Prior to this week, in California, if a sex worker used a condom during a transaction, that life saving contraceptive could have enabled law enforcement to bring criminal charges.
But on Tuesday, California Gov. Gavin Newsom (D) signed legislation that outlaws the practice of using condoms as evidence of prostitution when prosecuting someone for crimes related to sex work.
Senate Bill 233 is a huge victory for sex workers, victims of sex trafficking, and their advocates. Now sex workers and victims of sex trafficking can feel a lot more secure when reporting a crime that happened to them while they were working. Before, sex workers had reason to fear that they would end up facing criminal charges themselves just for attempting to report a crime. In a statement, Newsom’s office noted that sex workers are frequently the victims of crimes which include rape, assault, robbery, and abduction.
In the prior legal regime, a much larger emphasis was placed on determining whether sex work had been exchanged. To avoid potential prosecution, sex workers made a practice of foregoing condoms despite the risks of contracting STDs and HIV. Sex trafficking victims rarely turned to authorities for assistance, knowling that they themselves might end up in the criminal justice system — leaving them mired in life threatening situations without much recourse.
Additionally, the original law was not informed by the accepted nuances of sex work. While it is certainly true that many participate in voluntary and consensual sex work, many are forced into the trade, either trafficked or otherwise committed against their will. Many members of the sex working community are young women of color, LGBTQ youth, displaced drifters, and from low socioeconomic backgrounds.
The National Center for Biotechnology Information has been warning of the dangers that sex workers face when they forego the use of condoms. As the organization explained in a 2013 report:
Though few prostitution or loitering cases proceed to trial, prosecutors in New York, Los Angeles, and San Francisco have introduced condoms as evidence of prostitution-related offenses in criminal court. The use of condoms as evidence of prostitution had the same effect in each of the four cities: while public health departments spend millions of dollars promoting and distributing condoms for HIV prevention, some members of the groups most at risk of infection – sex workers, transgender women, and lesbian, gay, bisexual, and transgender (LGBT) youth – fear carrying condoms to the point where they carry only a few, or none at all, and sometimes engage in sex without protection as a result. Some women told Human Rights Watch that they continued to carry condoms despite the potential consequences. But for others, fear of arrest based upon possession of condoms overwhelmed their need to protect themselves from HIV, sexually transmitted infections, and pregnancy.
While advocates for sex workers touted the positive impact of this new law, Newsom’s decision still garnered some detractors. The California District Attorneys Association said that this “is bad public policy and sets a bad precedent. There are already sufficient measures in place to protect these individuals, and this measure protects the buyers of sex trafficking as well as the workers.”
The American Civil Liberties Union praised the change saying that it will benefit street-based sex workers, women of color and transgender sex workers.
The new legislation’s author, Sen. Scott Wiener (D-CA), of San Francisco, told the Sacramento Bee that his legislation is the first of its kind.
“When sex workers believe that reporting violent crimes or carrying condoms will get them arrested, they simply won’t take these steps, and we will all be less safe as a result,” he said.