Condoms have popped up as evidence in at least eight low-level prostitution cases in the past year, according to the Public Defender’s Office, despite a 1994 city policy that bars prosecutors from using them against suspects as a means to reduce the spread of sexually transmitted diseases.
“We have continued to see cases that include photographs of condoms,” said Tamara Barak Aparton, a spokeswoman for the Public Defender’s Office.
Last month, apparently in reaction to several stories by the Bay Area Reporter, police Chief Greg Suhr released a departmentwide memo reminding officers that they can photograph, but not collect, unopened condoms when establishing probable cause for loitering for the purpose of prostitution. Condoms are only to be collected for evidence at crime scenes such as sexual assaults, police said.
In the early 1990s, as The City’s war against the HIV/AIDS epidemic surged, the Board of Supervisors passed a resolution urging police not to confiscate condoms from sex workers and urging prosecutors not to use them as evidence in court. The fear of police harassment, according to lawmakers, was discouraging prostitutes from bringing condoms to work, thus leaving them more susceptible to sexually transmitted diseases.
After a successful trial period in March 1995, then-District Attorney Arlo Smith declared that prosecutors would permanently cease using condoms as evidence against prostitutes.
But in recent years, according to a report last month from Human Rights Watch, the policy might not have always been followed.
And even if police are only photographing the condoms, that could still discourage sex workers from carrying them.
Cyd Nova, a counselor at St. James Infirmary, which offers medical and social services to sex workers, told Human Rights Watch that he had a client who refused to carry any condoms for fear of arrest.
Courtney Mulhern-Pearson, the director of state and local affairs for the San Francisco AIDS Foundation, confirmed hearing those reports.
“They definitely report having sex workers that will not carry condoms because of this issue,” Mulhern-Pearson said. “Clubs and massage parlors can’t have condoms because that’s evidence that sex work is being done there.”
The District Attorney’s Office on Monday said it would “never prosecute someone for mere possession of condoms.” Assistant District Attorney Alex Bastian said the vast majority of prostitution cases in San Francisco are either not charged or dealt with in noncriminal courts, or the suspects end up successfully completing SAGE, an early intervention prostitution program.
Still, Bastian said, city officials and community leaders are discussing how to achieve a proper balance between promoting public health and ensuring public safety.