SFPD Condom Practices Questioned
There appears to be confusion at the San Francisco Police Department over whether condoms should be used as evidence of prostitution. There have been indirect reports over the years of police taking condoms from people suspected of prostitution, including transgender women.
Captain Denise Flaherty, who heads the SFPD’s special victims unit, which oversees prostitution operations, said police don’t use condoms as evidence of prostitution.
"It doesn’t have any evidentiary value whatsoever," Flaherty said.
She said the district attorney’s office doesn’t require them to use condoms as evidence.
"We don’t take condoms from people when people are trying to protect themselves," Flaherty, who’s been in her post for about two weeks, said.
However, that contradicts what Lieutenant Art Stellini, one of two lieutenants in the special victims unit, said. Stellini, who spoke to the Bay Area Reporter before Flaherty did, said police do use condoms as evidence of prostitution.
He didn’t have figures on how often it happens, but he said "in every case of prostitution" where condoms are present, they’re taken as evidence, photographed, or both. Police then make what they have available to the district attorney’s office "to review as evidence so they can present it to the court if they so desire," he said.
Flaherty called the B.A.R. minutes after a reporter spoke with Stellini. She noted he’d just recently been assigned to the vice portion of the special victims unit, and his comments represented a "training issue which will be addressed immediately."
She also said, "If one person doesn’t have the knowledge, it’s a good sign" that there should be outreach "to everybody so we have a clear understanding across the board."
Asked if condoms wouldn’t be confiscated, Flaherty said, "They should not be confiscated," but "I can’t speak to what a police officer may do."
She also said photographs wouldn’t be taken of condoms.
"If there’s no evidentiary value in them, there’s no reason to take photographs of them," Flaherty said.
Megan McLemore, a senior researcher with the international nonprofit Human Rights Watch, noted that in 1994 the San Francisco Board of Supervisors adopted a resolution calling on the mayor "to urge the district attorney and Police Commission to no longer confiscate and/or alter or use the fact of condom possession for investigative or court evidence in prostitution-related offenses."
The resolution says, "The law enforcement value of condoms as indirect evidence of prostitution-related crime is exceeded by the AIDS prevention value of condoms."
Human Rights Watch is expected to release a report in July examining the issue. According to a brief report summary that McLemore provided, police in San Francisco, Los Angeles, New York City, and Washington, D.C. "stop, search, and arrest sex workers using condoms as evidence to support prostitution charges," despite each city’s condom distribution efforts. The practice is "undermining" efforts to encourage safe sex, McLemore said. (Spokespeople for the Los Angeles, New York City, and Washington police didn’t respond to emails about their policies by deadline.)
"In San Francisco, at the street level, the degree of police implementation of this policy [using condoms as evidence of prostitution] is much lower than the other three cities," she added.
However, McLemore said, efforts by former Mayor Gavin Newsom to enforce anti-prostitution laws in businesses such as massage parlors has "left a legacy of massage parlor owners being unwilling to have condoms on the premises."
Transgender sex workers don’t frequent massage parlors, she said.
"The employees at massage parlors in San Francisco are largely Asian immigrants," McLemore said. She said police told her that they’re visiting massage parlors unannounced to determine if there are any indications of sex trafficking. She said police also said Department of Public Health staff accompany them to see if there are any health code violations.
It seems that transgender San Francisco residents were reluctant to talk to Human Rights Watch directly about the condom concerns.
McLemore said that transgender people in San Francisco reported to her organization that, "They get hassled by the police, but not with the condom issue." People said that police were "harassing them for being sex workers," she said, apparently even when they weren’t.
However, she said that people who do outreach work to sex workers have told her organization that transgender women take fewer condoms and tell them "It’s because the police are harassing them."
Cyd Nova, who declined to share his legal name, works with the local nonprofit St. James Infirmary, which offers medical and social services for female, transgender, and male sex workers.
"We have many people who’ve talked about being detained and had condoms used as evidence for arrest, and people who talk about not carrying condoms for fear it will lead to an arrest," Nova said.
McLemore said a few people reported that in street-based cases, police take photographs of condoms.
"The police told us they do that out of public health concern. They don’t want to confiscate the condom," McLemore said. But she said the practice of photographing condoms rather than confiscating them "has the same deterrent effect on the willingness of sex workers to carry them."
According to McLemore, she spoke with the SFPD’s Lieutenant Jason Fox in April and May.
Fox declined to comment for this story, since he’s working in a different unit now. He referred questions to Lieutenant Michelle Jean and Stellini, who are both in the special victims unit. Jean referred questions to Stellini.
Based on information she received from San Francisco Deputy Public Defender Kimberly Lutes-Koths about six weeks ago, McLemore said that agency had handled approximately eight cases this year where condoms were used as evidence of prostitution. Lutes-Koths didn’t respond to an interview request.
McLemore said that she also spoke with Assistant District Attorney Marshall Khine. Khine didn’t respond directly to an interview request.
After researching the issue for the B.A.R. , Alex Bastian, a spokesman for the district attorney’s office, said, "We encourage everyone to practice safe sex. Condom use has been vital in the reduction of sexually transmitted diseases. However, in rare circumstances, condoms are used as evidence, specifically in cases involving rape, sexual abuse, human trafficking, and prostitution. In evaluating evidence, at times we use condoms, but we do so on a case-by-case basis."
Bastian said, "It is important to note that we would never charge a case simply because someone is in possession of condoms. Never."
He wasn’t able to provide specific statistics for this story, but he said, "In looking at a prostitution case, we evaluate the totality of the circumstances."
At times, he said, "The prevalence of condoms among other common-sense indicators can be evidence that an individual is engaging in prostitution." Other indicators that could be considered include the time of day, the location of the incident, admissions, and exchange of money.
Bastian said the district attorney’s office "looks at prostitution cases as a health issue" and offers people who are charged with prostitution the Standing Against Global Exploitation Project, which aims to "educate and help prostitutes who are in a detrimental situation."
He said, "A vast majority of prostitution cases brought to our attention are either not charged, dealt with at the neighborhood courts, in the community justice court, or lead to a successful completion of the SAGE program and are dismissed entirely."
Bastian also said, "Our office is aware of the 1994 resolution. We certainly agree condom use is an important tool in reducing STD rates and encourage everyone to practice safe sex."
He said the DA’s office attempts to resolve "an overwhelming majority" of prostitution cases "through alternative means, such as neighborhood courts, the SAGE diversion program or the community justice court."
Bastian confirmed that prosecutors don’t require condoms as evidence of prostitution.
"We have been presented cases where condoms are not in evidence," he said.