Position Statement – 2012
S.323 / A.1008 (Revised)
Prohibits Possession of Condoms as Evidence of Prostitution
Currently, possession of any number of condoms may be introduced as evidence of prostitution. It does not promote public health and welfare if the law discourages prostitutes from carrying condoms. The mere act of carrying or otherwise possessing condoms should not, in whole or in part, expose the individuals to the risk of being accused of prostitution or directly related offenses. If passed, this bill would encourage the use of condoms amongst all populations without affecting the sanction against prostitution.
However, as currently drafted this piece of legislation is overbroad and may have unintended consequences in the prosecution of “Johns” and those engaged in human trafficking. Sex trafficking and the promotion of prostitution, may be evidenced by significant amounts of condoms in a location or business. Modifying the legislation to permit the introduction into evidence of the possession of condoms where the number of condoms would be construed by a reasonable person as evidence of a broad scheme or enterprise of trafficking or prostitution. This standard would promote the public health, and individual health of women, while simultaneously facilitating the appropriate prosecution of those offenders.
In addition, the legislation should clarify that, while possession of condoms may be exempted from evidence, DNA evidence obtained from a condom would not be restricted by this legislation as it may evidence other elements of various sex offenses. Similarly, where evidence of condoms will not be used, the public policy of promoting the public health mandates that the condoms not be confiscated, but returned to their owner.
By amending the civil practice law and rules, the criminal procedure law and the executive law, in relation to the use in evidence of the fact of possession of a condom, the use of condoms and other contraceptive devices would be endorsed by public policy as it relates to people having possession of condoms on their person.