“No Condoms As Evidence!” SJI Position Paper

Below is statement developed by the St. James Infirmary in 2010 that we have presented to various Supervisors, District Attorneys,  SF Police Officers, and representatives at the AIDS Office as well as the Human Rights Commission.

No condoms, condom wrappers, photographs of condoms or discussions of safe sex shall be used to ascertain an arrest for prostitution or prostitution related charges, as evidence of prostitution in court proceedings, or in administrative inspections for permitting or licensing of establishments.

Background:

In 1994, San Francisco District Attorney Arlo Smith signed an agreement that the DAs Office would not use condoms as evidence for 647(b) cases (soliciting for prostitution, State CA Penal Code) as an “act of furtherance”.  This agreement was a trial basis and was intended to include an active review with the Health Department and Police Department on the results of the demonstration agreement.

To date, condoms as an act of furtherance are not being used in trial court cases in San Francisco because most cases are plead out and do not go to trial.  However, these are the ways that condoms, condom wrappers, and discussions of safe sex are being used in administrative searches, to ascertain an arrest and as evidence to pressure sex workers to accept plea bargains and for accepting diversion for their cases of 647(b):

Examples:

In 647(b) cases against sex workers, discussions of safe sex or any euphemism of safe sex are being used by SFPD to ascertain an arrest of sex workers and to force a plea into diversion programs.  Condoms are also being used by SFPD to establish other prostitution related offenses (Loitering for the Intent to Commit Prostitution). This has been confirmed by the SF Public Defenders Office and members of the SFPD. The increasing use of condoms, the photographing of condoms to be used as evidence by the police, and discussions of safer sex, or protected sex, against street and internet based workers has these workers reluctant to take condoms from our outreach workers and increases harms to workers in that they can not negotiate condoms and safe sex for their protections without fear of arrests.

Condoms and condom wrappers are being used in administrative searches and raids of massage parlors by the Anti-Trafficking Task Force (Environmental Health Section of the DPH, SF VICE and ICE). Trashcans are searched for wrappers and condoms.  To adapt to the raids, and continue offering protection, massage parlor workers and managers are unwrapping condoms, disposing of the wrappers off site and hiding the unwrapped condoms in empty cleaning containers, for example a bottle of bleach.  Evidence of this, in the form of a power point slide slow with pictures of the bleach containers and unwrapped condoms, was presented to the St. James Infirmary by a SF Vice Office from the Task Force.

The Alcohol and Beverage Control (ABC) inspects local strip clubs and other night clubs and condoms are used against strip clubs and trans-specific establishments in maintaining their liquor permits. No other nightclubs (for example, gay/lesbian nightclubs or straight night clubs) have reported this treatment. Managers at strip clubs have been very adamant that our outreach workers cannot distribute condoms to the dancers.  This limits dancers freedoms and rights to possess condoms for any reason, personal or otherwise to prevent disease and pregnancy.  Moreover, the targeting of trans-specific night clubs for having condoms is discriminatory and poses series HIV and STI risks for trans-identified females, whom have been determined by the SF Office of AIDS and HIV Prevention Planning Council as a priority group for HIV prevention interventions and funding.

Impacts:

In numerous clinical studies, condoms have been demonstrated to reduce HIV and STI transmission and unwanted pregnancies.  The prevention of HIV/STIs is more cost affective than the care and treatment of HIV and STIs.  Moreover, the right to family planning choices and access to reproductive health tools is a fundamental right of all people.  Furthermore, in San Francisco, HIV Prevention funding has been eliminated for females who do not inject drugs, thus putting this specific population in the position of decreased access to City funded HIV Prevention programs and interventions.

Goal:

We are asking that the SF AIDS Office agree to urge the SF Mayor and Board of Supervisors for a resolution that prioritizes universal access to condoms in San Francisco, and the freedom to posses or provide condoms without limitations, in all settings and establishments and by all individuals regardless of gender identity or believed sex work status.

We also urge the City to ask for a Department Bulletin from the SFPD that condoms, photographs of condoms or discussions of safe sex/protected sex, or any euphemism of condoms and safe sex will not be used in any form for any type of arrest for prostitution or prostitution related charges or to stop and harass people for suspicion of prostitution.  The bulletin should also state that there is no legal limit to the number of condoms any one person can carry at any one time.

We also want a Memorandum of Understanding (MOU) and new commitment from the SF District Attorneys Office to not use condoms, or discussions of safe sex or protected sex, or any euphemism of condoms or safe sex as evidence, or mention, in any trial for Intent to Commit Prostitution 647(b) or prostitution related charges.

We would like to voice to the SFPD and SF District Attorney’s Office that we take issue with the comparison of condoms used as evidence in rape charges with condoms being used as evidence of prostitution.  The first has nothing to do with the latter.  They are NOT the same thing.  Our issue is these departments use of condoms as evidence against the sex worker and transgender communities, to routinely harass us and threaten us with arrest for walking in our neighborhoods and trying to protect ourselves from disease and unwanted pregnancy.  We are NOT rapists.  STOP confusing our issue and deflecting your responsibility in violating our rights by comparing our condoms with rape evidence.