What's happening
This bill prohibits condoms and other sexual health devices from being used as evidence of prostitution or trafficking in legal proceedings.
Why it matters
Supports Public Health and Human Rights. By preventing condoms and similar devices from being used as evidence, the bill encourages safer sex practices and ensures people are not discouraged from carrying protection out of fear of criminal prosecution. This supports efforts to reduce the spread of HIV and other sexually transmitted infections.
Reduces Discriminatory Policing and Protects Vulnerable Communities. The bill specifically addresses the disproportionate impact on survivors of trafficking and people profiled as sex workers, who have historically faced arrest or harassment simply for possessing condoms. This change aims to limit profiling and discriminatory law enforcement practices.
Mandates Law Enforcement Training and Accountability. The legislation requires police officers to receive training on the new evidentiary rules and explicitly states that seizing or confiscating condoms is against public policy. This creates institutional accountability and clarity for officers on the limits of their authority.
Establishes Oversight and Impact Assessment Mechanisms. By creating requirements for health and human rights impact statements on certain criminal justice bills and establishing a legislative commission with representation from impacted communities, the bill aims to ensure ongoing evaluation of how laws affect public health, civil rights, and marginalized populations.
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Who cares
Trafficking survivors and people involved in or profiled as involved in the sex trades
The bill would bar using possession of condoms and other sexual health tools as evidence of prostitution or trafficking-related activity in specified criminal and civil proceedings.
Police officers and prosecutors
The bill would expand restrictions on using sexual health supplies to establish probable cause or prove covered offenses and require officer training on those restrictions and unauthorized confiscation.
People convicted of loitering violations
The bill would remove specified loitering exceptions from record-sealing provisions, allowing sealing subject to the law’s interests-of-justice exceptions.
Community advocacy organizations
The bill would establish a legislative health and human rights commission with representatives from organizations advocating for directly affected communities to recommend changes to health and law enforcement policies.
Headline styles
End Condom Evidence in Court
Plain English, a few words. Used as the page title.
Sponsors
History
- Referred to judiciary
- Referred to judiciary
Full text
6 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
728
2019-2020 Regular Sessions
IN SENATE (Prefiled)
January 9, 2019
Introduced by Sens. MONTGOMERY, BAILEY, COMRIE, HOYLMAN, PARKER, PERSAUD, RIVERA, SAVINO, SERRANO -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary
AN ACT to amend the civil practice law and rules, the criminal procedure law, the executive law, and the legislative law in relation to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices; and to repeal paragraph (d) of subdivision 1 of section 160.10 of the criminal procedure law relating thereto
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. This act shall be known and may be cited as the "End criminalization of condoms act".
§ 2. Legislative findings. The legislature hereby finds that promoting and protecting health and respecting and fulfilling human rights are necessarily linked, and that 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. Article 17, section 3 of the New York constitution requires that the legislature protect and promote the health of the inhabitants of this state as a matter of public concern. Despite these provisions, for purposes of prosecuting certain criminal, civil and administrative offenses, reproductive and sexual health tools, including condoms, are currently being destroyed, confiscated, or used as evidence by law enforcement officers. This legislation is intended to strengthen the public health of all New Yorkers, including the most vulnerable, while preserving the ability of law enforcement to prosecute other crimes such as felony sexual offenses. The purpose of this bill is to avoid the disparate impact of the practice of citing condoms and other reproductive and sexual health tools as
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03439-01-9
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evidence upon survivors of trafficking and people who are or are profiled as being engaged in the sex trades.
§ 3. The civil practice law and rules is amended by adding a new section 4519-a to read as follows:
§ 4519-a. Possession of reproductive or sexual health devices; receipt into evidence. 1. The fact of possession of a condom or other reproductive or sexual health device may not be received in evidence in any trial, hearing or proceeding pursuant to subdivision one of section twelve and article ten of the multiple dwelling law, sections twelve-a and twenty-three hundred twenty of the public health law, section two hundred thirty-one of the real property law or subdivision five of section seven hundred eleven and section seven hundred fifteen of the real property actions and proceedings law, or by any law, local law or ordinance of a political subdivision of this state, or by any word, rule or regulation of any governmental instrumentality authorized by law to adopt the same as evidence of prostitution, patronizing a prostitute, promoting prostitution, permitting prostitution, maintaining a premises for prostitution, lewdness or assignation, maintaining a bawdy house, compelling prostitution, or sex trafficking.
