May 29, 2013

Police in Brooklyn Are Told Not to Seize Condoms of Prostitutes

By J. DAVID GOODMAN

It has been a paradox of New York City government long assailed by aid groups for sex workers: the Health Department hands out millions of condoms to stem the spread of deadly diseases, while the Police Department collects condoms as evidence in arrests for prostitution.

Now in Brooklyn, prosecutors have a message for the police: stop taking the condoms.

In a letter sent last week to Commissioner Raymond W. Kelly, the Brooklyn district attorney, Charles J. Hynes, said his office would not use possession of condoms as evidence of prostitution or loitering for the purpose of prostitution.

“Accordingly,” Mr. Hynes wrote in the letter, dated Friday, “the collection and vouchering of condoms as evidence by members of your department” in such cases in Brooklyn “should immediately cease.”

Advocates for sex workers have argued that officers’ use of condoms to support their arrests discouraged prostitutes from using condoms, presenting a public health risk. A 2012 report by the group Human Rights Watch found that such arrests sowed a fear of carrying condoms among sex workers.

Asked about Mr. Hynes’s call for policing changes, the Police Department’s chief spokesman, Paul J. Browne, said the department agreed that “it is not necessary to seize condoms as evidence of the intent of an individual to engage in prostitution.”

But Mr. Browne added: “We do not rule out their evidentiary value when going after pimps and sex traffickers. If there is a bowlful of condoms in a massage parlor, we want our officers to be able to seize them as evidence against the trafficker.”

While prosecutors are generally wary of excluding whole categories of evidence, there is a growing consensus that condoms should not be part of prostitution cases that do not involve sex trafficking. Prosecutors in Manhattan, Queens and the Bronx said that while their offices had no formal policies in place, in practice condoms were rarely if ever introduced in prostitution cases.

“Because of public health policy considerations, it is now the practice of the Manhattan D.A.’s office not to introduce condoms as evidence in individual loitering for prostitution or prostitution cases,”said Erin M. Duggan, the chief spokeswoman for the office.

But the city’s district attorneys — including Mr. Hynes in Brooklyn — said they would continue to view condoms as potential evidence in trafficking cases. (Sex trafficking, a felony charge, is often brought against pimps.)

A vast majority of the nearly 2,500 arrests for misdemeanor prostitution in the city last year — including more than 600 in Brooklyn — never make it to trial and many are resolved at arraignment, said Steven Banks, the chief lawyer for the Legal Aid Society, with cases dismissed or suspects released after accepting pleas for time served after a night in jail.

“Our front-line staff see these sorts of charges every day,” he said.

The new policy in Brooklyn mirrors, in part, one adopted in February in Nassau County and comes amid continued efforts in Albany to pass a bill, first introduced in 1999, that would prohibit condoms from being used as evidence in criminal court, including in sex trafficking cases.

Nassau prosecutors already reject condoms as evidence, even in more serious cases. “It was very important to me to also extend the ban to traffickers,” said Kathleen M. Rice, the Nassau County district attorney. Without it, she said, “traffickers will refuse to hand out condoms to their workers and in fact prohibit their use,” putting the victims of trafficking at risk.

Indeed, for many advocates in New York City, Mr. Hynes’s policy shift, while welcome, does not go far enough.

“People ask me how many condoms is it legal to carry,” said Andrea Ritchie, a lawyer with Streetwise and Safe. “I tell them that there’s no law against carrying condoms, but it’s true that police and prosecutors will use them as evidence. That’s why we’re pushing for state legislation.”