THE BLOG
05/09/2013 11:00 am ET | Updated Feb 02, 2016

What Happens When Condoms Are Criminal?

What comes into your mind when you think about condoms? Protection and safety? Sex and latex? Unwanted pregnancies and sexually transmitted infections? Boredom? Something that most likely will not come into your mind is criminal intent. Nevertheless, in some contexts, condoms can be considered vehicles of illegal activities. They can be confiscated and prohibited.

Sex in correctional facilities is illegal, so condoms are labeled as contraband in most prisons and jails. Administrators fear negative consequences, including increases in sex encounters, drug trafficking and rape. These concerns are not supported by existing literature. What we know for a fact is that sexual assaults are largely prevalent in prisons. The Bureau of Justice reports that nearly one in 10 prisoners is raped while incarcerated, either by other inmates or by staff members. Sex slavery and consensual encounters are known realities. A powerful and disturbing account of these dynamics is narrated by T.J. Parsell in Fish: A Memoir of a Boy in a Man's Prison. The Center of Disease Control reports that more than 2 million people are incarcerated in U.S. jails, and that according to the most recent data, 20,449 state prisoners and 1,538 federal prisoners are living with HIV or AIDS. One in seven persons living with HIV passes through a correctional facility. The prevalence of HIV, other sexually transmitted infections, tuberculosis and viral hepatitis, in conjunction with the ban on condoms, sets the stage for a public health disaster. Meanwhile, findings from jail systems that experimented with condom distribution programs suggest that prevention initiatives do not increase sex and do not affect custody operations, and that they enhance prisoners' awareness about safer sex. So why are condoms still illegal?

Outside prisons, on our streets, there are other laws that interfere with condom use. Police can seize condoms as evidence of prostitution and to support arrest. Sex workers in New York, D.C., Los Angeles and San Francisco, primarily transgender sex workers, are sadly very familiar with this issue. Many women are afraid to carry condoms, others create secret compartments in their purses, and some decide to work without them. Says D., a transgender woman collaborating with prevention programs in New York City:

Cops harass me often because they perceive me as being transgender. One night I was on Jackson Avenue in Queens volunteering for a LGBT organization. A cop wanted to arrest me because I was carrying safer sex packages. I explained him that I was doing street outreach. He wouldn't believe me. Thankfully my colleagues were not too far. It just doesn't make any sense: the Department of Health spends money and energy to distribute condoms and the police confiscate them.

Part of the issue is that many people could not care less about the health and safety of prisoners and prostitutes. They see incarcerated persons as a threat to society. They think that women and men who are on the streets selling their bodies should simply deal with the risks associated with their profession.

This line of thinking is not only cruel but intellectually faulty. Some 95 percent of prisoners will eventually be released, go back to their communities and date your sisters, colleagues and best friends. And sex workers are not having sex by themselves; they get paid by your sons and husbands and your kids' teachers.

If human rights are not your concern, the well-being of the community should be. Initiatives that effectively address prevention of HIV and other infections in populations at high risk for HIV or in contexts of high HIV prevalence contribute to the nationwide response to the epidemic.

For this reason it is essential to raise awareness of ongoing issues relating to access to prevention tools. After all, cops, laws and condoms share, or should share, one important goal: our protection.