2. "Reproductive or sexual health device" shall include any contraceptive or other tool used to prevent unwanted pregnancy or the transmission of HIV or other sexually transmitted diseases, including but not limited to male condoms, female condoms, lubricants, pre-exposure prophylaxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retroviral medication, spermicide, hormonal methods, emergency contraception, diaphragm, cervical cap, or sponge.
§ 4. Section 60.47 of the criminal procedure law, as added by section 2 of part I of chapter 57 of the laws of 2015, is amended to read as follows: § 60.47 Possession of condoms or other reproductive or sexual health
device; receipt into evidence.
1. Evidence that a person was in possession of one or more condoms or other reproductive or sexual health device may not be admitted at any trial, hearing, or other proceeding in a prosecution for [section 230.00] any offense, or an attempt to commit any offense, defined in article two hundred thirty or section 240.37 of the penal law, or section sixty-five hundred twelve of the education law, or any law, local law or ordinance of a political subdivision of this state, or any word, rule or regulation of any governmental instrumentality authorized by law to adopt the same, for the purpose of establishing probable cause for an arrest or proving any person's commission or attempted commission of such offense, as evidence of prostitution or trafficking-related activity.
2. "Reproductive or sexual health device" shall include any contraceptive or other tool used to prevent unwanted pregnancy or the transmission of HIV or other sexually transmitted diseases, including but not limited to male condoms, female condoms, lubricant, pre-exposure prophylaxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retroviral medication, spermicide, hormonal methods, emergency contraception, diaphragm, cervical cap, or sponge.
§ 5. Paragraph (d) of subdivision 1 of section 160.10 of the criminal procedure law is REPEALED.
§ 5-a. Paragraph (c) of subdivision 1 of section 160.10 of the criminal procedure law, as amended by chapter 762 of the laws of 1971, is amended to read as follows:
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(c) A misdemeanor defined outside the penal law which would constitute a felony if such person had a previous judgment of conviction for a crime[; or].
§ 6. The opening paragraph of subdivision 1, subdivision 2 and subdivision 3 of section 160.55 of the criminal procedure law, the opening paragraph of subdivision 1 as amended by chapter 169 of the laws of 1994, subdivision 2 as amended by chapter 476 of the laws of 2009 and subdivision 3 as amended by chapter 249 of the laws of 1981 and renumbered by chapter 142 of the laws of 1991, are amended to read as follows:
Upon the termination of a criminal action or proceeding against a person by the conviction of such person of a traffic infraction or a violation, other than [a violation of loitering as described in paragraph (d) or (e) of subdivision one of section 160.10 of this chapter or] the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, unless the district attorney upon motion with not less than five days notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his or her attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated by such conviction. Upon receipt of notification of such termination:
2. A report of the termination of the action or proceeding by conviction of a traffic violation or a violation other than [a violation of loitering as described in paragraph (d) or (e) of subdivision one of section 160.10 of this title or] the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, shall be sufficient notice of sealing to the commissioner of the division of criminal justice services unless the report also indicates that the court directed that the record not be sealed in the interests of justice. Where the court has determined pursuant to subdivision one of this section that sealing is not in the interests of justice, the clerk of the court shall include notification of that determination in any report to such division of the disposition of the action or proceeding. When the defendant has been found guilty of a violation of harassment in the second degree and it was determined pursuant to subdivision eight-a of section 170.10 of this title that such violation was committed against a member of the same family or household as the defendant, the clerk of the court shall include notification of that determination in any report to such division of the disposition of the action or proceeding for purposes of paragraph (a) and subparagraph (vi) of paragraph (d) of subdivision one of this section.
3. A person against whom a criminal action or proceeding was terminated by such person's conviction of a traffic infraction or violation other than [a violation of loitering as described in paragraph (d) or (e) of subdivision one of section 160.10 of this chapter or] the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, prior to the effective date of this section,
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may upon motion apply to the court in which such termination occurred, upon not less than twenty days notice to the district attorney, for an order granting to such person the relief set forth in subdivision one of this section, and such order shall be granted unless the district attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise.
§ 7. Section 841 of the executive law is amended by adding a new subdivision 7-b to read as follows:
7-b. Take such steps as may be necessary to ensure that all police officers and peace officers certified pursuant to subdivision three of this section receive appropriate instruction regarding the evidentiary prohibition set forth in section 60.47 of the criminal procedure law and section forty-five hundred nineteen-a of the civil practice law and rules relating to the use of condoms and other reproductive or sexual health devices as evidence in certain trials, hearings or proceedings, or as a basis for probable cause for arrest, including that unauthorized seizure or confiscation of condoms and other reproductive or sexual health devices is a breach of public policy.
