At the recent International AIDS Conference, The Lancet released a special issue on sex work and HIV. Acknowledging that sex workers constitute a disproportionate burden of people with HIV, Kate Shannon and colleagues modeled various interventions to measure how change in structural determinants of health would impact HIV transmission. Researchers found that the decriminalization of sex work would have the largest impact on the course of HIV epidemics by “averting 33-46% of HIV infections in the next decade.”

While sex worker organizations advocated for the decriminalization of sex work long before the HIV epidemic in the United States, it was HIV that brought new attention to the need for sex workers to access safe sex materials to stop the transmission of HIV and other sexually transmitted infections. Sex workers, epidemiologists and lawyers noted that criminal laws, as well as police practices, played a large role in frustrating the ability of sex workers to access public health education, as well as key tools in preventing the spread of HIV, including condoms.

In 2008, sex worker organization Different Avenues published one of the first reports to document police harassment and abuse of sex workers, and people whom the police profile as sex workers. Researched and authored by community members directly impacted by policing, the report highlighted the seizing of condoms and safe sex materials from people the police suspected to be sex workers, and their use subsequently as evidence in trials in the District of Columbia.

Further, the report highlighted the harms of Washington, D.C.’s “prostitution-free zones,” (PFZs), areas in which police have a strengthened ability to force people to leave an area, as well as to stop, search, and arrest people they believe are engaging in prostitution. Similar to initiatives in other cities, the PFZs essentially codified abusive pre-existing tactics the police carry out every day, where they harass, search, and arrest sex workers or individuals they suspect are sex workers, usually under the cover of overbroad anti-loitering or soliciting statutes. This has had a disproportionate impact on people of colour and impoverished people, and particularly on transgender women of colour, who are frequently profiled as sex workers.

The Washington D.C. Council held a hearing on July 9 on a bill introduced by Councilman David Grosso to repeal the prostitution-free zones. The police department in D.C. did not oppose the bill, and it seems set for approval later this year. The proposed bill, together with moves by some police departments to end the use of condoms as evidence, gives hope to activists fighting to reduce the spread of HIV, secure human rights for sex workers, and to decriminalize sex work. This is true both globally and in the United States, where criminal laws allow for the ongoing harassment, arrest, detainment, and mistreatment of sex workers and people affected by policing of sex work. 

Since 2008, numerous organizations have also taken up the cause of ending police and prosecutors’ use of condoms as evidence, including (but not limited to) Human Rights Watch, Amnesty International, Streetwise and Safe, Sex Worker Project, Lambda Legal, St. James Infirmary, Best Practices Policy Project, and the Access to Condoms Coalition.  Each of the reports and initiatives spearheaded by these organizations condemned the use of condoms as evidence for impeding HIV interventions. These groups, along with many others, have also spoken out against other discriminatory practices of police, such as the PFZs.  For sex workers and their allies carrying condoms is a key tool in preventing the spread of HIV.  In turn, when the police harass sex workers and confiscate condoms they undermine efforts to promote safe sex.

Starting last spring, the hard work of sex worker organizations and advocates paid off in New York City, San Francisco, and Washington, D.C., where police departments have moved to stop seizing condoms for use as evidence of prostitution. However, obstacles remain. In 2014, in New York City the efforts of sex worker advocates and their allies resulted in Commissioner Bratton of the New York Police Department (NYPD) announcing that condoms would no longer be used as evidence in prostitution cases. Unfortunately there is a large loophole in this new policy: condoms will still be used as evidence in sex-trafficking cases.  This is a continuing challenge where sex work and sex-trafficking are conflated. As stated by the Access to Condoms Coalition:

“Unfortunately, it does not go far enough, and creates a loophole big enough to drive a truck through: police can still continue to use the possession of condoms to justify an arrest, confiscate condoms from sex workers and survivors as “investigatory evidence” where promoting or trafficking is suspected, and confiscate condoms as evidence in promoting and trafficking cases.”

Trafficking laws often result in the continued arrest and harassment of sex workers. Further, in some jurisdictions prostitution cases may be treated as trafficking cases. Thus the exception for trafficking may undermine the effort to promote condom use by sex workers. New York-based organizations like Streetwise and Safe, say that they will actively monitor the implementation of the new police policy.

Mounting evidence such as that in the Lancet, that increased rights for sex workers contributes significantly to their health and well being, particularly by reducing HIV transmissions, may help sex workers and their allies expand on these new gains. Recent policy shifts on the seizure and use of condoms as evidence, as well as re-evaluations of the prostitution-free zones, point towards new thinking on the part of police about the health and safety of sex workers. However, loopholes in the new policies make clear that sex workers and allies must be vigilant in observing and shaping the implementation of these laws and policies.

This article is part of 50.50's series of critical perspectives on AIDS Gender and Human Rights. We published articles daily during the 2014 World AIDS Conference in Melbourne July 20-25