As New York takes an unprecedented step toward decriminalization, California lawmakers are using a different approach to make sex work safer. A state bill sponsored by Sen. Scott Wiener would protect sex workers who come forward as witnesses or victims of serious crimes, and prohibit the possession of condoms from being used as probable cause for arrest. Instead of decriminalizing sex work, it would provide immunity from arrest under certain limited circumstances.
“When a sex worker is scared to come forward and report a crime, the sex worker is less safe, and we are all less safe as a community,” explained Wiener in a statement. “And, carrying condoms to protect one’s health should never be criminalized.”
The bill, SB 233, would prohibit a sex worker for being arrested if they are reporting any number of specified crimes, including sexual assault, trafficking, robbery, and burglary. This is critical, given that 60 percent of sex workers have experienced violence while working, according to a 2014 study by the University of California San Francisco and St. James Infirmary, a peer-based health clinic for sex workers. Of course, sex workers’ vulnerability to arrest can dissuade reporting of violent crimes (which makes no one safer, except for the perpetrators).
The bill would also prohibit using condoms as probable cause for arrest or as evidence in the prosecution of a sex work-related crime. As Human Rights Watch (HRW) reported in 2012, “police stop, search, and arrest sex workers using condoms as evidence to support prostitution charge.” Often, these stops and searches for condoms are “a result of profiling, a practice of targeting individuals as suspected offenders for who they are, what they are wearing and where they are standing, rather than on the basis of any observed illegal activity.”
The upshot is that many sex workers feel unsafe carrying condoms. HRW found that, for some, “fear of arrest overwhelmed their need to protect themselves from HIV, other sexually transmitted diseases and pregnancy.” A Los Angeles-based sex worker who had been arrested while carrying condoms told HRW, “After the arrest, I was always scared… There were times when I didn’t have a condom when I needed one, and I used a plastic bag.” It’s for these reasons that in recent years some police departments, including in San Francisco and New York City, have changed policies around using condoms as evidence.
Unlike other recent legislation that falsely purports to make sex workers safer while actually exposing them to greater risk (see: FOSTA-SESTA), this bill has the support of groups like the US Prostitutes Collective and the Sex Worker Outreach Project Sacramento. It’s also backed by several other organizations, including the American Civil Liberties Union of California. However, the California Public Defenders Association has opposed the bill on the grounds that “a person who is wrongfully accused of another crime, such as robbery, by an unscrupulous prostitute... should be allowed to use possession of a condom as evidence that the accuser is in fact a prostitute.” I might counter that utterance of the phrase “unscrupulous prostitute” should be used as damning character evidence.
This post has been updated to identify the Sacramento chapter of the Sex Worker Outreach Project.