§ 8. The legislative law is amended by adding a new section 49 to read as follows:
§ 49. Requirement with respect to bills amending certain laws which affect health and human rights. Whenever a committee favorably reports a bill to amend articles two hundred thirty or section 240.37 of the penal law, or, at the discretion of the voting majority of the committee, any bill which, if passed, would increase or decrease the number of arrestees or pretrial or sentenced population of correctional facilities in this state, a majority of the committee members voting may request that a health and human rights impact statement be prepared. The legislature shall by concurrent resolution of the senate and assembly prescribe rules requiring health and human rights impact statements to accompany, on a separate form, bills and amendments to bills after such bills have been reported from committee. Health and human rights impact statements shall be prepared before the bill is considered for final passage. The statement shall indicate whether the bill would have a disparate impact by race, ethnicity, religion, age, gender, gender identity or expression, sexual orientation, immigration status, disability, or housing status composition of the arrestee and correctional facility population and an explanation of that impact. Any impact statement printed with or prepared for a bill is solely for the purpose of information, summarization and explanation for members of the legislature and shall not be construed to represent the intent of the legislature or either chamber thereof for any purpose. Each impact statement shall bear the following disclaimer: "The following health and human rights impact statement is prepared for the benefit of the members of the legislature, solely for purposes of information, summarization and explanation and does not represent the intent of the legislature or either chamber thereof for any purpose."
§ 9. The legislative law is amended by adding a new section 83-n to read as follows:
§ 83-n. Legislative commission on health and human rights. 1. The legislature hereby finds that promoting and protecting health and respecting and fulfilling human rights are necessarily linked, and that coordination between health and law enforcement efforts is central to the effective provision of government services for the benefit of the people of the state.
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2. A legislative commission on health and human rights is hereby established to examine, evaluate and make recommendations concerning rights-based approaches to health and law enforcement interventions. The commission shall act as a mechanism for ongoing and meaningful involvement of those who are or potentially could be affected by this law, including, but not limited to, survivors of trafficking, people who are or are profiled as being involved in the sex trades, communities of color, lesbian, gay, bisexual and transgender people, and people in custodial settings. The commission shall provide monitoring and expert perspective to the legislature, promoting awareness of problems in real time as they emerge, increase cooperation and collaboration between the individuals and communities directly impacted and their legislators, and allow legislators to share responsibility for successes and failures of these initiatives. The commission shall make such recommendations as it may deem necessary as to regulations, policies, programs, and proposed legislation to provide an equitable system of providing for the public safety while also protecting public health, to encourage the most effective use of state and local resources, to preserve the fiscal integrity of both state and local government health systems and otherwise to strengthen the fundamental human right to health.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the civil practice law and rules, the criminal procedure law, the executive law, and the legislative law in relation to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices; and to repeal paragraph (d) of subdivision 1 of section 160.10 of the criminal procedure law relating thereto
Purpose
The purpose of this bill is to codify the commitment to public health enshrined in the New York State Constitution, by prohibiting the use in criminal, civil or administrative proceedings of the fact of possession or presence of condoms and other reproductive and sexual health devices as evidence of prostitution or trafficking-related offenses, and to assess and reduce the disparate impacts of this practice upon members of vulnerable populations, such as survivors of trafficking and people who are or are profiled as engaging in the sex trades.
Existing law
Currently, possession of condoms may be introduced as evidence of pros- titution 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.
Read the full memo (1,357 words)
Summary of provisions
Section 1 states that this act shall be known as the "End Criminaliza- tion 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, permit- ting 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 dwell- ing law (liens on premises used for unlawful purposes), sections 12-a and title 2 of article 23 of the public health law (hearings and equita- ble 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 60.49 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 prosti- tution or trafficking-related activity in any trial, hearing or proceed- ing pursuant to article 230 or section 240.37 of the penal law (prosti- tution 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 avail- able 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 guide- lines 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 statis- tics 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 reproduc- tive and sexual health tools to victims of trafficking, which are essen- tial 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 princi- ple 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 3,580 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 deposi- tions filed in criminal cases as evidence of intent to engage in prosti- tution in the prosecution of the offenses covered by this bill.
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 traffick- ing-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 traffick- er, then you don't have a good case.
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.
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