Nassau disallows condoms as prostitution evidence because of health concerns

Nassau County District Attorney Kathleen Rice attends a Nassau County District Attorney Kathleen Rice attends a press conference at Governor Cuomo's New York City office. (April 9, 2013). Photo Credit: Charles Eckert

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Condoms are no longer being used as evidence in Nassau County prostitution cases -- a move intended to help prevent the spread of disease among sex workers.

The policy change was quietly put into effect last fall by District Attorney Kathleen Rice and has since drawn praise from public health groups.

Rice's office, which says its ability to prosecute the cases isn't compromised, is believed to be the first in New York to make the change.

"We're trying to increase the probability that sex workers will engage in protected sex," Rice said, noting that many sex workers are themselves victims of sex trafficking and violence. "The public health issue outweighs the public safety issue."

Madeline Singas, Rice's chief assistant, outlined the change in tactics in a one-page memo to prosecutors in October. Since then, word has trickled out to police, defense lawyers, and legal and justice officials statewide.

"If this is going to take away fear of sex workers using condoms, then we totally support her," said Catherine Hart, chief operating officer at the Long Island Association for AIDS Care.

The number of prostitution arrests annually has fluctuated widely in Nassau and Suffolk counties over the last decade. It was relatively low last year in both counties, with 26 cases resolved in Nassau and 51 in Suffolk, according to the state Division of Criminal Justice Services.

Still, Long Island law enforcement officials have made several high-profile busts in recent months, with police arresting individuals on prostitution charges and also groups of women accused of prostituting themselves out of illegal massage parlors.

In those cases, police have traditionally used condoms as evidence to support their arrests and have often seized condoms when they find suspected prostitutes with them.

Rice said she rethought her office's policy last year after reading a Human Rights Watch report that found that many prostitutes do not carry or use condoms because police often search for them and use them to make their cases.

A separate report by the Manhattan-based Urban Justice Center's Sex Workers Project relied in part on a 2010 survey of sex workers by the New York City Department of Health and Mental Hygiene. The report found that 57 percent of sex workers interviewed had condoms taken from them by a police officer, and 50 percent of those engaged in sex work afterward without a condom.

Sienna Baskin, co-director of the Sex Workers Project, said Rice's directive is a good start, but that more sweeping change is needed.

Her organization backs a bill that has been introduced in the State Legislature that would prohibit the use of condoms as evidence at trial and other legal proceedings.

The bill has been introduced twice in previous years, but Baskin, who traveled to Albany with dozens of others to lobby for it last week, said she hopes the new research on the subject will sway lawmakers this time.

Insp. Kenneth Lack, a Nassau police spokesman, declined to comment on Rice's policy.

In Suffolk, Deputy Police Chief Kevin Fallon said police seize condoms in some cases, such as illegal massage parlors. Condoms, along with the testimony of undercover officers and surveillance, are evidence of prostitution.

"If and when condoms are recovered by the police, their use at trial will be analyzed on a case-by-case basis," said Robert Clifford, a spokesman for Suffolk District Attorney Thomas Spota.

Lawyers and law enforcement officials in both Nassau and Suffolk point out that prostitution cases seldom go to trial, and even when they do, condoms are seldom central to making a case.

Kent Moston, who heads Nassau's Legal Aid Society, called Rice's policy change "intelligent and progressive," and likened it to a law passed in 2000 that aimed to stop the spread of HIV and AIDS by making it legal to possess and sell hypodermic needles without a prescription.

Rice, who becomes president of the District Attorneys Association of the State of New York in July, hopes to convince counterparts elsewhere to follow her lead. "I'm confident that it won't be too long until our view is the standard, best practice in New York," she said.

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