Criminalized for Carrying Condoms

Due to the hard work of activists, increasing attention is being paid to the epidemic of police harassment, profiling, brutalizing, and often murder of young Black and Latino men, who in cities like New York are stopped at rates greater than eight times their representation in the overall population. Last week, a special report by Human Rights Watch (HRW) shed light on another group targeted by the police: sex workers and those who police think “look like” sex workers, often transgender women.

The report, “Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities” was the result of interviews with over 300 people, including “nearly 200 sex workers and former sex workers as well as outreach workers, advocates, lawyers, police officers, district attorneys, and public health officials”, in New York, Washington, DC, San Francisco, and Los Angeles.

HRW’s report points out an absurd and dangerous contradiction: while city health departments hand out tens of millions of free condoms each year, proven to prevent the spread of HIV and other sexually-transmitted diseases, city police departments are using the possession of condoms as evidence against those at some of the highest risk for HIV and other STDs: sex workers. 

A study by the New York City Department of Health and Mental Hygiene found that 14% of male and 10% of female sex workers in the city are HIV-positive, compared with 1.4% citywide. 

The law in many places, including New York State, both prohibits prostitution and is vague enough in its definition of related offenses that HRW considers it “problematic from a human rights perspective, in that [the laws regarding loitering] grant police wide latitude to engage in unjustified interference with lawful activities short of actual solicitation [for prostitution]. Such laws enable arbitrary and preemptive arrests on the basis of profile or status, rather than criminal conduct.” 

In other words, police have free rein to stop-and-frisk those they believe to be sex workers, and can then arrest them if they find condoms on them, and use that as evidence in charges for prostitution. This is a recipe for widespread profiling on the basis of race, clothing and gender identity. And it amounts to punishing sex workers and others for taking steps to protect their health and that of their partners.

By using possession of condoms as evidence of prostitution, and harassing and arresting suspected sex workers on this basis, the police are contributing to the HIV/AIDS epidemic as many sex workers have stopped carrying condoms, or do not carry enough. 

Anna E., a sex worker, told HRW: “Am I afraid to carry condoms? Yes I was for a long time. When I was working on the street, I felt like I could only carry two or three, not a lot when I went out…”

Alexa L. said: “I use condoms. I take a lot of care of myself. But the police affect our ability to carry them. Sometimes I’m afraid and have not used them. I am very worried about my health.”

This is a direct assault on the health and well-being of sex workers, and on public health more generally. Studies have found that between 15-20% of men in theUnited States have purchased the services of a sex worker; these men, and sex workers themselves, have other partners who are then placed at greater risk.

HIV is not the only danger. STDs such as Chlamydia, which if undetected can lead to infertility, and HPV, which can cause cervical cancer, are much easier to spread and can cause permanent damage and even death.

As the report shows, the harassment of sex workers and those perceived by police to be sex workers on the basis of condom possession is just the tip of the iceberg. For sex workers and transgender women, who are frequently profiled by police as being sex workers, contact with the police often means verbal and physical abuse (including rape), extortion, fines, and for undocumented immigrants, deportation.

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The criminalization and stigmatization of sex work, which is illegal in 49 US states, provides the context (and an important pretext) for police abuse and harassment.

In general, sex work is not by any means a victimless phenomenon. Millions of women, including young girls are the victims of sex trafficking, kidnapped and forced into sex work or sex slavery, their earnings enriching organized crime syndicates who terrorize and brutalize their victims. 

Others are compelled by discrimination and economic necessity to engage in sex work when they otherwise would choose not to. This is especially the case for transgender women. A survey by the National Gay and Lesbian Task Force and National Center for Transgender Equality found that 16% of transgender respondents had been forced to engage in sex work and/or sell drugs or other illegal activities for survival purposes. This is as a result of widespread discrimination against transgender people, who face incredibly elevated rates of poverty, homelessness, and unemployment.

However, it’s important to note that there are sex workers who choose to engage in sex work as freely as anyone else chooses to work a job under capitalism. 

Also, sex workers are not simply passive victims, as often portrayed, but workers who can and do organize to fight for their own interests, including the decriminalization of their profession.

