Condoms are now “instruments of crime,” according to the Allegheny County, PA police, which has been using them to charge sex workers with first-degree misdemeanors, ostensibly toward the broader goal of cracking down on human trafficking. The news, first reported by the Pittsburgh Tribune-Review earlier this month, has pitted the county DA against a coalition of sex worker and public health advocates with debate that SESTA/FOSTA have made mainstream: is it worth jeopardizing the health and safety of sex workers toward the larger goal of ending human trafficking? And more broadly, is cracking down on sex workers even productive?
As the Tribune-Review reports, criminalizing condoms allows police to generate records, and keep track of, suspects. In Pennsylvania, prostitution is a third-degree misdemeanor, meaning that suspects are typically released and sent a court summons later; possessing an instrument of crime with intent to employ it criminally is a first-degree misdemeanor, which means that the suspect is taken into custody, photographed, and fingerprinted.
When asked to comment on the criminalization of condoms, a representative from the Allegheny County District Attorney’s office told Jezebel that the “premise that condoms have been criminalized is not an accurate statement.” He sent a letter from District Attorney Stephen Zappala, clarifying that the county is not criminalizing condoms across the board, but only classifying them as “instruments of crime” while there is a “nexus between condoms, phones, computers, etc., and the investigation of either trafficking or promotion of prostitution.” While Zappala also acknowledges that HIV is a serious public health risk, he seems to find that the ends justify the means. “If any police agency investigating such a crime [as human trafficking], believes that the possibility of exploitation exists, and did not adequately investigate such matters, they would not be doing their job,” he writes.
“In this regard, the issue is not about the use of condoms, but about addressing human trafficking as a priority in our law enforcement community.”
But cracking down on sex work and ending human trafficking isn’t necessarily a causal relationship, according to Jessie and PJ Sage of Sex Workers’ Outreach Project (SWOP), whom DA Zappala characterized in his statement as “a group that represents an industry that is illegal in Pennsylvania.”
“We in no way advocate for crime,” PJ told Jezebel. “We just don’t think anyone deserves to have HIV, STIs, or unwanted pregnancy.”
Together with several organizations including the ACLU of Pennsylvania, the Women’s Law Project, and Planned Parenthood of Western Pennsylvania, SWOP had called on the DA to put an end to the practice and has held anonymous meetings for sex workers and allies to voice concern.
At one of their meetings, they heard from a woman who said she had been charged years ago for possessing condoms; she set up the appointment with an officer, and only after he asked her for a condom did he arrest her.
“She then had to decide what was a greater risk–not using condoms and endangering her longterm health or getting more charges,” Jessie said.
The woman ultimately decided to use condoms, but even then, she said that carrying them had put her life in peril.
“Because she had to hide the condoms in her car [in case the client was a police officer], one of her clients escorted her to her car at gunpoint,” Jessie said. The client had apparently wanted to make sure she didn’t drive off with their money.
Both Jessie and PJ say that they would like to work with the DA’s office toward common goals of ending trafficking and preventing an HIV outbreak. “Sex workers are on the front lines and could really help to identify cases of abuse or trafficking, but these policies cause distrust,” says PJ. “Prostitution is the lowest level of misdemeanor; if law enforcement chose to prioritize fostering relationships with the community over trying to inflate charges against low level offenders, they would be better equipped to prosecute felons and combat sex trafficking.”
The characterization of SWOP as advocates for crime also belies the idea that there are two kinds of people performing sex work, divided by the idea of autonomy–one population who chooses to do sex work, and another who are purely victims of the industry–without considering a gradient of circumstances in between. It’s been well-documented that sex work tends to overlap with populations disproportionately affected by poverty, where commercial sex work blends with survival sex. In 2013, the homeless youth shelter network Covenant House had found that one in four homeless youth surveyed was either a victim of trafficking or had engaged in survival sex (sex in exchange for basic necessities), and 48% of those who had engaged in “commercial sex work” had done so because they didn’t have a place to sleep. Black trans women are another population who overwhelmingly share economic burdens and incidentally, sex work; a 2015 report by the National Center for Transgender Equality found that 42% of black transgender women surveyed had participated in sex work at some point in their lives, that unemployment for trans people of color is four times higher than that of the overall US population, and that one in five black trans women reported living with HIV. Condoms are a necessity.
“Obviously this is a public health risk,” PJ said. “This impacts sex workers and their clients and their clients’ spouses.”
He added, “I think another part of this story is the people who are targeted are often the most vulnerable people–trans workers, workers of color, trans women of color in particular. Those people often don’t have resources or lawyers to represent them, and if you don’t have representation, you’re just going to accept a plea bargain.”