Criminalizing Condoms: How Policing Practices Put Sex Workers and HIV Services at Risk in Kenya, Namibia, Russia, South Africa, the United States, and Zimbabwe

"A crucial step toward preventing HIV will be the removal of punitive laws against sex work and laws and policies allowing condoms to be used as evidence that act as structural barriers to the realization of sex workers' right to health."

According to research described in this report, police around the world are actively engaged in stopping and searching sex workers and confiscating or destroying condoms found in their possession. In many cases, possession of condoms has been used by prosecutors as evidence of prostitution. The Sexual Health and Rights Project of the Open Society Foundations, publisher of the report, observes that this treatment of condoms as contraband forces sex workers to make a choice between safeguarding their health and staying safe from police harassment or arrest. Criminalizing Condoms documents these practices in 6 countries - Kenya, Namibia, Russia, South Africa, the United States, and Zimbabwe - and identifies their consequences on sex workers' lives, including their vulnerability to HIV.

The report explains that police cite condom possession as justification to detain or arrest people on charges related to sex work. They "harass and abuse sex workers who carry condoms and use the threat of arrest on the grounds of condom possession to extort and exploit them. Some sex workers opt not to carry condoms because they fear police harassment and detention, thus increasing their risk of exposure to HIV and compromising their health and the health of their sexual partners." Furthermore, police "harass and arrest outreach workers, limiting their ability to distribute condoms and educate sex workers about safer sex practices."

Research for this report was conducted in August and September 2011 in 6 countries by 7 organisations working on sex worker rights. Amongst the findings: In Russia, 80% of sex workers said police had taken their condoms; in Namibia, 50% of sex workers said police destroyed their condoms, and 75% of those who then did sex work had unprotected sex; in Russia, 60% of sex workers said police had used condoms as evidence against them; in the United States, 52% of sex workers said there had been times when they opted not to carry condoms because they were afraid it would mean problems with the police; and in Kenya, 50 percent of outreach workers said that police had harassed them during the course of their outreach work.

Criminalizing Condoms offers several recommendations for:

National and local government agencies:

• "National and/or local lawmakers should pass legislation decriminalizing sex work and removing administrative sanctions on sex work. As a first step, justice officials or representatives from other responsible government agencies should present to legislators a draft law on decriminalization of sex work, with accompanying explanation about the role of decriminalization in reducing the spread of HIV, violence, and other health risks.
• Pending decriminalization of sex work, national and/or local lawmakers should pass legislation that prohibits condoms from being used by police or prosecutors as evidence of prostitution. Corresponding guidelines should be issued to judges instructing them to deem condom possession inadmissible as evidence of a person's engagement in or intention to engage in sex work.
• National and local law enforcement officials should issue written and verbal instructions to officers to cease the confiscation of condoms from sex workers or anyone else, and discipline violators of this policy.
• Government health officials should coordinate with police and other relevant agencies to establish trainings for police officers about HIV and the importance of condom use to preventing its spread.
• Representatives of the head of state at the highest possible level should instruct all government agencies to ensure that their policies are consistent with the policies and aims of national programs to prevent HIV and internationally recognized best practices to stop its spread.
• Internal investigations departments and general prosecutors' offices should investigate and punish police officers who rape or otherwise assault sex workers and who abuse their power by sexually exploiting or extorting sex workers. Information about police being held to account for such crimes should be widely publicized, including in the sex worker community.
• National and local law enforcement officials should issue written and verbal instructions to officers to immediately stop arresting or following outreach workers for carrying out their work and to cease harassment of outreach workers. Opportunities should be found to sensitize police about the work of outreach workers and their role in HIV prevention."

Public health and HIV/AIDS researchers and agencies:

• "National and international agencies working to prevent HIV should advocate for the removal of laws that criminalize and penalize sex work, including through support to legislative reform campaigns by sex worker groups and through direct advocacy to government officials.
• International organizations working on HIV and AIDS and relevant state agencies should fund research on the effect of policing practices on sex worker health and HIV prevention.
• HIV and AIDS programs should ensure that the health effects of police abuse and harassment are captured in the design and evaluation of programs aimed at sex workers.
• HIV and AIDS programs should be designed in consultation with sex workers, meaningfully engage sex workers in their implementation, and address the issues most relevant to securing sex workers' rights to health and wellbeing.
• HIV and AIDS programs should consider barriers to effective outreach to the most vulnerable populations, including police harassment of outreach workers and police practices that engender mistrust of outreach workers.
• Funding and other support should be provided to sex worker rights groups to conduct community-based research to document ongoing police abuse and harassment, as well as the confiscation of condoms and their use as evidence in criminal proceedings and to justify detentions. Funding should also be provided to community groups to provide legal aid and other direct services to those whose rights have been violated, and to carry out community organizing and human rights training."

Associated with this report is a short animated film, Condoms as Evidence, featuring sex worker voices from Kenya, Russia, South Africa, United States, and Zimbabwe. In this multilingual film, which can be viewed below, sex workers talk about what it means when police confiscate or destroy their condoms. They call on police worldwide to "stop taking our condoms".