to connect struggles across social justice movements. It demands an intersectional approach to sexual and reproductive health advocacy, one that acknowledges how access differs for an individual based upon race, gender identity, sexual orientation, ability, and more. Reproductive justice also moves past simply advocating for abortion rights. It uplifts the right to express oneself freely, promotes the freedom to explore one’s sexuality, and use one’s body in any way they please – as long as it does not cause any interpersonal harm.

Using Condoms as Evidence

Within New York City, the New York Police Department has criminalized bodily and sexual autonomy. By using condoms as evidence of prostitution, police officers have been able to confiscate condoms, harass, abuse, arrest, and put individuals at risk of partaking in unsafe sexual practices. This particular use of stop and frisk disproportionately targets Black transwomen and Black gender non-conforming (GNC) people.

As a pseudo-interventionist method, Human Intervention Courts (HTICs) were created to provide support for sex workers. However, these structures failed to address the problematic issue of using condoms as evidence, but instead, placed limits on sexual autonomy. Those arrested in possession of condoms were defined as trafficking victims so they would not be imprisoned on criminal charges, regardless of whether or not they were  sex trafficked. Yet, individuals who come into contact with HTIC courts are still arrested, handcuffed, put in jail and are given only one option that will allow them to reenter society. District attorneys offer defendants the option of attending six sessions of an intervention program. With successful completion, the individual is eligible for Adjournment for Contemplation of Dismissal (ACD) if the defendant is not rearrested for six months after the original charges.

A major problem with HTICs is that it goes against ideologies of reproductive justice, bodily and sexual autonomy. HTICs believe that sex work is only done if it is forced (sex trafficked) or done as a circumstantial labor for money, refusing to take into account a person choosing sex work as a desirable and wanted profession. Using condoms as evidence also disproportionately affects Black trans women and gender non-conforming folks, as police officers will single out GNC and transwomen and automatically assume them to be sex workers.  This has created racial disparities in HTICs, where Black women make up 65% of Brooklyn HTIC defendants.

Work Done

There are many organizations in New York City currently organizing around this issue, such as the Sex Workers Project, Red Umbrella Project, The Audre Lorde Project, FIERCE and Streetwise And Safe (SAS). SAS has been working to push legislators to support SB1369 and the Assembly to support A27356

Bill S1369/A2736 would stop police and prosecutors from using the possession of condoms as evidence of prostitution (sex work.)

In 2013, the New York State Assembly passed the “No Condoms as Evidence Bill” (A2736/SB1369) which prohibited the NYPD to use condoms as evidence in some “prostitution”-related arrests, particularly in school zones and while loitering.

Limitations:

The passing of bill A2736/SB1369 is a great success, as the NYPD has continued to oppose and prevent bills that address this issue from being passed. However, because police are still able to use possession of condoms as a justification of arrests and take the condoms to use as investigatory evidence of promoting sex work or trafficking, this bill is not enough. The limitation of this “success” is that it still leaves sex workers vulnerable and unprotected. Traffickers often withhold condoms from trafficked sex workers and it prevents individuals from protecting themselves from STIs and HIV. In BDSM community spaces where sexual activity occurs, condoms may be hidden or stored in unsafe ways so that police cannot detect them. This new policy stills disproportionately targets Black and People of Color (POC) and allows for the continued profiling of particularly Black transwomen and Black gender non-conforming (GNC) people, whose gender expression does not match the understanding of police officers conception of gender. It prevents individuals from protecting themselves from STIs and HIV when they are worried about police encounters and being arrested.

This bill cannot be amended to be appropriate to protect these individuals. The only way to prevent the profiling of Black GNC and transwomen and protect sexual health is to ensure no bill criminalizes the possession of condoms by anyone at any place. The NYPD must also not have the ability to stop individuals on the premise that they may be promoting or engaged in sex work or trafficking. 

Global Landscape

This is a global issue. In 2012, a study was funded by the Open Society Foundation and conducted by sex workers’ organizations across Kenya, Namibia, Russia, South Africa, the U.S. and Zimbabwe. Testimonies collected from sex workers and outreach workers showed that police have been confiscating and destroying condoms and arresting people on sex work charges, using condom possession as justification. Police officers also harass, arrest, and follow outreach worker condom distribution vans to find sex workers.

Because this issue spans over vast geographical regions, a global attack that causes the issue to go viral and specifically targets power holders, will make this international abuse of human rights much more visible.

This Analysis appears in South Feminist Voices and is tagged with Reproductive Justice, Condoms.