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Confiscating Condoms? The Dumbfounding Ways Police Deal With Prostitution

Each year, scores of new laws are proposed to make prostitution somehow even more illegal than it already is.
 
 
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It's not enough for some lawmakers that for the better part of a century, selling and buying sex has been illegal in every state of the union. (The exception is the system of legalized brothels dotting a handful of low-population counties in Nevada, the existence of which has done little to deter an underground, illegal sex trade.) Each year, scores of new laws are proposed to make prostitution somehow even more illegal than it already is.  

These laws against prostitution don't simply increase penalties for buying or selling sex; they extend to creating criminal consequences for every aspect of sex workers' lives. After just one prostitution arrest, a person can be denied a job, an apartment, or the right to parent her children. She could find herself followed by police just for leaving her home. 

Though it's now fashionable for some anti-prostitution activists and lawmakers to position these laws as being of aid to prostitutes, there is absolutely no moral or legal basis for arresting and jailing a person “for her own good.” Yet this is what we have been told about sex workers: that the conditions of prostitution are so horrific that a jail cell is preferable. For sex workers who escape that cell, they still must face the consequences of their prostitution arrest, and in some cases, for the rest of their lives. Today's new anti-prostitution laws don't stop anyone from buying or selling sex – instead, they serve as tools for chipping away at people's rights through profiling and surveillance, a 21st-century continuation of the Scarlet Letter, establishing an entire underclass of people. 

Prostitution-Free Zones

Across the United States, sex workers and people who have been profiled as sex workers report being followed and stopped by police under the pretense that anywhere a sex worker might go and anything a sex worker might do in public will lead to a criminal act. The District of Columbia has formalized this system of profiling and surveillance through establishing “prostitution-free zones.” Under this law, the DC chief of police may declare any area a prostitution-free zone for up to 10 days. This empowers officers to arrest “two or more persons congregating in a public space or property in that area for the purpose of engaging in prostitution or prostitution-related offenses,” whether or not they have actually engaged in a crime. A prostitution-related offense includes loitering for the purposes of prostitution – in other words, a vague crime made only more criminal by the creation of a zone where it is even more easy to accuse and arrest you for it. Consequences include up to 180 days in jail and a $300 fine, or both. 

In practice, these zones are used to give police the power to sweep entire blocks of people into jail, and overwhelmingly, it is women – women of color and transgender women in particular – who are arrested and fined. The zones end up driving sex workers even further underground, both to live and to work, into yet more dangerous and outlying areas, so as to avoid police harassment. In order to make prostitution invisible, sex workers' lives are made more dangerous. When a local human rights organization, Different Avenues, surveyed DC residents impacted by the zones in the years following their adoption, they found that 80 percent of their respondents had been refused assistance by the police even when they sought it out. Transgender and Latino residents faced the worst treatment from police. Street outreach workers attempting to provide free healthcare were harassed by police in the zones. 

DC police can't answer who exactly this law is aimed to serve and protect, as it so clearly pits the health and welfare of some of DC's most vulnerable residents against assumptive notions of “public safety.” How would they explain that being in public as a sex worker is now so potentially disruptive or dangerous that it must be classified as a crime? The threat of people who appear to be prostitutes congregating is apparently so great that even presidents are at risk; in January 2009, a prostitution-free zone was declared in honor of the Obama inauguration

The law is only more perverse when one considers what a real prostitution-free zone might require in order to be maintained. How far would DC residents wish law enforcement to go? Should they stop and question everyone within the zone? Maybe just the women? Maybe just the women of color? Or maybe just the women of color who “look like prostitutes"? In reality, this is exactly how these laws are used, and now DC is seeking to establish permanent prostitution-free zones throughout the city

Condoms As Evidence 

With the prostitution-free zones, prostitution is understood to be a crime of intent. No one is actually arrested in the act of having or agreeing to have sex for compensation; only for appearing as if they might do so. In the same vein, arresting officers in DC and throughout the US routinely search people suspected of prostitution for condoms, confiscating them as evidence of a crime. For some cops, condoms serve the function that marijuana does in a stop-and-frisk encounter (only there's no actual law against possessing or using condoms), unless a cop thinks you might be a sex worker or otherwise wants to move you along and into custody. 

Sex workers and health and human rights advocates have pointed out that it makes absolutely no sense for publicly funded police departments to confiscate condoms that publicly funded health departments make so widely available. Now in New York, sex workers and allies are pushing for a statewide law prohibiting condoms from being considered evidence of prostitution. Unsurprisingly, this has not been an easy law to advocate for with law enforcement, which claims that district attorneys and vice departments need to be able to use condoms as evidence of prostitution in order to build cases against suspected sex traffickers – even though there's no evidence that condoms are a key indicator that someone is a victim of trafficking. Meanwhile, while lawmakers fight over this, the Sex Workers' Project reports that “people are hesitant to carry condoms to protect themselves and others, for fear that it will lead to arrest or be held against them in court.”  

The War on Trafficking 

Under the guise of “fighting sex trafficking” policy makers and advocates have proposed new laws and police practices that end up targeting sex workers. This is part of a larger move to give police expanded powers and budgets to track and arrest people involved in the sex trade. As Emi Koyama wrote in a Bitch magazine investigation, combatting forced labor in the sex trade is increasingly referred to by advocates and policymakers as the “War on Trafficking."

Like the War on Terror before it, the War on Trafficking has meant expanded police powers, including wiretapping of suspected traffickers, as well as increased collaboration with federal agencies with the power to indefinitely detain and deport people believed to be involved in trafficking. Illinois is now the first state in the nation to permit law enforcement to tap the phones of suspected traffickers. In August 2011, Cook County police were the first to use wiretapping to intercept thousands of phone calls in an alleged sex trafficking case assisted by the Department of Justice, dubbed “Operation Little Girl Lost.” 

However, Illinois' legal definition of a trafficker is so broad that even nonprofit organizations could be considered traffickers for giving any material aid -- food, clothing, shelter, even a Metrocard -- to someone in the sex trade if that person is under the age of 18.

In addition, as in DC, young people in Illinois could be less likely to seek out the support of these organizations. Through the adoption of Secure Communities, now a young person picked up by the police could end up being cross-referenced with a database of immigration violations, and find herself and her family detained and deported. With such broad-ranging police intervention in communities, anti-prostitution laws become yet another reason for people to fear the police. 

Are anti-prostitution laws like these intended to fight for the rights, safety and well-being of people involved in the sex trade? Or are they premised solely on eradicating prostitution and putting anyone involved in it behind bars? When advocates and policy makers contend that they need more laws to “fight” anything involving prostitution – even if they claim to be doing it to ensure human rights – they must explain in whose interest these laws are. The problem they face isn't that existing laws simply aren't tough enough to fight prostitution; it's that there is very little agreement about who that fight actually serves. The reality is, people still engage in the sex trade knowing that doing so exposes them to possible surveillance, arrest and incarceration. As the sex trade persists in every regard despite the law, why would yet one more law make a difference? Or would it only allow police to cast their net further, jail more people, however they wish?

Melissa Gira Grant has written for Slate, the Guardian (UK), the New York Observer and Jezebel, among others. Follow her on Twitter: @melissagira.
 
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