Governor Cuomo’s Proposed Executive Budget Fails to Protect Access to Condoms for Most Vulnerable New Yorkers

NYS 2015 Budget Bans Use of Condoms As Evidence of Some Prostitution-Related Offenses; Leaves Victims of Trafficking Vulnerable

New York (THURSDAY JANUARY 22, 2014) – The New York Access to Condoms Coalition today welcomed the inclusion of a ban on the use of condoms as evidence of prostitution in Governor Cuomo’s proposed Executive Budget announced yesterday as an important first step to protecting the health and safety of New Yorkers.

“Inclusion of a partial ban on the use of condoms as evidence of certain prostitution offenses in the Governor’s budget signals that policymakers at the highest level are taking seriously the need to protect New Yorkers’ right to protect themselves,” said Jennifer Flynn-Walker, Executive Director of VOCAL-NY, member of the Governor’s End AIDS Task Force.

The coalition of anti-trafficking organizations, public health advocates, LGBT, civil rights and reproductive justice groups urged the Governor and legislators to go further, and expand the ban to include all prostitution-related offenses – including promoting, patronizing, and trafficking offenses, in the interests of public health, reproductive rights, and safety of victims of trafficking.

“Policymakers shouldn’t leave trafficking victims out of the solution. Their lives depend on it,” cautioned Florrie Burke, recipient of the inaugural Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons from President Barack Obama, in a 2013 op-ed in favor of a comprehensive ban on the use of condoms as evidence in all cases.

“Governor Cuomo and advocates have been working on an ambitious plan to end AIDS in New York by 2020, said Demetrius Thomas of Gay Men’s Health Crisis, also a member of the Governor’s Task Force. “This goal is achievable, but not if condoms continue to be confiscated by police and cited as evidence of criminal activity by prosecutors at any level.”

Failure to enact a comprehensive ban on the use of condoms as evidence of intent to engage in any prostitution-related offense perpetuates stigma around condom possession and contributes to New Yorkers’ documented unwillingness carry or share condoms for fear of police harassment or arrest: almost half of respondents in a study said that they had not carried condoms at some point for fear that they would be used against them by police.

Additionally, excluding trafficking-related offenses from the Governor’s proposal creates a perverse incentive for traffickers to withhold condoms from the people they exploit in order to avoid prosecution, putting the health, safety and dignity of the people they victimize at risk. The vast majority of organizations providing services to victims of trafficking, including Safe Horizon, the Legal Aid Society, the Urban Justice Center, and the New York Anti-Trafficking Network, are in favor of a comprehensive ban on the use of condoms as evidence in all prostitution-related cases, including trafficking cases.

Kathleen Rice, Representative for New York’s 4th congressional district adopted a comprehensive ban on the use of condoms as evidence in all prostitution-related cases, including trafficking offenses, when she served as Nassau County District Attorney. She has been quoted as saying “If you need that condom so badly in the case against a trafficker, then you don’t have a good case.”

According to the Legal Aid Society’s Trafficking Victim Advocacy Project, “if condoms are allowed to be used as evidence against traffickers, we are very concerned about the practical impact – many traffickers will simply not allow those they control to carry and use condoms if there is a chance that those condoms may expose traffickers themselves to criminal liability.”

“Our clients have had access to condoms restricted by their traffickers, resulting in the transmission of HIV and unwanted pregnancy,” said Lynly Egyes, an attorney from the Sex Workers Project at the Urban Justice Center who represents trafficking victims. “Not including trafficking offenses in this ban would only incentivize withholding condoms from trafficking victims.”

Any possible probative value of condoms in felony trafficking, promoting, and patronizing offenses is far outweighed by the public health benefits of excluding them as evidence.  While condoms are routinely confiscated and vouchered as arrest evidence, they are rarely actually introduced at trial, in part because prostitution-related cases seldom go to trial.  In the rare cases where condoms are introduced, they are neither necessary nor sufficient to secure a conviction or any prostitution-related crime, especially one as heinous as trafficking.

“Governor Cuomo has shown that New York State is taking steps to help victims of trafficking by declaring January Human Trafficking Awareness Month,” said Mike Selick of New York Harm Reduction Educators. “Unfortunately, he missed an opportunity with his budget proposal, which bans the use of condoms as evidence of certain prostitution related offenses, but does not include protections for charges relating to trafficking.”

Because both federal and New York law defines all people under 18 who trade sex as trafficking victims, continuing to use condoms as evidence of trafficking offenses will create additional obstacles to condom use and access among populations facing the highest rates of new HIV infections according to the Centers for Disease Control, including LGBTQ youth of color.

“As long as condoms can be confiscated by police from people under 18 as potential evidence of trafficking, young people will continue to perceive carrying and sharing condoms as a potential threat to themselves and their friends,” said Verónica Bayetti Flores, Policy Coordinator at Streetwise and Safe (SAS).

“I want to thank Governor Cuomo for positively impacting the lives of transgender women who usually get harassed walking down the street and arrested under charges of prostitution just for carrying condoms,” said Bianey Garcia, a Translatina Organizer of the TLGBQ project of Make the Road NY. “We must continue to work together to ensure a more inclusive and comprehensive approach that protects all the LGBTQ community, youth and victims of trafficking, so they too can feel like they can use a condom without the fear of arrest.”

“We thank the Governor for putting forth this budget item as it is directly aligned with the initiative to end AIDS by 2020, which has a deep impact on LGBTQ and HIV-affected New Yorkers,” said Shelby Chestnut, Co-Director of Community Organizing and Public Advocacy at the New York City Anti-Violence Project. “However we ask for a comprehensive ban on all instances where condoms are used as evidence against some of the most but vulnerable populations or we will continue to see a chilling affect and people will fear carrying condoms.”

“Any time possession or presence of condoms on the premises of a business can be used as evidence of intent to engage in any prostitution-related offense, including over thirteen misdemeanor and felony New York Penal Law offenses not covered by the Governor’s budget proposal, police will continue to take condoms out of the hands of people who are the most vulnerable to exploitation – youth and trafficking victims, the people who are exploiting them will stop using or deny access to condoms in the hopes of avoiding prosecution, and businesses and individuals will be discouraged from carrying and distributing them.”

Corinne Carey, Assistant Legislative Director of the New York Civil Liberties Union, agreed that the budget proposal ought to have gone further to prevent law enforcement from seizing condoms as evidence of sex trafficking and other prostitution-related crimes.

“The Governor’s proposal is a step in the right direction toward acknowledging the public health risks of criminalizing condoms, but it doesn’t go far enough and its protections are really too limited for us to be content with it,” she said. “The message needs to be that, no matter who you are, carrying condoms isn’t criminal.”

“Unless we comprehensively ban the use of condoms as evidence, we continue to put the most vulnerable – young people and people facing force, fraud, and coercion in the sex trades – in harm’s way for HIV, unwanted pregnancy, and forced abortion.”

The Access to Condoms Coalition is made up of over 40 anti-trafficking, public health, reproductive rights, LGBTQ, anti-violence, and civil and human rights organizations.

A comprehensive ban on the use of condoms of evidence for all prostitution-related offenses has been endorsed by over 100 groups across New York State.

Download the full press release here.