Got a condom, go to jail?

Fact: Consistent use of condoms protects against the spread of sexually transmitted diseases, including HIV/AIDS — devastating or even deadly illnesses that can remain hidden because of the stigma attached to illicit sexual activity.

So why would police criminally charge sex workers — engaged in risky sexual activity — for possessing condoms, which will discourage condom use?

In 100 arrests of sex workers in Allegheny County during 2017, police leveled extra charges: “possession of instruments of a crime” or PIC. In about 30 of these cases, the instruments were condoms. (For others, the instrument was a cell phone, used to arrange a meeting of sex worker and customer.) The impact: Instead of an arrest for which the workers would receive a summons, the PIC charge would create “leverage” for police, forcing those charged into a full booking and jail custody, which would pressure themto plead guilty.

This offense would stay on record; information, photos and fingerprints would find their way into national law enforcement databases. According to the chief of the Allegheny County Police Department, this helps police catch human traffickers. “Everybody wants us to arrest human traffickers, but you have to start somewhere.”

Let’s start with a basic question: Is this effort legal?

At best, it stands on shaky ground. The PIC law prohibits possession of “Anything specially made or specially adapted for criminal use,” and also prohibits “Anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.”

The first provision doesn’t apply to condoms. As for the second, the courts would not likely uphold applying it to condoms. According to the Pennsylvania Supreme Court, “not manifestly appropriate for lawful uses” means the state must prove beyond a reasonable doubt that the use of the item by the defendant is “manifestly inappropriate to lawful uses it may have.” And other Pennsylvania courts have gone even further, saying that even using an item “to facilitate a crime does not transform the item into an instrument of crime.”

But just for argument’s sake, let’s assume that the PIC charges for possessing condoms would result in a conviction that stood up on appeal.

This is a good place to remember an old piece of wisdom: just because you can do something, doesn’t mean you should do it. Even if using the PIC charge against a person who participates in high-risk sexual activities for possession of condoms indeed might increase law enforcement leverage, it will also decrease condom use. Once the word gets out that carrying extra condoms results in a jail stay, fewer people will carry, and use, condoms. That’s just human nature. And that’s not possible to view as anything but bad news.

According to the National Institutes of Health, use of condoms lowers the risk of the spread of sexually transmitted diseases, HIV/ AIDS and the risk of unwanted pregnancy. The Centers for Disease Control and Prevention says the same thing: Consistent, correct use of condoms “can reduce (though not eliminate) the risk of sexually transmitted diseases (STDs), including human immunodeficiency virus (HIV) and viral hepatitis.” These diseases damage people, including children, when they spread. They also can kill. And they cost the health care system — that means all of us — a lot of money, which we desperately need for other efforts to improve public health.

None of this comes as new information, and local agencies across the country have created condom distribution efforts to assure that everyone, even those without resources or regular access to health care, has the condoms they need.

In Allegheny County, which includes Pittsburgh and more than a hundred other small municipalities, the Health Department has its own Condom Distribution Program. The goal, says our Health Department, “is to make condoms readily available to the general population to prevent HIV and STDs.” The program increases condom use among “diverse populations, including those who engage in high-risk sexual activities.”

Bottom line: It’s not clear whether hitting sex workers and others with more serious charges for possession of condoms is good law or effective policing. But it’s very clear that it harms public health.

We often face policy choices of one kind or another. Sometimes, we can pursue different goals compatibly. In other situations, we have to make a choice of one policy goal over another.

The Allegheny County Health Department, the NIH and the CDC all have things right on condoms. Let’s not make a wrong choice in law enforcement that could set off a cascade of unwanted cases of STDs andHIV.