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California Just Passed a Landmark Law Protecting Sex Workers’ Rights

In most states, carrying condoms is used as evidence of intent to do sex work — but a new bill has just changed that

Condom Sex Workers

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When Kristen DiAngelo was younger and doing sex work, police officers would routinely do big sweeps of areas known to be frequented by sex workers. “Cops would roll up. They’d grab your purse and dump it out. They’d look at your arms for track marks. They’d look through your pockets,” DiAngelo, now executive director of SWOP (Sex Workers Outreach Project) Sacramento, tells Rolling Stone. “They’d just do it. They didn’t ask.” Sometimes, they’d find condoms during these searches — and under California law, that would be evidence enough to arrest someone and charge them with loitering with the intent to commit to prostitution.

When she was on the streets, this happened all the time. DiAngelo says the end result was that many of her peers stopped carrying condoms altogether, thus putting them at increased risk of contracting STIs. When she started working for SWOP, a sex worker outreach organization, she and other members would pass out cards telling sex workers to know their rights, informing them that searches yielding condoms as evidence were illegal and they did not have to consent to them. “They’d look at me with wide eyes and say, ‘That’s easy for you to say. I do what [the cops] want me to do. They’re God,'” says DiAngelo.

Thanks to a landmark bill in California, however, that is set to change. On Tuesday, Gov. Gavin Newsom signed SB233, a Senate bill sponsored by state senator Scott Wiener and pushed forward in large part by SWOP and other sex-worker rights organizations. The bill is significant for including two key components: it contains a provision providing immunity for sex workers who report being the victims of abuse or domestic violence to the police, and it also renders condoms inadmissible as evidence of the intent to do sex work.

The bill is not the first of its kind: In 2014, for instance, the New York Police Department announced it would no longer consider condoms as evidence of intent of prostitution, two years after San Francisco adopted a similar policy. But the speed at which the California bill was passed after nearly five years in development — not to mention the fact that it drew the support of establishment politicians like Wiener — portends a sea change in the fight for sex workers’ rights, says DiAngelo. She predicts that other states will soon follow suit, citing discussions she’s had with other activists in New York and Washington as examples. And in the context of the 2020 presidential election, in which a surprising number of Democratic candidates have flirted with or actively advocated for sex work decriminalization, the legislation in California is one step closer to making that a reality, she believes. “This is gonna be a talking point. Presidential candidates will have to take a stance, and we’ll see if they’re on the right side of history,” she says.

To many outside the world of sex-work activism, the fact that law enforcement authorities would consider someone carrying condoms as evidence of anything other than an interest in safe sex practices seems patently outrageous; the fact that there would not be a provision for ensuring that sex workers who are victims of violent crime would not be prosecuted arguably even more so. But such laws have been used for decades to silence and target street-based sex workers in major US cities, according to one 2012 report by Human Rights Watch. The end result of such laws is that sex workers who are most at risk of contracting HIV and other STIs are less likely to take the steps necessary to protect themselves, according to the report, which found that nearly a quarter of sex workers in New Orleans said they had unprotected sex with clients due to the fear of being hassled by cops for carrying condoms.

Historically, such laws have had a disproportionate effect on the most marginalized members of sex worker populations — specifically, queer or transgender sex workers or sex workers of color, says Heather Berg, assistant professor of women, gender, and sexuality studies at Washington University at St. Louis, whose work focuses on sex worker rights. Sex trafficking victims have also traditionally been put at increased risk by such laws, because “a trafficker won’t let you carry condoms if it means police will throw your ass in jail,” DiAngelo says.

In addition to condoms-as-evidence laws putting sex workers at increased risk, it is not unheard of for such laws to have an effect on non-sex workers as well. DiAngelo says she has heard of people in the Sacramento area being stopped and charged with loitering with intent to commit prostitution while they were carrying groceries home, simply because they were carrying condoms at the time. In some ways, such stories are similar to reports of Upper East Side restaurants like Nello banning single female patrons for potentially being sex workers, or hotel chains like Marriott warning employees to keep a close eye on single female guests on the grounds that may be victims of sex trafficking: in the eyes of policy-makers, the mere existence of single female bodies in public spaces is enough to warrant suspicion that these bodies are being used for sexual purposes.

But while Berg says it’s “not an overreach” to conclude that laws intended to curb the freedom of sex workers will also inevitably curb the freedom of women and LGBTQ people in general, she says it’s important to note that the implications of condoms as evidence laws go far beyond that. While the average white cisgender woman sitting alone at a bar may be viewed with suspicion, they likely won’t be subject to illegal search and seizure, as LGBTQ people and/or people of color suspected of doing sex work are, says Berg. “There are so many ways anti-sex work laws have been used to further surveil people who are publicly visible as outsiders,” she says, drawing parallels between laws that allow condoms to be introduced as evidence of prostitution and public loitering or vagrancy laws, which also disproportionately affect people of color and transgender and gender non-conforming people. “Condoms as evidence are another way that folks can be tarred with sex worker status, regardless of the kind of work they are or are not doing.”

Although the California bill had been in the works for at least five years, DiAngelo says, two things happened over the past few years that allowed for it to reach the governor’s desk. One was the passage of SESTA/FOSTA, a 2017 bill intended to curb online sex trafficking that has been excoriated by many sex workers’ rights advocates, who claim that it puts their lives in imminent danger. The shuttering of websites like Backpage, for instance (which was, in part, orchestrated by Sen. and Democratic presidential candidate Kamala Harris), reduced sex workers’ ability to PRE-vet their clients, forcing them to turn to the streets to make the living. This has resulted in a flood of street-based sex workers, with DiAngelo estimating that San Francisco has seen a nearly 200% uptick in street-based sex work post-SESTA/FOSTA. Anecdotally, SWOP has also seen an uptick in reports of violence, she says: “once you get on the streets the reality is that violence will occur. It’s only a matter of time,” she says.

The passage of SESTA/FOSTA “really galvanized” sex workers and sex workers’ rights activists, says Berg, prompting them to increase their efforts to connect with lawmakers like Wiener. The fact that the legislation has had a deleterious effect on many major tech companies probably helped bolster mainstream opposition to the bill and its effects. “It gave us a voice overnight, to be honest,” says DiAngelo. “It completely changed the playing field.”

The pro-decriminalization movement has also become a talking point, if not a predominant one, in the 2020 election, with candidates ranging from Bernie Sanders to Tulsi Gabbard to even Harris, one of the primary architects of the Backpage shutdown, indicating that they are open to decriminalization in some form. The increasing visibility of the fight for sex workers’s rights, combined with the growing strength of the movement, created the ideal conditions for the passage of the California bill — and DiAngelo is hopeful it will pave the way for sex work to be accepted in the mainstream as a form of labor like any other.

The fight for sex workers’ rights “really plays out on a much broader scale than people think, because we are part of [your] communities. We are the same as doctors and nurses, and we deserve the same rights,” she says.

“[If] we are not safe, then nobody in the community is.”

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