Sex workers themselves are organizing for decriminalization, and should be supported. Beyond that, arguments in favor of criminalization as a way to protect sex workers fall apart when one looks at who is charged with enforcing the laws, and what are the actual outcomes of enforcement of laws banning anti-prostitution.

The HRW report points out that in 2011, the NYPD made just over four thousand prostitution-related arrests. Of these, 64% were arrests of alleged sex workers (for “prostitution” or “loitering for prostitution”), and 29% were arrests of “johns” who patronize them. Just 35 arrests were made for sex trafficking (0.9%), and 6 for compelling prostitution (0.1%). 

Sex workers themselves are the target of nearly two-thirds of all arrests, and like the war on drugs, the vast majority of arrests are for “street-level” crimes, while the pimps and sex traffickers for the most part go free, making up just 1% of prostitution-related arrests. 

Rather than protecting sex workers, an encounter with police is often likely to lead to victimization and abuse. Police frequently commit crimes against sex workers that are far worse than the misdemeanor charge they arrest them for.

A fact sheet by INCITE! entitled “Policing Sex Work” points out that a “2002 study found that 30% of exotic dancers and 24% of street-based sex workers who had been raped identified a police officer as the rapist. Approximately 20 % of other acts of sexual violence reported by study participants were committed by the police…extortion of sexual acts in exchange for avoiding arrest or further violence, public strip searches, physical violence, as well as overtly sexist, homophobic, racist and transphobic verbal abuse of sex workers by police officers are an all too common experiences for indoor and street-based sex workers.”

Sexism and transphobia intersect with racism in such a way that Black and Latina sex workers, especially transgender women, face the highest rates of abuse and brutality at the hands of the police.

According to the NGLTF report, 38% of Black transgender people who have encountered police reported having been harassed by police, 15% were physically assaulted, and 7% were sexually assaulted.

And undocumented immigrants face the added fear of deportation following an arrest, especially given the implementation of “Secure Communities,” which involves increase cooperation between local law enforcement and Immigration and Customs Enforcement (ICE) officials.

The HRW report confirms this. Brenda D. told HRW that:

“I went into a car with a person. He said he was a police officer and said ‘if you help me I’ll help you.’ He said he wanted oral sex. He showed me a badge. He said if I didn’t have oral sex with him he would call the police and arrest me for prostitution.”

Tara A., a transgender woman, told HRW about her experience following an arrest:

“I spent 24 hours in Central Booking in Queens. Just 24 hours in hell…you have to go in an area with men. It’s not just being arrested…men were insulting me, saying ‘faggot.’ I felt discriminated when they took my fingerprints, they put on gloves, like they were disgusted. They made fun of me, the police officers. Sometimes I’d walk by the men and they’d say ‘you’re pretty.’ The police officer would say ‘she’s not a woman, she’s a man.’"

The criminalization of sex work, and the stigmatization attached to it, means that sex workers live in the shadows, in fear of exposing the abuse they face, whether from the police or from johns, pimps or sex traffickers. Decriminalization would not solve all of the problems facing sex workers, but it is a precondition for them to win meaningful rights as workers.

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The realities exposed by HRW’s report illuminate another important point: conquering the HIV epidemic is not just a matter of handing out free condoms or educating people on how to have safe sex. Although these are important steps, deeper institutional and societal change is needed.

Dealing with the HIV epidemic requires addressing the factors (unemployment, poverty, homelessness, legal and de facto discrimination, transphobia, sexism, etc.) that force people to put themselves at risk in order to survive.

It is going to take the self-organization of the oppressed, in this case sex workers and transgender women, joining forces with others (such as the broader Black and Latino communities) who are also targeted by the police.

And ultimately it will require the dismantling of the racist, sexist, anti-LGBT, and xenophobic system of mass incarceration of which the routine harassment of small-time “offenders” like drug users and sex workers is simply a gateway to a lifetime of second-class status.

These are all goals we should keep in mind, but we are a long way from achieving that. For now, the growing movement against racial profiling and brutality should stand with sex workers and transgender victims of police brutality.

Walking around with a pack of condoms (or a dime bag of weed) should not mean risking being targeted, humiliated, and/or brutalized by those supposedly charged to “protect and serve.”