A public health advocate recently contacted the Network, concerned that a local prosecutor’s office was using possession of a condom as evidence of prostitution. Such a practice is worrisome to those who work in human immunodeficiency virus (HIV) prevention, as it may discourage condom use in populations at risk. According to the Centers for Disease Control and Prevention, consistent and correct use of latex condoms is highly effective in preventing sexual transmission of HIV. Decreased condom usage in the affected populations would likely result in an increase in HIV transmission rates.
The requestor was interested in working with the prosecutor’s office to change the practice and asked the Network if other areas of the country had faced similar issues.
The Network found that on March 30, 2013, San Francisco’s District Attorney notified the San Francisco Human Rights Commission of his office’s intent to no longer introduce physical evidence of condoms in criminal prostitution cases. He also noted that the city’s public defender’s office also agreed not to introduce evidence of the presence or absence of condoms in prostitution cases.
On January 1, 2015, a new California law went into effect addressing and limiting the use of condoms as evidence of prostitution. This law doesn’t prohibit the use of a condom as evidence but sets out a process for introducing condoms as evidence outside the view of the jury. In short, a prosecutor must now file a written motion stating the relevancy of the condom possession. The court then determines if an evidentiary hearing will be held. If so, the hearing must be held outside the presence of the jury. If the court then finds that the evidence is relevant then it may be introduced in the case.
There have also been attempts in the New York legislature to prohibit the fact of condom possession as evidence of prostitution. The latest versions of the bill introduced in the New York Senate and New York Assembly, would prohibit a condom from being received into evidence at various trials, hearings or proceedings as evidence of prostitution or admitted as evidence to establish probable cause for an arrest or proving prostitution. The proposed law would also require that police officers receive appropriate instruction regarding the prohibited use of condoms as evidence. In May 2014, New York City changed its policy so that possession of condoms is no longer considered evidence of prostitution.
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