Relates to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices; repealer

Existing law

Currently, possession of condoms may be introduced as evidence of prostitution and trafficking-related offenses in most criminal, civil and administrative proceedings except misdemeanor prostitution and loitering for the purpose of prostitution. Other sexual and reproductive health tools, however, may be introduced as evidence of all prostitution and trafficking-related offenses.

Summary of provisions

Section 1 states that this act shall be known as the "End Criminalization of Condoms Act".

Section 2 states certain legislative findings.

Section 3 adds a new section 4519-a to the civil practice law and rules to prohibit introduction of the fact of possession or presence of condoms and other reproductive and sexual health devices as evidence of prostitution, patronizing a prostitute, promoting prostitution, permitting prostitution, maintaining a premises for prostitution, lewdness or assignation, or maintaining a bawdy house, in any trial, hearing or proceeding pursuant to section 12 and article 10 of the multiple dwelling law (liens on premises used for unlawful purposes), sections 12-a and title 2 of article 23 of the public health law (hearings and equitable proceedings regarding premises used for prostitution), section 231 of the real property law (voiding of lease on premises used for unlawful purposes), or sections 711 and 715 of the real property actions and proceedings law (summary eviction proceedings).

Section 4 adds a new section 60.47 to the criminal procedure law to prohibit introduction of the fact of possession or presence of condoms and other reproductive and sexual health devices as evidence of prostitution or trafficking-related activity in any trial, hearing or proceeding pursuant to article 230 or section 240.37 of the penal law

(prostitution and trafficking-related offenses), or section 6512 of the education law (unlicensed practice of a profession), or by any related local or municipal law or regulation, for the purpose of establishing probable cause for an arrest or proving any person's commission or attempted commission of such offense.

Section 5 amends section 160.10(1) of the criminal procedure law to remove subdivision two of section 240.37 of the penal law (loitering for the purpose of engaging in a prostitution offense) to provide that this violation shall no longer be an offense requiring fingerprinting.

Section 6 amends section 160.55 of the criminal procedure law to remove subdivision two of section 240.37 of the penal law (loitering for the purpose of engaging in a prostitution offense) to provide that sealing of convictions appropriate to violation-level offenses shall be available for this violation. It also deletes references to former section 240.35 of the penal law, as repealed by chapter 232 of the laws of 2010.

Section 7 adds a new subdivision 7-b to section 841 of the executive law to authorize the Commissioner of Criminal Justice Services to take such steps as necessary to ensure that police and peace officers receive appropriate instruction regarding the evidentiary prohibition set forth in section 60.47 of the criminal procedure law.

Section 8 adds a new section 49 to the legislative law to create guidelines for the implementation and use of health and human rights impact statements to accompany certain legislation.

Section 9 adds a new section 83-n to the legislative law to establish a volunteer legislative commission on health and human rights.

Section 10 amends paragraph f of subdivision 4 of section 837 of the executive law to require that the Division of Criminal Justice Services conduct research and analysis necessary to complete health and human rights impact statements and present an annual report containing statistics and other information relevant to such statements

Section 11 sets forth a severability provision.

Section 12 establishes the effective date.

Justification

Currently, for purposes of prosecuting certain criminal, civil and administrative offenses, reproductive and sexual health tools, and particularly condoms and lubricants, are being confiscated and destroyed by law enforcement officers and introduced by prosecution as evidence in trials, hearings, and proceedings. This practice deters those most vulnerable to the HIV epidemic, other sexually transmitted infections, and unwanted pregnancies from using condoms by sending the message that possession or presence of condoms provides a legal basis for being stopped, questioned, and arrested by police. This message undermines public health efforts to promote safer sex practices, and creates a perverse incentive for exploiters to deny access to critical reproductive and sexual health tools to victims of trafficking, which

are essential to enabling them to protect themselves from unwanted pregnancies, HIV and other sexually transmitted infections.

Promoting and protecting health and respecting and fulfilling human rights are necessarily linked, and health-oriented and rights-based law enforcement efforts are central to the effective provision of government services for the benefit of the people of the State. By adopting a comprehensive ban on using the possession or presence of condoms as evidence in all prostitution-related cases, this bill will help to encourage, instead of discourage, safer sex practices.

Article 17, section 3 of the New York State Constitution requires that the legislature protect and promote the health of the inhabitants of this state as a matter of public concern. It is pursuant to this principle that the New York City Department of Health and Mental Hygiene spends upward to $30 million annually on distributing more than 38 million condoms per year at approximately 3,500 locations throughout New York City. However, with one hand the government distributes these condoms and with the other it destroys, confiscates and introduces them as evidence of criminal offenses. The same New York City branded condoms distributed by the City are thrown in City trashcans, or listed as arrest evidence on police property vouchers and on supporting depositions filed in criminal cases as evidence of intent to engage in prostitution in the prosecution of the offenses covered by this bill.

Governor Andrew M. Cuomo recently announced a bold commitment to end the AIDS epidemic in New York by 2020. The first-ever statewide initiative to reduce new transmissions to 750 or fewer per year, improve access to care for people living with HIV/AIDS (PLWHA), and work to ensure that PLWHA have undetectable viral loads at a rate that outpaces new infections. Under current law, the very same prevention tools that are centerpieces of this plan - condoms - may be lawfully confiscated and introduced as evidence in a criminal prosecution for a prostitution or trafficking-related offense. New York simply cannot end AIDS by 2020 without lifting barriers to access and use of these critical sexual health tools.

The practice of using condoms as evidence in prostitution cases has come under criticism across the country. In 2012, Congresswoman Kathleen Rice as former Nassau County District Attorney implemented a comprehensive ban on the use of condoms as evidence in all prostitution and trafficking-related prosecutions in her jurisdiction. Congresswoman Rice concluded that any potential benefits of using condoms as evidence do not outweigh the public health impact. She also noted that more serious trafficking cases are made out on witness and other evidence, and that "condom evidence was rarely of any value to a prosecution." According to Rice, "If you need that condom so badly in the case against a trafficker, then you don't have a good case " Similarly, in 2013, former Brooklyn District Attorney, Charles Hynes wrote a scathing letter to then-NYC Police Commissioner Ray Kelly condemning the police department's practice of using condoms as evidence in prostitution cases and demanding that the Commissioner end the