THE CONDOM QUANDARY

Chapter 6: The “Probative Value” of Condoms
China is not the only country to use possession of condoms as evidence of prostitution.
Many other countries and regions, including in Asia, have policies and practices in which
condoms are treated as evidence in prostitution cases. However, there is also a slowgrowing
movement to rethink and reform these practices, some of which is driven by
the impact these policies are having on HIV prevention efforts, and also due to greater
awareness of human rights protections for those working in the sex industry. A brief
overview of developments in other jurisdictions is therefore instructive.
6.1 Case Studies: New York and San Francisco
In New York and San Francisco, a person is guilty of prostitution when that person engages
or agrees or offers to engage in sexual conduct with another person in return for a fee.
Accordingly, to convict an individual of prostitution, a prosecutor must prove three elements:
that the defendant (1) made an offer or agreement (2) to engage in sexual conduct with
another person (3) in exchange for a fee. 162
In New York City, police do not need to obtain an arrest warrant to make an arrest in public
as long as the arresting officer has “probable cause” to believe a suspect is committing
or has committed an offense. Although it is not a crime to carry condoms, before the
policy change one of the factors police used to determine whether to arrest someone for
prostitution or solicitation was whether the person was carrying condoms. Furthermore,
prior to recent changes, the New York City police were widely reported to have confiscated
condoms from people they believed to be involved in the sex trade even when no arrest
was made. 163 In San Francisco, the police also regularly treated possession of condoms
as evidence of “an act of furtherance” in prostitution cases. Although the police did not
confiscate condoms, they photographed them for evidentiary purposes. 164
There are considerations underlying the use possession of condoms as evidence. Condoms
are a kind of circumstantial evidence. Carrying unused condoms may indicate that a person
may intend to engage in sexual activity, and a used condom indicates that sexual activity
has likely occurred. For this reason, in meeting the first two elements of prostitution (i.e.,
agreeing to provide or mutually agreeing to engage in sexual relations between two people),
condoms can serve as relevant (but not necessarily determinative) evidence. However,
condoms cannot serve as evidence of the third element (i.e., payment of cash or valuables).
In New York City and San Francisco, when police arrest people at the scene and discover
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