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Condoms as Instruments of Crime

July 12, 2018

By van der Veen, Hartshorn, Levin & Lindheim

Under the touted banner of fighting human trafficking, Pennsylvania law enforcement is cracking down on sex workers, and in an unusual way. Pittsburgh police are making arrests for sex workers who carry condoms on their person or in their vehicles, citing these condoms as “instruments of crime.” This not only jeopardizes the safety and health of sex workers and their clientele, but most likely does not serve the intended purpose: to reduce human trafficking.

Does Making Commercial Sex Worker Arrests Really Reduce Human Trafficking?

Arresting consenting sex workers carrying condoms to protect against HIV and other diseases has no effect on reducing human trafficking. Many people in poverty and homeless youth turn to sex work because they have no other option to get by. Transgender women and women of color are more likely to engage in commercial sex work because of the economic barriers set against them at birth. Transgender people of color face unemployment rates four times greater than the U.S. average. Moreover, 42 percent of black transgender women had, at some point in their lives, engaged in commercial sex work, and 20 percent of black transgender women of color have HIV. The need to protect against sexually transmitted infections (STIs) is obvious, and so too is the need to protect defendants who have been charged with these types of erroneous misdemeanors.

What is an Instrument of Crime?

Possessing an instrument of crime with the intent to use it criminally is a first degree misdemeanor in Pennsylvania, carrying a punishment of up to five years in prison and a fine of $10,000, as per Pennsylvania Criminal Code § 907. The definition of an instrument of crime is purposefully vague, and includes:

  • Anything made or adapted specifically for criminal use; and
  • Anything used for criminal purposes and possessed by the defendant during a situation where it does not appear to be used in a lawful manner.

An instrument of crime could be a computer, phone, locking picking tools, drug paraphernalia, and now, apparently a condom.

In addition, this statue also imposes a first degree misdemeanor on those who possess a concealed firearm or other weapon with intent to use it criminally. Using body armor during the commission of a felony is a third degree felony, punishable by up to seven years in prison and a fine of $15,000. As an for example sex workers carrying a condom it is equivalent of carrying a handgun with the intent to use it illegally, and nearly on the level of wearing body armor with the intent to commit a bank robbery.

Reach Our Philadelphia Law Offices Today

A first degree misdemeanor for possessing a condom, on top of other potential charges of prostitution, which is charged as a third degree misdemeanor, can financially ruin an individual who is already struggling. This debt, coupled with a potentially lengthy stay in jail or prison, is an injustice that needs to be fought with an experienced criminal defense attorney. Call the Philadelphia law offices of van der Veen, Hartshorn, Levin & Lindheim today at (215) 486-0123 for assistance.



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