SFPD updates condom policy
by Seth Hemmelgarn
The San Francisco Police Department will no longer take photographs of condoms or mention them in police reports in prostitution cases, ending the city's practice of using condoms as evidence in such cases. A bulletin will be released by the end of this week, a department spokesman said Tuesday, January 8.
[Updated: Friday, January 11: The SFPD announced late Friday that it's reversing its position on not using condoms as evidence of prostitution, and officials are not offering a clear explanation.
Rather than saying once and for all that condoms won't be collected, photographed, or mentioned in police reports in such cases, as the agency had planned to do, Chief Greg Suhr has issued a department-wide bulletin that says the ban could be just temporary.
According to the bulletin, which an SFPD spokesman sent to the B.A.R. just before 5 p.m. Friday, the offices of the district attorney and public defender have extended a trial period during which they won't discuss condoms in prostitution cases for another 90 days, which started January 1.
Officer Carlos Manfredi, an SFPD spokesman, acknowledged that the plan had been to permanently end using condoms as evidence in prostitution cases, but he said, "the DA's office and the public defender's office is extending it for another 90 days, so they make the decision whether it's going to be permanent or not. We're just extending it another 90 days to find out."
Neither the DA nor public defender's office had offered hints of the trial period continuing in recent interviews.
Asked why the police department would seemingly reverse course Manfredi said, "I don't even know how to answer that question." and requested the query be sent via email so he could pass it to others.
Alex Bastian, a spokesman for the district attorney's office, offered little explanation as to why his agency would continue reviewing the value of evidence that even he indicated isn't of much use.
"We decided to extend the [trial period] for another 90 days in order to properly analyze the results of the period," Bastian said.
"We have very few cases that actually have condoms as evidence," he added. "... The more time goes by, the better reference sample you have." He couldn't say who had made the decision, but said, "We let the SFPD know that's what we're doing."
Elizabeth Hilton, managing attorney in the misdemeanor unit at the public defender's office, has represented her agency in discussions on the issue, but she didn't know about the new agreement with the DA's office.
"That's at least a step in the right direction," Hilton said. She predicted there would be a meeting between the agencies, and said, "We can emphasize trying to make it a permanent agreement, so I wouldn't be that worried about it."
Hilton said at a September meeting with representatives from the city's Human Rights Commission, health department, and others, "both the police department and district attorney's office seemed a little concerned about ending the policy completely. ... They had concerns that it was really going to affect their ability to prosecute these cases."
She said that she responded that it wouldn't have an impact, and the SFPD and DA's office finally agreed to a 90-day trial period that began October 1 and ended December 31, 2012.
She expressed hope that once the other agencies see that not using condoms as evidence of prostitution has "absolutely no effect" on their ability to prosecute cases, maybe they'll "see the light."
"I'm thinking that maybe they're thinking it's a bigger deal than it is," she said.
Hilton didn't know who at the public defender's office had agreed to the extension.
"I was the point person" for the other agencies, she said. "I was the one they would have contacted."
Tamara Aparton, a spokeswoman for the public defender's office, said nobody else was available to comment late Friday.
HRC Executive Director Theresa Sparks said she'd had "no idea" about the law enforcement agencies deciding to extend the trial period, rather than stopping the use of condoms in prostitution cases altogether.
"It surprises me," Sparks said Friday. She said she was "absolutely" disappointed.
"I thought we were done with this, because I never thought it was a real issue. All we're trying to do is facilitate an agreement," Sparks said. "... If they can't agree on it, then we'll have to keep working with them, which we will."
She said public health officials would be disappointed, too. "It essentially will keep, particularly the people who most need condoms, it will keep them from using them, and that's a very dangerous situation when it comes to the spread of HIV," Sparks said.
Public Health Director Barbara Garcia said she wasn't aware of the bulletin and declined to comment until she'd had a chance to discuss the issue with others.
Sparks said from the conversations she's had with other officials, using condoms as evidence has never been much of an advantage in prosecuting prostitution cases.
"I think that ultimately the policy will go in place to not collect or photograph condoms," Sparks said.
