Department of Health hands them out, NYPD arrests people for carrying them. Is this about improving public health—or arrest numbers?

One block north of the boardwalk in Coney Island, a white van is parked on the windswept block of Surf Avenue, between West 22nd and West 23rd Streets. Just outside the van stands a young woman wearing a teal hoodie, her auburn hair pulled back into a tight bun with a few loose strands escaping around her ears, and an anxious expression. Jennifer Gonzalez-Hermides, 32, is a prostitute, and she is here to pick up free condoms. But there is a problem. “The first time,” she says, “was right over here on Surf Avenue. They asked me to take out what was in my pocket, and I had one in there.” Sweat glistens on her pale forehead. “They arrested me.”

Gonzalez-Hermides is talking about the cops, and her case is hardly unique. Another prostitute, a 33-year-old who goes by the street name “Tiny,” says she was arrested on Surf Avenue last year after an undercover police offer asked her, “What do you have in your pockets?” She had two condoms and was arrested for “loitering for the purposes of prostitution.” She says that several of her friends have recently had similar experiences. As for Gonzalez-Hermides, she was arrested two subsequent times, in 2009 and 2010, for prostitution-related offenses. Both times, she says, her condoms were confiscated when she was arrested, and both times she pleaded guilty. While she was serving time after her second arrest, her husband died of a drug overdose.

“This is a huge problem,” says Isaac Hernandez, an outreach worker with theFoundation for Research on Sexually Transmitted Diseases (FROST’D), a Harlem-based harm-reduction nonprofit. Hernandez has been driving the white van to its parking spot on Surf Avenue for the past 12 years to distribute food, clean syringes, and the condoms that his group receives from the Department of Health. He says that undercover police routinely park nearby—he points out their van down the street. There is no law that says the possession of condoms is illegal, of course, and yet NYPD officers routinely use the possession of condoms as arrest evidence for charges of prostitution or loitering for the purposes of prostitution. This has created a situation that would be farcical if it weren’t so bleak—one city agency conducts a public-health campaign and the very people who take advantage of it are then promptly arrested by a different city agency—leading to cases being thrown out of court,a suppressed and redacted city-sponsored study of the problem, and a bill [supported by Make the Road NY and allies] to address the matter in the current session of the state legislature.

On a recent Tuesday morning in February, the single-file line behind the security checkpoint at Midtown Community Court, on West 54th Street between Eighth and Ninth Avenues. All so-called quality-of-life offenses in Manhattan pass through this court: public urination, petty larceny, riding a bike without a helmet, using a scooter in a transportation terminal, solicitation on subways, drinking in public—and prostitution and loitering for the purposes of prostitution.

Kate Mogulescu, fresh-faced with dark brown curly hair and a warm smile, rushes in and out of the courtroom to retrieve more clients. A staff attorney for the New York Legal Aid Society and head of its Trafficking Victims Legal Defense and Advocacy Project, she is the go-to defender for prostitution-related cases in Manhattan. Today she will represent 25 clients arrested for prostitution or loitering for the purposes of prostitution—almost all of whom will plead guilty. “There is a real disincentive in the criminal court system to contest allegations,” Mogulescu says. In New York City, high numbers of quality-of-life offenses have created pressure on the groaning court system to rapidly dispose of minor charges at the first court date or arraignment. Defendants risk more jail time by taking a case to trial, so they often accept a lesser sentence for pleading guilty. “They want to get it over with,” says Mogulescu, “through community service or the shortest jail time possible.”

According to the New York Department of Criminal Justice Statistics, there were 4,054 prostitution-related arrests in New York City in 2011. On the rare occasion that prostitution cases actually go to trial—in her first two years at Midtown Community Court, Mogulescu had only 10 that did so—judges have dismissed those in which the supposed evidence amounted to the possession of condoms.

In one such case, in January 2011, the prosecutor, Assistant District Attorney Matthew McKenzie, attempted to use the possession of a single, wrapped condom as evidence for prostitution. Judge Richard Weinberg, then the presiding judge at Midtown Community Court, said, according to court transcripts, “I find nothing wrong. I find no probative value at all in finding a condom.” After the prosecutor pushed further for conviction, Weinberg pushed back. “In the age of AIDS and HIV,” he said, “if people are sexually active at a certain age and they are not walking around with condoms, they are fools.” Case closed.

The New York City Department of Health has been giving away free condoms since 1971, and has made condom distribution a centerpiece of its public-health program over the past six years. In 2007, the city created its very own condom: the NYC Condom, packaged with sleek black wrappers and a design that mimics the lettering found on subway signs. The Department of Health reports that it distributed 35.5 million condoms last year alone. In 2011, the city even launched an app that uses GPS technology to locate and give directions to the nearest venues that distribute free NYC Condoms. The Department of Health wants to make New York City the safest city in the world to have sex in—but for whom?

The issue of condoms as evidence is not new to New York City. One judge who presided over prostitution-related cases in Queens for years first saw prosecutors try to use condoms as evidence 20 years ago. Marilyn, a former sex worker, says she was arrested inHunts Point in the early 1990s. “I was arrested for carrying condoms,” she recalls as she sits in the Bronx storefront office of New York Harm Reduction Educators, a nonprofit that does grassroots outreach for drug users and prostitutes, where she is now a peer educator. “When they did the sweeps, if you had condoms on you, they would take you with them and charge you with loitering, soliciting,” she says. “I have an arrest record with that.”

