Issue:  Vol. 48 / No. 7 / 15 February 2018

Breaking: DA agrees to new condoms policy


San Francisco District Attorney George Gascón (Photo: Rick Gerharter)
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San Francisco District Attorney George Gascón has agreed to make a ban on using condoms as evidence of prostitution permanent.

In a March 30 letter to Theresa Sparks, the executive director of the city's Human Rights Commission, Gascón said prosecutors "will no longer introduce physical evidence of condoms in our criminal prostitution cases." The DA's office provided the letter to the Bay Area Reporter today (Friday, April 12).

Gascón said Public Defender Jeff Adachi's office has agreed to "eliminate any discussion concerning the presence or absence of condoms as evidence in convicting or acquitting an individual of a prostitution-related crime."

Adachi said in a statement Friday, "It's good policy that police and prosecutors will no longer treat carrying condoms as evidence of prostitution. Nobody should have to choose between protecting their health and avoiding arrest."

A temporary ban on collecting or photographing condoms in suspected prostitution cases or discussing them in court had been in effect since October.

Citing public health and other concerns, Adachi and San Francisco Police Chief Greg Suhr said months ago that they wanted to make the prohibition permanent. But in January, Gascón decided to extend the trial period (see: saying he wanted to take another three months to examine the issue. In an interview at the time, he said his office had almost no data to evaluate. Alex Bastian, a spokesman for the DA, has said use of condoms as evidence is rare.

Sex worker advocates, public health officials, and others have expressed concerns that using condoms as evidence of prostitution discourages people from carrying them, thereby putting them at greater risk for HIV and other sexually transmitted diseases.

In his letter to Sparks, Gascón said his office needed to balance health and safety issues.

"Concerns raised during our two meetings have persuaded me that police seizure and trial prosecutions that use condoms as evidence make it less likely that a sex worker will carry and use condoms to protect themselves," he said. "The competing challenges we face in law enforcement is the impact street level prostitution activity has on the neighborhoods where it takes place, and the dangers that befall many sex workers."

But after six months of evaluating arrests by police and the outcomes of cases that have been prosecuted, "I feel confident that the public safety concerns can be addressed without jeopardizing the health of sex workers," Gascón said. "We are pleased that we can meet both of these important goals and excited to improve our policy to achieve greater public health and public safety."

A spokesman for the San Francisco Police Department wasn't available for comment Friday afternoon.

In an interview Friday, Sparks said the agreement between the district attorney and public defender marks "a huge advancement."

"We now can clearly say that we're putting victims' rights before enforcement, and that's what we're always trying to do," Sparks said. Officials want to "remind people that a lot of people in the sex industry are truly victims, and we should give them at least the option of protection when they're participating in these activities," she said.

She said the next step is "to get the message out to the community so that they understand that this is real, and that they understand their rights."

A meeting with advocates and city agencies will be held in the next couple weeks to determine how to spread awareness of the policy.

Sparks noted that along with her staff, representatives from the city's health department and the nonprofit St. James Infirmary have also been part of the effort to address the condoms issue. Public Health Director Barbara Garcia and St. James Executive Director Naomi Akers weren't immediately available for comment.

San Francisco is one of the first cities in the U.S. to prohibit using condoms as evidence in prostitution cases, and Sparks said it's the largest metropolitan community in the country with such a ban. She said officials hope the process "can serve as a model" for other communities.

One California lawmaker is already working to make the ban on using condoms as evidence of prostitution the policy for the entire state.

In February, gay Assemblyman Tom Ammiano (D-San Francisco) introduced a bill (see: that would prohibit police from using the possession of one or more condoms as a factor in prostitution arrests and prosecution.

"The police have plenty of other criteria they can use in determining who should be arrested as a prostitute, but condoms are the only effective deterrent to the spread of HIV," Ammiano has stated. "We have to encourage safe-sex practices, not frighten people into spreading disease."

Ammiano's proposal, Assembly Bill 336, is set for an April 23 hearing at the Public Safety Committee, which he chairs.


Condoms in porn

Another condom bill is also making its way through the Assembly. AB 332 would require condom use in all adult films – both gay and straight – produced in California. Assemblyman Isadore Hall, III (D-Los Angeles) is the lead author of the bill, which is being backed by the AIDS Healthcare Foundation.

"When it comes down to it, adult film actors are employees, like any other employee for any other business in the state," stated Hall. "We have an obligation to ensure that all workers, regardless of the type of work, are protected from workplace hazards and injury. If adopted by state lawmakers, the bill likely would have little to no impact on the production of gay porn featuring condomless sex, known as barebacking, as most producers would simply relocate production out of state.

The bill passed the Assembly arts and sports committee April 9 by a vote of 5-1 and has been re-referred to the Labor and Employment Committee.

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