Why Carrying Condoms in NYC Might Get You Arrested

Mitchyll Mora, a LGBT youth community advocate with New York’s Streetwise and Safe project, was walking to a Lower East Side poetry reading in early 2012 when suddenly three police officers ran toward him from across the street.

Mora, who was 22 at the time, and dressed in high-heeled boots and earrings, told VICE News that officers yelled at him to “Get against the wall.”

Mora said an officer grabbed his ass and called him a “faggot” before letting him go. The NYPD did not respond to VICE News' request for comment on the case.

Mora’s experience was documented in The New York Times, and in testimony he presented to the City Council in support of the Community Safety Act. The Community Safety Act, passed June 2013, increased oversight of the NYPD and expanded New Yorker's ability to sue cops for racial profiling. It crippled the controversial Stop-and-Frisk policy to the point where then-Mayor Michael Bloomberg attempted to veto the act and ultimately filed a lawsuit against his own City Council. That suit was dropped by Mayor Bill DeBlasio when he took office this year.

But Mora told VICE News that there are hundreds of other LGBT youth of color in New York who are also routinely harassed by police. And strangely, the presence of condoms on a person can potentially intensifies the harassment — even leading to arrests and charges of prostitution.

A proposed New York State senate bill could help change that.

Senate Bill S1379 would ban the way police use condoms as evidence of prostitution. In June of 2013, the bill passed in the State Assembly. The bill’s passage in the senate would bring the NYPD one step closer to banning condoms as evidence altogether.

“The reality is that it’s perfectly legal to carry condoms. But the lived reality is that it’s not,” Mora told VICE News. “And it does mean getting stopped by the police and getting questioned: about who you’re having sex with, about your gender identity. The condom becomes an open door for that kind of harassment. And sometimes it’s used to process prostitution charges, but often it’s just an excuse for more questioning.”

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On May 7, Streetwise and Safe will join Make The Road NY, Sex Workers Project, Housing Works, and other advocacy groups in Albany for an educational session in support of the bill.

VICE News reached out to bill sponsors Sen. Velmanette Montgomery and Sen. Ruth Hassell-Thompson but did not receive responses.

At a lobbying effort last April in Albany, Senator Hassell-Thompson compared the issue to her days working in the construction field.

“When the guys go on the construction site one of the things I make sure of is that they’re wearing a hard hat and they’re wearing goggles and all protective gear,” said Hassell-Thompson. “I didn’t see condoms as being anything different. My job is to make sure that you reduce your risk as you do what you do.”

Make The Road New York’s Natalia Aristizabal told VICE News that the end of Stop-And-Frisk — the NYPD policy that was effectively put to death by New York City Mayor Bill DeBlasio — should have ended racial profiling by police. Instead, she sees that profiling continue under a different guise.

“The use of condoms as evidence is a practice by the NYPD specifically to target people of color, youth and transgender women,” Aristizabal told VICE News. “They’re going to the store and because of the way they look, they get stopped and frisked by the police. And a lot of those interactions are really awful — they’ll grab their genitals and say, ‘what are you.’ And if they search their bag, and there’s any condoms, they can use that to book them for prostitution even if that’s not what they were doing.”

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In the Jackson Heights neighborhood, where Make The Road New York’s office is located, Artistizabal said transgender women are especially targeted and that she’s “never seen anyone who is not trans get stopped.” The problem is so widespread in the neighborhood, Make The Road New York published a 2012 report on police profiling of LGBTQ people of color there.

During DeBlasio’s campaign for mayor, he promised to ban the use of condoms as evidence in prostitution cases, stating on his website that the policy “creates disincentives for prostitutes to use or even carry prophylactics. This jeopardizes public health by making the spread of sexually transmitted diseases more likely.” The mayor’s office did not respond to requests for comment by deadline.

Advocacy groups now say they are waiting for DeBlasio to act on his promise. Mora told VICE News that Streetwise and Safe is trying to convince the mayor to issue an executive order that would ban the use of condoms as evidence.

“We’re in a health crisis that’s being largely unacknowledged,” Mora said, “And if you don’t feel safe carrying a condom, how are you supposed to protect yourself?”

According to a 2012 Human Rights Watch report, NYC’s rate of AIDS cases is three times the national average. Rates of infection were high for female sex workers, transgender women, and young gay men of color — basically, everyone that police are harassing for carrying condoms.

In many cases police officers confiscated and even destroyed condoms they found on people, according to the report. The Department of Health distributed 40 million condoms annually in an effort to curb the growing HIV epidemic.

By taking away the very condoms it pays to distribute, New York City has become its own worst public health enemy.

The problem is hardly limited to the Big Apple. The San Francisco Police Department resolved to ban the use of condoms as evidence of prostitution last April after tireless efforts by community groups, including St. James Infirmary, a health clinic for sex workers.

The clinic’s executive director, Stephany Ashley, told VICE News that the issue has a long history — and it plays out in a way that’s nearly identical to the problems in New York.

“Trans women, and trans women of color especially, are definitely targeted more for carrying condoms,” Ashley said.

She noted that it also impacts women who are doing street-based sex work: “Class also plays a big part of this, and it primarily targets poor women. We tend to see greater levels of police harassment of women who are in public spaces.”

All three of the organizations interviewed by VICE News said that people in their communities often asked how many condoms they were legally allowed to carry. Many assumed that if they carried less, or none at all, they could not be charged for prostitution.

“That’s the whole irony of this entire issue: it’s not illegal to have as many as a thousand condoms,” Ashley said. “It’s a complete misunderstanding, this idea that they can bust you for five or more condoms. A lot of that comes from police actually writing it into their reports, that suspects had a certain amount of condoms on them at the time of arrest.”

A 2012 report by NYC’s Sex Workers Project found that half of sex workers surveyed said that police had destroyed or confiscated their condoms.

“It has instilled an anxiety and a fear around carrying more than a certain amount of condoms. But condoms are legal everywhere in the United States,” said Ashley.

Follow Mary Emily O'Hara on Twitter: @MaryEmilyOHara

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