Outside the white van on Surf Avenue stands a clear bucket the size of a tall kitchen trash can. It bears a sign: “Please take condoms. FREE! Coje los Condomes. SON Gratis!” Dozens of passersby, men and women, reach into the bucket throughout the day, grabbing individually sealed plastic bags, each filled with 12 NYC Condoms. Some take only one bag, and others take as many as four. Inside the van, a cardboard box sits next to Jennifer Gonzalez-Hermides. It is labeled prominently: “NYC Condoms. Quantity: 1008.” The last time Gonzalez-Hermides was arrested, two and a half years ago, she had just come from the van, she says, and she was “carrying tons of condoms.”

The Department of Health is flooding the city with free condoms, and the police department is using those very condoms to make the quality-of-life arrests that are clogging the courts. It is difficult to avoid the impression that the NYPD is deliberately seeking to increase quality-of-life arrests—perhaps even meet quotas—with arrests that are blatantly at odds with the city’s own public-health policy. (The NYPD did not respond to repeated requests for comment.)

“I hope these arrests aren’t just being generated for numbers reasons,” says Eugene O’Donnell, a former New York City police officer and prosecutor and now a lecturer at John Jay College of Criminal Justice. “I think the public-health concern really has to be weighed heavily.”

The pressure has been building on the Department of Health to take a stand. “I have represented transgender women who have been charged with loitering for purposes of prostitution who had on their arrest evidence sheet ‘nine NYC Condoms,’ ” says Andrea Ritchie, a co-organizer for Streetwise and Safe, an advocacy group for LGTBQ youth of color. “If I were the Department of Health, I would find that outrageous.”

Sienna Baskin, co-director of the Sex Workers Project at the Urban Justice Center, started researching the issue in 2009. She assumed the Department of Health would be a natural ally, and at first it was. In 2010, the DOH and the PROS Network (Providers and Resources Offering Services to sex workers), a New York City coalition of sex workers, organizers, and service providers, conducted a joint study on the public-health effects of using condoms as evidence. But then, in December 2010, the DOH decided not to release the study. (The official DOH position is that the study was an internal document, and a Department of Health spokesperson would not comment further on the record.) The Sex Workers Project and the PROS Network spent the following year redoing the study themselves, and Human Rights Watch filed a Freedom of Information Act request for the 2010 joint study.

The request was granted, and the document was published as an appendix in the PROS Network study in April 2012, with consistent results. “It’s not a myth. The practice of using condoms as evidence is very prevalent in New York,” Baskin says. “And many sex workers are afraid to carry condoms.” According to the redacted Department of Health study that was obtained by Human Rights Watch, 57 percent of respondents had condoms confiscated by the police. And over 45 percent of participants in the PROS Network study reported not carrying condoms at some point out of fear of police repercussions. “This is incompatible with the city’s public-health efforts,” says Margaret Wurth, a public-health consultant to Human Rights Watch.

Perhaps it will take a new law to make clear that arresting people because they are in possession of condoms that are not only legal to possess but are distributed to them by the city itself amounts to something that looks an awful lot like entrapment and a civil-rights violation. A bill that is pending in the New York State Legislature would stop police and prosecutors from using possession of condoms as evidence of prostitution. The legislation was first introduced by Brooklyn Democratic state senator Velmanette Montgomery in 1999. Reintroduced every year since, it has regularly died in committee. But it was reintroduced again in mid-January as the “No Condoms As Evidence Bill,” sponsored by Montgomery and Queens Democratic Assemblywoman Barbara M. Clark, and after the release of the reports last year, there is a new push for the legislation to pass this session. If it does, it will be the first state legislation to take a policy stance on this issue.

“Politicians don’t want to appear to be supporting prostitution,” says Audacia Ray, a former sex worker and founder of the Red Umbrella Project, a support and advocacy group for sex workers in New York City. “But it’s a common-sense issue,” she says. “Vulnerable people are at risk.”

Some New York-area jurisdictions aren’t waiting for the bill to pass to direct their law enforcement and prosecution. Nassau County District Attorney Kathleen Rice read aHuman Rights Watch report published last summer that looked at the issue at a national level and decided to take the matter into her own hands. In October, she prohibited the nearly 200 prosecutors in her office from using condoms as evidence of prostitution in court.

“There were a number of findings in that report that were very troubling, documenting that prostitutes were not using condoms because prosecutors were using them as evidence in cases against them,” Rice says. “Our decisions as prosecutors very often make us balance competing factors. In this instance, that equation for me involved the public health on one side and value of evidence against those charged on the other.” In July, Rice will replace Manhattan District Attorney Cyrus Vance as president of the New York State District Attorneys Association, and she says she is confident that she can convince her colleagues to institute policies “that would obviate the need for any legislation,” which she believes will take too long to take effect. “This is very much a life-and-death policy decision,” she says. “I felt that time was of the essence.”

Jennifer Gonzalez-Hermides now tries to avoid walking alone on Surf Avenue. She uses Internet escort websites to arrange her sex work. But she is still determined to get the free condoms that the city distributes and that she knows she has every right to obtain. “I only came here,” she says, “because I knew the van was here, and I have a ride.” She points out the door to a man, whom she calls her “new trick,” waiting for her outside. “Females will die doing this work,” says Gonzalez-Hermides, “but not me.” She starts to cry. “I will not be another statistic.” She steps out of the van, stops at the big bucket of free NYC Condoms, takes a couple of handfuls, and quickly leaves to catch her ride.

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