Scranton, Pa

Criminalizing the Use of Condoms – Allegheny County Uses Condoms as Evidence for “Possessing an Instrument of Crime”

Posted: June 15, 2018

Is it a crime to have a condom in your pocket or purse?  If so, how many condoms constitute a crime?  Allegheny County thinks it should be, especially if you are charged with prostitution.

Condoms, when used correctly and consistently, can effectively reduce the risk of sexually transmitted diseases.  The risk of HIV and other sexually transmitted diseases is high among those involved in commercial sex, according to the Center for Disease Control.  Those involved in commercial sex have a high transmission rate of HIV compared to similar gender/age populations.  This high-risk population uses condoms to protect themselves from contracting various sexually transmitted diseases.

According to TRIB LIVE, an analysis done by the Tribune-Reviewrevealed that in 2017, there were 100 cases in Allegheny County in which an individual was charged with both prostitution and possession of an “instrument of crime.” Of these cases, fifteen individuals were charged with possession of an instrument of crime, specifically because they were in possession of condoms, and in fourteen cases it was noted that condoms were seized as evidence but were not noted in the charge. Furthermore, in nearly all of the remaining cases, individuals were charged with possession of an instrument of crime for allegedly using a cellphone to meet with a sex buyer.

A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.  Pennsylvania’s statute defines “instrument of crime” as “anything specifically made or specially adapted for criminal use” or “anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.”

Pennsylvania’s prostitution statute is graded such that a first or second offense is a misdemeanor of the third degree (no more than one year imprisonmentand/or a fine not exceeding $2,500), a third offense is a misdemeanor of the second degree (no more than two years imprisonment and/or a fine not exceeding $5,000), and a fourth or subsequent offense is a misdemeanor of the first degree (no more than five years imprisonment and/or a fine not exceeding $10,000). Whereas an instrument of crime charge is always graded as a misdemeanor of the first degree (no more than five years imprisonment and/or a fine not exceeding $10,000).

Pennsylvania’s statute clearly states that a first prostitution offense should be treated as the Commonwealth’s lowest level misdemeanor with no possibility of state prison.  However, Allegheny County threaten those charged with prostitution with harsher punishment simply because they are in possession of an “instrument of crime” – condoms and cellphones – that are life saving necessities.

Casey White, a defense attorney and former prosecutor for the Allegheny County District Attorney’s Office, stated that an instrument of a crime charge is “a very broad crime and is often loosely interpreted by the police when they are charging individuals.”

When a suspect is charged with an “instrument of crime” offense, the suspect is then immediately processed, meaning their fingerprints and photos are taken and stored in a law-enforcement database.  According to TRIB LIVE, authorities use condoms as evidence of the underlying prostitution offenses, and file the additional “instrument of crime” offenses to gain leverage against vulnerable defendants. In sum, the police find people who are in such desperate circumstances that they are willing to perform sex acts for small amounts of money and rather than offering assistance to them, they add additional criminal charges against them in order to coerce a guilty plea to the underlying prostitution charges.

Charging potentially prostituted persons with an offense with a higher grading – solely to use that offense to leverage a higher conviction rate – is an abuse of law-enforcement and prosecutorial discretion.  Additionally, this practice, which attempts to track those involved in the commercial sex industry, furthers the inequality of men and women, avoids holding sex buyers accountable for their actions, and overlooks the vulnerability of those involved in prostitution.

The CSE Institute recommends a far better approach to policing prostitution which is the Nordic Model, a gender equality-based approach to the commercial sex industry.  The Nordic Model holds sex buyers and traffickers accountable and connects potential prostituted persons with support and resources to exit “the life.”

The approach adopted in Allegheny County is unjust for two key reasons. First, it continues to target prostituted-persons – the most vulnerable people in the commercial sex industry – rather than focusing law enforcement efforts on sex buyers, who create the market demand for prostitution, and the pimps and traffickers who profit from the exploitation of prostituted-persons. Second, by charging prostituted-persons with additional and more serious offenses, simply for possessing condoms, the police discourage those engaged in commercial sex from using condoms, thus risking their lives.

Health officials have long criticized seizing condoms from prostituted-people, since doing so deepens their exploitation and exposes them to life-threatening diseases.  We agree, and thus encourage police and prosecutors to stop charging condom-related offenses and using condom possession as evidence in prostitution cases. Policing condom-possession in this way targets vulnerable people and overwhelms them with the threat of state prison time, in hopes of securing easy guilty pleas to prostitution charges.  We can, we must, do better.  Ideally, we should adopt the Nordic Model, as described above.  At very least, however, we must respect the efforts of prostituted-people to preserve and protect their own lives.

Other cities and states have clearly recognized that filing condom-related charges or using condoms as evidence against prostituted persons is an unacceptable abuse of discretion. In 2013, Brooklyn District Attorney’s Office declared that it would not use possession of condoms as evidence of prostitution or loitering for the purpose of prostitution.  While whole categories of evidence are rarely excluded by formal policy, prosecutors in New York have collectively agreed to not introduce condoms as evidence in individual prostitution cases.

The CSE Institute condemns the Allegheny County Police Department’s policy of seizing condoms found on those suspected of engaging in commercial sex for the purpose of using them to leverage guilty pleas.  Criminalizing condom possession does not promote public health and safety.  It does nothing to curb the demand for commercial sex.  This policy only further endangers prostituted persons and is a step backwards in the fight to end commercial sexual exploitation in the Commonwealth.


All views expressed herein are personal to the author and do not necessarily reflect the views of the Villanova University Charles Widger School of Law or of Villanova University. 

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