She said a meeting would probably be scheduled for the second week of February.end update]
Sex worker advocates, public health officials, and others have expressed concerns that using condoms as evidence of prostitution discourages people from using them, thereby putting them at greater risk for HIV and other diseases.
The SFPD was criticized this past summer after the Bay Area Reporter found contradictory policies within the department over the seizure of condoms from people suspected of prostitution. Police Chief Greg Suhr later announced that officers would no longer confiscate condoms as evidence of prostitution and issued a bulletin to department personnel. However, condoms could still be photographed.
The latest change comes after officials from the SFPD met September 20 with representatives of the district attorney's and public defender's offices, the Human Rights Commission, public health officials, and others to discuss the policy.
In a September 28 email to HRC Executive Director Theresa Sparks, Suhr, who wasn't at the meeting, said, "... [I]n light of the DA/PD's agreement not to allude to condoms in any way (up or down) as an indicator of any criminal conduct, we will no longer be even mentioning the possession of and/or taking photos of condoms (we had long since stopped seizing them as evidence)."
Suhr's message refers to the DA's and public defender's offices. In an October 31 letter to Sparks, District Attorney George Gasc—n included an agreement between his and the public defender's staffs that from October 1 through December 31, in misdemeanor cases involving prostitution charges, no argument would be made "regarding the presence or absence of condoms." Gasc—n said the impact of the policy change would then be reviewed and "[b]ased on the outcomes we will determine the appropriate next steps."
It appears that Suhr's message hadn't made it to everyone in his department.
Officer Carlos Manfredi, a police spokesman, said there'd been no policy change regarding photographs of condoms when the B.A.R. spoke with him last week and told him of the other agencies' agreement, of which he hadn't been aware. The interview was before the paper knew about Suhr's email.
Sparks shared Suhr's email this week. In an interview Tuesday, after the B.A.R. had asked Manfredi about the message and passed it along to him, he said a bulletin was "in the process" of being prepared. He didn't know how people in the department were supposed to know about Suhr's September message when a bulletin hadn't been issued.
In a subsequent email Tuesday, Manfredi said, "In light of the district attorney and public defender's agreement not to include condoms as an indicator of any criminal conduct, Chief Suhr has approved these changes and a department bulletin is in its final process to be released by the end of this week. No condoms will be photographed or mentioned in police reports in regards to prostitution."
Elizabeth Hilton, managing attorney in the misdemeanor unit at the public defender's office, attended the September meeting. Told Tuesday of the pending bulletin, Hilton said, "That's wonderful, because that's really what we were trying to accomplish. That's very exciting."
In June, Alex Bastian, a spokesman for the district attorney's office, said prosecutors "would never charge a case simply because someone is in possession of condoms" and said use of condoms as evidence was rare.
"A vast majority of prostitution cases brought to our attention are either not charged, dealt with at the neighborhood courts, in the community justice court, or lead to a successful completion of the SAGE program and are dismissed entirely," he added, referring to the group Standing Against Global Exploitation Project, which he said aims to "educate and help prostitutes who are in a detrimental situation."
In response to news of the pending bulletin, Sparks said, "I think that's great, and I think it's going to benefit everyone in San Francisco."
Sparks said there would be another meeting "to sit down and memorialize [the policy change] with everybody to make sure everybody is on the same page."
Naomi Akers is executive director of San Francisco's St. James Infirmary, which offers medical and social services for sex workers. The nonprofit was represented at the September meeting. Asked in an interview in late December whether she had heard of clients' condoms being used against them during the 90-day period, Akers said, "There's been no real comment one way or another. We haven't done outreach on it." She also said, "We were asked not to publicize the period" while it was in effect.
In July, the international nonprofit Human Rights Watch released a report on San Francisco and some other cities' policies around using condoms as evidence of prostitution.
Sparks said the local change could have an impact beyond San Francisco.
"Based on what we do, it potentially could become nationwide policy in major urban areas," she said.
More changes could be coming in California. Gay Assemblyman Tom Ammiano (D-San Francisco) recently indicated he's interested in addressing the issue statewide.