Globally there are currently more than 33 million people living with HIV.¹ The illegal sex industry continues to be one of the most at risk populations for contracting HIV.² Safe sex programs targeted at sex workers emphasizing condom use have proved effective in reducing the rate of HIV contraction amongst these populations.³ The worldwide issue lies within the conflicting interests of a society that deems prostitution illegal, yet agrees that those engaging in prostitution should use condoms to protect against infectious disease. However, if one is found to be in possession of those condoms then they will be punished. The battle between public health and enforcement of crime is becoming a dangerous global problem in desperate need of a solution.

Starting on Valentines Day 2007 and lasting through Valentines Day 2011, New York City has released several weapons in their fight against HIV.⁴ The New York City Health Department decided that widely distributing condoms to their citizens was the best method to battle HIV.⁵ New York City’s plan was implemented through a racy “Get Some!” billboard slogan, citywide condom vending machines supplying city-branded condoms, and a convenient smartphone app to pinpoint condom distribution centers.⁶  Fast forward to Summer 2012. The Human Rights Watch released a report uncovering troubling police practices in the nation’s top cities including New York City, Washington D.C., Los Angeles, and San Francisco regarding the confiscation, forced disposal, and harassment of sex workers for condom possession.⁷  We are now faced with a society that hands out condoms with one hand while handcuffing the recipients with the other.

Due to numerous social and economic factors facing these groups, sex workers suffer from substantially higher rates of HIV than the population at large.⁸ In New York City alone, 10% of women that identify as sex workers are HIV-positive, in comparison to 1.4% amongst the entire city.⁹ When investigating a suspected sex worker, routine practices in major cities include documenting how many condoms are in possession at the time of arrest.¹⁰  Although there is no available statutes or case law equating condom possession with intent to engage in prostitution, it seems to be an influential element in assessing probable cause for an arrest.¹¹

The heart of the issue resides in the dominant fear within the most at-risk communities; that if they are in possession of condoms police will target them as possible sex workers. During the compilation of the Human Rights Watch report, 300 former and current sex workers, outreach volunteers, and transgender individuals that have been targeted through condom possession were interviewed.¹² The underlying theme strewn through the vast majority of the interviews was constant harassment from law enforcement officers for possessing condoms.¹³ Safe sex outreach workers are now encountering women reluctant to accept condoms or limiting the amount they take for fear of police harassment, which has led to a report of at least one worker reverting to the use of a plastic bag in an attempt to keep herself safe and many others sacrificing protection all together.¹⁴ Outreach workers are often asked by sex workers how many condoms they are allowed to carry by law.¹⁵ This is further evidence that “condoms as evidence” practices are resulting in a common misconception among sex workers that carrying condoms is illegal.

A New York bill that would prohibit the use of “condoms as evidence” has been introduced yearly since 1999, but repeatedly fails to get passed.¹⁶ Proponents of “no condoms as evidence” laws compare the public health benefits to that of needle exchange programs.¹⁷  Targeting underlying crimes, such as drug use, is outweighed by the public health concerns associated with sharing dirty needles and spreading infectious diseases.¹⁸ Similarly, these proponents argue, policing prostitution is outweighed by the health benefits of sex workers using condoms.¹⁹ An individual should never be criminalized or punished for invoking their human right to protect their health.  In California, a request from a victim of rape for their attacker to use a condom is prohibited as use as evidence of consent.²⁰ This statute resides on the same basic principle that putting your health safety first should never be used against you. The lack of current laws protecting a sex worker’s right to carry condoms seems to deem them less deserving of legal protection due to the high moral qualms many people hold against prostitution.

This battle of interests currently being fought on our streets has already been addressed amongst various countries throughout the world. In 2007, China enacted a national regulation prohibiting condoms as circumstantial evidence while keeping prostitution illegal.²¹ This regulation was implemented in an effort to address the rising number of people infected with HIV/AIDS.²² Comparable regulations have been set forth in both Thailand and Vietnam in a nod to public health concerns holding priority over criminal prosecution. Thailand’s 100% Condom Programme distributes and enforces condom use in massage parlors and brothels, which has increased condom use from 14% in 1989 to 90% in 1992.²³ Consequently, the countries that have promoted and enforced condom use amongst their sex workers have seen a substantial decline in HIV rates.

The United States places itself at the forefront in the battle against HIV/AIDS worldwide. To date, the U.S. government has donated over $7.1 billion to the Global Fund to Fight AIDS.²⁴ However, the U.S. government also enforces a sex worker policy that refuses foreign aid to HIV programs that don’t explicitly oppose sex work.²⁵  This mentality breeds the problem of continued stigmatization of sex workers and perpetuates the missed opportunity for aid to go to an entire at-risk population. It’s difficult to educate and counsel sex workers on safe-sex practices, while at the same time telling them it is morally wrong. This mindset only results in a loss of trust between outreach volunteers and the sex workers

It seems to be popular belief amongst governments that abolishing sex work can abolish HIV. In contrast, Dr. Dennis Broun, the UNAIDS India country co-coordinator stated, “There has and always will be prostitution. We have to choose methods of AIDS control that have proven efficacy.”²⁶ The U.S government must take heed from other countries that have successfully handled the balance between law enforcement and public health, and stand as a role model for those that have yet to do so. Similar to the United States, South Africa still has wide reports of “condoms as evidence” practices and police harassment of sex workers.²⁷ By first changing unsuccessful practices within the United States’ own borders, we can then target these disturbing practices abroad.

In conclusion, governments can continue to spend billions of dollars on fancy safe sex campaigns and condom distribution, but these efforts will amount to nothing if those targeted are still too fearful of criminal prosecution to use condoms. Judge Richard M. Weinberg of the Manhattan Midtown Community Court, explained it best when he remarked, “In the age of AIDS and H.I.V, if people are sexually active at a certain age, and they are not walking around with condoms, they are fools. I don’t need anything else on condoms.”²⁸

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