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SFPD Condom Practices Questioned

by Seth Hemmelgarn (contribution by Matthew S. Bajko)
Friday Jun 22, 2012

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.

Coming report

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.


Asked if confiscating condoms as evidence used to be policy, Flaherty said, "I think it was the philosophy maybe like 20 years ago, but that philosophy has changed, and how we look at prostitution has changed dramatically."

Flaherty said prostitution is "very victim-centered," since "a lot of times these women are victims of prostitution they're involved in." She said they'd like to help them and get them services.

Flaherty said that after Stellini is addressed, there'd be outreach to others in the department. She said bulletins and general orders are "frequently" used "to bring officers up to speed." She didn't know when that would be done.

The issue "was brought to my attention 20 minutes before I spoke to you," Flaherty said.

Stellini said he's overseen his unit for "roughly three months." He said there hadn't been any policy changes from before he started of which he knew.

He was unaware of the 1994 resolution.

Asked if he understood people's concerns about public health, Stellini said, "Are you referring to like if we make a case, and we take condoms and book them as evidence that prostitutes would no longer use condoms because they wouldn't want them to be used as evidence?"

Told that was essentially the idea, Stellini said, "Wow ... I'm surprised I hit that one on the head."

He said it's not a matter of whether he buys into that concern, and he said, "We will use the presence of condoms at the scene of criminal activity for evidence to present to the district attorney's office," whether it involves physically confiscating or taking photos of condoms, or both.

Stellini said a photograph could help show the court where police found the condoms. He compared it with a homicide scene, where police take a photo of the gun and take the gun.

There isn't a specific number of condoms that police look for to indicate prostitution, whether it's one condom or 100, Stellini said.

"Every case has to be looked at and stand on its own merits," he said. "I would hate to limit myself and say to you if there's one condom in the room and there's a lady and a man in there, and there's reason to believe prostitution is going on, that we wouldn't arrest or would arrest just based on one condom. More goes into it." Another example of evidence would be tracking "some of our suspects on websites where women advertise services," he said.

Condoms are used as evidence both in cases of street prostitution and massage parlors, Stellini said.

After her initial interview with the B.A.R. , Flaherty reviewed the 1994 resolution, and said, "At this point nothing is written in policy. It is a practice at this point," meaning it's SFPD's practice not to use condoms as evidence of prostitution.

However, she said in a follow-up email, "in cases of loitering for purposes of prostitution, the officers have, at times, photographed the condoms as indicia but we do not seize the condoms as evidence."


Flaherty's last statement appears to be contradicted by one woman's experience.

Finding people who've been stopped by San Francisco police and had condoms confiscated and are willing to share details of the incidents has been difficult. However, Anna Rivera, the office manager at the Mission district-based El/La Para TransLatinas, described an encounter she had earlier this year. It began when she was walking near Diva's, a Post Street bar that's popular with transgender women.

The neighborhood is known for prostitution, but it was 4 p.m., and Rivera said she was wearing a sweatshirt and sweatpants, hardly clothes that are typically associated with prostitutes.

A patrol car pulled over and officers asked her several questions.

She said the reason they gave was "I looked like I was prostituting. ... They were very vague."

Rivera said she tried to convince them that she's not a sex worker, but they searched her bag, found five condoms, and took them.

"I felt that I was being hounded down because I was transgender," she said. Rivera, who said she wasn't cited in the incident, said she's been stopped "many other times," as well. She said that she didn't report the incident with the Office of Citizens Complaints because she was "too scared."

Asked about Rivera's situation, Stellini said, "I can't comment on that, there's so much there I don't know." However, he added, "It upsets me to hear that somebody got stopped by the police and feels wrongfully detained."

Several city officials expressed concern about condoms being used as evidence of prostitution.

Mayor Ed Lee told the B.A.R. this week he was unaware of the concerns surrounding police using condoms as evidence against transgender women. He said it would be "very appropriate" for people to ask the city's Police Commission to look into the matter.

"We need to be sensitized about what is going on in our community so that the police's work is done with the upmost sensitivity," said Lee, adding that he would speak with Police Chief Greg Suhr about the issue.

Messages to the Police Commission office weren't returned.

Theresa Sparks, the former president of the San Francisco Police Commission and current executive director of the city's Human Rights Commission, said her current panel would "probably" hold a meeting on the condoms issue "in the near future." She said the meeting would need to be coordinated with the Health Commission.

Sparks, who's transgender, noted the city funding goes to buy condoms for people in the community and said using them as evidence of prostitution or solicitation "makes little sense whatsoever."

There are "really no negatives to people carrying condoms in almost any context," she said.

She said she hasn't spoken with District Attorney George Gascón or Suhr about the issue, but she said they would be among those invited to the meeting.

In an emailed response to questions, out gay Supervisor Scott Wiener said, "It's problematic to use condoms as criminal evidence against sex workers. It sends the wrong message by dissuading sex workers from carrying condoms and using them. We should be encouraging safe sex by sex workers, not discouraging it."

He continued, "I had understood that San Francisco was moving away from this police practice, unlike New York, but I've heard that it may still be occurring. I've been in communication with the Human Rights Commission and have offered to partner with the agency to try to resolve this issue. I'm also speaking with SFPD to try to better understand the department's position on this."

Asked about condoms being used as evidence of prostitution, Tracey Packer, the city's acting director of HIV prevention, said, "We're not really aware of that. I know there have been some national task forces looking at that issue, but I don't know what the situation is in San Francisco."

However, she said, "We know that condoms are an important HIV prevention method. ... We want to ensure that people have access to condoms without fear of arrest."

The health department distributes approximately 1 million free condoms a year, she said, which costs the agency about $200,000.

In response to emailed questions, Eileen Shields, a health department spokeswoman, said, "You should know that DPH doesn't enforce any provisions on prostitution. That's up to the police."

Shields said the department does conduct periodic unannounced Massage Parlor Task Force inspections with the SFPD, the Department of Building Inspection, and other city agencies.

"When we go, each department cites violations of their codes," she said. "DPH cites violations of the Health Code including violations of permitting of establishments and practitioners, dress code, and general sanitation."

Stellini said police and health department staff do make unannounced visits to massage parlors. Flaherty said when they visit massage parlors a lot of their interest is in trafficking.

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